The Protectors - Kituo Cha Katiba | Eastern Africa Centre for … · 2/1990. Civil Liberties Organization (in respect of the Nigerian Bar Association) v. Nigeria, ACHPR/AHG/201 (XXXI)

The ProtectorsHuman Rights Commissions and

Accountability in East Africa

Editor

Chris Maina Peter

KITUO CHA KATIBAKampala

FOUNTAIN PUBLISHERSKampala

Fountain PublishersP.O. Box 488KampalaE-mail: [email protected] [email protected]:www.fountainpublishers.co.ug

© Kituo cha Katiba 2008 First published 2008

All rights reserved. No part of this publication may be reprinted or reproduced or utilised in any form or by any means, electronic, mechanical or other means now known or hereafter invented, including copying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

ISBN 978-9970-02-794-8

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CONTENTS

Notes on Contributors ...................................................................... viAcronyms .........................................................................................viiiTable of Cases ......................................................................................xTable of Statutes ................................................................................ xiiGlossary .............................................................................................xvAcknowledgements .......................................................................... xviForeword ........................................................................................ xviiiIntroduction .....................................................................................xxi

PART ONE

1 Experience of Human Rights in Africa: Challenges of Implementing Economic, Social and Cultural RightsPierre de Vos ............................................................................1

2 Infusing Human Rights in Policy and Legislation: Experiences from Kenya National Commission on Human RightsLawrence Murugu Mute ....................................................... 29

3 Rwanda: Realising Economic, Social and Cultural RightsEmmanuel Murangwa ......................................................... 37

4 Empowering People on their Rights in TanzaniaMohamed Ramia Abdiwawa ............................................... 44

5 Value of Human Rights Institutions: Human Rights Commission ProcessesMargret Sekaggya ................................................................. 72

6 Economic and Social Rights: Drawing the Threads TogetherMaria Nassali ............................................................... 89

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PART TWO

7 Comparing the scope of Rights and Freedoms of the Draft Bill of Rights and Kenya’s Bill of RightsEzra Chiloba ...................................................................121

8 Achievements of the National Commission for Human Rights of Rwanda, the Rwandan Bill of Rights and Prospects vis-à-vis the East African CommunityJean Marie Vianney Gashirabake .....................................152

9 Reviewing the Draft East African Bill of Rights in the Context of the Tanzanian Bill of Rights: Practical ChallengesMary Massay ....................................................................164

10 The Draft Bill of Rights of the East African Community and the 1995 Constitution of Uganda: Embracing Topical IssuesMargaret Sekaggya ...........................................................178

11 The Draft East African Bill of Rights and the 1984 Constitution of Zanzibar: The Need to Establish a Human Rights Commission for ZanzibarRaya Issa Msellem ............................................................193

12 Human Rights in the Region:The Community and the MembersEdith Kibalama ...............................................................208

PART THREE

13 A Critique of the East African Court of Justice as a Human Rights CourtSolomy Balungi Bbosa ......................................................284

14 The draft Protocol to Operationalise the Extended Jurisdiction of the East African Court of Justice: Progress, Challenges and ProspectsJohn Eudes Ruhangisa ................................................. 300

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15 The Way Forward for the East African Human Rights InstitutionsChris Maina Peter ....................................................... 318

PART FOUR

Annextures ................................................................... 332

I The Paris Principles ....................................................332

II The Draft East African Bill of Rights .........................336

III Bills of Rights of Each of the East African Countries .......................................................................366

• The Constitution of Kenya – 1963 ...........................372

• The Constitution of the Republic of Rwanda – 2003 ...........................................................392

• The Constitution of the United Republic of Tanzania – 1977 .........................................................399

• The Constitution of the Republic of Uganda – 1995 ...........................................................409

• The Constitution of Zanzibar – 1984 ......................424

IV Key Contact Information on East African Human Rights Institutions .........................................430

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Notes on Contributors

ABDIWAWA, Mohamed Ramia, Vice Chairman, Commission for Human Rights and Good Governance of the United Republic of Tanzania, Dar es Salaam, Tanzania.

BOSSA, SolomyBalungi, Judge, International Criminal Tribunal for Rwanda, Arusha, Tanzania.

CHILOBA, Ezra, Programme Offi cer, Kenya National Commission for Human Rights, Nairobi, Kenya.

DE VOS, Pierre, Professor of Constitutional Law and Human Rights, University of Western Cape, Cape Town, South Africa.

GASHIRABAKE, Jean Marie Vianney, Human Rights Protection and Supervision Offi cer, National HRC of Rwanda.

KIBALAMA, Edith, The Executive Director, Kituo Cha Katiba, Kampala, Uganda.

MASSAY, Mary, Director of Legal Services, Commission for Human Rights and Good Governance of the United Republic of Tanzania, Dar es Salaam, Tanzania.

MSELLEM, Raya Issa, State Attorney, Offi ce of Director of Public Prosecutions, Zanzibar.

MURANGWA, Emmanuel, Commissioner, Rwanda HRC, Kigali, Rwanda.

MUTE, Lawrence Murugu, Commissioner, Kenya National Commission for Human Rights, Nairobi, Kenya; and Board Member, Kituo Cha Katiba, Kampala, Uganda.

NASSALI, Maria, Ph.D. Candidate, Centre for Human Rights of the University of Pretoria, Republic of South Africa; and former Executive Director, Kituo Cha Katiba, Kampala, Uganda.

PETER, Chris Maina, Professor of Law, Faculty of Law, University of Dar es Salaam, Tanzania; and Board Member, Kituo Cha Katiba, Kampala, Uganda.

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RUHANGISA, John Eudes, Registrar, East African Court of Justice, Arusha, Tanzania.

SEKAGGYA, Margret, Chairperson, Uganda HRC, Kampala, Uganda.

TOUFIQ, Salum, Chairperson, Kituo Cha Katiba, Kampala, Uganda; and President, Zanzibar Law Society, Zanzibar, Tanzania.

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Acronyms

AIDS Acquired Immune Defi ciency Syndrome

ARVs Anti-Retroviral Drugs

CC Constitutional Court (South Africa)

CEO Chief Executive Offi cer

CHRAGG Commission for Human Rights and Good Governance (Tanzania)

D Derogable

EAC East African Community

EACJ East African Court of Justice

GDP Gross Domestic Product

HIV Human Immunodefi ciency Virus

ICESCR International Covenant on Economic, Social and Cultural Rights

ICTR International Criminal Tribunal for Rwanda

IDPs Internally Displaced Persons

KCK Kituo Cha Katiba (Eastern Africa Centre for Constitutional Development)

KMPDA Kenya Medical Practitioners and Doctors Association

KNCHR Kenya National Commission for Human Rights

KUTW Kenya Union of Timber Workers

LC Law of the Commonwealth

NARC National Rainbow Coalition (Kenya)

ND Non-Derogable

NGOs Non-Governmental Organisations

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NHRCs National Human Rights Commissions

NHRIs National Human Rights institutions

NSGRP National Strategy for Growth and Reduction of Poverty

PCE Permanent Commission of Enquiry (Tanzania)

PRA Participatory Rural Appraisal

PRSP Poverty Reduction Strategy Paper

RHRC Rwanda Human Rights Commission

RRA Rapid Rural Appraisal

UASU Universities Academic Staff Union (Kenya)

Ug. Shs. Ugandan Shillings

UHRC Uganda Human Rights Commission

UN United Nations

URT United Republic of Tanzania

ZLSC Zanzibar Legal Service Centre

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Table of Cases

Angaha v. Registrar of Trade Unions [1973] E.A. 297.

B.P. Bhatt v. Habib Vershi Rajani [1958] A.A. 536.

Charles Onyango Obbo v. Attorney General, Constitutional Petition No. 2 of 2000.

Cheserem v. Immediate Media Services, High Court Civil Case, (2000) East Africa Law Reports, Vol. 2 at 371.

Christopher Mtikila v. Attorney General, High Court of Tanzania at Dar es Salaam, Miscellaneous Civil Cause No. 10 of 2005.

Chumchuua s/o Marwa v. Offi cer i/c of Musoma Prison and Another, High Court of Tanzania, Miscellaneous Criminal Cause No. 2/1990.

Civil Liberties Organization (in respect of the Nigerian Bar Association) v. Nigeria, ACHPR/AHG/201 (XXXI) 22 (1995) Communication 101/93.

Daudi Pete v. The United Republic, High Court of Tanzania at Mwanza, Miscellaneous Criminal Cause No. 80 of 1989.

Ex parte Chairperson of the Constitutional Assembly: In Re Certifi cation of the Constitution of the Republic of South Africa, 1996 (10) BCLR 1253 (CC).

Felix Marete v. Republic, High Court Civil Case No. 668 of 1986, reported (1987) Nairobi Law Monthly, III.

Government of the Republic of South Africa v. Grootboom, 2000 (11) BCLR 1169.

Green Watch (U) Ltd. v. Attorney General, HCCS 139 of 2001.

Haridass Chhaganlal v. Kericho Urban District Council [1965] E.A. 370.

Khosa v. Minister of Social Development and Another, 2004 (6) BCLR 569 (CC).

Laurent s/o Joseph and Another v. Republic [1981] TLR, 351.

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Media Rights Agenda & Constitutional Rights Project v. Nigeria, in its Twelfth Activity Report Id. par 63, Communications 105/93.

Minerva Mills v. Union of India, 1980 S.C. 1789.

Minister of Health and Others v. Treatment Action Campaign and Others 2002 (9) BCLR 1033 (CC).

Minister of Health v. Treatment Action Campaign, 2002 (9) BCLR 1033 (CC).

Njeru Gatabaki v. Republic, High Court at Nairobi Civil Application No. 43 of 1993.

R. v. Kadhi of Kisumu exparte Nasreen [1973] E.A. 153.

Republic v. Kigadye, High Court of Tanzania at Shinyanga (Mwanza Registry), Criminal Sessions Case No. 85 of 1980.

Rev. Christopher Mtikila v. Attorney General, High Court of Tanzania at Dodoma, Civil Case No. 5 of 1993.

Sangaru Lugaira Mathias v. SMZ, Court of Appeal of Tanzania, Criminal Appeal No. 183/2005 (unreported).

Shah Devshi v. Transport Licensing Board (1970) E.A. 631.

Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria Communication, 155/96 ACHPR/COMM/A044/1, 27 May 2002, par. 44.

Soobramoney v. Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696 (CC).

Suzan Kigula & 416 Others v. Attorney General, Constitutional Petition No. 3 of 2003.

Union des Jeunes Avocats v. Chad, Communication 74/92.

Velasquez Rodriguez v. Honduras, Judgment of 19 July, 1988, Series C No 4.

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Table of Statutes

National Statutes

Access to Information Act, 2005 (Uganda).

Appellate Jurisdiction Act, Chapter 141 of the Revised Laws of Tanzania.

Basic Rights and Duties Enforcement Act, Chapter 3 of the Revised Laws of Tanzania.

Children and Young Persons Decree (Chapter 58, Volume 11, Laws of Zanzibar).

Commission for Human Rights and Good Governance, 2001 (Act No. 7 of 2001).

Constitution of the United Republic of Tanzania, 1977.

Constitution of Zanzibar, 1984.

Constitutional Decree, 1964 (Decree No. 5 of 1964) (Zanzibar).

Criminal Procedure Act, Chapter 20 of the Revised Laws of Tanzania.

Deportation Ordinance, 1921.

Education Act, 1982 (Act No. 6 of 1982).

Environmental Management for Sustainable Development Act, 1996 (Act No 2 of 1996).

Gacaca Courts (Organization, Competence and Functioning), Organic Law No. 16/2004 of 2004.

Independence Constitution, 1963 (Zanzibar).

Kenyan Constitution, 1963.

Kenya National Commission of Human Rights Act 2003.

Mufti Act, 2001 (Act No. 9 of 2001) (Zanzibar).

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National Commission for Human Rights, Law No. 04/99 of 1999 (Rwanda).

Police Force and Auxiliary Services Act, Chapter 322 of the Revised Laws of Tanzania.

Political Parties Act, Chapter 258 of the Revised Laws of Tanzania.

Presidential Decree No. 6 of 1964 (Zanzibar).

Rwanda National Constitution, 2003.

Social Security Fund Act, 1998 (Act No. 2 of 1998) (Zanzibar).

South African Constitution Act 108 of 1996.

Trade Unions Act, Cap 233.

Ugandan Constitution, 1995.

Ugandan Penal Code Act.

United States of America Constitution, 1787.

International Statutes

African Charter on Human and Peoples’ Rights, 1981

American Convention on Human Rights, 1969

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984

Convention on the Reduction of Statelessness, 1961

Convention on the Rights of the Child, 1989

Convention relating to the Status of Stateless Persons, 1954

Employment Policy Convention, 1964 (No. 122)

European Convention on Human Rights, 1950

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990

International Covenant on Civil and Political Rights, 1966

xiv

Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, of 8 January, 1987

Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,

Maastricht, 22 –26 January, 1997

Optional Protocol to the Convention on the Elimination of Discrimination against Women, 1999

Paris Principles, 1991

Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956

Universal Declaration of Human Rights, 1948

Vienna Declaration, 1993

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Glossary

Certiorari: To be fully informed of; an order of a superior court used to review and to quash decisions of tribunals.

Gacaca: Customary courts in Rwanda.habeas corpus Habeas corpus ad subjiciendum: means that you

have the body; a prerogative writ to command a person who is detaining another in custody to produce the body of that person before the court.

inter alia: Among other things.Kero: Social problems.locus standi: Place to stand; a place of standing; a right to be heard, or

the legal capacity to challenge some decision.mandamus: We command; a writ from the high court ordering

performance of a public duty.Mnyonge hana haki: A weak (poor) person has no rights.Ombudsman: A popular name derived from Scandinavia of the offi cial

who investigates complaints by the public against government departments or offi cials or other large organisations. In Tanzania the work of the Ombudsman is done by the Permanent Commission of Enquiry (PCE), which is established under the Constitution.

Prohibition: An order by the high court preventing or prohibiting a body from acting, which will lie against an inferior tribunal or body in relation to decisions affecting an individual’s rights; issued for example, to prevent an imposition of sentence on the accused person if there has been no proper trial.

Raison dˆêtre: Reason for; reason of; a thing’s existence.Ex parte: One the part of one side only. An ex parte hearing is where

only one party is allowed to attend and make submissions in criminal proceedings.

Prima facie: At fi rst appearance; on the face of things

xvi

Acknowledgements

This work is a product of efforts by many people and organisations. It is not easy to thank all of them adequately. Neither is it possible to thank each and every one who was involved in the process leading to the production of the book. We mention a few, not as the only ones who assisted, but as representatives of all those who made this project possible.

Firstly, the honourable commissioners of the various human rights institutions in the East African region. These institutions are the Kenya National Commission for Human Rights (KNCHR), the Rwanda Human Rights Commission (RHRC), Commission for Human Rights and Good Governance (CHRAGG) of the United Republic of Tanzania, and the Uganda Human Righst Commission (UHRC). We hope and believe that Burundi – which is a new “kid on the block” together with Rwanda – in the East African Community, will form its own commission soon.

Secondly, all those authors who spent their valuable time to prepare and present papers during the two conferences held in Arusha, Tanzania, in 2004 and 2006. These are Professor Pierre de Vos, of the University of Western Cape, Cape Town in the Republic of South Africa; Hon. Lawrence Murugu Mute, Commissioner, KNCHR, Nairobi, Kenya; and Board Member, Kituo Cha Katiba; Hon. Emmanuel Murangwa, Commissioner, RHRC; Hon. Mohamed Ramia Abdiwawa, Vice Chairman of CHRAGG; and Hon. Margret Sekaggya, Chairperson, UHRC.

Others were Messrs. Ezra Chiloba, Programme Offi cer, KNCHR; Mr. Jean Marie Vianney Gashirabake, Human Rights Protection and Supervision Offi cer, RHRC; Ms. Mary Massay, Director of Legal Services, CHRAGG; and Ms. Raya Issa Msellem, State Attorney, Offi ce of Director of Public Prosecutions, Zanzibar.

We were lucky and fortunate to have convinced Hon. Lady Justice Solomy Balungi Bossa, Judge, International Criminal Tribunal for

xvii

Rwanda( ICTR), Arusha and the fi rst chairperson of Kituo Cha Katiba and Dr. John Eudes Ruhangisa, Registrar, EACJ, Arusha, Tanzania to join us and share their views on human rights at the regional level.

Thirdly, we would like to sincerely thank the present chairperson of Kituo Cha Katiba; Mr. Salum Toufi q, for agreeing to grace this publication with his foreword; and our ever- active executive director of Kituo Cha Katiba; Ms. Edith Kibalama, for making a great deal of historical materials available to us.

Fourthly, we would like to thank our funders and development partners: Swedish International Development Agency (SIDA), the East African Regional Offi ce in Nairobi, Kenya and in particular Ms. Sarah Ng’inja, the programme offi cer, for believing in KCK and being truly good partners.

Lastly, we would like to thank our able and effi cient publishers of many years – Fountain of Kampala, Uganda.

Prof. Chris Maina Peter Editor & Kituo Cha Katiba

Board Member

xviii

Foreword

Kituo Cha Katiba, also known as the Eastern Africa Centre for Constitutional Development (hereinafter referred to as KCK or the Centre), is a regional non governmental organisation (NGO) based in Kampala, Uganda. The Centre was established in 1997 by some inter-disciplinary like-minded East Africans, with the mission of promoting constitution making and democratic governance. Kituo Cha Katiba provides a neutral forum for activists, politicians and academics to engage in dialogue, self- refl ection and critical debate over a wide variety of issues that are topical for Eastern Africans.

KCK is governed by a Board of Directors with members from Kenya, Uganda, Tanzania and Zanzibar. This membership will soon extend to Rwanda and Burundi, after the two states joined the East African Community (EAC) in 2007.

Kituo Cha Katiba has conducted a number of studies in the recent past; these include Fact-fi nding Missions to Kenya, Rwanda, Uganda and Zanzibar. The Kenya Mission, whose report was launched in November 2007, only a month before the Kenyan general elections of 27 December 2007, was headed by Honourable Joseph Warioba, former prime minister of the United Republic of Tanzania and one of the founding judges of the East African Court of Justice (EACJ). All the Mission reports have contributed, albeit in small ways, towards constitutional development in the states concerned and their neighbours.

The present book, which focusses on the work of national human rights institutions (NHRIs) in the region, falls squarely under the mandate of the Kituo Cha Katiba of promoting good governance and human rights. Human Rights Commissions (HRCs) have been set up in all the Eastern African countries in order to ensure that state power does not operate in a way that curtails individual rights and freedoms. These commissions act as a check and a brake against the possibility of those in power exceeding their statutory powers.

xix

However, at the same time, one cannot rule out the idea that these important institutions are actually set up by governments to preempt the work of human rights civil societies: the states want to show that they are at the forefront in the observance of human rights.

Indeed, the Uganda Human Rights Commission (UHRC) – the oldest commission in the region which has been rated among the best on the continent (compared to the Ghanaian and South African commissions) has been doing an admirable job in spite of impatience and hostility from the powers that be. The Tanzania Commission for Human Rights and Good Governance (CHRAGG) has made a number of landmark decisions in this respect. The best known is the Nyamuma Village Case from Serengeti District, in which the Commission made orders of compensation against the government of the United Republic of Tanzania – an order which was conveniently ignored by the regime. Similarly, the Kenya National Commission for Human Rights (KNCHR) has shown numerous reservations, for example, on the issue of passage of anti-terrorism legislation. However, recently the KNCHR led insisting that the December 2007 general election results in Kenya are fl awed. All this shows that, although the HRCs are set up by governments of the day to maintain the status quo, they exercise their independent judgment to make their own decisions irrespective of mainstream thinking in the government stables. The Rwanda Human Rights Commission (RHRC), established in the wake of genocide in that country, is carefully setting its agenda.

It must be emphasised that the HRCs are a bulwark for democracy and good governance in the region. These principles cannot be the monopoly of the judiciary of member states as most of our citizens fi nd it diffi cult, for obvious reasons, to fi le cases in the courts of law. They would rather petition the commissions, which are readily accessible, with offi ces throughout the country. The HRCs and the courts of law complement each other.

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This book is a useful reference, not only to lawyers and academics but also to students at higher learning institutions and members of the public. I hope Kituo Cha Katiba’s contribution will be much appreciated by the stakeholders in the public and civil society.

Salum Toufi qChairperson

Kituo Cha Katiba (KCK)Zanzibar

18 February 2008

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Introduction

In 2004, and again in 2006, Kituo Cha Katiba, in pursuit of its one of its mandates - advocacy for an East African human rights jurisprudence – organised two workshops in Arusha, Tanzania, for HRCs in the East African region. The fi rst workshop focussed on economic and social rights in the constitutions of the East African countries and the second examined the Bills of Rights of the East African countries in the context of the proposed East African Bill of Rights.

This book combines the presentations made at the two workshops. Invited to these meetings were representatives of the existing HRCs in the region. These are UHRC, CHRAGG, KNCHR, and RHRC. Zanzibar, which does not have a separate HRC, and which is subject to the jurisdiction of the Commission for Human Rights and Good Governance was invited to contribute to these meetings. Also invited were two prominent East African lawyers, namely Hon. Lady Justice Solomy Balungi Bossa, a former Chair of Kituo Cha Katiba and a High Court Judge in Uganda, a Judge of the EACJ and now a Judge in the ICTR; and Dr. John Eudes Ruhangisa, the Registrar of the EACJ. They both made invaluable contributions to both workshops.

These workshops were supposed to: • enable HRCs refl ect on where they started, where they are and

how they envision their participation at regional level in relation to the EACJ;

• provide a forum to enable HRCs dialogue on the draft East African Bill of Rights with a view to improving it, taking into consideration the experiences of HRCs in actualising their respective Bills of Rights at national level;

• enable HRCs to discuss existing opportunities and practical challenges facing the EACJ as a human rights court as well as to identify key implementation mechanisms necessary to make the

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Court a fully- fl edged and effective regional human rights court as envisaged by the Zero Draft Protocol to Operationalise the Extended Jurisdiction of the EACJ.

In other words, the commissions were supposed to discover each other and benefi t from each other’s experiences and move forward with a single aim of promoting and protecting human rights in the region. Many concede that this aim was fully achieved and the efforts by Kituo Cha Katiba to bring them together were not in vain. Today, there is considerable co-operation among these institutions in the region. It is now feasible to prepare and take an “East African” position in both regional and global meetings on human rights and related subjects.

The commissions took advantage of the opportunity of meeting to prepare a Bill of Rights for the East African region which would guide the East African Court of Justice when presiding over human rights issues once its jurisdiction is extended as envisaged in the Treaty establishing the East African Community ( The EAC Treaty). This effort has found widespread appreciation in the region.

PART ONE

Economic, Social and Cultural Rights in East African Constitutions

1

1

Experience of Human Rights in Africa: Challenges of Implementing Economic,

Social and Cultural Rights

Pierre de Vos

In a democracy we vote maybe every four or fi ve years, but we have to eat every day.

Introduction

It has become trite to state that all human rights – including civil and political rights (CPRs) and social and economic rights – are interdependent and indivisible and that there is no conceptual difference between the two sets of rights. Although civil and political rights have a longer history than social and economic rights, have been enforced by courts in various parts of the world for decades and even centuries, and are seen by many of the most powerful countries and their legal systems as more important than social and economic rights, international human rights discourse has managed to move the debate away from its obsessive focus on civil and political rights. We now have the Vienna Declaration and other important international human rights gatherings confi rming that social and economic rights – just like civil and political rights – are worthy of protection by governments and international organisations and that, in appropriate cases, they can even be enforced by courts and other relevant bodies. The big debate now seems to centre on how such rights could be enforced most effectively.

Which brings us to the topic of this paper: what are the challenges facing the implemention of social and economic rights in Africa today? At fi rst, the topic the organisers asked me to speak about,

2 Human Rights Commissions & Accountability in East Africa

made me feel slightly uneasy. Does it not perhaps suggest that the implementation of social and economic rights – unlike civil and political rights – is a particularly diffi cult problem, a problem also particularly diffi cult in the African context? How can we talk about the indivisibility and interdependence of rights when we single out social and economic rights as particularly problematic “children” to be analysed and worried about? And are we not being overtly pessimistic about our continent if we suggest that here the implementation of social and economic rights pose problems not experienced in other parts of the world? The truth is, of course, that the implementation of all rights poses serious diffi culties for us, especially in the times we live in today. In a world in which the only superpower acts as if human rights are purely for export, to be promoted in far-away countries without oil, or majority Islam populations, where Guantanamo Bay, Abu Graib, and Falluja have become places of horror, where human rights are abused without serious criticism from other western governments; a world where the Patriot Act is being used by the United States (US) government to spy on its citizens; a world in which President Vladimir Putin’s Russia is trampling on the most basic human rights of its citizens, in such a dangerous world the implementation of human rights as a whole is facing severe diffi culties, not only in Africa. And the implementation of social and economic rights is similarly facing grave diffi culties, not only in Africa, but in many parts of the world, including the US. The stronghold of the ideology that seems to suggest that poor people are to blame for their own poverty and that to ensure maximisation of wealth (meaning profi ts) governments should not interfere with “free markets”, make the implementation of social and economic rights so much more diffi cult. Ironically, I believe that, in one way, many people in Africa are perhaps more receptive to the idea of social and economic rights, perhaps because we have experienced more acutely the absence of social and economic well-being and understand more keenly the injustice associated with this lack of freedom from want.

Experience of Human Rights in Africa 3

Although it falls outside the scope of this paper, I believe we should be careful when we talk and think about human rights – especially economic, social and cultural rights (ESCRs) – we should avoid focussing narrowly on the duties of states to respect, protect and promote the rights of its citizens, but we should also to be mindful that, in the globalising world, states operate within a global system that has profound consequences for the realisation of human rights, including social and economic rights. The rules of international trade, for example, are often deeply unfair towards developing countries and contribute to the degradation of people in developing countries all over the world. But let me return to the topic at hand and explore some of the diffi culties faced by the implementation of social and economic rights.

Challenges of Implementing Economic, Social and Cultural Rights

Macro Challenge

The implementation of social, economic and cultural rights and civil and political rights face many common challenges all over the world. Many of these challenges are macro challenges not directly related to the legal and political situation and culture of a particular state. In many parts of the world human rights are under threat or have become diffi cult to implement fully or at all because of a myriad of interrelated macro factors including, to name but a few:• the absence of a deeply rooted culture of democracy;• the absence of a strong and legitimate state to assist in securing

the realisation of human rights;• poverty and underdevelopment – rights are often seen as luxuries

not affordable by poor countries;• the lack of the possibility to access resources without control of

the state;• ethnic, religious, racial and/or class-related strife within the

borders of a state;


• inter-state confl ict and the perception (often encouraged and fomented by the government of the day) that the nation or the group is under attack or under threat; and

• the absence of a vibrant civil society.However, I wish to focus on the more immediate problems associated with the implementation of these rights, which I will divide into, fi rst, problems associated with the conceptualisation of social and economic rights and second, problems associated with the enforcement of social and economic rights.

Conceptualisation of Social and Economic Rights

One of the very real diffi culties associated with the implementation of any right, but especially with the implementation of the economic, social and cultural rights, relates to the precision with which such rights can be defi ned. How does one implement rights if there is uncertainty about the scope and content of such rights; if, therefore, it is unclear what the realisation of such rights would actually entail, or put differently, what obligations are engendered by these rights, and when acts or omissions by the state or other role players would constitute infringements of these rights? Rights claims are inevitably presented in general language which, standing on its own, is vague and diffi cult to pin down. Claiming to have a right to life, to human dignity or to equality, for example, might seem extraordinarly broad and vague unless one understands such a claim within the context of a certain social, cultural, economic, political and legal history and tradition. But ESCRs have only recently begun to move beyond utopian-like claims about what ought to be, to claims about what might be required legally in concrete terms; what may be concretely realised through government action or action by others and perhaps through legal enforcement by courts. Much of the anxiety around the implementation of social, economic and cultural rights, I believe, can be traced back to the lack of concrete defi nitions about what the contours of such rights might entail and what legal obligations they might place on the state and other relevant role players. What does


it mean when we claim everyone has the right of access to housing or health care, for example? What does it require a state to do or not to do and how can such obligations be measured?

Over the past twenty years the international human rights system anchored by the International Convenant on Economic, Social and Cultural Rights (ICESCR) through work done by the United Nations (UN) Committee on Economic, Social and Cultural Rights, and especially the General Comments issued by the committee, have played a pivotal role in addressing this problem. More recently opinions by regional bodies like the African Commission has further assisted in bringing the scope and content of these rights into sharper focus. The problem is, however, that because these developments have mostly remained at an international and regional level, it still retains a certain air of unreality. States sign and ratify the ICESCR or the African Charter without seriously believing that they will be held to account if they fail to implement ESCRs as required by these treaties. While the “jurisprudence” of these bodies is therefore an indispensable starting point for any understanding of what we talk about when we talk about the implementation of social and economic rights, it remains in the realm of theory. If we are serious about the implementation of social and economic rights, we need to think how, in a specifi c local context, such rights could be implemented, given economic, social, cultural and legal constraints.

That is why I believe the South African experience might be of some assistance. South Africa is one of the few countries in the world – Brazil is another, but because I cannot speak Portuguese I cannot use that country as an example – whose constitution explicitly includes a set of judicially enforceable social and economic rights in its Bill of Rights; because these rights are actually enforced by a Constitutional Court; and because the Constitution places a special duty on the constitutionally created HRC to oversee the enforcement of these rights,1 it might be helpful to turn to this constitution for inspiration

1 South African Constitution, Act 108 of 1996, Section 184.


and, yes, for instruction on some of the diffi culties experienced with the implementation of social and economic rights. And over the past few years South Africa’s Constitutional Court has embarked on an ambitious interpretation of these rights.

The South African Constitution contains two sets of social and economic rights. First, Sections 262 and 273 guarantee the right of access to housing, health care services, food, water and social security, but make these rights subject to an internal limitation which states that the state “must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” of these rights. Sections 284 and 295 guarantee the right of every child to basic nutrition, shelter, basic health-care services and social services and the right to basic education, but these rights are not qualifi ed with reference to progressive realisation and available resources. Section 7(2) of the Constitution also explicitly places a duty on the state to “respect, protect, promote and fulfi l the rights in the Bill of Rights.”

South Africa’s Constitutional Court has had the opportunity to consider the scope and content of Section 27 on two previous occasions.6 The Court has also provided extensive analysis of the nature of the duties that social and economic rights and especially

2 Section 26 (1). Everyone has the right to have access to adequate housing. (2). The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3). No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

3 Section 27 (1). Everyone has the right to have access to; (a) health care services, including reproductive health care; (b) suffi cient food and water; and (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. (2). The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. (3). No one may be refused emergency medical treatment.

4 Section 28 (1). Every child has the right … (c). to basic nutrition, shelter, basic health care services and social services.

5 Section 29 (1). Everyone has the right (a). to a basic education, including adult basic education; and (b). to further education, which the state, through reasonable measures, must make progressively available and accessible.

6 Soobramoney v Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696 (CC); Minister of Health and Others v Treatment Action Campaign and Others 2002 (9) BCLR 1033 (CC).


Sections 26 and 27 place on the state in the case of Government of the Republic of South Africa v Grootboom7 and later in the Minister of Health v Treatment Action Campaign.8 These judgments confi rm that the right of access to various social and economic rights is clearly justiciable.9 It also confi rms that the constitutionality of government action or inaction must not be measured in the abstract, but in the light of the specifi c social and historical context of South Africa.10 This context is one that recognises the inequality and vast disparities in wealth between rich and poor. Any understanding of the government’s obligation to provide access to social and economic rights must therefore be rooted in an understanding that the Constitution contains a commitment to address inequality, poverty and unemployment in order to “transform our society into one in which there will be human dignity, freedom and equality, which lies at the heart of our new constitutional order.”11

Negative obligation on the part of the state and other role players to respect the right of access to social and economic rights

Sections 26 and 27 place a negative obligation on the state and other relevant role players to desist from preventing or impairing the right of access to housing, health care etc.12 Any action by the state that would take away existing access to any of these rights or would make it more diffi cult for an individual to gain access to existing housing or health-care services would thus potentially result in an infringement of this right. For example, in the context of the provision of access to antiretroviral drugs (ARVs) for all people exposed to HIV or people living with HIV/Aids, any action of the state to, say, prohibit doctors in either the public or private health sector from dispensing a specifi c antiretroviral drug would constitute

7 2000 (11) BCLR 1169.8 2002 (9) BCLR 1033 (CC).9 Ex parte Chairperson of the Constitutional Assembly: In Re Certifi cation of the Constitution

of the Republic of South Africa, 1996 (10) BCLR 1253 (CC) par. 78.10 Grootboom, op cit 7, par. 25; Treatment Action Campaign, op cit 6, par. 24.11 Grootboom Ibid., par 25, quoting from Soobramoney op cit, par. 8.12 Certifi cation Judgement op cit par. 20; Grootboom, op cit, par. 34; Treatment Action

Campaign op cit, par 46.


a prima facie infringement of the right.13 The negative aspect of this right is further spelt out in Section 27(3), which states that no one may be refused emergency medical treatment. A person who suffers a sudden catastrophe which calls for immediate medical attention should thus not be refused medical attention where the remedial treatment is necessary to stabilise the condition of the patient and where such treatment can be provided.14

This is an important component because it is relatively easy to enforce and because it provides an individual with the ability to enforce his or her rights directly against the state or other relevant role players. This right is of particular importance when used in conjunction with the non-discrimination right – seeing that rights are interdependent and indivisible. For example, where the state or other role players already provide some social service, but then deny access to this service to a particular group (women, foreigners, poor people), it is relatively easy for a court to declare this denial unconstitutional. This happened in the case of Khosa v. Minister of Social Development and Another.15

The positive obligation on the state to protect, promote and fulfi l the right of access to social and economic rights

Section 26 and 27 of the Constitution places a positive obligation on the state and other relevant actors to “protect, promote and fulfi l” the right of access to housing, health-care services etc.16 What is required is for the state to devise and implement a comprehensive plan to ensure the full realisation of the right of access to housing, health-13 See for example the recent case where an NGO who provided voluntary counselling

and testing and antiretroviral drugs to rape survivors was evicted from a state hospital in Nelspruit. Yende, S. (2002) Title. Place Publisher. The argument, namely that pharmaceutical companies may be acting unconstitutionally when they deny access to antiretroviral drugs through pricing policies (raised later in this work) might also apply here.

14 In Soobramoney (ibid.) the Constitutional Court made it clear that “emergency medical treatment” does not refer to any ongoing medical treatment for someone whose life is not being threatened at that moment. Rather, it ensures that a person is treated in the case of a medical emergency. Soobramoney supra 6, par. 18 and 20.

15 2004 (6) BCLR 569 (CC).16 See Section 7(2) which states that the state “must respect, protect, promote and fulfi l the

rights in the Bill of Rights”.


care etc.17 This plan cannot merely be aimed at providing individuals with basic shelter or medicine, primary health care services and with access to hospital care.18 Following a holistic approach, such a plan must be aimed at providing all South Africans with access to adequate, comprehensive housing, health care and social services that will enable an individual to live a life of dignity and respect.19 Implicit in this approach is the understanding that these rights do not entitle any applicant to individual relief to immediate access to the social good.20 When devising and implementing this plan, the state must take cognisance of the conditions and capabilities of people of all economic levels of our society.21 Those who could afford to pay should do so themselves, but where people have no money to pay, the state has a duty to take steps to unlock the system through legislation and other measures. The state must address the needs of both those who can afford health care and those who cannot. More importantly, the “poor are particularly vulnerable and their needs require special attention”.22

However, the state’s obligation in this regard is not unqualifi ed. The extent of the state’s obligation is defi ned by three key elements set out in Section 27(2), namely (a) whether there are reasonable legislative or other steps; (b) to achieve the progressive realisation of the right; (c) within available resources.

The State must take Reasonable Legislative and other MeasuresCourts must enquire whether the steps taken by the state to meet its constitutional obligations imposed by Sections 26 and 27 are reasonable. Such steps will be reasonable where they are based on coherent and comprehensive policies and programmes that 17 Grootboom, op cit, par. 38.18 Ibid. Par. 35, where the court stated the right of access to housing “requires more than brick

and mortar.”19 In the context of HIV/Aids what would be required is access to primary health- care

services, information about HIV, voluntary testing and counselling facilities, provision of antiretroviral drugs etc.

20 Grootboom, op cit, par. 94-95.21 Ibid. par. 35.22 Ibid. par. 36; Treatment Action Campaign, Op cit, par. 70.


are reasonable both in conception and implementation.23 Such a reasonable plan might include the adoption of legislation, invariably supported by appropriate, well-directed policies and programmes implemented by the executive. The programme must be capable of facilitating the realisation of the right. The rights must be reasonable both in their conception and their implementation.24 The programme must be “balanced and fl exible” and a programme “that excludes a signifi cant segment of society cannot be said to be reasonable”.25 To be reasonable, measures cannot leave out of account the degree and the extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights are most at peril, must not be ignored by the measures aimed at achieving the realisation of the goal. Where measures, though statistically successful, fail to respond to those most desperate, these measures may fail the test of reasonability.26

This last aspect is pivotal: In most cases the court will give a wide margin of appreciation to states to devise programmes and will be reluctant to claim that such a programme is unreasonable. But where the state policy fails to take cognisance of the most vulnerable sections of the community, the court will be more forceful.Progressive Realisation of the RightThe second requirement of progressive realisation signals that the right cannot be realised immediately. The state is nevertheless under a duty to begin to take steps immediately to progressively facilitate access to social services as expeditiously and effectively as is reasonably possible. In effect this means that legal, administrative, operational and fi nancial hurdles towards the realisation of the right should be examined and, where possible, lowered over time. Housing or health care, for example, must thus be made more accessible not only to a larger number of people but also to a wider range of people as time progresses.27 Any deliberate retrogressive measures in that regard would also require the most careful consideration and would

23 Grootboom , op cit, par. 42.24 Ibid.25 Ibid. par. 43; Treatment Action Campaign, op cit 6, par. 68.26 Grootboom, Ibid, par. 44; and Treatment Action Campaign, Ibid, par. 68.27 Grootboom, Op cit, par. 44.


need to be fully justifi ed by reference to the totality of the rights provided in the Bill of Rights.28

Resource constraints

To determine whether the state’s action or inaction is reasonable, one has to take into account the resources available to actually realise the right in question. There must always be a balance between goal and means. The measures have to be calculated to attain a goal expeditiously and effectively but the availability of resources would always be an important factor in determining what was reasonable in a particular case.29 While it would be inappropriate for the court to make orders directed at rearranging budgets, a determination of the unreasonableness of government action or inaction might well have budgetary implications.30 Where resources are clearly insuffi cient to attain any meaningful access to certain forms of health care or housing, a lack of action on the part of the state may be found to be more reasonable, than in cases where the resource constraints are less severe. The court has also demonstrated a willingness to avoid imposing duties with fi nancial implications on the state, especially where the state is already providing a service but is doing so selectively – Khosa case.

Minimum core obligations

It is clear from the above that the right of access to housing, health care etc. does not provide individual claimants with an individual right to claim relief from the government in the form, say, of ordering the government to provide him or her with access to housing. The question arose in both Grootboom and the Treatment Action Campaign cases, whether the rights set out in Sections 26 and 27 nevertheless required the state to provide at least a “minimum core” of these rights regardless of resource and other constraints. The concept of “minimum core” was developed by the UN Committee on Economic, Social and Cultural Rights and constitutes an attempt to defi ne more clearly a minimum fl oor of social and economic 28 Ibid. par. 45.29 Ibid. par. 46.30 Treatment Action Campaign, Op cit, par. 38.


entitlements that each state must ensure for its inhabitants as a matter of priority. A state in which any signifi cant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.31

In Grootboom the court indicated that evidence in a particular case may show that there is a minimum core of a particular service that should be taken into account in determining whether measures adopted by the state are reasonable.32 But this does not mean that the socio-economic rights of the Constitution should be construed as entitling everyone to demand that the minimum core be provided to them. Minimum core is therefore relevant to reasonableness under Section 26(2), and not as a self-standing right conferred on everyone under Section 26(1).33 Section 26(1) can therefore not be read to establish a positive obligation on the state to provide a “minimum core” regardless of the qualifi cation set out in Section 26(2).34 Courts “are not institutionally equipped to make the wide-ranging factual and political enquiries necessary for determining what the minimum-

31 ICESCR General Comment 3 “The nature of state parties” obligations (Art. 2, par. 1)’ 14/12/90 par. 10:

On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it, over a period of more than a decade of examining States’ parties’ reports the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any signifi cant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. Article 2 (1) obligates each State party to take the necessary steps “to the maximum of its available resources”. In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

32 Grootboom, op cit 7, par. 33.

33 Ibid, par. 33. See also Treatment Action Campaign and Others, op cit, par .34.34 Treatment Action Campaign, Ibid, par. 34.


core standards” should be35 and the Constitution thus contemplates a rather restrained role for the courts, namely, to require the state to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation.36 But, despite the fact that individuals cannot invoke the concept of a “minimum core” to demand specifi c performance from the government, the concept remains relevant when evaluating the reasonableness of government action or inaction.

I believe the concept of minimum core is an important one, one which might well be used in other contexts and jurisdictions to assist in creating a more precise understanding of what the rights and obligations are that must be implemented by each state and by other relevant role players. The idea that every individual is entitled to at least the very basic social and economic rights without which life would not really be worth living, and that if a state fails to provide the basic minimum, it will have an added burden to show why it failed to do so, is an attractive one.

African Charter and the African Commission

Basic principles

The African Charter is generally viewed as creating relatively weak obligations for state parties who sign and ratify it. Much of the commentary – including the commentary and opinions of the African Commission on Human Rights – relating to the interpretation and enforcement of the charter have been directed at providing more restrictive readings of the various provisions of the Charter to bolster the scope and content of state obligations. Most notably, many of the provisions in the Charter contain claw-back clauses, which permit, in normal circumstances, breach of an obligation for a specifi ed number of reasons.37 The Charter is unique, however, in that the

35 Ibid, par. 37.36 Ibid, par 38.37 See Higgins, R. (1978) Derogations under Human Rights Treaties. British International

Lawyer, Volume 48: 281.


SCRs contained in the Charter are free of both claw-back clauses and limitations.38 Nither does the Charter contain a derogation clause and the African Commission has held this to mean that “limitations on rights and freedoms enshrined in the Charter cannot be justifi ed by emergencies or special circumstances”.39 Moreover, the Charter does not provide for the “progressive realisation” of social and economic rights and therefore does not limit state obligations with reference to incremental steps to be taken by the state.40 Unlike the ICESCR, for example, the African Charter makes it clear that the obligations that state parties assume with respect to these rights are of immediate application. As Odinkalu points out “[e]conomic, social, and cultural rights are placed on the same footing as all other rights in the Charter”.41 This view seems to be endorsed by the African Commission on Human and Peoples’ Rights (ACHPR). Early opinions by the Commission already noted that all the rights in the Charter “should be implemented now… It is a task that must 38 See ODINKALU, Anselm Chidi, “Analysis of Paralysis or Paralysis by Analysis?

Implementing Economic, Social, and Cultural Rights under the African Charter on Human and Peoples’ Rights,” Volume 23 No. 2 Human Rights Quarterly, 2001, p. 348. The jurisprudence of the African Commission generally strives to mitigate and severely limit the adverse consequences of the claw-back clauses in the Charter. In Communication 101/93, Civil Liberties Organization (in respect of the Nigerian Bar Association) v. Nigeria, the Commission held that the claw-back clause in Article 10 of the Charter (dealing with freedom of association), did not permit national authorities to limit the exercise of the rights granted by the Charter. See Communication 101/93, Civil Liberties Organization (in respect of the Nigerian Bar Association) v. Nigeria, in Eighth Annual Activity Report of the African Commission on Human and Peoples’ Rights 1994-95, issued at Eighteenth Ordinary Session, 2-11 October 1995, ACHPR/AHG/201 (XXXI) 22 (1995). More importantly, the Commission recently argued that, in order to pass muster, the limitation of the Charter rights by national law must be compatible with international law, arguing that “to allow national law to have precedence over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter.” See Communications 105/93 Media Rights Agenda & Constitutional Rights Project v Nigeria, in its Twelfth Activity Report Id. Par. 63.

39 Media Rights Agenda & Constitutional Rights Project v Nigeria, Ibid, at par. 64.40 Article 16(2) does provide for state parties to take “necessary measures” to protect the health

of their people. Some commentators have interpreted this to mean that Article 16 provides for the incremental language associated with social and economic rights obligations found in other international human rights law treaties such as the ICESCR. See Odinkalu, op cit, at 349. But Article 16(2) does not refer to the progressive realization of the right to health and places a duty on the state to take the necessary measures to protect the health of their people without limiting this duty with reference to available resources or progressive realization.

41 Odinkalu, Ibid, at 349.


be carried out by every ratifying State”.42 Other members of the Commission have echoed this interpretation at different times as the authoritative interpretation of the nature of the obligation regarding ESCRs under the Charter.43

This interpretation is in line with the idea that the rights in the African Charter are interdependent and indivisible. This view, in turn, dovetails with the general consensus which emerged after the adoption of the African Charter. In the 1993 Vienna Declaration,44 the consensus opinion recognised the futility inherent in entrenching civil and political rights without the corresponding protection of economic, social and cultural rights.45 This consensus emerged

42 Presentation of the Third Activity Report by the Chairman of the Commission, Prof U.M. Umozurike, to the 26th Session of the Assembly of the Heads of State and Government of the Organisation of African Unity, 9-11 July 1990, accessed at http://www.achpr.org/html/ africancommissiononhuman.html.

43 See generally Odinkalu, Op cit, p. 350, footnote 147.44 Vienna Declaration and Programme of Action, op cit ; see also Gutto, S. (1988) Beyond

Justiciability: Challenges of Implementing/Enforcing Socio-economic Rights in South Africa. Buffalo Human Rights Law Review, Volume 41: pp. 86-88 at p.79 (discussing the Vienna Human Rights Conference and its outcome). See also Proclamation of Tehran, Final Act of the International Conference on Human Rights, May 13 1968, Art. 13, UN Document A/CONF.32/41 (1968), reprinted in United Nations Human Rights: A Compilation of International Instruments, Volume 1 (2nd Part), at 51-54, UN Doc. ST/HR/1/Rev. 5 (1994); Vienna Declaration and Programme of Action, June 25 1993, UN World Conference on Human Rights in Vienna, UN Document A/CONF. 157/24 (1993), reprinted in International Legal Materials, Volume 32, 1993: 1161, see also The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, January 8 1987, principles 2-3, UN ESCOR, Commission on Human Rights, 43rd Session, Agenda Item 8, UN Document E/CN.4/1987/17/Annex (1987), reprinted in Human Rights Quarterly, Volume 9, 1987:pp. 122 & 123 (emphasising the indispensability of indivisibility and interdependence); Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Guideline 4, reprinted in Human Rights Quarterly, Volume 20, 1998: 691 (re-emphasising equality, interdependence and indivisibility of all human rights). On interdependence generally, see Scott, C. (1989) The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights. Osgoode Hall Law Journal, Volume 27. P.769.

45 The South African Constitutional Court has long since endorsed the principle that the rights in the Bill of Rights are interdependent and indivisible. This came as no surprise as it seems obvious from the structure of the Bill of Rights, which does not, in any formal way, distinguish between rights traditionally seen as civil and political rights, and rights traditionally seen as social and economic in nature. In this view, there is no conceptual difference between civil and political rights and economic and social rights. A distinction between the former and the latter is usually based on the nature of the interests they aim to protect. All rights are aimed at guaranteeing each individual the freedom to live his or her life with dignity and respect. Civil and political rights are mostly concerned with guaranteeing an individual


despite earlier confl icts which resulted from ideological differences between East and West which then dominated international relations. Unlike the international system, the African Charter chose to deal with all rights in one signal body. The African Commission has also reiterated that the African Charter is unique and must be interpreted in the light of the uniqueness of its text.

The uniqueness of the African situation and the special qualities of the African Charter on Human and Peoples’ Rights imposes upon the African Commission an important task. International law and human rights must be responsive to African circumstances. Clearly, collective rights, environmental rights, and economic and social rights are

the autonomy to freely pursue personal and political choices without interference from the state or other powerful parties. Social and economic rights are mostly concerned with guaranteeing everyone an autonomous space within which the individual may pursue his or her social and economic well-being and, with appropriate assistance from the state, live a life free from economic and social want. However, it is not possible to make an absolute and defi nitive distinction between the rights by referring to the interest they aim to protect. Civil and political rights will often operate to protect economic and social interests while social and economic rights will often operate to protect interests related to the personal and political choices of an individual. The different rights also operate in support of each other, since the realisation of one right might be dependent on the realisation of another. Starving people may fi nd it diffi cult to exercise their freedom of speech while a restriction on freedom of speech may make it diffi cult for individuals to enforce their right of access to housing. See De Vos, P. (1997) Pious Wishes or Directly Enforceable Human Rights? Social and Economic Rights in South Africa’s 1996 Constitution. South African Journal of Human Rights, Volume 13: 67 at pp. 70-71. The approach of indivisibility is refl ected in the documentation of the Technical Committee of experts to the constitutional committee (Theme Committee 4 of the Constitutional Assembly), most notably in an undated memorandum “Supplementary Memorandum on Bill of Rights and Party Submissions” drawn up by the Technical Committee after publication of the fi rst working draft of the Constitution in October 1995. In the course of objecting to a request by the Theme Committee to group social and economic rights together in a separate section of the Bill of Rights, the technical experts argue that grouping these rights together will devalue them and will make them seem “like some special species of rights”. (See also Memorandum of Panel of Constitutional Experts, “The Meaning of ‘Progressive’ (Section 25 and 26)”, dated 6 February 1996, where the “interrelationship and indivisibility” of the different kinds of rights are accepted. (On interdependence, see Scott op. cit. pp. 769-878; Economic and Social Council of UN, The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, E/CN.4/1987/17, at par. 2 and 3; The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, par, 6, op. cit. par. 4.) In Minerva Mills v. Union of India 1980 S.C. 1789 (par. 111-12 per Bhagwati, J.) the Indian Supreme Court also endorsed this view when it found that both the fundamental (civil) rights contained in Part III of the Indian constitution and the Directive Principles of State policy found in Part IV are based on human rights and that the latter is in no way inferior to the former.


essential elements of human rights in Africa. The African Commission will apply any of the diverse rights contained in the African Charter. It welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective.46

The interpretation of the Charter is also made easier by a provision in the African Charter dealing with its interpretation by the African Commission and by a provision in the draft protocol establishing the African Court on human and peoples’ rights. As I pointed out above, Article 60 of the African Charter instructs the African Commission to “draw inspiration” from international law on human and peoples’ rights, including the various international treaties adopted by African countries, while the draft protocol instructs the court to apply the Charter and all other relevant human rights documents ratifi ed by the states concerned. This means that, when interpreting the social and economic provisions of the African Charter, it will often be possible to have regard to the interpretation of other human rights treaties dealing with social and economic rights. The General Comments of the UN Committee on Economic, Social and Cultural Rights dealing with the interpretation of the ICESCR will be particularly helpful. At the same time, the text of the African Charter is unique and the African Commission has demonstrated that it will borrow from international jurisprudence, while at the same time adopting a uniquely African perspective.

The duties imposed by social and economic rights in the african charter

The African Commission has accepted the view endorsed by Committee on Economic, Social and Cultural Rights, that social and economic rights (like all other human rights) engender at least four levels of duties for a state that undertakes to adhere to a rights regime.47 These duties include the duty to respect, protect, promote

46 Nigeria Case, op cit at par. 68.47 See generally Henry, S. (1980) Basic Rights: Subsistence, Affl uence and U.S. Foreign

Policy 5. See Committee on Economic, Social and Cultural Rights, General Comment 3 “The Nature of States Parties Obligations (Article 2.1)” 14 December 1990, Fifth Session,


and fulfi l the rights in a human rights treaty. These obligations universally apply to all rights and entail a combination of negative and positive duties and each layer of obligation is equally relevant to the rights in question.48 Although there are therefore different levels of obligations, the one level is not more important than the other because all rights are interdependent and indivisible and engender various kinds of obligations.

At a primary level, the Charter places a negative duty on the state to respect the rights contained in it and this entails that the state should refrain from interfering in the enjoyment of all fundamental rights. According to the Commission, this means that a state “should respect right-holders, their freedoms, autonomy, resources, and liberty of their action”.49 Regarding socio economic rights, this means that the “State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the family, for the purpose of rights-related needs”.50 Any action by the state that takes away existing access to enjoyment of social and economic rights or makes it more diffi cult for an individual to enjoy their existing social and economic well-being, would thus potentially result in an infringement of this right. The Commission also stressed that, due to the inclusion of collective rights, this level of obligation requires that the resources belonging to the collective should be respected, as it has to use the same resources to satisfy its needs.

par. 9, using the terminology that states had to “respect and ensure” the realisation of social and economic rights. Other international law documents dealing with this matter include The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, accessed at http://www.law.uu.nl/english/sim/instr/limburg.asp and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22-26 January 1997, accessed at http://www1.umn.edu/humanrts/instree/Maastrichtguidelines.html.

48 See Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria Communication 155/96 ACHPR/COMM/A044/1 27 May 2002, par. 44. See generally, Eide, A. (1995) Economic, Social and Cultural Rights As Human Rights. In E. A. Eide, C. Krause and A, Rosas (Eds.) Economic, Social, and Cultural Right: A Textbook. Place: Martinus Nijhoff Publishers. pp. 21-40.

49 Drzewicki, K. (1999) Internationalization of Human Rights and Their Juridization. In R. Hanski and M. Suksi (Eds.) An Introduction to the International Protection of Human Rights: A Textbook. Second Revised Edition. Place: Publisher. p.31.

50 Nigeria case, Op cit, par. 45.


Apart form this negative obligation, the state also engenders at least three levels of positive obligations. The fi rst of these entails a duty on the state to protect right-holders against other subjects by legislation and provision of effective remedies.51 This obligation requires the state to take measures to protect benefi ciaries of the protected rights against political, economic and social interferences. The Commission stressed that this protection generally entails the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realise their rights and freedoms.52

This fi rst positive obligation is intertwined with a second positive obligation of the state to promote the enjoyment of all human rights. The Commission explains that this means that the state has a duty to make sure that individuals are able to exercise their rights and freedoms, for example, by promoting tolerance, raising awareness, and even building infrastructures.53

Finally, the state is required to fulfi l the rights and freedoms it freely undertook under the various human rights regimes. According to the Commission, this obligation “is more of a positive expectation on the part of the State to move its machinery towards the actual realisation of the rights. This obligation is linked to the duty to promote social and economic rights mentioned above. It could consist of the direct provision of basic needs such as food or resources that can be used for food (direct food aid or social security).”54

This obligation as set our above is in line with the interpretation provided by the Committee on Economic, Social and Cultural Rights in their various general comments and especially in General

51 Drzewicki, op cit at 31.52 Nigeria case, op cit at par. 46.53 Ibid par. 46.54 Nigeria case, op cit. See Eide op. cit. at 38.


Comment No. 3.55 There is however, a difference between the UN Committee’s understanding of the obligations engendered by the ICESCR and the African Commission’s view of the obligations engendered by the African Charter, in that the latter document does not contain a limitation clause similar to the one contained in Section 2(1) of the ICESCR. The African Commission is not bound by the kind of language used in Section 2(1) and there is therefore no explicit limit placed on the set of duties by the state to respect, protect, promote and fulfi l the rights in the Charter and thus no explicit instruction that the state’s duties are subject to available resources or should be achieved progressively. But given the fact that Article 60 of the Charter and Article 7 of the draft protocol explicitly places the interpretation of the Charter in the context of international human rights jurisprudence, it is clear that the interpretation of social and economic rights cannot ignore the fact that some form of limitation is implied. Thus the African Commission has stated that:

Emphasising the all embracing nature of their obligations, the International Covenant on Economic, Social, and Cultural Rights, for instance, under Article 2(1), stipulates exemplarily that States “undertake to take steps…by all appropriate means, including particularly the adoption of legislative measures.” Depending on the type of rights under consideration, the level of emphasis in the application of these duties varies. But sometimes, the need to meaningfully enjoy some of the rights demands a concerted action from the State in terms of more than one of the said duties.56

55 See UN Committee on Economic, Social and Cultural Rights, General Comment 3. See also General Comment 4: The right to adequate housing (Art. 11.1, Sixth Session, 1991); General Comment 5: Persons with disabilities (Eleventh Session, 1994); General Comment 6: The economic, social and cultural rights of older persons (Thirteenth Session, 1995); General Comment 7: The right to adequate housing: forced evictions (Art. 11.1, Sixteenth Session, 1997); General Comment 8: The relationship between economic sanctions and respect for economic, social and cultural rights (Seventeenth Session, 1997); General Comment 9: The domestic application of the Covenant (Nineteenth Session, 1998); General Comment 10: The role of national human rights institutions in the protection of economic, social and cultural rights (Nineteenth Session, 1998); General Comment 11: Plans of action for primary education (Article 14, Twentieth Session, 1999); General Comment 12: The right to adequate food (Art. 11, Twentieth Session, 1999); General Comment 13: The right to education (Art.13, Twenty-fi rst Session, 1999); and General Comment 14: The right to the highest attainable standard of health (Article 12, Twenty-second Session, 2000).

56 Nigeria case, op cit, par. 48.


But the Commission does not say under which circumstances it would require immediate action from the state. This is the crux of problem surrounding the interpretation of the social and economic rights and, in fact, all other rights in the African Charter: to what extent can and should these rights be enforced immediately? The African Commission, when required to deal with the question of whether the Nigerian government had violated the right to health57 and the right to a satisfactory environment,58 confi rmed that social and economic rights placed clear obligations on the state and engender both positive and negative obligations.59 The negative aspect of these rights places an obligation on the state to respect the rights “and this entails largely non-interventionist conduct from the State for example, not from carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual”.60

The more diffi cult question, however, is to determine the extent to which the state has an obligation to act immediately to ensure the positive realisation of the right(s) in question. The Commission confi rmed that in the context of Articles 16 and 24, these rights “impose clear obligations upon the government” and that the state therefore has a duty “to take reasonable and other measures (sic) to prevent pollution and ecological degradation, to promote conservation, and to secure and ecologically sustainable development and use of natural resources”.61 It furthermore argued that:

Government compliance with the spirit of Articles 16 and 24 of the African Charter must also include ordering or at least permitting independent scientifi c monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to

57 Article 16.58 Article 24.59 Nigeria case, op cit, par. 52.60 Ibid par. 52, referring to Leckie, S. (1995) The Right to Housing. In A. Eide, C. Krause and

A. Rosas (eds.) Economic, Social and Cultural Rights. Place: Martinus Nijhoff Publishers. 61 Nigeria case, Ibid, par. 52.


hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.62

The gist of this argument seems to be that the government is required to act in a reasonable manner. This is, in fact, very similar to the standard adopted by the South African Constitution in its social and economic rights litigation when interpreting and applying the South African Bill of Rights. The South African Constitutional Court has argued that steps will be reasonable where they are based on coherent and comprehensive policies and programmes that are reasonable both in their conception and implementation.63 A reasonable plan might include the adoption of legislation invariably supported by appropriate, well-directed policies and programmes implemented by the executive. Such programmes must be capable of facilitating the realisation of the right and must be reasonable both in their conception and their implementation. The programmes must be “balanced and fl exible”. One that “excludes a signifi cant segment of society cannot be said to be reasonable.”64 To be reasonable, measures cannot leave out of account the degree and the extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights are most in peril, must not be ignored by the measures aimed at achieving the realisation of the goal. Where measures, though statistically successful, fail to respond to those most desperate, they may not pass the test of reasonableness.65

The African Commission has also reiterated on several occasions that the state has a duty to protect citizens “from damaging acts perpetrated by private parties.”66 This duty stems from its obligation to protect the existing rights-holders against interference from others. The state therefore has to take steps to make sure that the enjoyment

62 Ibid, para 53.63 Grootboom case, op cit, par. 42.64 Ibid. para. 43; TAC, Op cit, par. 68.65 Grootboom, Op cit, para. 44; and Treatment Action Campaign, op cit, par. 68.66 Nigeria Case, Op cit, par. 57. See also Union des Jeunes Avocats v Chad Communication

74/92. The Commission also referred to the judgment of the Inter-American Court on Human Rights in Velasquez Rodriguez v Honduras Judgment of 19 July 1988, Series C No. 4.


of rights is not interfered with by any other private person. This means that the Charter has an indirect horizontal application in that it places a duty on the state to ensure that private individuals and institutions do not interfere with the rights at hand.

Potentially one of the most innovative aspects of the Commission’s interpretation of the African Charter is the way in which it has applied the idea that the rights in the Charter should be seen as interdependent and indivisible, and has thus “read in” rights into the Charter that are not explicitly included in the text of the Charter. Thus the Commission has interpreted Article 14 (the right to property) to be read in combination with Article 16 (the right to health) and Article 18(1) (the right of the family to be protected by the State) as to protect the right to shelter or housing which is not explicitly protected in the Charter.67 In the Social and Economic Rights Action Centre v Nigeria the Commission found that this right to shelter obliges the Nigerian government – at a minimum – not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. The state’s obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they fi nd most appropriate to satisfy individual, family, household or community housing needs.68 Its obligations to protect obliges it to prevent the violation of any individual’s right to housing by any other individual or non-state actors like landlords, property developers, and land owners, and where such infringements occur, it should act to preclude further deprivations as well as guarantee access to legal remedies.69 The right to shelter even goes further than a roof over one’s head. It extends to embody the individual’s right to be left alone and to live in peace - whether under a roof or

67 Nigeria Case, Op cit, par. 60.68 See Leckie, op. cit, 107. This is in line with the requirements of the UN Committee

on Economic, Social and Cultural Rights General Comment 4, and especially 7, which prohibits forced evictions.

69 Leckie,Ibid, pp.113-114.


not.70 The particular violation by the Nigerian Government of the right to adequate housing as implicitly protected in the Charter also encompasses the right to protection against forced evictions. The African Commission draws inspiration from the defi nition of the term “forced evictions” by the Committee on Economic Social and Cultural Rights, which defi nes this term as “the permanent removal against their will of individuals, families and/or communities from the homes and/or which they occupy, without the provision of, and access to, appropriate forms of legal or other protection”71. Wherever and whenever it occurs, forced evictions are extremely traumatic. It causes physical, psychological and emotional distress; entails losses of means of economic sustenance, and increases impoverishment. It can also cause physical injury and in some cases sporadic deaths … Evictions break up families and increase existing levels of homelessness.72 In this regard, General Comment No. 4 (1991) of the Committee on Economic, Social and Cultural Rights on the right to adequate housing states that “all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats”.73

The Commission used the same method to “discover” a right to food in the Charter which is not explicitly included in the Charter. The Commission endorsed the arguments put forward by applicants that the right to food is implicit in the African Charter, in such provisions as the right to life,74 the right to health,75 and the right to economic, social and cultural development.76 The right to food is implicitly protected in the Charter because it is “inseparably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfi lment of such other rights as health, education, 70 Nigeria Case, op cit , par. 61.71 See General Comment No. 7 (1997) on the right to adequate housing (Article 11.1):

Forced evictions.72 Leckie, op. cit. p. 113.73 (E/1992/23, annex III. Paragraph 8(a)).74 Article 4.75 Article 16.76 Article 22.


work and political participation”77. The minimum core of this right to food requires that states should not destroy or contaminate food sources. It should not allow private parties to destroy or contaminate food sources, and prevent peoples’ efforts to feed themselves.78

Enforcement of Social and Economic Rights

Once the scope and content of the obligations engendered by social and economic rights have been defi ned with suffi cient precision so that we know where we are going and what we wish to achieve, we must turn to the question of how we wish to achieve these goals. Is judicial enforcement appropriate or should enforcement be left to HRCs or international bodies such as the UN Committee on ESCR? This question is intimately linked to the so-called counter-majoritarian problem. Courts are staffed by unelected judges who, because of their need for independence, are not directly accountable to either the electorate, the executive or the judiciary. But in a constitutional state, judges are nevertheless required to make far-reaching orders that seem to intrude – at least to some extent – on the terrain of the other two branches of government. As we have seen, social and economic rights often (but not always) require the state to take positive steps to ensure the full realisation of these rights. Such steps may include the realisation of rights, not only through the adoption of legislation but also through the creation of reasonable programmes and the reasonable implementation of such programmes and this, in turn, often requires the spending of vast sums of money. In such cases, it is often argued, courts are not the appropriate bodies to oversee the implementation of social and economic rights because, institutionally, they are not equipped for it, while it may also lead to a destruction of the important principle of separation of powers.

However, I believe courts can and should play an important role in the enforcement of all rights, including social and economic

77 Nigeria Case, op cit, par. 64.78 Ibid. par. 65.


rights. First, rights have both positive and negative obligations and courts can clearly play an important role in enforcing the negative obligations engendered by social and economic rights. In the same way that courts in a constitutional state can enforce the negative obligations engendered by civil and political rights, it can clearly play a role in the enforcement of negative duties engendered by social and economic rights. Where the state, for example, wishes to evict poor people from their homes, the court can play an important role to prevent such action from happening.

Second, as the South African Constitutional Court has shown, courts can oversee the implementation of the positive aspects associated with social and economic rights, as long as they do not get involved in the actual running of the country. The concept of “reasonable action” has been used by South African courts to ensure that unreasonable failure on the part of the state to take necessary steps that are both feasible and affordable, do not occur. This is a limited power and courts have shown some reluctance, to avoid overstepping the boundaries and becoming involved with work that should rightly be done by the executive or legislature. This also means that, when it comes to positive obligations, the enforcement role of the courts will be curtailed and that one should perhaps look for other ways to ensure the enforcement of social and economic rights. Such avenues should not be seen as replacing the role of courts, but as augmenting it.

In this regard, there are at least two important ways in which the enforcement of social and economic rights could be speeded up or made more effective outside the perimeters of the courts. On the one hand, civil society, especially special interest groups, can play an important role to create an environment that will encourage the state to speed up the realisation of social and economic rights. Such groups can make effective use of its resources and its ability to mobilise groups and public opinion, to lay the groundwork for changes in government policy, and if that fails, to create an environment in which it becomes politically more feasible for a court to act when approached. In South Africa, the Treatment Action Campaign


(TAC), have been particularly effective in using the legal system and the courts alongside social mobilisation to force the government to change its policies on the medical treatment provided to people living with HIV/Aids. In the TAC case,79 for example, the Constitutional Court declared invalid the government’s policy which prevented state hospitals from providing HIV-positive pregnant mothers with ARVs at birth to lower HIV infection of their new born babies. The success of the TAC was at least partly the result of a very successful political campaign in which the TAC managed to mobilise public support behind its position. By the time the case reached the Constitutional Court, the Court knew that the vast majority of the public would back a decision that ordered the government to provide such mothers with ARVs and it was therefore relatively easy for them to decide the case in favour of the TAC.

On the other hand, many countries in Africa have now established HRCs, set up by the state to promote and enforce human rights. Such commissions, when they operate effectively, are in a unique position to play a role in the enforcement of social and economic rights. HRCs are supposed to be independent from the government, yet set up by the government and acting as a quasi governmental organisation. In this capacity they often have better access to government departments and information and, at the best of times, mostly retain the trust of both the government and the population. I therefore believe that HRCs can play an important role in assisting in the realisation of social and economic rights. First, a commission can play an important role in popularising the notion of social and economic rights among the citizens of a country. While the notion of rights as civil and political rights have gain traction among ordinary people, many people still fail to see freedom from want as a human rights issue. By educating the population about the human rights nature of social and economic deprivation, a HRC can begin to assist the citizens of a country to demand more from their governments in the language of rights. This might assist in

79 Op cit.


framing social and economic demands in less overtly political terms, thus placing people’s demands within a moral universe of rights discourse. Where people demand the realisation of their rights it becomes more diffi cult for the state to deligitimise such demands as “politically motivated”.

Second, HRCs with access to government statistics and information can begin to measure government progress in the progressive realisation of social and economic rights. One of the biggest stumbling blocks to holding any government to account for its duty to progressively realise social and economic rights, is an absence of information regarding the steps a government has taken and what results it has achieved. HRCs have an important monitoring role to play to gather and collate relevant information that could be used by civil society and courts when they begin to hold a government to account. This is not an easy task and, as the experience with the South African HRC has shown, government is often resistant to providing information that would show up their efforts. This is therefore a long- term goal and could be undertaken incrementally, so that better information is available as time goes by.

Conclusion

Social and economic rights are becoming increasingly important in the human rights discourse. Over the past ten years the slogan that all human rights are interdependent and indivisible has, for the fi rst time, developed into more a mere slogan. In some parts of the world, courts and other organs have begun to play a role to conceptualise and enforce not only civil and political rights but also social and economic rights. HRCs in Africa have an important role to play in the further development of this trend.

29

2

Infusing Human Rights in Policy and Legislation: Experiences from Kenya

National Commission on Human Rights

Lawrence Murugu Mute

Introduction

The guarantee and exercise of human rights by individuals and communities in any modern state is dependent on a variety of normative frameworks and institutions. The principal constituents of the international human rights system are the fi ve core international human rights covenants,80 which themselves are given teeth by legislation at national and local levels.

Key international actors in the protection and promotion of human rights include the UN and its agencies such as the Offi ce of the High Commissioner for Human Rights. In recent years, the enforcement capacities of the UN have been bolstered by independent mechanisms such as the International Criminal Court (ICC). National Human Rights Institutions (NHRIs) are another mechanism which seeks to ensure that international human rights standards are enforced at the national level.

80 International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on Elimination of Discrimination against Women (CEDAW), Convention on Rights of the Child and Convention Against Torture and Cruel or Inhuman Punishment or Treatment. The UN system is in the process of negotiating a convention for the protection and promotion of the rights and dignity of persons with disabilities.


The Paris Principles and the Kenya National Commission on Human Rights

The Paris Principles, formulated in 1991 via the UN Commission on Human Rights Resolution 1992/54 of 3 March 1992, set out the basis for national human rights institutions. The KNCHR is one of the youngest NHRIs, having been set up in July 2003. This section of the presentation relates the requirements in the Paris Principles with the realities set out for the KNCHR in the Kenya National Commission on Human Rights Act.

The Paris Principles set out some key paradigms which must be at the core of an NHRI:81

The Paradigm of Competence and Responsibility

The Paris Principles require that NHRIs should have as broad a human rights mandate as possible and that such mandate should be set out in the constitution or legislation. The mandate should enable NHRIs to pronounce on matters such as:• Governmental actions vis-à-vis human rights;• Harmonisation of national laws with international human rights

standards;• Ratifi cation of human rights instruments;• Facilitation of state reporting to UN treaty bodies and

committees;• Co-operation with international, regional and other national

human rights institutions;• Facilitation of human rights education; and• Publicising and promoting human rights.

81 Performance and Legitimacy: National Human Rights Institutions, International Council on Human Rights Policy, 2000, pp.1-2.

Infusing Human Rights in Policy & Legislation 31

The KNCHR’s mandate is, comparatively, fairly broad in view of the above paradigm. The KNCHR is required, by law:• To investigate, on its own initiative or upon a complaint made

by any person or group of persons, the violation of any human rights;

• to visit prisons and places of detention or related facilities with a view to assessing and inspecting the conditions under which the inmates are held and make appropriate recommendations thereon;

• To inform and educate the public about human rights for the purpose of enhancing respect for such rights by means of a continuing programme of research, publication, lectures and symposia and by such other means as the Commission may deem fi t;

• to recommend to parliament effective measures to promote human rights, including provision of compensation to victims of violations of human rights or their families;

• to formulate, implement and oversee citizens of and other persons resident in Kenya, awareness of their civic responsibilities and an appreciation of their rights and obligations as free people;

• to act as the chief agent of the government to ensure compliance with its obligations under international treaties and conventions on human rights;

• to encourage the efforts of other institutions working in the fi eld of human rights and co-operate with such other institutions for the purpose of promoting and protecting human rights in Kenya; and

• to investigate and conciliate complaints on its own initiative, where the nature of the alleged human rights violation makes conciliation both possible and appropriate.

The paradigm of composition and independence

Under the Paris Principles, the independence of action of NHRIs is supposed to be guaranteed through several means, including:


• Whether representation on the Commission is pluralist, capturing a country’s diverse social forces;

• Whether there exists a level of funding and infrastructure that allows a Human Rights Institution to be independent of the government and not subject to fi nancial control which might affect its independence; and

• That the mandate of an NHRI is established by law.

The KNCHR’s independence is guaranteed by provisions, for example, requiring that commissioners’ salaries will be drawn from the Consolidated Fund. Other provisions make it clear that the Commission will receive a fi nancial vote from the government. The plurality of the commissioners’ is ensured through a very rigorous appointing procedure involving the National Assembly short-listing eleven names from which the president appoints nine commissioners with considerations of gender, region and ability being made.

The paradigm of methods of operation

This paradigm provides a NHRI, with leeway, freely and without undue technical restrictions:• to consider any questions falling within its competence whoever

refers them, including any petitioner;• to consult as necessary with other bodies responsible for human

rights;• to network with civil society organisations (CSOs); and• to provide redress of a broad nature, including conciliation or

binding procedure.

The KNCHR has legislative leeway to perform the above.


Policy and Legislation: Experiences of KNCHR

Strategic Objectives

The KNCHR’s strategic plan sets the vision of “a strong and vibrant human rights culture founded on equality and social justice for all”.

A fi ve year plan beginning 2003 identifi ed four strategic objectives to operationalise the vision. These were:• Reducing systemic human rights violations;• Assuming leadership in framing and informing human rights

discourse;• Increasing opportunities for the realisation of economic and

social rights; and• Establishing a comprehensive human rights education system.

As soon as the KNCHR was established, it realised that its legitimacy and credibility with Kenyans would be grounded in what it did rather than in what its members said, would do or what the law allowed them to do. The policy and legislative work has revolved around key public institutions like the executive (government ministries and departments), the police department, the prisons department, parliament, the judiciary and local authorities.

During 2003/2004, KNCHR sought to ensure that human rights values formed part of policies and legislation, among others, in the following areas:• Suppression of Terrorism Bill;• Persons with Disabilities Act;• HIV and Aids Control Bill;• Draft Convention on Protection and Promotion of the Rights

and Dignity of Persons with Disabilities;• National Social Health Insurance Fund Bill; and• Tobacco Control Bill.


Challenges in infusing human rights into policy and legislationInfusing human rights into policy-making during 2003/2004 was undermined by a number of factors:a) Key departments of government continued to interpret the

concept of human rights to apply only to civil and political rights. Bureaucrats in many ministries continued to wonder why the KNCHR should seek to relate with them when human rights in their understanding should focus on freedoms of expression, association and movement rather than on rights to food, water, health, etc.

b) Parliament, as the principal legislative arm, is critical to ensuring that human rights are infused into policy and legislation. Politicians, unfortunately, tend to be driven by the popular view, rather than the technically correct view even with regard to human rights. KNCHR’s concerted attempts in Kenya’s never-ending constitutional review process to outlaw capital punishment fell foul of politicians’ fears that taking a principled position against capital punishment would make them unpopular with the electorate.

c) NHRIs are at times intended by establishment elites to be mere public-relations gimmicks. Relations between KNCHR and the executive branch of government are continually dynamic. In an endeavour to advise on economic and social rights, KNCHR sought to determine the extent of government waste of resources through “fruitless” expenditure, for example, on overly expensive cars. The executive did not take kindly to this, and government departments sought advice from the Attorney-General on whether the KNCHR had powers to summon information from government departments. While the situation on this matter remained protracted, it is signifi cant that the 2004 budget speech made specifi c references to and proposals covering future purchase and use of cars.

d) Related to the above, NHRIs have to be careful to protect themselves against co-optation. The Commission has been a member of several task forces, and some of have done very good


work. However, the Commission was increasingly concerned that a task force on police reform, on which it is represented, could be a window-dressing stunt while business-as-usual continued within the police. What is notable about KNCHR-police relations, unlike KNCHR’s relations with the prisons department, KNCHR’s statutory power of access to detention centres is respected less in police stations.

e) Infusing human rights into policy and legislation calls for collection of up-to-date data. Invariably, face-to-face discussions with government personnel elicit very positive responses on the need to incorporate human rights into policy and legislation. Yet, when government departments have to provide reports to KNCHRS, they don’t. This situation has befallen our state of human rights report which KNCHR prepares on an annual basis.

f) The collective memory of policy makers can be subverted by the musical-chairs effect. In 2003, KNCHR was concerned that work it had been doing with the disability sector would be imperilled because key persons had been replaced. At other times, of course, it would be a boon when recalcitrant civil servants are moved.

g) The legislative process is very diffuse and amorphous, so that on policy and legislative issues, in particular, it can be diffi cult to know when a particular organisation is impacting. Clearly, no organisation can presume to claim exclusive rights for generation or dissemination of certain information. Hundreds of stakeholders, for example, made their views known about the National Social Health Insurance Fund Bill.

Some good practices in policy and legislation

This section lists four imperatives which inform good practice in inclusion of human rights into policy and legislation:

The imperative of informal networks

The KNCHR Act requires the Commission to prepare a state of human rights report to be presented to parliament on an annual basis. This report outlines the extent to which the government


has taken account of human rights as it implements its agendas. The Commission has found it very diffi cult to obtain current and accurate human rights disaggregated information from government departments.To infl uence policy-making in this regard, the KNCHR has had to rely on informal networks which commissioners and Commission staff strike with civil servants.

The imperative of escalation

Effective policy making sometimes requires intensive but quiet diplomacy. Yet, at other times, infl uencing policy making, calls for issues to be publicised through the media and other outlets. The Commission wrote to the president and also made public its displeasure with the Constituency Development Fund Act, 2003, which was passed by parliament despite clear human rights questions over its advisability.

The imperative of seeking consensus on issues within the commission

It is quite easy to reach consensus within the Commission on certain matters, capital punishment, for example. There are other policy issues on which the Commission itself may not agree such as gay rights. In such cases, falling back on principle is helpful. Discussions have involved questions such as: is the particular matter consistent with human rights standards? If we cannot make a positive statement now, is silence better?

The imperative of infi ltration (niche-creation)

One way a NHRIs can add value to legislative and policy processes is for it to become a driver of certain information. In recent years, KNCHR has explored the possibility of being privy to proposed legislation even before government departments publish it, so that the Commission can infl uence prepublished legislation.

37

3Rwanda: Realising Economic, Social and

Cultural Rights

Emmanuel Murangwa

Introduction

This workshop aims at providing a forum for dialogue and experience sharing among East African HRCs.

Rwanda’s experience may not necessarily be differ from the rest of the countries represented in this workshop, but still, every individual country has something to learn and to offer in terms of experience, however humble the lesson or the information may be.

For 46 years since the Universal Declaration of Human Rights, international and regional human rights systems have played an important complementary role in strengthening standards and mechanisms, by providing ways and means to address the particular political, civil, social, economic and cultural contexts of concerned regions and countries.

In the East African region, redressing human rights to realise ESCRs has been one of the greatest challenges facing NHRIs.

The ICESCR Article 2, states that “Each state party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including, particularly the adoption of legislative measures.”


In Rwanda, the Constitution adopted by Referendum on 26 May, 2003 and confi rmed by the Rwanda Supreme Court in Decree No. 772/14.06/2003 of 02/06/2003 established the National Commission on Human Rights as an independent institution with four main objectives:• to educate and sensitise the population on human rights;• to examine human rights violations perpetrated by state organs,

individuals under the state cover, organisations and private individuals;

• to conduct investigations on human rights violations and bring to court all the culprits; and

• to prepare and distribute annual reports on human rights situation in Rwanda.

It is from this perspective that the works to realise political and civil rights, and particularly economic and social rights.

The Rwandan constitution emphasises human rights in several articles such as Article 14: “The state shall, within the limits of its capacity take special measures for the welfare of the survivors of genocide who were rendered destitute by the genocide committed in Rwanda from October 1st, 1990 to December 31st, 1994, the disabled, the indigent and the elderly as well as other vulnerable groups.”

This focus is understandable when one considers who victims of human rights violations are. A Swahili saying, Mnyonge hana haki, means that a weak (poor) man has no rights. The main victims of social, economic violation include landless peasants, minorities and all vulnerable individuals or groups.

Many other articles such as 37, 38, and 39 provide for the right to equal opportunities to work, and the right to join trade unions and strike within the limits provided by the law, while Article 40 of the Rwanda Constitution provides for the right to Education. “Every person has the right to Education. Freedom of learning and teaching

Rwanda: Economic, Social & Cultural Rights 39

shall be guaranteed in accordance with conditions determined by the law.” At the time of writing the paper, primary school had been made compulsory and free in public schools and lower secondary in schools in Rwanda, with greater efforts needed in other areas, as stated in Aricles 41 and 49, which stress rights to good health.

Where a signifi cant number of people live in poverty and hunger it is our respective states to do everything possible to establish a basic minimum standard to respect people’s rights.

What Would Promote Economic, Social and Cultural Rights?

By defi nition, human rights, in essence relate to human dignity and are based on the principle of non-discrimination and equality. Consequently, realising ESCRs involves more than mere fulfi lment of needs but is an obligation to provide channels and mechanisms through which rights can be enforced.

Before embarking on realisation of rights, it is necessary to understand what rights involve. Human rights are integral part of international human rights law, and can be realised in a variety of political settings, be it market or non market economies.

The realisation of ESCRs in Rwanda, just like in the whole East African region, cannot be in isolation of the global economic sphere, as rights have to be realised within the context of systematic poverty, inequality and the increasing divide between the rich and the poor.

The United Nations Human Development Report 2000 quoted the following frustrating global records:• 90 million children out of primary school• 790 million people hungry and food insecure• 1,2 billion people living on less than $ 1 a day.

Considering the developments in the East African region with respect to what is being done in the fi ght against poverty, especially Rwanda, where with the policy of poverty alleviation has had variable results,


concerted and deliberate efforts are needed to improve the situation further.

At the fi rst African Union Ministerial conference on Human Rights in Africa meeting held on 8 May, 2003, the Kigali Declaration was adopted to reaffi rm that respect for human rights is indispensable for the maintenance of national, regional and international peace and security for sustainable development.

Furthermore, this Conference reaffi rmed the principle that all human rights are universal, indivisible, inter-dependent and inter-related, and urged member states and regional institutions to accord ESCRs the same importance as that accorded to CPRs.

Whose Rights?

Economic rights: Serve as a basis of entitlements that can ensure an adequate standard of living.

Social rights: Require that everyone enjoys the necessary subsistence rights, adequate food and nutritional rights, clothing, housing and necessary conditions of care.

It is with regard to these rights that vulnerable groups in society require special protection by the adoption of affi rmative action or special measures.

In order to advance economic and social rights, it is essential to refl ect on and understand the implications of development policies adopted by national governments, regional and international agencies. People made vulnerable as a result of social and economic policies must be protected. Human rights institutions must educate, sensitise and raise awareness among people that economic and social rights are not privileges or aspirations, as some may be tempted to believe, but basic human rights. Indeed that food, housing, health and other basic human requirements are not only needs, but entitlements.


Article 1 of the ICESCR proclaims the right to self determination, including the right to pursue economic, social and cultural development.

Part III; Articles 6-15 constitutes the core of the Covenant, outlining the rights to education, health, housing, food, work, social security and cultural rights as state obligations.

Specifi cally, states are obliged to respect, protect and fulfi l certain duties. It means:• Respect: Refrain from interfering with the enjoyment of

economic and social rights, for example, avoid arbitrary forced evictions.

• Protect: The state should prevent violations of rights by third parties by, for example, ensuring that private employers comply with basic labour standards.

• Fulfi l: Requires states to take appropriate legislative, administrative, budgetary, judicial and other measures towards realisation of rights. For example, failure to provide essential primary health care to those in need may constitute violation. Lack of resources does not mean states can defer taking steps to realise rights.

States should take steps legislative, administrative, judicial, economic or social to ensure the protection of rights. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligationsset out in the ICESCR.

To achieve progressively the full realisation of rights while refl ecting the realities of the real world and diffi culties involved, states are obliged to move as expeditiously as possible towards the realisation of the rights to ensure the satisfaction of at the very least, minimum essentials of economic and social rights.

As remedies and responses to economic and social rights violations, victims are entitled to access to effective judicial or other remedies at national and international levels, and adequate reparation in the form of restitution, compensation and rehabilitation.


The Kigali Declaration urges member states to establish independent national human rights institutions, to provide them with adequate fi nancial and other resources for proper functioning and guarantee their independence.

However, we have to note that the implementation of these rights remain a challenge. For example, the RHRC Annual Report for the year 200282, reports that the Commission received many cases from citizens including on ESCRs especially relating to health, housing and land. The Commission presented these cases to concerned ministries for attention and challenged government authorities to resolve them. The cases included:

- Non remittance of houses;- Land distribution and redistribution;- Illegal sale of houses;- Illegal displacement of people from their land- Destruction of property;- Child maintenace cases including refusal to pay school fees;- Disrespect of the right to employment and labour code

including illegal dismissals and matters relating to payment of terminal benefi ts and gratuity.

The 2003 RHRC Annual Report also referred to cases relating to individual property including complaints relating housing, land ownership, theft of livestock, children’s rights concerning inheritance, and other social cases; as well as employment, labour and other related cases that were handled and highlighted by the Commission.

The Commission became involved and solved some of these cases in accordance with the law and through counselling, referral to relevant relevant authorities, but many other cases failed to be resolved.

In general, the problem remains lack of practical methods of enforcing these rights; many possibilities need to be explored. As Article 31 of the Kigali Declaration states; African solidarity with 82 Pp. 48-60


the people whose fundamental rights are being grossly violated is of prime importance. For example, the East African region should do everything possible to help our brothers and sisters in Darfur-Sudan, where thousands of innocent people are deprived of their social, economic, cultural and civil rights. The efforts of the governments of Rwanda and Nigeria who deployed more than four hundred troops each to help establish security in that region, are commendable.

How to Measure ESCR Progress or Retrogression?

Article 2 paragraphs 1 and 3 of the ICESR stipulates that every state should take action by own efforts, assisted by international co-operation, to the maximum of available resources so as to progressively fulfi l its obligations and rights under the Covenant.In otherwords, states should intervene to ensure the enjoyment of these rights, which is known or may be interpreted as positive obligations.

Since judicial control of social rights would be very diffi cult due to the nature of ESCRs, it is through periodic reports by states that administrative control can be effected.

Conclusion

As earlier mentioned, the implementation, monitoring and evaluation of of ESCRs is essential and calls for a concerted effort. NHRIs of Kenya, Tanzania, Uganda and Rwanda should spearhead efforts to promote ESCR in order to foster development in the region. The need is urgent and meeting it is the challenge for all of us.

44

4

Empowering People on their Rights in Tanzania

Mohamed Ramia Abdiwawa

Introduction

Human rights activism is not new in Africa. It has been a feature of all democratic struggles in the region, both during and after colonial times. Numerous organisations, from lawyers’ associations, trade unions, and religious organisations, to grassroots, popular structures, have organised to defend and promote rights in a variety of ways. However, only over the last decade has Africa witnessed a proliferation of self-proclaimed human rights or advocacy organisations that work specifi cally to monitor violations, promote and protect human rights, and engage with the state and inter-governmental bodies to create a space for human rights debate and thinking.83

The phenomenon of NHRIs in Africa is a fairly recent one. State-sponsored HRCs represent a new vogue among governments, particularly in Africa. The last decade has seen signifi cant growth in the number of national human rights institutions in Africa. The number of state-sponsored HRCs has multiplied across the continent in the past decade, from one country in 1989, to more than two dozen by 2003.84 The HRC of Togo is Africa’s oldest national human

83 Manji, F. (1998) Depoliticisation of Poverty. In Development and Rights: Development in Practice Readers Series. D. Eade (Ed.). Place: Oxfam. pp. 1-32.

84 The Kenya National Commission on Human Rights (KNHRC) (est. 2003), is the latest addition to the family of government HRCs in sub-Saharan Africa.

Empowering People on their Rights in Tanzania 45

rights institution. In the East African region, Uganda85, Tanzania86 and Kenya87, now have national HRCs.

National HRCs vary considerably in their forms of establishment, mandates and structures. According to critics, a few of them have demonstrated that they can be relied upon to advance human rights on the continent, while the majority have yet to convince the people that they are not simply “pretenders” or apologists for the governments that established them.88 A scathing report on government HRCs published by Human Rights Watch with regard to Africa in March 2001, Protectors or Pretenders: Government HRCs in Africa, cautions the notion that NHRIs are universally a good thing.89 The Report charges that many African NHRIs serve as “apologists for government violations of human rights, lack independence and are generally, with few exceptions, ineffective.” The Report indicts on a number of institutions. It states that mere creation of a national HRCs cannot and should not be equated with enhanced respect for human rights or even genuine commitment to this goal.

Despite the scathing criticism of government HRCs by Human Rights Watch, it is without controversy that the growth of national HRCs is a sign that African governments appear to be accepting the international human rights discourse. It also serves as an acknowledgement that human rights protection should be a part of a government’s portfolio.

85 The Ugandan HRC, the oldest in the East African region, was established as an independent body of government, vide Article 54 of the 1996 Ugandan Constitution. In Uganda, issues of maladministration are handled by the Inspectorate of Government.

86 The Commission for Human Rights and Good Governance of Tanzania (CHRAGG) was established in 2000 as an independent government department under Article 129 of the 1977 Constitution of the United Republic of Tanzania as amended in 2000. It combines the functions of human rights and ombudsman. CHRAGG took over the functions of the fi rst ombudsman on the African continent, the Permanent Commission of Enquiry (PCE), which was established in 1966 and abolished in 2000 when the new Commission was created.

87 The Kenya National Commission on Human Rights (KNCHR) is an independent national human rights institution established by the government through an act of parliament

88 Human Rights Watch (2001) Protectors or Pretenders: Government HRCs in Africa. New York: Human Rights Watch.. As far as the East African region is concerned, only the Ugandan Commission for Human Rights was in existence when the report was published.

89 Ibid.


Under international law, the promotion and protection of human rights is a key responsibility of governments. At the national level, human rights are protected through, among other things, a constitutional bill of rights and other relevant statutory instruments, an independent judiciary, the enactment and enforcement of individual safeguards and the establishment of democratic and good governance institutions. Another means by which governments can seek to protect human rights is through the establishment of an autonomous national body, such as a HRC that functions independently of other government agencies to promote the effective application of laws and practices concerning human rights by government. A set of international standards, the Paris Principles, adopted by the UN General Assembly in 1993, provides a framework with the requisite standards applied by the UN to best ensure an effective national human rights institution. These standards advance the importance of a broad mandate, a constitutional or legislative founding statute, an independent appointment procedure and adequate funding.

Those who levy criticism at the work of national HRCs, look only at one side of the mandate of these commissions, namely, the protective function. National HRCs also have an important promotive function through advocacy, research and public education functions.

The promotive function of a NHRI is the main focus of this paper. It examines the role of national HRCs in empowering people on their rights, to achieve social change through advocacy, namely education, training and awareness programmes. The paper comprises fi ve parts. The fi rst part discusses the meaning of empowerment and its four elements. Part two examines the social context of the rights approach to empowerment. Part three discusses human rights education as an empowerment tool. Part four examines the role of national HRCs as agents of social change. Part fi ve is a conclusion.


Conceptualising Empowerwent

Introduction

Today’s “moment” is one of unprecedented, interlocking social and ecological crises. We can characterise the times as “crisis of crises.” Central to this moment however, is one overarching crisis – the “crisis of democracy and governance”. The democratic or participatory crisis manifests itself in terms of a largely passive, acquiescent, and cynical citizenry, a depoliticised mass culture and patriarchal social arrangements permeated by hierarchy and domination. Corporate or late capitalism, and liberal, democratic and bureaucratic statism, provide the macro-institutional shell.

Dialectical thought informs us that moments of crisis are not without their moments of opportunity. One critical opportunity that does exist is the possibility for “generalisation” of the democratic revolution in these liberal-democratic times. Essential to national human rights and democratic governance institutions is fundamental social change and the creation of an informed, critical and active citizenry. Social transformation at large is contingent upon, in part, the realisation of active citizenship and the participatory democratic ideal in social institutions such as community-based organisations, faith-based organisations, schools etc. These institutions represent critical sites for democratic contestation. They constitute a pivotal strategic element in the larger project of extending and deepening the democratic revolution to all social spheres.

While some so-called “progressive” national HRCs90 work closely with the civil society community, in some cases, government HRCs have actually sought to downplay the work of CSOs working in the fi eld of human rights.91 It is our considered view that the popular

90 In this category are grouped commissions such as of those of Ghana, South Africa and Uganda.

91 Nowrojee, B. (2002) African human rights panels mostly disappointing. In Reuters Foundation, 12 July 2002 available at: http://www.alertnet.org/printable.htm?URL=/thefacts/releifresources/476404.htm downloaded on 6 April 2004.. Nowrojee is a counsel with Human Rights Watch’s Africa division and author and editor of the report Protectors or Pretenders? Government HRCs in Africa.


empowerment programme will not have much impact if it lacks active participation by the people, individually and collectively, through CSOss or community based organisations or faith-based organisations. In the following sections the concept of empowerment and its four elements and the way it can inform the work of national HRCs is explored.

The meaning of empowerment

The institutional defi nition of empowerment in the context of poverty reduction as given by the World Bank is the starting point in this discourse. The World Bank defi nes empowerment as:

the expansion of assets and capabilities of poor people to participate in, negotiate with, infl uence, control, and hold accountable institutions that affect their lives.92 (emphasis supplied)

The World Bank admits that empowerment, as a term, has meaning that changes with social and political context, depending on its interpretation, but its core signifi cance always remains the same – putting people on equal footing with each other, by giving marginalised or victimised poor people the opportunity, voice and power to rise above their challenges.

This discourse is therefore largely informed by the World Bank’s institutional defi nition of the term empowerment. However, in the context of empowering people on their rights, the term empowerment refers broadly to the expansion of freedom of choice and action to shape one’s life. It implies control over resources and decisions. For poor, marginalised and excluded people, that freedom is severely curtailed by their voicelessness and powerlessness in relation, particularly, to state and markets. Powerlessness is embedded in a culture of unequal institutional and socio-cultural relations. Gender inequalities, including those within the household, need to be taken into account in the empowerment discourse. Women are among

92 See Narayan, D. (Ed.) (2002) Empowerment and Poverty Reduction: A Sourcebook. Washington DC: The World Bank. Available at: http://www.worldbank.org/poverty/empowerment-/whatis/index.htm.


the poorest of the poor and suffer double discrimination, fi rst as women and secondly as the poor. The poor are usually victims of discrimination on various grounds, such as birth, property, national and social origin, race, ethnicity, colour, gender and religion.

From a rights perspective, which views poverty as the non-fulfi lment of a person’s human rights to a range of basic capabilities – to do and be the things he or she has reasons to value, capability failure is thus the defi ning attribute of poverty and lies at the centre of the discussion on empowering people on their rights. In simpler terms, therefore, empowering people on their rights means strengthening their capabilities to claim their rights and to defend these rights, thus being able to exercise control over things that affect their lives and to hold public institutions to account. NHRIs therefore have a major role to play in developing the capacity of people (their capabilities) through various human rights awareness campaigns, education and training programmes.

Since poverty denotes an extreme form of deprivation, only those capability failures should count as poverty that are deemed to be basic in some order of priority. As different societies may have different orders of priority, the list of basic capabilities may differ from one society to another. However, empirical observation suggests a common set of capabilities that are considered basic in most societies. These include the capabilities of being adequately nourished, avoiding preventable morbidity and premature mortality, being adequately sheltered, having basic education, being able to ensure security of the person, having equitable access to justice, being able to appear in public without shame, being able to earn a livelihood, and taking part in the life of a community.

In the language of rights, one may say that a poor person is one for whom a number of human rights remain unfulfi lled – such as the rights to food, health, education, clean environment and so on. Such rights have constitutive relevance for poverty if a person’s lack of command over economic resources plays a role in causing their


non-realisation. Some human rights are such that their fulfi lment will help realise other human rights that have constitutive relevance for poverty. For example, if the right to work is realised, it will help realise the right to food. Such rights can be said to have instrumental relevance to poverty.

Four elements of empowerment

The term empowerment has different meanings in different socio-cultural and political contexts, and does not translate easily into all languages. In the case of Tanzania, for example, during the era of Ujamaa, empowerment was equated with “self-reliance”. There cannot be a single model for empowerment, given very different socio-cultural, political, and institutional contexts; accordingly, this paper draws on the four key elements of an empowering approach that were isolated by the World Bank in its report on empowerment and poverty reduction to inform the practice of HRCs in carrying out their rights empowerment programmes.

Although there is no generally accepted framework for empowerment and no single institutional model, certain elements are almost always present when empowerment efforts are successful. These elements act in synergy, are closely intertwined, and strengthen the demand side of governance. The four key elements of empowerment that must underlie institutional reform as identifi ed by the World Bank are discussed below:93

Access to information

Information is power. Two-way information fl ows from national HRCs to citizens and vice versa are critical for responsible citizenship and responsive and accountable governance. Informed citizens are better equipped to take advantage of opportunity, access services, exercise their rights, and hold state and non state actors accountable.

- How transparent are government HRCs?

93 Ibid.


- Is there more effi cacy/effi ciency in combining human rights and ombudsman functions – in the case of Tanzania – the Commission for Human Rights and Good Governance (CHRAGG) taking over the work of the defunct Permanent Commission of Enquiry (PCE), an “ombudsman”

- The issue of confi dentiality is fairly controversial in the context of combined functions of ombudsman and human rights work, as is the case with CHRAGG. Does this stand in the way of access to information?

Inclusion and participation

An empowering approach to participation treats poor people as co-producers, with authority and control over decisions and resources devolved to the lowest appropriate level. Inclusion of poor people and other excluded groups in decision making is critical to ensure that limited public resources build on local knowledge and priorities, and brings about commitment to change. It is therefore necessary to ensure people’s participation, especially by the poor and otherwise marginalised groups, in all aspects of decision making.

However, in order to sustain inclusion and informed participation, it is usually necessary to change rules and processes to create a space for people to debate issues, participate in local and national priority setting and budget formation, and access basic services. The participation of poor people in the work of HRCs is therefore critical. NHRIs should strive to use an empowering approach to participation by treating the people as co-producers, with authority and control over decisions and resources devolved to the lowest appropriate level.

- To what extent does the work of national HRCs take cognisance of participatory approaches for generating and sharing ideas/information and for developing and implementing human rights programmes?

- Do national HRCs, apply bottom-up approaches to working for human rights promotion and protection?


Accountability

National HRCs as public service providers must be held to account, making them answerable for their policies and actions that affect the well-being of citizens. Similarly, national HRCs must empower people on their rights so that the people can hold the state, as the main duty-bearer accountable for its three duties, that is, the duty to respect, the duty to protect and the duty to fulfi l human rights.

There are three main types of accountability mechanisms. Political accountability by political parties and representatives takes place increasingly through elections. A rights approach to empowerment requires active and informed participation by the poor, and this includes the right to take part in the conduct of public affairs. This crucial and complex human right is inextricably linked to fundamental democratic principles. A democratic social order based on constitutionalism and free and fair elections is an essential prerequisite for enjoyment of this right. Administrative accountability of government agencies is ensured through internal accountability mechanisms, both horizontal and vertical, within and between agencies. Social or public accountability mechanisms hold agencies accountable to citizens, and can reinforce both political and administrative accountability.

Various tools ensure greater accountability. For instance, access to information allows pressure for improved governance and accountability, as well as access to law and impartial justice. When poor people hold a national HRC or the state and its organs accountable, control and power shifts to the people. This is where the challenge for government HRCs lies – these commissions, which are state-sponsored are eventually supposed to empower poor people – the marginalised, to know their rights so as to be able to defend them as well as develop their own capabilities. Empowered people are able to hold the “duty-bearer”, that is the state and its organs, to account for their conduct in relation to human rights.


- Should national HRCs deal with confl icts among political parties/members?

- What is the role of national human rights in the electoral process?

- What is the impact of the proliferation of other governance institutions and mechanisms (for example, in the case of Tanzania, the establishment of the Public Service Commission and Labour and Employment Tribunals and commissions) on the work on national HRCs?

- To what extent are national HRCs accountable to the people – to whom do the commissions report? Who appoints the commissioners and to whom are they accountable? What is the security of tenure of the commissioners and how long do they serve? What is the status of the decisions of the commissions?

Local organisational capacity

Local organisational capacity refers to the ability of people to work together, organise themselves, and mobilise resources to solve problems of common interest. Organised groups and communities are more likely than individuals to have their voices heard and their demands met. When such membership-based groups federate at higher levels, they can gain voice and representation in policy dialogues and decisions that affect their well-being. It is when groups connect with each other across communities, and form networks or associations that they become large federations with a regional or national presence; then begin to infl uence government decision-making and gain collective bargaining power with public service providers.

- How should HRCs work with grassroots organisations at the local level?

- Is the legal and administrative environment conducive for CSOs?


Application of an Empowering Approach

The four elements of an empowering approach discussed above can be combined to create more effective, responsive, inclusive, and accountable NHRIs, capable of empowering the people on their rights. The state, for its part has a central role to play in providing the right environment and incentives for improving the performance of national HRCs. The state can change rules and the culture of exclusion and inequality, remove constraints, encourage choice, and enforce accountability, while ensuring access for the poor. This can only be achieved within an overall policy environment that focuses on improving governance and encourages innovation and experimentation by public and private actors to develop institutional mechanisms that reach the poor.

Empowerment and good governance

Good governance is increasingly recognised as a crucial prerequisite for development and growth. The terms governance and good governance are being used increasingly in development literature. Governance describes the process of decision making and the process by which decisions are implemented (or not implemented). Hereby, public institutions conduct public affairs, manage public resources, and guarantee the realisation of human rights. Good governance accomplishes this in a manner essentially free of abuse and corruption, and with due regard for the rule of law and respect for human rights. Good governance therefore defi nes an ideal, which is diffi cult to achieve in its totality. However, to ensure sustainable human development, action must be taken to work towards this ideal.

Good governance has a two-way relationship with empowerment – good governance promotes empowerment, and empowerment further enhances good governance. Inclusion and participation and accountability, part of the four elements of empowerment, are also


among the eight main characteristics of good governance.94 The other characteristics of good governance namely, the rule of law and human rights, also play a major role in the empowerment approach. Good governance requires fair legal frameworks that are enforced impartially and full protection of human rights, particularly those of the most vulnerable. The availability (or absence) of impartial, accessible, dependable, transparent, effective and reasonably speedy redress of grievances and associated enforcement mechanisms of accountability is important for social development. Rule of law and human rights affect empowerment: if poor people know their rights and are able to enforce them and thus obtain impartial justice, their freedom is enhanced.

Rights empowerment and poverty reduction

One reason why the human rights approach is compelling in the context of poverty reduction is that the norms and values enshrined in it have the potential to empower the poor. It is now widely recognised that effective poverty reduction is not possible without empowerment of the poor. The human rights approach to poverty reduction is essentially about such empowerment.

In contemporary times, development is equated with poverty reduction.95 Since poverty is multidimensional,96 poor people need a range of assets and capabilities at the individual level (such as social rights: health, education, and housing) and at the collective level (such as the ability to organise and mobilise to take collective action to solve their problems). Empowering poor women and men requires

94 Good governance can be understood as a set of eight major characteristics: participation, rule of law and human rights, transparency, responsiveness, consensus oriented, equity and inclusiveness, effectiveness and effi ciency and accountability.

95 In reviewing the Poverty Reduction Strategy Paper (PRSP) the government of Tanzania changed the title of the document to National Strategy for Growth and Reduction of Poverty (NSGRP), 2nd Draft, Vice President’s Offi ce, Wednesday, 27 October,2004. The document is still under discussion by various stakeholders. The reviewed document adopts a human-rights approach, it is much broader in content and scope, was developed through a participatory process and claims greater national ownership than the fi rst document, which was produced in 2000.

96 The World Bank Development Report 2000/2001: Attacking Poverty, underscores the importance of increasing poor people’s access to opportunity, security, and empowerment for economic growth and poverty reduction.


the removal of formal and informal institutional barriers that prevent them from claiming their rights, and taking action to defend their rights in case of infringement, so that they can fi nally improve their well-being – individually or collectively. Key formal institutions include laws, rules and regulations upheld by states, markets, civil society, and international agencies; informal institutions include norms of social solidarity, sharing, social exclusion, and corruption, among others.

The most fundamental way in which empowerment occurs in the context of poverty reduction is through the introduction of the concept of rights itself. Once this concept is introduced in the context of policy-making, the rationale of poverty reduction no longer derives merely from the fact that the poor have needs but also from the fact that they have rights – entitlements that give rise to legal obligations on the part of others. Poverty reduction then becomes more than charity, more than a moral obligation – it becomes a legal obligation. This recognition of the existence of legal entitlements of the poor and legal obligations of others towards them is the fi rst step towards empowerment.

The combination of political, social and economic empowerment, and enhanced capacity to participate in community governance, is a powerful instrument for helping break the poverty cycle. In fact, human rights education is the primary vehicle by which economically and socially marginalised citizens, particularly the most vulnerable groups such as women, children and the youth, can lift themselves out of poverty and obtain the means to participate fully in their communities.97 As mentioned earlier, poverty is a form of extreme deprivation of capabilities. It is a violation of human rights. Lack of education generally, and human rights education in particular perpetuates poverty, and poverty constrains access to basic social services.

97 United Nations Educational, Scientifi c, and Cultural Organisation (1997) Education for All Status Report. Press Release HR/4445. Concluding Session of the Committee on Economic, Social and Cultural Rights, New York, 3 December. Paris: United Nations.


Human Rights Education as Empowerment

Introduction

The relationship between human rights education and poverty reduction is very clear: people educated on their human rights are better able to defend their rights in case of threat or infringement of their rights, thereby improving the quality of their lives, free of fear and want. Citizens with at least a basic human rights education are more likely to avail themselves of a range of social rights and services, and to participate more actively in local and national levels of governance through voting and community involvement in decision making. They are less likely to be marginalised within the larger society.

NHRIs have a clear mandate to create awareness among people on human rights through advocacy. Capacity-building activities are also essential to empower the poor. Human rights education can play an effective role in this process. Human rights education refers to activities organised with the explicit purpose of forwarding understanding and action related to the human rights framework, as contained in the various international human rights instruments and national bills of rights. The very poor have very clear ideas of what amounts to good governance and a good society, but don’t think anyone is listening. Human rights can form the basis of social and political mobilisation. For communities which have been deprived of the basic necessities of life, the appeal of the idea of entitlement to a decent life is tremendous and empowering.98 The idea of economic, social and cultural rights can therefore play a legitimising role in claims to equal rights and opportunities and the basic necessities of life.

Human rights education empowers; it helps people become more aware of their rights, thereby enabling them to act more proactively, gain control over their lives, and widen the range of available choices. In fact, the opposite of marginalisation is empowerment, and basic 98 CHRI (2001) Millenium Report, Human Rights and Poverty Eradication. Place: Publisher.

p. 40.


human rights education is one of the keys to empowerment, both for individuals and groups. The Vienna Declaration and Programme of Action urges governments, with the assistance of intergovernmental organisations, national institutions and non-governmental organizations (NGOs) “to promote an increased awareness of human rights and mutual tolerance.”99 Under the Vienna Declaration, the concept of human rights education is broader, as it encompasses “peace, democracy, development and social justice, as set forth in international and regional human rights instruments, in order to achieve common understanding and awareness with a view to strengthening universal commitment to human rights.”100

The right to human rights education: why promote human rights education?

When the Universal Declaration of Human Rights was written in 1948, Eleanor Roosevelt, the chairperson of the United Nations Committee that drafted it, made a statement that applies today, in the twenty-fi rst century: She stated that,

“It will be a long time before history will make its judgment on the value of the Universal Declaration of Human Rights, and the judgment will depend, I think, on what the people of different nations do to make this document familiar to everyone. If they know it well enough, they will strive to attain some of the rights and freedoms set forth in it, and that effort on their part is what will make it of value in clarifying what was meant in the United Nations Charter in the references to human rights and fundamental freedoms.”

Education is not only a means to promote human rights. It is an end in itself. In positing a human right to education, the framers of the Universal Declaration relied on the notion that education is not value-neutral. Education always relates to and supports values. But we must be aware of the values being promoted through education. In this spirit, Article 30(2) of the Declaration states that one of the

99 Par.82 A/CONF.157/23 of 12 July 1993.100 Ibid. par. 80.


goals of education should be “the strengthening of respect for human rights and fundamental freedoms”.

The two human rights covenants (later developed by the UN and coming into effect in 1976 to formalise the basis in international law of the rights declared in 1948) also elaborated on the right to education and the values such education should promote. Thus, the Covenant on Economic, Social and Cultural Rights placed the educational objective of strengthening respect for human rights in a cluster of related learning objectives. For example, Article 13(1) of the Covenant states that “education shall be directed to the ‘full development of the human personality’ and to the person’s own ‘sense of dignity....’. The Covenant also states that “State Parties further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.”

Complementing these positive formulations of the objectives of education are the negative proscriptions of the International Covenant on Civil and Political Rights (ICCPR). It states that, once a state adopts the system of international human rights, it may not stand in the way of people learning about them. Everyone has “the right to hold opinions without interference,” the Covenant says in Article 19(1). Insomuch as education is a process involving the sharing and dissemination of ideas, the enterprise is bolstered by the ICCPR, which sets forth the proposition under Article 19(2) that: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his (or her) choice.


The Right to Know Our Rights

The International Bill of Rights, consisting of the Universal Declaration of Human Rights and the two Covenants, emphasise the importance of education in today’s world. Consistent with the tendency of international instruments to use repetitious language and to repeat cardinal principles, it is not surprising to fi nd echoes of the standards noted above throughout the Convenants. The cumulative effect of these repeated expressions helps to underline the importance of human rights, and also that of an important, closely related idea. That is the conviction that we all have a right to know our rights. Having human rights acknowledged and knowing our human rights are both needed in today’s world. The reason is stated in The Preamble of the Universal Declaration of Human Rights: to achieve “a world in which human beings enjoy freedom of speech and belief and freedom from fear and want” people must come to “a common understanding of these rights and freedoms.”

The idea of human rights has wings. It has found its way around the globe. Human rights, including the right to education and the right of the people to know their rights, are implanted in international standards around the world. Thus, the idea that everyone has the right to education and that the goal of education is to further respect for all human rights, are contained in numerous international instruments. Examples of such treaties include the Convention on the Rights of the Child (1989), as well as the American (1948), European (1953) and African (1986) regional agreements on human rights standards and institutions.

At international level, at least, education is now recognised as a basic human right. Education is closely linked to virtually all dimensions of development - human, economic, and social.101 It is also a key factor for improving governance. The right to human rights education is not strictly speaking a human right the constitutions of

101 United Nations Educational, Scientifi c, and Cultural Organization (1997) Adult Education in a Polarizing World. Paris: UNESCO.


all four East African countries under discussion. The constitutional provisions creating the commissions, however, somehow entrust unto these institutions a constitutional duty of conducting research into human rights and educating the public about such issues.102

Basic education empowers individuals by opening up avenues of communication that would otherwise be closed, expanding personal choice and control over one’s environment, and providing the basis for acquiring many other skills. It gives people access to information through both print and electronic media, equips them to cope better with work and family responsibilities, and changes the image they have of themselves. It strengthens their self-confi dence to participate in community affairs and infl uence political issues. Basic education is the key with which individuals can unlock the full range of their talents and realise their creative potential. It gives disadvantaged people the tools they need to move from exclusion to full participation in their society. Basic education also empowers entire nations because educated citizens and workers have the skills to make democratic institutions function effectively, to meet the demands for a more sophisticated workforce, to work for a cleaner environment, and to meet their obligations as parents and citizens.

HRC as Agents of Social Transformation

Experience of the commission for human rights and good governance of tanzania

The biggest challenge for government HRCs in Africa lies in converting themselves into advocacy-oriented institutions rather than acting mainly as investigators of human rights violations. Government HRCs have a big role to play in the social transformation process, by infusing a culture of respect for human rights among the populace, thus creating an informed citizenry through the commissions’ participatory human rights awareness, education and training programmes.102 See, for example Article 130(1)(d) of the Constitution of the United Republic of Tanzania

of 1977 and Section 6(1) (d) of the Commission for Human Rights and Good Governance Act No.7 of 2001 as amended by Act No. 16 of 2001.


Brief historical background to CHRAGG

CHRAGG is a national human rights institution also encompassing an Ombudsman function.103 CHRAGG is incorporated in the Constitution of the United Republic of Tanzania of 1977,104 and its mandate is elaborated in the Commission for Human Rights and Good Governance Act.105 The CHRAGG, which is a “constitutional and statutory creature” is a “union” institution with jurisdiction both on mainland Tanzania and in Tanzania Zanzibar, the two constituent units of the united sovereign republic of Tanzania - the “union.” The United Republic of Tanzania (URT), which came into existence in 1964 following a merger between the Republic of Tanganyika and the People’s Republic of Zanzibar. The URT has its own peculiarities in that there two constitutions,106 within the Republic, two distinct and separate organs each for the executive,107 legislature,108 and judicial institutions109. Human rights issues are non-union matters. Each of the two constitutions contains a bill of rights and duties.

CHRAGG is composed of seven full-time commissioners, a chairman, vice chairman and fi ve commissioners. The chairman and vice chairman are appointed on the basis of the famous “constitutional formula” of distribution of high public offi ces within the Union, namely, if the chairman hails from one part of the URT, the vice

103 Ombudsman is a Western concept of which the roots can be traced back to the Justitieombudsman (ombudsman of justice) of Sweden, which was established in 1809. See Kessing, P.V. (year) Implementation of the Western Ombudsman Model in Countries in Democratic Transition. In B. Lindsnaes et al (Eds.) p. 121.

104 Vide the 13th Constitutional Amendment of January 2000.105 Act No.7 of 2001 as amended by Act No.16 of 2001. The CHRAGG Act became

operational on 9 May 2001 vide Government Notice No. 67 of 4 May 2001.106 The Constitution of the United Republic of Tanzania of 1997 as amended and the

Constitution of Zanzibar of 1984 respectively.107 The Union government and the Revolutionary Government of Zanzibar.108 The Union parliament (National Assembly – Bunge) and the House of Representatives of

Zanzibar.109 The High Court of Tanzania and the High Court of Zanzibar. The Court of Appeal of

Tanzania is a Union institution but without jurisdiction in Islamic matters, originating from Tanzania Zanzibar.


chairman must be a person who hails from the other part of the Union.110

The appointment of the commissioners is preceded by submission of applications by prospective candidates, screening and short listing by a screening committee composed of persons from government and NGOs, interviewing and short listing by an appointments committee, and submission of the list by this committee to the appointing authority, that is, the president, who fi nally appoints and swears in the commissioners. The appointment procedure is stipulated in the Commission for Human Rights and Good Governance (Appointment Procedure for Commissioners) Regulations, 2001.111 The procedure for the appointment of the Commissioners is in keeping with the Paris Principles, which require specifi c criteria for appointment, guaranteeing the independence in decision-making procedures, the professional level of commissioners and staff and re-appointment and dismissal procedures.

According to Section 8(1) of the CHRAGG Act, the tenure of the commissioners is a three-year term renewable for no more than a second term not exceeding three years. Section 10(2) of the CHRAGG Act provides for the question of the removal of a commissioner from offi ce, in which case, the president has to appoint a special tribunal consisting of a chairman and not less than two other members, the chairman and at least half of the other members being persons who are judges of the High Court or of the Court of Appeal of Tanzania to investigate the matter, make a report and advise the president on whether or not the commissioner in question should be removed from offi ce. The Commission is accountable to parliament.

The mandate of CHRAGG is fairly wide, encompassing receiving and investigating complaints on human rights violations and contravention of principles of administrative justice. CHRAGG therefore combines the work of the ombudsman as well as the

110 Ibid. Section 7(1) (b).111 Government Notice, No.89 published on 11 May 2001.


promotion and protection of human rights and duties. In this regard CHRAGG doubles as a “public protector” of the people against violation of human rights, abuse of powers, error, negligence, unfair decisions and maladministration in order to improver public administration and make the government’s actions more open and the government and its servants more accountable to members of the public.

The combination of the functions of human rights and ombudsman in a single institution is historical. Tanzania was the fi rst country on the African continent to establish an “ombudsman,” the Permanent Commission of Enquiry (PCE), in 1966. The functions of the PCE however, were narrower than those of CHRAGG. The PCE dealt primarily with public complaints against abuse of power in the public service. CHRAGG deals with the larger issue of human rights violations as well as the contravention of principles of administrative justice and good governance, mediation and conciliation. According to the Paris Principles, “the ombudsmen, mediators and similar institutions form other bodies” and are thus not defi ned as a national institution. Tanzania therefore does not adhere to the strict conceptual segregation advocated in the Paris Principles. This was basically due to the peculiarity of the political climate in the country at the time of the creation of the new commission.

CHRAGG has taken over some of the unfi nished work of the defunct PCE. Section 39 of the CHRAGG Act repeals the Permanent Commission of Enquiry Act, No. 25 of 1966, and Section 40 of the CHRAGG Act stipulates that “Notwithstanding the repeal of the Permanent Commission of Enquiry Act, 1966, any complaint, investigation or inquiry pending before that Commission immediately before the commencement of this Act shall be proceeded with under the provisions of this Act.”

CHRAGG is a fairly new institution, having been created in 2001. However, despite its infancy, CHRAGG has struggled to carry out its work to fulfi l its broad mandate under both the constitution and its


founding legislation. In its protective function, the Commission has received well over 5,000 new complaints or allegations in addition to more than the 2,000 it inherited from the PCE. Of these complaints, about 3,000 have been dealt with and closed. More than 90% of the complaints received concern administrative justice. In 2003/2004, the Commission was in the fi nal stages of hearing a major human rights violation case which was fi led by a human rights’ NGO on behalf of a number villagers in one district in Tanzania, alleging a number of human rights abuses perpetrated by government offi cials against the villagers.

Working with the Communities

Conducting public meetings and visiting and inspecting places of detention

Within less than two years of its establishment, CHRAGG visited and held public meetings in all of the 21 regional headquarters in mainland Tanzania and in more than 30 districts, a number of villages, colleges and schools. In carrying out its protective function, CHRAGG has already inspected 8 regional- level prisons and 60 district- level prisons and camps as well as about 30 police cells in mainland Tanzania. In 2003/04 CHRAGG released its fi rst prisons inspection report detailing, among other things, the conditions of persons held in those facilities and their human rights and other problems, including those relating to prison staff, and made a number of recommendations for addressing the problems identifi ed. The government has already started implementing some of the recommendations.

The purpose of the Commission’s regional and district visits and public meetings, was to introduce its work to the people as well as obtain information from them regarding human rights issues in their respective localities. The Commission believes very strongly in a participatory approach to dealing with human rights. The lesson drawn from the Commission’s regional and district visits is that


the majority of the people who have at one time or another been victims of human rights abuses can express their predicament but lack the means to tackle their violators. Another lesson which the Commission drew from these visits is that for a large part, people in local communities express human rights issues in terms of social problems (kero),112 and their interest lies in the practical side of human rights and good governance issues rather than theories.

Advocacy

Apart from its protective function, CHRAGG also has a promotive function, which includes carrying out research and educating the public on human rights and principles of good governance and monitoring compliance with human rights and good governance.

The public advocacy mandate of CHRAGG is statutory as it falls under the general rubric of “promoting human rights”113 and “educating the public about human rights issues.”114 This effectively makes CHRAGG an advocacy organisation, which must draw its strength from and be accountable to people – particularly members of affected groups. This means that, through the advocacy programmes of CHRAGG, people, especially the poor and marginalised in society, will become social justice advocates and thus gain access and voice in the decision making of relevant institutions; change the power relationships between these institutions and the people affected by their decisions, thereby changing the institutions themselves; and effect a clear improvement in people’s lives.

CHRAGG also can infl uence the introduction, enactment or modifi cation of legislation. This can be done through educating legislators and parliamentary committees on human rights standards, so that they can track proposed and existing legislation to ensure

112 In public meetings people complain about a variety of issues, including corruption, food aid, lack of basic services (water, health, medication), poor leadership etc.

113 Section 6(1) (a) of Act No. 7 of 2001 of Commission for Human Rights and Good Governance Act No.7 of 2001 as amended by Act No.16 of 2001.

114 Ibid. Section 6(1) (d).


that legislation complies with human rights standards.115 Generally, when one thinks of “advocacy” or “lobbying,” legislative advocacy is what fi rst pops into mind. Since most new laws originate in the legislature, legislative advocacy can be an extremely powerful tool for shaping public policy. There is a more subtle form of advocacy, however, that involves providing information and educating legislators. Legislators must vote on a tremendously diverse number of bills, and cannot be experts on every issue, so they often look to either HRCs or NGOs and other groups for research and knowledge on human rights issues. The Commission has conducted legislative advocacy through various seminars and workshops it has managed to hold with members of parliament (Union) and members of the House of Representatives in Zanzibar.

The public policy advocacy function of CHRAGG may be viewed as part of the broader concept of “civic participation” within the empowering approach. For example, a citizen might participate as a member of the village development committee but not be involved in advocating specifi c positions when he/she joins. However, like in any public body, the member will probably advocate for and against proposals as part of his or her civic responsibilities.

Learning from local knowledge

CHRAGG has come to learn that, given the vastness of Tanzania, the best way in which human rights education can reach down to the grassroots level is by using the community-based approach, through a combined rapid rural appraisal (RRA) and participatory rural appraisal (PRA) technique, whereby communities have to plan, develop and implement their own human rights education programmes with minimal technical assistance from the CHRAGG. In this way CHRAGG minimizes potential criticism for being unable to reach out to the poor in rural areas.

The notion of “participation”, which is one of the elements of empowerment, has become the dominant motif in international

115 Ibid. Section 6(1) (l).


thinking on development, and one of its conceptual pillars. The methodologies and tools of enquiry as a vehicle for community participation began to emerge in the 1970s and early 1980s with work on RRA.

The approach known as the PRA emphasises local knowledge and enables local people do their own appraisal, analysis and planning.116 The PRA uses group animation and exercises to facilitate information sharing, analysis and action among stakeholders117. In so far as the Commission is concerned PRA represents not just a set of research techniques, but rather a whole new paradigm of development. This is basically what it means by empowering people.

The PRA is paradigm of people as people. It empowers lower levels – the grassroots, and thus tallies very well with the idea of decentralisation by devolution that is being adopted under the current local government reforms in Tanzania. Tanzania has a very elaborate local government system, which operates from the village up to the district and regional levels. Under the local government reform programme, the district level is the focal point of all local development initiatives under the theme of “decentralisation by devolution.” This means that CHRAGG has to implement its advocacy programmes with and for the people at the local level by utilising existing local governance structures and in collaboration with community-based institutions, instead of creating new ones. The law establishing CHRAGG provides for the establishment of branch offi ces at such a geographical location118, as it will deem necessary. The whole idea of opening branch offi ces is to take services closer to the people and to listen to what they have to say, rather visiting only occasionally and presenting the people with already packaged information about human rights, as many development agents including some NGOs, have done.

116 Robert Chambers is its leading proponent. See Chambers, R. (1983) Rural Development: Putting the Last First Harlow: Longman.

117 World Bank (1995) The Participation Sourcebook Washington DC: The World Bank. p. 175

118 Currently, CHRAGG operates an offi ce in Zanzibar. The Commission has plans to open two branch offi ces on the Mainland but the target is to have fi ve zonal offi ces by the year 2007 in accordance with the Five Year Strategic Plan of the Commission.


The PRA approach to human rights education is cost-effective and mutual. It means that, with meagre resources, many people can be reached within a relatively shorter period and in the process all parties involved learn from each other. One of the core principles of RRA is the reversal of learning: learning from local people, not only mere transmission of knowledge to local people. This principle is also applicable to PRA, but it goes further by entailing “handing over the stick”: surrendering authority to local people in learning processes. This methodology is preferable, particularly when dealing with human rights education. This still poses a challenge to CHRAGG, given its scarce resources, both physical and fi scal.

The stimulation of “community awareness” of their rights is also central to PRA and thus an important tool for stimulating a more general process of political and social change and empowerment. There is a need for national HRCs to adopt the PRA method and practice of reaching the poor by promoting group-based activities; and by seeking “reversals in learning”, whereby the poor become the experts, and the “experts” facilitators. By promoting “reversal learning”, PRA privileges local constructs and indigenous knowledge. It promotes a form of action research in which the aim is not only increased understanding but popular empowerment and social change.

An attempt has been made to draw on the limited but useful experience of CHRAGG to illustrate actions that the CHRAGG has undertaken to implement its programme of empowering the people with their rights. CHRAGG, like so many other HRCs in the region, faces a number of challenges and constraints. For example, accountability is never possible without access to information – to what extent and what kind of information in the hands of CHRAGG should be accessed? Strengthening local organisational capacity requires access to information, participation and accountability of service providers to poor people. Institutional demands are the simplest for access to information and the most complex for investing in local organisational capacity. The larger


the number of empowerment elements needed to achieve desired outcomes, the higher the institutional demands.

To what extent can CHRAGG channel resources down to the community level through the existing local government institutional model? CHRAGG depends largely on government funds and only minimally on donor money. Funds for conducting research, public education and awareness programmes are either insuffi cient or totally lacking.

Local organisational capacity becomes critical when community groups are expected to take on long-term management roles to initiate, implement, operate and maintain human rights awareness, education and training programmes in collaboration with government HRCs – to what extent has the CHRAGG or any other HRC handed over control and authority over resources and decisions to community groups?. How HRCs initiate their human rights education programmes therefore becomes crucial. Is it from within commissions, championed by a small group? Is there a chance of learning by doing, including learning from communities? CHRAGG appreciates and values the work of human rights NGOs and intends to maintain a close cooperative and working relationship with these organisations. In view of this, the Commission has conducted workshops with NGOs to chart out strategies for co-operation, particularly in the area of human rights education. The Commission has also held meetings with media and disabled persons’ organisations to explain the work of the Commission and its intention to work together to advance the cause of human rights in Tanzania.

Conclusion

The need to create more effective, responsive, inclusive, and accountable national HRCs, which will empower poor people to develop their own capabilities and move out of poverty, cannot be overstated. The challenge is for national human rights institutions


to play a facilitative role and become advocacy-oriented. The policy environment within which some national human rights institutions operate is not particularly conducive to the achievement of this aim. This could deter them from focussing on improving governance and encouraging innovation and experimentation and developing institutional mechanisms that reach the poor.

National human rights organisations in fulfi lling their statutory mandates, need to develop close collaboration with all stakeholders involved in human rights and co-operate with international, regional and other national like-minded institutions. The ability of national human rights institutions to help those that seek their assistance, particularly the poor “wananchi”, by empowering them about their rights, is a test of the legitimacy of national human rights institutions to become poor people’s advocates, the majority of whom are denied access or recourse to justice. The performance and success of national human rights institutions in the empowerment task defi nitely hinges on and is to be measured in terms of their accessibility by the poor, their ability to resolve social confl icts and rectifying human rights violations timely and expeditiously. The accessibility of national human rights institutions will infl uence equally their legitimacy. An inaccessible institution is an ineffective one. Accessibility is assessed in relation to the location of national human rights institutions’ offi ces, a commitment to openness and to a consultative and participatory approach in their work, and the use of a language that is understood by the majority of the population.

Clearly, the proliferation of national HRCs, poses a dilemma for human rights activists more accustomed to challenging the state than collaborating with it. It is worth concluding this discussion with a hint of skepticism from none other than Binaifer Nowrojee, the author and editor of Protectors or Pretenders? Government HRCs in Africa. She asks whether human rights activists should greet the proliferation of national HRCs with suspicion and distrust. The answer to this question is not an easy one. Only the time will tell.

72

5

Value of Human Rights Institutions: Human Rights Commission Processes

Margret Sekaggya

Introduction

A NHRI is established by a government under the constitution, or by law or decree, the functions of which are specifi cally defi ned in terms of the protection and promotion of human rights. NHRIs are part of a multi-level system, which has been developed for the promotion and protection of human rights that were considered by the Economic, Social and Cultural Council (ECOSOC) in 1946 before the General Assembly proclaimed the Universal Declaration of Human Rights as “common standard of achievement for peoples and all nations”. The functions of NHRIs are based on the Paris Principles and they usually belong to two broad categories of HRCs or ombudsmen.

HRCs are generally involved in specifi c functions related to the promotion and protection of human rights, including an advisory function with regard to law and government policy on human rights, an educaticational function, which involves educating the public on human rights, and an impartial complaints-handling function, which involves investigation of alleged human rights violations. Most HRCs carry out similar work and the difference lies in the weight given to particular functions. Some commissions focus on a broad spectrum of rights while others may be restricted to protection of a particular vulnerable group or groups. The institutions of ombudsmen are generally associated with an emphasis on the impartial investigatory function and not necessarily deal

Value of Human Rights Institutions 73

directly with human rights, except in so far as the institutions relate to their principal function of overseeing fairness and legality in public administration, for example tackling corruption and abuse of offi ce. However, recently some ombudsmen have been given specifi c human rights protection mandates, often in relation to rights set forth in national constitutions or other legislation.

There are instances where it is diffi cult to classify institutions as HRCs or ombudsmen because not all functions implied in these designations are refl ected in the work of the institutions so categorised. An ombudsman may be engaged in a broad range of promotional and protective activities recognised as a characteristic of a commission or a HRC may be exclusively involved within the sphere of public administration, which is associated with the offi ce of the ombudsman. In East Africa however, NHRIs are all HRCs.

Relevance/Importance of HRCs

Most countries have histories of gross human rights violations and have realised that the task of promoting and protecting human rights and fundamental freedoms is not one that can be assumed by a single institution or organization. It has to be done in partnership with other collaborative partners and strategic allies. A human rights system and standards have evolved over time to promote and protect human rights at the international, regional and national levels including non-governmental and inter-governmental organisations. At the national level governments protect rights through Constitutional provisions, other forms of legislation, an independent judiciary, the enactment and enforcement of individual safeguards and remedies, and the establishment and strengthening of institutions that promote accountability and transparency. NHRIs /HRCs are among the mechanisms of accountability considered vital for enhancing democracy and good governance today. HRCs are necessary for the promotion and protection of human rights, particularly educating the public on human rights, advising and


monitoring government’s compliance with established international human rights standards, and carrying out impartial investigation of alleged human rights violations to complement work done by other institutions like the courts, commissions of inquiry or NGOs.

Prerequisites for the effective functioning of hrcs

HRCs cannot function effectively without the elements of independence, defi ned jurisdiction, accessibility, cooperation, operational effi ciency and accountability. These are discussed below.

Independence

An effective HRC is can only be effective if it is capable of acting independently of government, of party politics and of all other entities and situations which may be in position to affect its work. Independence is through legal and operational autonomy, fi nancial autonomy, appointment and dismissal procedures of the commissioners and the composition of the commission.

Defi ned jurisdiction and adequate powers

A HRC that has no defi ned jurisdiction or adequate powers cannot be effective. The jurisdiction of a HRC should be defi ned clearly in the founding legislation so that there is no confl ict in jurisdiction. A HRC should also have adequate powers inscribed in the law to enable it to perform or compel such performance by an individual or any other entity.

Accessibility

A HRC should be readily accessible to the public. In other words, people should be aware of the institution, be able to access it physically and be confi dent that their views will be heard in the event that their rights were violated. In a bid to increase its accessibility and availability to the public the Uganda Human Rights Commission (UHRC) had by 2003/2004, so far, opened seven regional offi ces in the country and was in the process of opening the eighth regional


offi ce. These regional offi ces have been crucial in providing services in the confl ict and post confl ict areas in northern and western Uganda.

Co-operation

HRCs cannot operate in a vacuum. According to the Paris Principles, NHRIs are urged to co-operate with the UN and any other organisation in the UN system, regional institutions and the national institutions of other countries that are competent in the areas of the promotion and protection of human rights. Co-operation also extends to NGOs and the media, which are also involved in the promotion and protection of human rights, and they serve as intermediaries, provide detailed information on the domestic human rights situation in their areas of operation and are useful partners in carrying out human rights education.

Operational effi ciency

Effi ciency of a HRC is dependant on whether it operates with adequate resources, appropriate working methods, good personnel administration and whether it has provision for review and evaluation.

Accountability

HRCs are invariably accountable to the public and the government. They are usually accountable to parliament through reporting which, in an effi cient institution, should be regular and timely. Effi cient HRCs also submit ad hoc special reports on emerging issues. These reports should be open to scrutiny or comments and public debate so as to enhance excellence and transparency. The UHRC annually presents a report to parliament, which is debated and contributes to the decisions-making process in the country.


Key Functions of HRCs

Human rights education

Human rights cannot be promoted and protected if people have not been informed and educated about human rights. The protection of human rights depends on people knowing about the rights to which they are entitled and the mechanisms which are available to enforce those rights. All citizens need to be made aware of their personal responsibilities under international and domestic law. Furthermore it is important to carry out human rights education in order to develop a culture of respect for and observance of human rights at the national level. It is only human rights education that can foster development of values and attitudes which can uphold human rights and encourage action aimed at defending human rights from violations. Courts cannot carry out human rights education and the ombudsman can only carry out human rights education in so far as it is related to their function. Although NGOs also carry out human rights education, it is usually fragmented because each organisation pursues specifi c programmes that emphasise those aspects that they consider most vital, particularly in the areas of their specialisation. Where there are adequate resources, a HRC is in position to ensure a more co-ordinated and comprehensive delivery of human rights education at a nationwide level. However, this can be done in collaboration with NGOs in order to boost NGOs’ capacity and to reach more people.

The UHRC has played an important role in educating and informing the public about human rights values and concepts as provided in that country’s constitution and under international human rights instruments. Central to human rights education is the interdependence and indivisibility of political and civil rights and economic, social and cultural rights with benefi ciaries as right-holders who seek accountability from the state as duty-bearers. Thus human rights education has focused on civil servants, security agencies, the police and prisons. Through the provision of human rights education by


the Commission and other organisations, various sections of society have acquired knowledge of their rights and responsibilities and have acquired basic skills such as critical thinking, communication skills, problem-solving and negotiation skills, all of which are essential for the effective implementation of human rights standards. People are also becoming ever more familiar with mechanisms for human rights protection at local, national, regional, and global levels. With reference to the confl ict situation in Uganda, the Commission was able to train the army on issues of human rights in order for them to acquire confl ict-resolution and peace-building skills. The Commission also reviewed the human rights training manual for the Uganda Police Force in light of new legislation, it also made an input to the production of the Prisons Department’s training manual and was in 2003/2004 in the fi nal stages of producing a training manual for the Army. The Commission emphasised among other issues, treatment of civilians during the war, human traffi cking, terrorism and vulnerable groups.

Advising and monitoring government’s compliance with established human rights standards

Under the Paris Principles a national institution may be granted the authority to submit to the government, parliament or any other competent body on an advisory basis, either at the request of the authorities concerned or through the exercise of its power, opinions, recommendations, proposals and reports, on any matter concerning the promotion and protection of human rights.119 HRCs are in a good position to advise and assist governments to ensure that laws and regulations concerning the protection of human rights are applied effectively since, in the course of performing their functions, commissions are generally involved in legislation, having a direct or indirect impact on human rights. HRCs are also well placed to evaluate the practical effectiveness of existing laws and to identify problems which may have escaped the attention of the legislature

119 See par. 25–27.


and other implementing agencies and to suggest amendments or improvements. This is particularly true where HRCs have the power to conduct in-depth investigations or investigative monitoring of human rights issues.

HRCs also advise on proposed and existing legislation and help in the drafting of new legislation to enable new legislation to comply with established international human rights standards. HRCs can also advise on ratifi cation of various international instruments by informing the government about the precise nature of obligations it would assume upon ratifi cation of a particular instrument. Where governments have ratifi ed international instruments that have not been domesticated, NHRIs can advise government on other measures that can be taken to implement those standards fully. Unlike courts, which have to wait to be moved, HRCs can be proactive, instead of reactive, in bringing about changes in legislation.

Furthermore HRCs are of assistance to their governments in the drafting of reports to be submitted to various committees or authorities established under the respective international and regional human rights instruments to oversee their implementation. These include the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination, the Committee Against Torture, the Committee on the Rights of the Child and the Committee of Experts under the African Charter on the Rights and Welfare of the Child. The assistance is not only in the form of providing accurate information for the various reports, but also by ensuring that the reports are detailed and drafted properly.

The UHRC is involved in monitoring government’s compliance with international instruments. Under the constitution the Commission has the mandate to monitor the government’s compliance with international treaty and convention obligations


on human rights.120 The UHRC considers government policies and programmes to determine whether they comply with the obligations under these treaties and whether government organs operate from a rights-based perspective. The Commission considers if the laws have a rights-based perspective, including accountability, participation, non discrimination and attention to vulnerable groups. The UHRC was active in the review of policies like the Poverty Eradication Plan (PEAP) and observed that though it was a commendable policy in regard to support to priority areas for the poor, ensuring participation of the public in poverty eradication, promoting transparency and accountability, this policy failed to consider human rights objectives, and relegated human rights to the good governance component, thus disregarding the fact that human rights are a cross-cutting issue. The Commission has also used the rights-based approach to deal with the implementation of the right to food, where it has made an input into the right to food policy and the right to health. The Commission has also set up a Right to Health Unit to monitor the implementation of the right to health, with special focus on neglected diseases.

The Commission analyses all bills that are tabled before parliament to ensure that human rights issues are not overlooked. It also annually informs parliament about laws that are incompatible with established human rights standards. In addition, the Commission implements human rights obligations in the decisions made at Commission tribunal hearings, which take into consideration international human rights standards. The Commission has been involved in encouraging and reminding government to make timely and relevant reports to the various treaty bodies. This has been done through training of the governmental offi cials who write the reports and through provision of information on the human rights situation in the country.

120 Article 52 (h).


Investigating allegations of human rights violations

The judiciary is the basic structure for protection of human rights at the national level. A NHRI, regardless of how wide its powers or effi cient its operations, can never adequately substitute for a properly functioning judiciary. A HRC simply exists as one of the national mechanisms with power to investigate human rights violations and provide relief to victims, which is a disincentive to human rights abuses. It is an additional measure of security – a complementary mechanism established to ensure that the rights of all citizens are protected. HRCs complement the courts in the sense that commissions have expertise in the area of human rights and can guarantee accessible, rapid and inexpensive resolution of complaints. As such, HRCs handle particular complaints and provide complainants with various remedies. These are usually in form of recommendations, referrals, determinations and enforceable orders, which may be published.

For instance, in Uganda, the constitution provides that the UHRC can “investigate, at its own initiative or on a complaint made by any person or group of persons against the violation of any human right.”121 A person can visit the Commission offi ces either the headquarters or regional offi ces to lay a complaint. This can be done by the victim of an alleged human rights violation, or a relative, friend, legal representative, or any organisation or person on behalf of the alleged victim. This is of particular importance if, for some reason, the victim cannot make the complaint personally. Complaints are also received from individuals or organisations presenting allegations of a series of massive violations of human rights or people’s rights. In other words, any person may complain before the Commission, not only on his or her own behalf, but also on behalf of others who are similarly affected by the act he/she is complaining about through a representative complaint. The Commission does not accept anonymous complaints but a complainant can request for

121 See Article 52 (a) of the Constitution.


confi dentiality. The person or organisation has to make a statement of facts constituting the complaint on a prescribed form or do it by letter, email, fax or phone call.

The UHRC handles violations of the right to life122 and personal liberty,123 freedom from slavery,124 freedom from torture, cruel, inhuman degrading treatment or punishment,125 freedom from discrimination on account of racial or ethnic origin, religion or sex or disability or any other similar ground,126 the right to a fair and speedy trial on arrest,127 the right to hold an opinion and express one’s views, freedom of thought, conscience and religion, freedom of association and peaceful assembly,128 the right to education,129 the right to property and other economic social and cultural rights, the rights of the family,130 among others, and complaints about detention under emergency laws as provided by the Constitution.131

Complaints Handling Operations of HRCs

HRCs usually operate on the basis of particular procedures established by law and based on the Paris Principles. In handling human rights violations they take on complaints from individuals or in form of public inquiries. This is usually done regardless of whether the HRC has received a formal complaint or invitation from a government agency. Individual complaints are usually made in order to ascertain whether a violation has occurred and, if so, which person or agency is responsible, so that the victim can be compensated and the perpetrator disciplined or punished.

122 Article 22 of the Constitution.123 Article 23 of the Constitution.124 Article 25 of the Constitution.125 Article 24 of the Constitution.126 Article 21 of the Constitution.127 Article 28 of the Constitution.128 Article 29 of the Constitution.129 Article 30 of the Constitution.130 Article 31 of the Constitution.131 Article 47 of the Constitution.


Conducting public inquiries or hearings is extremely important and far-reaching because it can help vulnerable groups like women, children, the physically or mentally disabled, the poor, the homeless, prisoners and members of religious ethnic and linguistic minorities who, due to their status, are prone to human rights abuses. These groups often lack advocates to act on their behalf and may be extremely reluctant to approach any offi cial agency to lodge a formal complaint. Although this can be done by various ministries and government departments, an investigation by a HRC would be more effective because the commission would analsze issues from a human rights perspective and be able to make a signifi cant contribution to ensuring that the vulnerable groups are given a public voice and that human rights violations wherever they occur, become a matter of general knowledge and concern. Public inquiries are also important because they help to bring an end to the violation of groups of vulnerable people, for example, the situation of women, children or the disabled can be tremendously improved after a public inquiry, even though this does not provide redress to individual victims.

Both individual complaints and public inquiries are important in the promotion and protection of human rights by HRCs because both mechanisms have advantages. Although addressing individual complaints only helps the complainants, individual complaints are vital because they give immediate redress to victims. It was with this in mind that the Commission established a Vulnerable Persons Desk to handle complaints, specifi cally by women and children.

Recommendations

Most HRCs have the power to submit recommendations concerning matters they have been conciliating or investigating. Depending on the jurisdiction of the institution, a recommendation may be addressed to a government agency, a public offi cial, a private individual or an organisation. It may propose the adoption of measures to prevent or lessen the effects of human rights violations. It may suggest a


change in practice or procedure or a reconsideration or reversal of a decision; or it may advocate an apology or payment of damages, or advice on alternative remedial action. Recommendations may concern one particular case or be made within a broader context of attempting to prevent a recurrence of detrimental activity or behaviour. However, a recommendation, by defi nition, will never be binding; its acceptance by any party must be voluntary and cannot be forced. In circumstances where a party refuses to heed a recommendation it may warrant a referral to another body, like a court of law, for consideration. The UHRC in its 2006 annual report, assessed the level of government compliance and found that nearly two-thirds (62.8%) of the Commission’s recommendations had been complied with in some form132. However there are still challenges in executing decisions against government where victims of human rights violations are like other civil litigants, claiming money from a government that is not able to pay its judgment debtors.

Procedures of HRCs

As mentioned earlier, the role of the HRCs is complementary to the courts. A few HRCs have quasi-judicial powers. In Uganda the HRC has quasi–judicial powers and operates as a tribunal. Although most complaints are mediated and resolved others have to be resolved at the tribunal. The procedures of HRCs usually differ from that of courts and should guarantee accessible, rapid and inexpensive resolution of complaints. The procedure is usually simple and informal and it is possible for a hearing to take place without lawyers because there is an independent legal counsel to guide the proceedings and to provide free legal advice to both the complainant and the respondent. However nothing prohibits the complainant or the respondent from employing a lawyer to represent them at these proceedings. Although the proceedings of HRCs are informal and simple they have to comply with the principles of natural justice and the safeguards of fair trial as provided for by the constitution and

132 UHRC (2006 ) 9th Annual Report. Place: Publisher. p. XX5.


various international human rights standards. The decision made by the HRC is binding and can be enforced against the perpetrator of human rights violations. This decision is binding unless it is successfully appealed against in the High Court.

Challenges in Realisation of Economic, Social Rights and Cultural Rights

HRCs are required to go beyond the usual protection of civil and political rights, to encompass economic and social rights. Thus an appreciation and understanding of the relevance and indivisibility of economic and social rights is necessary. This calls for the development of appropriate methodologies which will focus on indicators, bench marks, and targets.

Building capacity of HRCs

Even though HRCs can use the same approach they use to implement civil and political rights, there is still a need to build capacity within these institutions to deal with economic, social and cultural rights. HRCs need to develop their capacity regarding analysis of data and investigations, while at the same time developing an economic perspective. This will require suffi cient resources while keeping in mind the wide mandates of some institutions.

Conducive environment

HRCs need to operate in an environment in which other stakeholders that promote and protect human rights are strong, effective and respected by the state. There is a need for strengthening the independence of the judiciary, ensuring an effective and vibrant civil society, democratic institutions that are accountable, an informed populace, government and security agencies. There is also a need to advocate for the domestication of international obligations and for governments to sign and ratify international covenants that promote economic and social rights.


Global economy

The promotion and protection of economic and social rights usually bring most national institutions into direct confl ict with state actors but global corporations that have more infl uence than most developing states. HRCs need to build their expertise so that they are able to approach policies of non state actors from a rights-based perspective. HRCs need to ensure that the public is well informed of their rights, failing that, the marginalised will remain on the fringes of development.

National civic education programSeveral HRCs’ mandates include human rights education, which is central to promoting economic and social rights. Central to this type of education is the interdependence and indivisibility of these rights, and participation by both benefi ciaries and stakeholders, with special attention being given to marginalised and vulnerable groups. Without a national civic education programme, the duty of HRCs to inculcate into the populace a culture of respect of human rights will remain illusive. For instance, in Uganda, the UHRC, with support of development partners, initiated a National Civic Education Programme (NCEP), which was however, yet to be implemented by 2004.

Linking human rights to development programs

In order for HRCs to remain relevant they need to be able to link human rights to development programmes. Today, the greatest challenge to the protection and promotion of human rights is rooted in poverty; a cause and a product of human rights violations. Development programmess highlight issues such as shelter, basic education, security of persons, equitable access to justice, mortality and nourishment. If considered critically, these issues encompass the right to food, health, education, civil and political rights. HRCs need to interpret their mandate widely to encompass the monitoring of economic and social rights against stipulated bench-marks, even when the rights are being realised progressively.


Way Forward

Creative monitoring of government compliance

Using the mandate HRCs are vested with, they can creatively monitor government compliance and make recommendations for effective measures to promote these rights, including legislative reform and policy formulation. For instance, the South African HRC sends inquiries to government departments and then analyses the information, the national HRC of India has conducted several inquiries into economic, social and cultural rights, while the UHRC has used the rights-based approach to monitor the implementation of the right to food and health. However, it is important for HRCs to identify priority areas, and then translate these human right standards into bench-marks that suit local circumstances.

Strengthening of partnerships

HRCs need to strengthen existing partnerships with stakeholders including government and civil society in promoting and protecting economic and social rights. These partnerships will clarify linkages of indicators that are explicitly anchored in human rights standards, as well as those that are commonly categorised as “socio-economic statistics”. Using statistical data and indicators that have been developed by partners, HRCs can enrich the interpretation of this data by looking at it from a human-rights perspective. By doing this, HRCs would ensure indivisibility and interdependence of rights and therefore make economic, social and cultural rights justicible. This will also go a long way towards ensuring that government programmes and policies are right-based. In addition, civil society will empower the population through knowledge and participation to demand accountability from their governments.

Accountability of fi nancial and transnational corporations

Both international fi nancial institutions and transnational corporations are crucial in the enjoyment of economic and social rights through their policies in developing countries. Even though


there is no international mechanism to hold these corporations accountable, HRCs can still ensure that the states which have these agencies submit reports on their activities to the Committee on Economic, Social and Cultural Rights.

Recasting of development aid

The international community needs to oblige states that have adequate means, to support states which cannot meet their fi nancial obligation to address economic and social rights. And once it is an obligation, rich states should be accountable for any acts or omissions. In addition, there is still a need to incorporate the rights-based approach into the plans, policies and processes of development, which includes human development. This framework is based on international human rights standards and is operationally directed to promoting and protecting human rights. This approach is based on the principles of indivisibility and interdependency of rights; equality and equity; accountability; empowerment, participation, non discrimination and attention to vulnerable groups. This approach will ensure the mainstreaming of human rights.

Conclusion

Some people have argued that there is no need to establish special machinery devoted to the promotion and protection of human rights, like HRCs. Furthermore, that such bodies do not represent wise use of scarce resources, and that an independent judiciary, democratically elected president and parliament and a vibrant civil society are suffi cient to ensure that human rights abuses do not occur. However, where HRCs fulfi ll the prerequisites for effective functioning, there is no doubt that such commissions play an important role in the promotion and protection of human rights. They are complementary to established institutions and by the nature of their work are in a position to make unique contributions to a country’s efforts to protect its citizens and to develop a culture that is respectful of human rights and fundamental freedoms. HRCs


are vital for enhancing public awareness of human rights through human rights education, advising and monitoring government’s compliance with international human rights instruments and investigating alleged human rights violations.

89

6Economic and Social Rights: Drawing the

Threads Together133

Maria Nassali

Introduction

This workshop falls under Kituo Cha Katiba’s (KCK) project on Advocacy for an East African Human Rights Jurisprudence. Thus, before advocating for the expansion of the jurisdiction of the East Africa Court of Justice (EACJ) to address human rights issues, it is prudent to establish common mechanisms of operation, uniform standards and fundamental principles amongst HRCs within the region. Accordingly, the Regional Workshop on HRC and Accountability in Eastern Africa was organised on 12-13, November 2004, with the following objectives:• To provide a forum for dialogue and to share experiences with

the aim of learning from each other’s best practices, challenges and mistakes with regard to experiences of HRCs in the broader Eastern Africa.

• To enable HRCs in East Africa to identify common mechanisms, standards and benchmarks of achievements within the region.

• To brainstorm on a common role vis-à-vis the fast tracking towards the East African Political Federation.

The thematic areas of the Workshop were:

- Redressing human rights, with particular focus on economic, social and cultural rights (ESCRs);

- HRCs’ Processes;

133 This chapter contains a summary and the main issues discussed at the Regional Workshop on HRCs and Accountability in East Africa, held in Arusha, Tanzania on 12 and 13, November 2004.


- Infusing human rights into policy and legislation;- Popular empowerment and human rights education.

The Main Presentations

Implementing economic and social rights in south africa

The keynote paper related to the experience of Africa in the implementation of ESCRs, was given by Prof. Pierre De Vos of the University of Western Cape, Republic of South Africa. In this lead paper it was argued that, given the internationally acknowledged concept of indivisibility and inter dependence of rights, ESCR are internationally recognised for being of equal importance to cultural and political rights (CPRs). Thus, focus has shifted from whether or not ESCR are rights, to how to realise ESCR.

Challenges of implementing ESCR

The problems of enforcement of ESCRs emanate from its ideological conceptualisation, characterised by a reluctance to accept ESCRs as rights but seeing them as mere needs or aspirations.

Inevitably, ESCRs are presented in vague and general language without a clear defi nition of what they entail or the legal obligations foreseeable on both the state and individuals, particularly the private sector.

Despite the fact that the UN Committee on ESCR and the African Commission has clarifi ed the scope and content of ESCR, this is not the case at the national level. It is therefore important to determine the exact content of ESCRs in any specifi c context.

The concept of minimum core was developed by the UN Committee on ESCR in an attempt to clarify the minimum standard of ESCRs that each state must ensure for its citizens. As such a state must demonstrate that every effort has been made to use all resources to provide ESCRs.

Economic and Social Rights 91

Despite the fact that individuals cannot invoke the concept of “minimum core” to demand specifi c performance from a government, the concept remains relevant when evaluating the reasonableness of government action or inaction.

Duties imposed by the ESCR under the African Charter

The African Charter has generally been critiqued for containing claw-back clauses with respect to CPRs, which permits breaches of obligations. In contrast, the provisions that relate to ESCRs do not have claw-backs, limitations or derogation clauses. Moreover, the Charter provides for immediate application of ESCRs without the restrictions of the progressive realisation concept. Signifi cantly, the African Charter is unique, since it entrenches the interdependence and indivisibility of human rights by addressing both ESCRs and CPRs in one document. Moreover, the African Charter instructs the African Commission to “draw inspiration” from international law on human rights. Thus the general comments of the UN Committee on ESCR are particularly resourceful.

The African Charter has engendered four levels of duties for a state: To respect, protect, promote and fulfi l the rights.

(a) Negative Duties: The state has a negative duty to respect and refrain from interfering in the enjoyment of rights enshrined under the Charter. This obligation is relatively easy to enforce, because the state is only obliged to desist from preventing or impairing the right. In other words, any action on the state that takes away existing access to any of the ESCRs or makes it diffi cult for an individual to gain access to ESCRs is a potential an infringement of a right. Accordingly, the state is obliged to respect the free use of resources owned or at the disposal of the individual, and association with others, including family, for the purpose of rights-related needs.

(b) Positive Obligations: The State is obliged to do the following:• Protect rights-holders against other subjects, through legislation

and provision of effective remedies. This obliges a state to provide


the legal and policy framework for individuals to freely realise their rights and freedoms.

• Promote the enjoyment of all human rights: The state has a duty to promote the enjoyment of rights and freedoms, through raising awareness and promoting tolerance.

• Fulfi l the rights and freedoms: The state is obliged to establish a comprehensive plan to move towards the full realisation of ESCRs.

The African Commission has better provisions in respect of ESCRs, because it does not subject state obligations to the availability of resources or recognise the concept of progressive realisation of rights.

However, drawing from the international context the concept of progressive realization of rights is acknowledged. The bone of contention is that, while the African Commission expects governments to act reasonably, it does not clarify which rights require immediate action and to what extent.

Another positive aspect of the African Commission is that it reiterates the duty of the state to protect citizens from damaging acts perpetrated by private parties. This duty stems from its obligation to protect the existing rights- holders against interference from others.

Most innovatively, the African Commission “reads in” rights that are not included in the African Charter. For example, the combination of the rights to property, the right to health and the right to family have been interpreted to infer the right to shelter or housing, which right is not explicitly provided by the Charter. Further, the right to shelter is understood in a broader context than merely having a roof, but extends to the right to live in peace, whether under a roof or not, as well as the right to protection from forced eviction. Again, the combination of the right to life, the right to health, and the right to economic, social and cultural development has been interpreted to mean the right to food.


Drawing from the experience of South Africa, Prof. De Vos illuminated how the courts have qualifi ed the state’s obligations in realising ESCRs.(i) Progressive realisation of rights: Even though ESCRs are not

immediately realisable, the state has a duty to take immediate steps aimed at progressively facilitating access to social services. Such steps must be expeditious, effective and reasonably possible, taking into consideration the legal, administrative, operational and fi nancial status of the state. Again, retrogressive measures must be strictly justifi ed.

(ii) Reasonable legislative and other measures: The state is obliged to establish coherent and comprehensive policies and programmes which are reasonable in conceptualisation and implementation. The programme must be balanced and fl exible. Any programme that excludes a signifi cant segment of society, particularly the most marginalised cannot be said to be reasonable.

(iii)Resource constraints: The availability of resources is important in determining the reasonableness of government. Where the state is providing a service selectively, the court would impose duties on the state, irrespective of the fi nancial implication of such duties.

The plenary discussion

It was observed that governments have manipulated the concept of progressive realisation of ESCRs by failing to provide ESCRs. Participants refl ected on practical ways of ensuring that there is actual progress, rather than retrogression or stagnation in the status of ESCRs, as well as on mechanisms that should be established to monitor state compliance.

In spite of the gains of the African Commission, the fact that there is no naming, shaming or sanctions, has rendered the decisions of the Commission of academic value, with little practical value. There is greater willingness to impose sanctions on the violation of CPRs than ESCRs.


In was observed that, while the South African Constitution provides for ESCRs which makes ESCRs directly justiciable by the courts and HRC, this is not the case in Eastern Africa, where the Bills of Rights are silent on ESCRs, hence, making ESCR unjusticiable. For instance, in Uganda, ESCRs are enshrined in the preamble as guiding principles for government action. The only obligation placed on the president is to make a State of the Nation Address to account for the state’s action in providing ESCR in a given year. This has given government leeway to enumerate achievements such as Universal Primary Education (UPE) without strict adherence to acceptable minimum standards of the quality of the right.

Participants underscored the imperative for creative interpretation of CPRs in such a manner as to realise ESCR. In this respect, ESCRs need to be understood in the wider context. ESCRs contribute to the right of equality and promotion of human dignity. For example, India has interpreted the rights to life, human dignity and equality and non-discrimination creatively to make ESCRs justiciable. Further, it is crucial to defi ne clearly the key elements of each ESCR: what it entails and the exact obligations accruing both to the state and individuals.

Further, HRCs need to scrutinise existing laws to ensure compliance with the ICESCR and determine compliance with existing benchmarks. Countries are obliged to apply international instruments, which they have ratifi ed, irrespective of whether or not they have been domesticated. For instance, the courts in India have ruled that progressive realisation of rights should not contradict the spirit in which the Covenants were made.

As a starting point it was agreed that each HRC should address ESCRs with equal importance as CPRs. For instance, each HRC Annual Status Report should include a section on how their respective governments have progressively addressed the issue of ESCRs.

Participants compared ESCRs to CPRs with the aim of emphasising the similarities. First, both CPRs and ESCRs require that states


refrain from interfering with an individual’s enjoyment of human rights. This obligation does not necessitate spending resources, but a mere restraint on the part of the government, to treat individuals justly as human beings. Second, both ESCRs and CPRs require resources to fulfi l. For example, elections cost million of dollars to organise let alone additional resources for institutional support. To an ordinary person, although both are equally important, ESCRs are more meaningful as captured by the following caption: “We vote every fi ve years but eat every day.”

Resource constraints were identifi ed as one of the most outstanding challenges facing the realisation of rights. Furthermore, governments have interpreated reasonableness as subject to availability of resources and taxes collected, without proper accountability for whether government’s expenditure and priorities are indeed justifi able. For example, in Uganda, while government has accepted that its failure to pay pension benefi ts is a violation of rights, it has pleaded lack of resources, yet it has expended vast resources on frivolous issues. While governments have discretion to interpret reasonableness, outright discrimination is intolerable.

In view of the above, HRCs are well placed to monitor implementation of government duties by demanding the relevant information and outlining benchmarks for measuring progress. In this respect, the Millennium Development Goals (MDGs) were found to be of value. There is therefore a need for MDGs to be incorporated in strategic plans of line ministries. In addition to HRCs’ monitoring roles, there is a need to follow up how HRC reports are received, as well as actions taken to realise the recommendations made in the reports.

Role of CSOs: HRCs have to prompt CSOs to agitate for and exert pressure to ensure the realization of ESCRs. For example, in South Africa, an NGO mobilised thousands of demonstrators against the ban on ARVs, which dramatically infl uenced government action.

Role of the Judiciary: While the judiciary is instrumental in developing jurisprudence that obliges a state to comply with the


law within East Africa, to date, no one has petitioned court for a pronouncement on the realisation of ESCRs. Even in South Africa, courts are reluctant to make orders that require governments to spend money which has not been budgeted for. However, the courts should determine whether a claim is reasonable, given the resources, and take into consideration the most vulnerable groups of society. Obviously, since this creates the potential for tensions between the executive, parliament and the judiciary, the courts are cautious about being seen to be disrespecting government decisions.

Furthermore, the concept of progressive realisation of rights is problematic. Courts do not have the necessary skills to measure compliance. Even in India, where the court obliges a department to report back on how it has progressively realised the rights, this imposes an extra burden on courts which have to read and verify reports.

Role of Academia: Given that the key challenge faced regarding the realisation of ESCR emanates from its conceptualisation, it is important to educate both the general public and public offi cers, including HRC commissioners about ESCRs. Such an education programme should focus on the concept of indivisibility and interdependence of the human rights discourse, in order to create an appreciation that ESCRs are equally as important as CPRs. In fact, there is a dearth of information and expertise on ESCRs, as evidenced by the fact that both government and HRC reports are quite silent on these issues. All presentations alluded to the Paris Principles as the operational framework for human rights institutions.134

134 The Paris Principles, formulated in 1991 through the United Nations Commission on Human Rights Resolution 1992/54 (3 March 1992), sets out the basis for national human rights institutions. The key duty of these instutions include: *Respect: The state should refrain from interfering with the enjoyment of economic and social rights, for example, avoid arbitrary forced evictions. *Protect: The state should prevent violations of such rights by third parties by ensuring that private employers comply with basic labour standards. *Fulfi l: The states should take appropriate legislative, administrative, budgetary, judicial and other measures towards realisation of these rights. For example, failure to provide essential primary health care to those in need may amount to violation. Lack of resources should not permit states to defer taking steps to realise the rights. These Principles set out some key paradigms which must form the core of a National Human Rights Institution (NHRI): The paradigm of competence and responsibility: The Paris Principles require


The value of HRCs

The value of HRCs was discussed at length by Margaret Sekaggya, the chair of the UHRC. She began by defi ning a HRC as a body established by government under law with the explicit function of protecting and promoting human rights. HRCs are one of the mechanisms of accountability considered vital for the enhancement of democracy and good governance, with particular focus on addressing human rights violations. The functions of NHRI are based on the Paris Principles: namely to respect, promote, protect and fulfi l human rights.

Promotion of Human Rights: The protection of human rights depends on people’s knowledge of their rights, as well as the existence of appropriate laws and mechanisms to enforce the laws. As such, HRCs must carry out human rights education in order to develop a culture of respect for and observance of human rights at the national level.

Although NGOs undertake human rights education, this is often fragmented focusing on a specifi c geographical area or issue of interest. Thus a HRC is in position to ensure a more co-ordinated and comprehensive delivery of human rights education on a nationwide scale. The UHRC has initiated a National Civic Education Framework through which funding partners can channel funding for civic education delivery in Uganda. As a result, the UHRC has imparted basic skills such as critical thinking, communication, problem solving, negotiation, confl ict resolution and peace building to various public offi cers, particularly security agencies, such as the army, police and prisons.

that NHRIs should have as broad a human rights mandate as possible, which mandate should be set out in the constitution or legislation. The mandate should enable National Human Rights Institutions to pronounce on matters such as: *Governmental actions vis-à-vis human rights; *Harmonization of national laws with international human rights standards; *Ratifi cation of human rights instruments; *Facilitation of state reporting to UN treaty bodies and committees; *Co-operation with international, regional and other national human rights institutions; *Facilitation of human rights education; and *Publication and promotion of human rights.


Advising and Monitoring Government Compliance: HRCs are in good position to advise and assist government to ensure that laws and regulations concerning the protection of human rights are applied effectively or to propose appropriate legislation. In other words, HRCs are better placed to evaluate the practical effectiveness of existing laws and to identify problems which might have escaped the attention of the legislature or other implementing agencies, and to suggest amendments or improvements. This role is made easier if the HRC has powers to conduct in-depth investigations on human rights issues.

Effective monitoring infers a corresponding duty of assisting governments to draft reports to the various committees established under international and regional instruments. Such assistance includes providing accurate information for use in various reports and ensuring that reports are detailed and drafted properly. However, securing information from government is a daunting task, which has at times prompted the UHRC to evoke its powers of subpoena to solicit information from the respective offi ces. This problem is exacerbated by the fact that public offi cers are often reluctant to criticise government that there is no uniform structure of reporting among government offi ces, and there is high staff turnover. High staff turnover impute variation in style and format of reports from the same offi ce, which in turn makes monitoring of trends diffi cult.

The imperative of making the work of HRCs more visible through the development of effective media strategies to profi le HRC activities was underscored. In addition to press releases, it was recommended that HRCs should consider hosting media houses to hospitality functions such as luncheons with the aim of seeking their guidance in designing appropriate media strategies that would popularise HRC work. Such rapport with the media would enable HRCsobtain feed back on their performance.

In conclusion, Sekaggya reiterated the protective, promotion and monitoring role of a HRC. While HRCs have performed well in


their promotion role, it was opined that such a role could readily be satisfi ed by CSOs, with HRCs as mere co-ordinators. The fact that NGOs have neither the mandate nor tools to effectively fulfi l a protective role, underlies the necessity for HRCs to strengthen their protective role.

While conceding that there is an inter-linkage between promotion and protective roles, the biggest challenge is to fi nd the perfect balance between the two. Nevertheless, it was emphasised that the ordinary person on the street would fi nd more value in the protection role of the HRC, particularly its ability to provide a remedy in times of need. Naturally, for HRCs to be relevant, they must provide fair, fast and effective resolution of complaints.

The presentation by Margaret Sekaggya was supplemented by the practical experiences of human rights tribunals, using the case of Uganda. This was done by Mariam Wangadya, a Commissioner with the UHRC.

Mediation is the most effective way of addressing human rights complaints, since it is cost effective and results in a win-win situation. In cases where mediation is not appropriate, the hearing system is an option. Accordingly, the UHRC established a tribunal system to hear controversial cases that cannot be resolved amicably.

It was underscored that the procedures need to be suitable for the majority of clientele: simple, informal and not intimidating. While HRCs must respect the right of representation they were urged to ensure that justice is not frustrated by lawyers under the pretext of legal technicalities, particularly given that most people who resort to the HRC are seldom represented.

Uganda had shifted from a panel tribunal system to having a single commissioner constituting the tribunal, in order to ensure a more expeditious dispensation of justice. It is much easier to convene without the burden of fi nding a time schedule that suits many panelists. Again, a single-commissioner tribunal is not a heavy burden


in terms of human resources. Under the system of the UHRC, any person dissatisfi ed with the decision of the tribunal has the right to appeal to the High Court.

In the plenary discussion that followed, participants discussed the value for having HRCs vis-à-vis ordinary courts, the offi ce of the ombudsman and commissions of inquiry; how HRCs can optimise effectiveness, as well as the appropriate procedures to use.

In pursuit of its protective role, a HRC does not have to choose between individual or group protection. Obviously, addressing individual cases is of paramount importance to a victim of human rights abuses. Nonetheless, the research unit within a HRC should be able to monitor the individual abuses to discern systematic patterns of abuses in order to enable a HRC to address the root cause of abuse. Comparing the two processes, it was observed that, while addressing systematic abuses is a slow and expensive process, which requires substantive preparation and training, addressing systematic abuses offers a group remedy to victims and mitigates against the recurrence of similar abuse to other individuals.

Rather than await complaints, HRC were urged to be proactive and investigate abuse in order to be thorough and to make correct decisions. This can be done through:(a) Public inquiries that seek credible information to inform reports

to relevant authorities. The following reports have been done: South Africa: Poverty; Uganda: Disabilities; Ghana: Effects of mining on the lives of rural communities.

(b) Investigations: In Uganda the UHRC has investigated the existence of safe houses and in Kenya, the KNCHR has investigated deaths in prison.

The experience of Uganda’s tribunal procedure was found resourceful. However, there was contention over the appropriate number of commissioners who should sit on the tribunal. Whilst value was found in the expeditious nature of the proceedings as well


the economic utilisation of human resources by having a one-person tribunal, on the fl ip side of the coin, an equally strong case was made for a panel system, on account of collective wisdom: “three heads are better than one.” Furthermore, the panel system was preferred on the basis that it lessens the burden imposed on a single commissioner by allocating different responsibilities to different panelists. It was further observed that such a panel should be comprised of an odd number of commissioners, in order to avoid stalemate and to create room for dissenting opinions. In view of the issue of understaffi ng in HRCs, the case of Ghana, which has creatively invited experts from outside the commission to sit on the panel, was instructive.

Again, it was suggested that HRCs explore the possibility of having an appeal process within the tribunal to enable the decision of a single commissioner to be reviewed by a panel of other commissioners. Likewise, the chairperson of a HRC should be vested with review powers, which powers can be delegated.

Experience was shared on how different HRCs had assisted governments in preparing reports to the human rights committees in accordance with their treaty obligations. In the case of Ghana, the HRC was invited to join the government delegation, on account of the fact that the government report relied heavily on its Annual State of Human Rights Report.

Likewise, the UHRC has trained government on how to prepare reports to fulfi l its treaty obligations. Furthermore, it accepted an invitation to be represented on the government team of the International Civil and Political Rights Committee. In retrospect, in both instances the Committee was pleased with the HRC’s expert opinion and its response to specifi c queries raised- a fact that orchestrated the usefulness of such a practice.

The participants had in-depth discussions on the dilemma of HRCs being perceived as co-opted by government in the situations mentioned above. Recognising the perception of compromised independence of the HRC, the participants recommended that the


above situations of rendering support or forming part of government delegations should be considered on a case-to-case basis, on the merits of each case. In other words, HRCs should not be obliged to be part of government delegations each time government is presenting its report.

In addition, while it was conceded that HRCs need to build constructive rapport with government, rather than perceive governments as the outsider or enemy, it was found more prudent for the HRC to act as technical advisors on specifi c issues reported on, but not necessarily to constitute part of the offi cial government delegation. In effect, government should present the report and the HRC should only respond to technical issues that require clarifi cation. Equally signifi cant, it is critical for HRCs to receive the reports well in advance in order to ascertain their authenticity and objectivity. The practice of keeping reports by governments as guarded secrets that are more accessible to international agencies and actors from the West was decried, as in the case of Tanzania’s report to the Treaty Committees.

Lastly, it was stressed that HRCs have a duty to lobby governments to ratify African instruments; a case in point being that, while East African governments had ratifi ed the ICC, they were yet to ratify the treaty establishing the Africa Human Rights Court.

Infusing Human Rights into Policy and LegislationThe presentation by Lawrence Mute, a Commissioner with the Kenya National Commissioner for Human Rights (KNCHR), sought to answer the following questions: How can HRCs assume leadership in the human rights fi eld? How can HRCs ensure that policy and legislation have a human rights perspective? How can HRCs measure the implementation of policy and legislation?

Relying on the Paris Principles, it was reiterated that NHRIs are one of the mechanisms which seek to ensure the enforcement of international human rights standards at national level.


The KNHRC was established in 2003. Being an infant institution, its legitimacy and credibility with Kenyans would derive from its action rather than rhetoric of its intentions. The KNHRC has successfully ensured that human rights values are infused in policies and legislation in the following areas: Suppression of Terrorism Bill; Persons with Disabilities Act; HIV and Aids Control Bill; Draft Convention on Protection and Promotion of the Rights and dignity of Persons with Disabilities; National Social Health Insurance Fund Bill; and the Tobacco Control Bill.

Infusing human rights into policy making had since 2003/2004, been undermined by a number of factors:(a) Key government departments continue to interpret the concept

of human rights as only applicable to civil and political rights.(b) While Parliament as the principal legislative arm is critical for

ensuring the infusion of human rights into policy and legislation, unfortunately politicians are driven by popular views rather than the technically correct view. For instance, politicians, for fear of being unpopular with the electorate are resisting the campaign against capital punishment.

(c) NHRIs are at times utilised as mere public-relations gimmicks. For instance, some government departments challenged the legitimacy of the KNCHR to question wasteful and “fruitless” expenditure, such as overly expensive cars. Nonetheless, the 2004 budget speech made specifi c references to the proposals covering future purchase and use of cars for government use. A more lucid example is the fact that, irrespective of the KNHRC membership to the Task Force on Police Reform, it had not received easier access to detention police centres. This renders its participation on the Task Force more of a window-dressing stunt while business-as-usual continues within the police. Therefore, NHRIs have to continuously safeguard against being co-opted by government.

(d) Infusing human rights into policy and legislation calls for the collection of up-to-date data. Invariably, while face-to-face


discussions with government personnel elicit very positive responses, there is failure to provide reports in time. Moreover continuous replacement of key contact persons, coupled with the poor record keeping, aggravates the problem.

(e) The legislative process is so diffused and amorphous that it is diffi cult to assess the impact of a particular organisation.

Some Good Practices: There are four imperatives that inform good practice in the infusion of human rights into policy and legislation:

(i) The imperative of informal networks: To circumvent the diffi culty of securing current and accurate human-rights disaggregated information from government departments, a HRC may rely on informal networks with civil servants.

(ii) The imperative of escalation: While, at times, effective policy making requires intensive but quiet diplomacy, there are situations where it is more benefi cial to publicise issues using the media and such other outlets.

(iii). The imperative of seeking the commissions internal consensus on issues. In situations of controversy, a HRC needs to base its arguments on human rights principles, on the basis of analysing whether a particular matter is consistent with human rights standards.

(iv). The imperative of infi ltration (niche-creation): A NHRI must always endeavour to add value to other peoples’ work. Therefore, in respect to the legislative and policy processes, the KNHRC is exploring the possibility of working with the Legal and Parliamentary Committee in order to be privy to proposed legislation and to infl uence legislation right from inception.

In the plenary discussion of this presentation, the following process was recommended for addressing the infusion of human rights in legislation:• Convene internal commission meetings to discuss important

bills;


• Organise workshops for stakeholders, including CSOs, to solicit their input in bills and write joint offi cial submissions to respective parliamentary committees;

• Engage in dialogue with the relevant policy makers, such as the line ministry and Law Reform Commission, to infl uence their views and gain cooperation, as well as nurture a harmonious working relationship.

It was acclaimed that, despite the hurdles faced in infusing human rights legislation, some gains had been achieved. For example, government language is beginning to refl ect the human rights- based approach to development.

In order to overcome the burden of accessing relevant and timely information, it was recommended that HRCs should identify focal persons to assist in securing relevant data. Additionally, a set of questionnaires aimed at standardising the reporting format by government agencies and ministries should be developed.

It was underscored that HRCs should not merely infl uence policies, but also monitor compliance to policies with its international obligations.

Likewise, the need for HRCs to lobby their governments collectively in the case of East Africa, to ratify indigenous continental treaties was stressed.

Given that East African countries tend to address similar issues at the same times, it was recommended that HRCs should share information about how they are addressing similar issues as well as develop a regional common position on controversial issues.

Considerable time was spent on discussing how to address controversial issues, such as abortion, gay rights, death penalty, to mention a few. In refl ection, a HRC has to create a balance between situations to which they react promptly and which require rapid responses vis-à-vis the giving of correct information. As such, it was recommended that before speaking out on a controversial issue,


HRCs must investigate and verify accuracy of the information and facts in a timely manner. Furthermore, it is prudent to generate internal consensus. Nonetheless, a HRC should not in any way abdicate its role of protecting individuals from discrimination. For instance, gay persons should not be denied access to social services or job opportunities, as this would constitute outright discrimination. Nonetheless, a HRC should be careful to avoid triggering complaints which they are not ready to address in a meaningful manner.

Importantly, in situations of gross violation of rights, HRCs have to be fi rm and speak out against the violations. A case in elucidation was that of Operations Wembley in Uganda which though popular, disregarded the principles of natural justice and resulted in extra-judicial arrests and killings of suspects.

Although a cautious approach may at times be misunderstood for being a sell-out by CSOs, who often prefer a sensational approach, it was recommended that, since HRCs seek to infl uence government action, they should be both tactful and wise. Accordingly, in order to ensure legitimacy, a HRC has to establish a track record of independence and objectivity, acknowledging the positive achievements of a state but at the same time pointing out challenges and weaknesses to be addressed.

In order to mitigate the effects of scarce government resources to compensate victims of abuse, it was proposed that governments should establish compensation funds to cover the costs of such judgments.

Realising Economic Social and Cultural Rights

The presentation Mr. Emmanuel Murangwa, a Commissioner with Rwanda Human Rights Commission (RHRC), centred on the ways of realising economic, social and cultural rights. He began by providing a profi le of the Commission, which was established as an independent institution in May 2003. In providing for ESCRs, Article 14 of the instrument establishing the RHRC emphasises the


survivors of genocide who were rendered destitute by the genocide committed in Rwanda from 1 October, 1990 to 31 December, 1994, as well as the disabled, the indigent and the elderly and other vulnerable groups. The marginalised sectors of society are the main victims of the violation of ESCRs, as illuminated by the saying, mnyonge hana haki, meaning that a “poor man has no rights”. Furthermore, the constitution provides for the right to equal opportunities to work, the right to education and the right to good health.

The ICESCR, in Part III Articles 6-15, outlines the rights to education, health, housing, food, work, social security and cultural rights as core to the Covenant. Among steps to be taken are legislative, administrative, judicial, economic and social measures. Such steps should be deliberate, concrete and targeted as clearly as possible to meeting the obligations in the Covenant.

The realisation of ESCR cannot be detracted from the global economic sphere, currently characterised by systematic poverty, inequality and an increasingly sharp divide between the rich and the poor. It is therefore essential for national governments to refl ect critically on and understand the implications of development policies.

At the fi rst African Union Ministerial Conference on Human Rights in Africa that met on 8 May 2003, the Kigali Declaration reaffi rmed that respect for human rights is crucial for the maintenance of national, regional and international peace and security for sustainable development. The Kigali Declaration further reaffi rmed the universality, indivisibility, inter-dependent and inter-related nature of rights and urged member states and regional institutions to accord similar importance to ESCRs. The same declaration urged member states to establish independent NHRIs and to provide them with adequate fi nancial and other resources for proper functioning and to guarantee their independence.

Realising economic, social and cultural rights has been one of the greatest challenges facing the Rwanda HRC. In its 2002 Annual


Report, The Rwanda HRC highlights how it dealt with a number of ESCRs, especially those relating to health, housing and land. The Commission contacted concerned authorities, made suggestions for improvement and obliged them to address the issues raised. In order to prompt government action, particularly regarding class/group complaints, RHRC conducted research and has submitted a report to Parliament. Examples of such cases included non remittance of houses; land distribution, redistribution and relocation; sale of houses; destroyed properties; denial of children’s rights including child maintenance and school fees cases; employment and labour code; dismissals of employees and payment of terminal benefi ts and gratuities.

Similarly, in 2003, many cases dealing with individual property complaints, including houses, land and theft of livestock, children’s rights, inheritance as well as employment, labour and other related cases were handled by the RHC. Regrettably, many cases failed to receive satisfactory remedies. Generally, RHC is yet to fi nd practical methods of enforcing ESCR. The Commission has largely relied on reports to ensure administrative controls and redress.

In the discussion which followed the presentation, the participants conceded that realisation of ESCRs are the weakest link among HRC in the region. Thus concern was expressed that HRCs ran the risk of becoming irrelevant to the ordinary person should HRCs fail to address people’s basic and survival needs. Poverty at the household level was identifi ed as a factor that adversely affects the realisation of ESCRs, thus making it critical for HRCs to monitor government development plans.

Additionally, it was advised that HRCs should critically engage their governments as well as the Bretton Wood Institutions to establish an appreciation that macro-economic growth is not an end in itself, particularly where it results in depriving the majority of people of their livelihood and ultimately loss of their sense of dignity. As such, policy makers need to be constantly reminded of the rights-based approach to development.


Participants were of the considered opinion that the respective governments were not doing enough to realise ESCRs progressively. Often governments plead lack of resources, even where no resources may be needed. For example, it was argued that the issue of returning land occupied land by returnees in Rwanda, did not require resources as such but good will to return the land to its rightful owners. Fortunately, the Rwandan parliament had by the time of writing began addressing the land issue. It was restated that HRCs need to assist governments to develop a set of achievable benchmarks in the quest for the progressive realisation of ESCRs.

It was clarifi ed that the focus of the RHRC is on the rights of suspects and witnesses. Reports on the same are submitted every three months. The RHRC does not hear cases as an independent tribunal but rather follows up the cases in court. Nonetheless, it was disclosed that a study to establish an independent Tribunal was underway. Again, it was emphasised that the RHRC had been monitoring the operations of traditional courts, the Gacaca, which supplements the formal judicial system.

Empowering People on their Rights

Ambassador Mohamed Ramia Abdiwawa, the vice-chairperson of the CHRAGG of the United Republic of Tanzania, began his presentation by addressing the doubts contained in a report by Human Rights Watch on the effectiveness of NHRIs in Africa. This report, characteristically titled Protectors or Pretenders: Government HRCs in Africa, published in March, 2001, questions the notion whether NHRIs are universally admirable. It charges that many serve as “apologists for government violations of human rights, lack independence and are generally, with few exceptions, ineffective.” Despite the scathing criticism, the growth of national HRCs is a sign that African governments appear to be accepting the international human rights discourse and human rights protection as part of their government portfolios. Indeed, those who levy criticism at the work of national HRCs have focused exclusively on the protective function, in disregard of the promotive function.


Cognisant that empowerment is a fl uid term subject to different interpretations; the term is broadly defi ned to refer to the expansion of freedom of choice and action to shape one’s life. It implies control over resources and decisions. For poor, marginalised and excluded people, that freedom is curtailed severely by their voicelessness and powerlessness in relation to particularly state and markets. From a rights perspective, empowering people on their rights means strengthening their capabilities to claim their rights and to defend them, thus enabling the people to exercise control over things that affect their lives and to hold public institutions accountable. In the language of rights, one may say that a poor person is one for whom a number of human rights, such as the rights to food, health, education, or clean environment, remain unfulfi lled.

The Vienna Declaration and Programme of Action urges governments, “to promote an increased awareness of human rights and mutual tolerance.” Under the Vienna Declaration, the concept of human rights education is much broader as it encompasses “peace, democracy, development and social justice”. In this spirit, Article 30(2) of the Declaration states that one of the goals of education should be “the strengthening of respect for human rights and fundamental freedoms.” Again, the preamble of the Universal Declaration of Human Rights states that to achieve “a world in which human beings enjoy freedom of speech and belief and freedom from fear and want” people must come to “a common understanding of these rights and freedoms”. Although the right to human rights education is strictly speaking not a human right in all the constitutions of the East African countries, a duty is imposed on the HRC to educate the public about their rights. The four elements of empowerment are:a) Access to information: Information is power. Informed citizens

are better equipped to take advantage of opportunities, to access services, exercise their rights, and hold state and non state actors accountable if they are informed about their rights.

b) Inclusion and participation: An empowering approach to participation treats poor people as co-producers, with authority


and control over decisions and resources. Inclusion is critical for ensuring that limited public resources build on local knowledge and priorities, and brings about commitment to change.

c) Accountability: National HRCs as public service providers, must be held to account and answerable for their policies and actions that affect the well-being of citizens.

d) The state has three main duties with respect to human rights, namely: duty to respect, the duty to protect and the duty to fulfi l human rights.

Local organisational capacity: Local organisational capacity refers to the ability of people to work together, organise themselves, and mobilise resources to solve problems of common interest. Related to the above is the question whether the legal and administrative environment is conducive to the right of association, including that of CSOs.

Rights empowerment and poverty reduction: One reason why the human rights discourse is compelling in the context of poverty reduction is that the norms and values enshrined in it have the potential to empower the poor. Accordingly, the rationale of poverty reduction no longer derives merely from the fact that the poor have needs but also from the fact that they have rights – entitlements that give rise to legal obligations on the part of others. Poverty reduction then becomes more than charity or a mere moral obligation, but a legal one.

The relationship between human rights education and poverty reduction is very clear. People who are educated about their human rights are better placed to defend their rights in case of threat or infringement, act more proactively, gain control of their lives and can have access to a wide range of available resources. Furthermore, human rights can also form the basis of social and political mobilisation. In fact, advocacy on ESCR legitimises claims to equal rights and opportunities as well as to basic necessities of life.


National HRCs have a considerable role to play in the social transformation process, by infusing a culture of respect for human rights among the populace, thus creating an informed citizenry through participatory human rights awareness, education and training programmes.

Within less than two years of its establishment, CHRAGG has visited and held public meetings in all e 21 regional headquarters in Tanzania mainland, and in more than 30 districts, including schools, where it introduced its work to the people and held dialogue with them. CHRAGG has also inspected prisons and made recommendations which are being implemented by government.

The key lessons drawn from such visits are that the majority of people who have suffered human rights abuses can ably express their predicament but lack the means of dealing with their violators. In addition, the majority of people in local communities express human rights issues in terms of social problems (kero). During public meetings, people complain about anything from corruption, food aid, lack of basic services (water, health, medication) and poor leadership. In effect, the people are more interested in the practical side of human rights and good governance issues, rather than the theories.

Relying on the World Bank’s The Participation Sourcebook,135 CHRAGG has combined rapid rural appraisal (RRA) and participatory rural appraisal (PRA) to learn from local knowledge as well work in partnership with communities to plan, develop and implement their own human rights education programmes with minimal technical assistance from the CHRAGG. Additionally, it has opened branch offi ces with the aim of taking services closer to the people through learning and working in partnership with them.

The CHRAGG largely depends on government funding, with the only donor support being received from the Danish Government, essentially for the establishment of the necessary infrastructure. 135 1995. Washington DC: The World Bank.


In view of the limited resources, there are hardly any resources to undertake research, public education and awareness programmes. The Commission has therefore conducted workshops with NGOs to chart out strategies for co-operation particularly in the area of human rights education.

Lastly, accessibility of severely NHRIs is critical and ultimately infl uences its legitimacy. An inaccessible institution is an ineffective one. Accessibility is assessed in terms of ease of visiting the institution’s offi ces, openness and a consultative and participatory approach in its work, and use of language that is understood by the majority of the population.

The participants in the plenary session indicated that the rigidity of cultural values has proved a challenge in the quest for a community-based approach to human rights that aims to involve grassroots communities in developing their village plans. For instance, cultural resistance against equality of the sexes is not expressed not only by elders, but also by young males and females. Participants shared experiences on how they have addressed the cultural nuances and recommended that, while human rights issues may sometimes confl ict with culture, HRCs are expected to play a leading role in shaping public opinion, by preaching tolerance and peace. In this respect, involving the community in the planning process by identifying areas of co-operation between them and the HRC creates greater ownership and commitment to the programme. Furthermore, changes in attitude are more easily achieved through peer pressure than resorting to legislation. The mere criminalisation of negative behaviour without human rights education may force vices underground, as was the case in Ghana when female genital mutilation (FGM) was criminalised.

It was disclosed that the CHRAGG was yet to produce education materials; only publicity materials are available. Nonetheless, in order to publicise the work of the Commission, government had


sponsored district and regional visits. By November 2004, the Commission’s report on two parliamentary committees to discuss the prison and improvement of prison facilities, was underway.

Participants decried the fact that most efforts by HRCs were expended on voter education in the absence of a comprehensive civic education programme. Thus, to ably steer human rights education, HRCs were urged to develop uniform curricula and training tools on basic human rights principles.

Participants agreed that the use of Kiswahili, the language understood by the majority of people, made civic education and community participation much easier. Likewise the involvement of stakeholders in the recruitment of the commissioners of the CHRAGG was appreciated as an effort in anchoring accountability, especially since the appointing authority was obliged to respect the decisions of the short-listing panel.

Overall, all HRCs acknowledged that they had not expended suffi cient efforts towards their protective role compared to the promotive role. Hence, the need to balance between the promotion and protective approach was emphasised.

On the debate as to how awareness raising and human rights education could actually transform into empowerment, it was stressed that raising awareness per se was not enough, but that HRCs had to facilitate people to actualise their rights by networking with other stakeholders, such as NGOs, which provide legal aid and micro-fi nance, in order to address the peasants’ immediate needs.

A specifi c case is that of the Serengeti land dispute, relating to the eviction of local people by district authorities. The participants decried the process according to which, the matter was dealt with, on grounds that, while state attorneys represented the government district commissioners, the evicted peasants were not represented. In addition, the lawyers bombarded the local people with technical legal jargon the peasants could not understand. Moreover, the


hearings were heard outside the local area of the peasants, requiring the peasants to travel long distances in pursuit of justice. The HRC could have heard the case at the scene of complaint. In defence of the criticism of the process being overtly judicious, it was argued that, to avoid reducing justice to legal technicality, each tribunal should be comprised of a lawyer and non-lawyer.

Another concern discussed related to the pros and cons of having the same institution exercising the dual function of a human rights body and dealing with abuse of offi ce. It was underscored that, from the very beginning, the commission must accord equal importance to both functions and devise strategies of undertaking; both with similar vigour and resolute.

Participants also refl ected on the sustainability and independence of the CHRAGG in view of its limited funding which, at the time of the workshop, was largely reliant on the Danish Government, which had in the fi rst place facilitated the establishment of the infrastructure, as its only donor. It was recommended that pressure groups should be formed to lobby for the commissioners to be paid out of the Consolidated Fund. Ultimately, the solution of sustainability is dependent on having decentralised regional offi ces, monitoring programmes and services closer to the people.

The experience of Uganda in undertaking civil education was found resourceful:a) A baseline survey of what existed was undertaken. The nature

of civic education was provided by NGOs; a needs assessment of what the people on the ground required was undertaken, for example, peace and confl ict education; poverty; HIV /Aids, crime control;

b) Strategic plan: This outlines the thematic issues to be addressed and the outputs;

c) Communication strategy: The monthly journal of the UHRC is a popular publicity tool. Additionally, the resource centre is accessible to the public;


d) Core curriculum: General themes and basic principles;e) Pilot curriculum;f) There are selection criteria for organisations to carry out civic

education;g) Delivery methodology for particular areas identifi ed: talk shows,

role plays, village meetings;h) Monitoring tools;i) (ix). Sustainability strategies: For example, incorporating

human rights education in school curricula and decentralisation programmes.

Conclusions and the Way Forward

In addition to the presentations made, the workshop provided an opportunity for participants to prepare collectively for the African Human Rights Institution Workshop, scheduled for February 2005.

Participants were mindful that they were at different stages of development. The workshop provided an opportunity to share experiences and learn from each other. Thus the participation of pioneers in HRCs, such as Margaret Sekaggya and Justice Emile Short, was greatly appreciated.

KCK was requested to facilitate a similar meeting each year, but on a rotational venue basis in different countries. In addition to presenting networking workshops, exchange visits and sharing of research, experiences and lessons learnt, was recommended. For example, HRCs considered undertaking joint training on pertinent human rights issues that pose common challenges.

Value was found in HRCs having joint positions and a collective voice on contentious issues within East Africa. In order to infl uence events at the East African level, HRCs explored the possibility of undertaking peer review mechanisms on the human rights status of individual countries.


The question of whether East Africa requires a joint human rights bill of rights or whether reference could be made on the individual bill of rights of the respective East African countries and the Africa Human and People’s Charter, was a decision deferred until the HRCs had appraised themselves of the contents and the framework of the EAC, an initiative that KCK accepted to spearhead. In other words, HRCs need to understand the Treaty fi rst, before meaningfully advocating on certain positions.

In summation, participants underscored the fact that the sharing of experiences was extremely useful as it enabled stakeholders to refl ect collectively on their role, share synergy, identify best practices, establish a framework for collaboration as well as devise recommendations for improving their work.

PART TWO

Comparing the Draft East African Bill of Rights and the National Bills of

Rights

121

7Comparing the scope of Rights and

Freedoms of the Draft Bill of Rights and Kenya’s Bill of Rights

Ezra Chiloba

Background

In developing common mechanisms of operation and uniform standards necessary for the operation of the East African Court of Justice (EACJ) and with the specifi c objective of developing a legal framework to guide its expected human rights jurisdiction, Kituo Cha Katiba: Eastern Africa Centre for Constitutional Development (KCK) commissioned a task force comprising of four representatives from National HRCs (NHRCs) in East Africa, namely the Kenya National Commission for Human Rights (KNCHR); the Tanzania Commission for Good Governance (CHRAGG); the Uganda HRC (UHRC) and a representative of the Ministry of Justice in Zanzibar, to work on an East African draft Bill of Rights (herein referred to as the draft Bill of Rights). The draft Bill of Rights is intended to be the human rights code to guide the human rights jurisprudence and operations of the EACJ.

The objective of this paper is threefold:• To review the Draft Bill of Rights with a view of assessing its

appropriateness vis-à-vis Kenya’s Bill of Rights; • To identify practical challenges that may affect implementation

of the draft Bill of Rights, drawing upon the challenges facing Kenya;

• To suggest recommendations.


The ultimate purpose is to enable East Africa’s NHRCs hold dialogue on the draft Bill of Rights with a view of improving it, taking into consideration the experiences of NHRCs in actualising their respective countries’ Bills of Rights.

The paper compares the scope of rights and freedoms of the draft Bill of Rights and Kenya’s Bill of rights, highlighting, the major dissimilarities between the two Bills, then proceeding to similarities. In the latter sense, the paper will go further to provide a comparative analysis of the nature and extent of similar rights and freedoms in both Bills. It will also review the various human rights enforcement mechanisms under the Bills. In so doing, it will provide an analysis of issues of jurisdiction, remedies and an investigation into the role of the KNCHR. Finally, the paper presents conclusions and recommendations with the aim of strengthening the draft Bill of Rights.

It is not the aim of this paper to provide a historical background or information about the ideological underpinnings of Kenya’s Bill of Rights. Prominent legal scholars have written much about Kenya’s Constitution. In addition, in the last fi fteen years Kenya has spent time debating a new constitution that could probably protect human rights better. Unfortunately this has not been achieved. For this reason, this paper focuses on Kenya’s Constitution as it is presently, without reference to any draft constitution whatsoever.

Comparative Scope of the Two Bills of Rights

Economic, social and cultural rights and group rights

The draft Bill of Rights has provided an array of rights and freedoms, making it more extensive than Kenya’s Bill of Rights. The draft Bill was drafted to refl ect not only civil and political rights (CPRs) but economic, social and cultural rights (ESCRs) and group rights too. At the making of Kenya’s Independence Constitution, the Bill of Rights did not consider ESCRs or group rights. As a result Kenya’s Bill of Rights is limited to CPRs.

Comparing the scope of Rights & Freedoms 123

It does not however mean that the absence of economic, social and cultural rights in the anatomy of Kenya’s Bill of Rights renders the rights and freedoms unavailable for enjoyment. Some of these rights are realised as a result of an existing government policy or legislation. While government plans on several occasions are meant to implement programmes that essentially advance the enjoyment of these rights and freedoms, they are not necessarily informed by principles relating to rights and duties. An example is the implementation of the Universal Free Primary Education programme to promote the right to education.

The current work relating to ESCRs in Kenya is based on existing international human rights standards. While Kenya is signatory to almost all international human rights conventions, it has not domesticated all of them. One of the reasons is that Kenya has a dualist legal system. Consequently, mere ratifi cation of international human rights treaties does not automatically make the treaty law at home. Parliament has to domesticate such treaties through legislation or constitutional amendments.

It is contented here that, as long as economic, social and cultural rights and group rights are not entrenched in a constitutional Bill of Rights in a dualist state like Kenya, governments may abrogate their obligation to fulfi l them, and citizens will be unable to obtain reasonable ground to hold governments accountable.

Finally, it is observed that the draft Bill of Rights has not considered the right to food as one of the core rights for East African citizens. It will be important to promote the right to food as provided for under the ICESR.

Annex 1 gives a summary of the status of rights and freedoms that are not included under Kenya’s Bill of Rights.

Duties

The draft Bill of Rights adopts the approach of the African Charter on Human and People’s Rights to include corresponding duties of


the individual. This will make the draft Bill the second after the African Charter, providing for duties. The Kenyan Constitution does not have provisions for corresponding duties.Comparative Review of Common Provisions

In this section, rights and freedoms that exist in both Bills of Rights are compared. Similarities and distinctions are made to give an overview of what implementing the draft Bill of Rights in Kenya may mean. More specifi cally, it assesses common rights and freedoms; limitations and derogations; and enforcement provisions.

Common Rights and Freedoms

What would be said to be points of commonality with respect to rights and freedoms are all civil and political rights. These include equality and freedom from discrimination; right to life; right to personal liberty; right to privacy; protection of freedom of conscience, expression, religion and assembly; freedom of movement; access to justice; respect of human dignity; freedom from slavery, servitude and forced labour; and right to property.Fundamental Rights

The draft Bill of Rights starts with what would be a preamble to any Bill of Rights. It highlights fundamental tenets of human rights which include: rights as inherent and not gifts by the state; sovereignty of the people and of the state; and the duty of the state to protect human rights.

Chapter V of Kenya’s Constitution constitutes fundamental rights and freedoms of the individual. The Constitution does not have a preambular provision that reaffi rms the nature of fundamental rights and freedoms. Courts are called upon to reaffi rm these important tenets of the Bill of Rights. In post-independent Kenya, under the single-party system, the behaviour of the executive that wielded unlimited power was such that fundamental rights and freedoms of the individual were treated like privileges or gifts by the state and not inherent in human beings. The trend has continued to change


for the better in light of the re-emergence of multi-party democracy since 1992.

Article 1(5) makes reference to “rights and freedoms of the individual and groups identifi ed in the constitution.” The idea of a “group” being capable of possessing rights and freedoms is novel. Framers of the Kenyan Bill of Rights did not specify this in Chapter V of the Constitution. As a matter of fact, the Chapter is titled: Protection of Fundamental Rights and Freedoms of the Individual. Courts have however held that groups or communities can approach the court to seek redress where rights of members of that group or community are abridged.1

Equality and Freedom from Discrimination

Article 2 of the proposed draft Bill of Rights introduces other grounds that a person may not be discriminated against as follows:

No person shall be discriminated against on the ground of gender, sex, race, colour, ethnic origin, tribe, birth, old age, creed or religion, social or economic standing, social identity or political opinion, maternal disposition, disability or HIV status.

Article 2 of the draft Bill does not however defi ne “discrimination.” Section 82 of the Kenyan Constitution is the province of protection against discrimination right. Section 82 (3) defi nes the term “discrimination” to mean:

affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby persons of one of such description are subjected to disabilities or restrictions to which persons of another such description are made subject or are accorded privileges or advantages which are not accorded to persons of another description.

The draft article has broadened the areas of possible discrimination to include social or economic standing, social identity or political 1 Shah Devshi v Transport Licensing Board (1970) E.A. 631.


opinion, maternal disposition, disability or HIV status, which are not captured under the Constitution of Kenya.2 But that does not limit Kenyan courts from interpreting the article to express the intention therein.

Curiously, the Constitution of Kenya recognises customary law for the determination of matters of adoption, marriage, divorce, and burial, devolution of property on death or other matters of personal law. Customary law brings with it customary practices that are in some cases discriminatory by their very nature.3 The draft Bill does not seem to address discriminatory customary practices.

Lastly, Section 82 of the Constitution has a number of exceptions that may result into less enjoyment of this right. There is a need to refocus the extent of discrimination laws against citizens of other member states.Right to Life

The extent of protection of the right to life has been a subject of a never-ending debate in Kenya and the world over. More specifi cally, questions of the death penalty, abortion and euthanasia are the main subjects of this discourse. Section 71(1) of the Kenyan constitution states:

No person shall be deprived of his life intentionally save in the execution of the sentence of a court in respect of a criminal offence under the law of Kenya which he has been convicted.

Kenyan law provides for capital punishment for the crimes of murder, treason and robbery with violence.4 However, since 1987 no capital offence convict has been executed. That is to say, Kenya is among the many other worldwide states that have de facto abolished

2 In 2004, an HIV-positive woman was dismissed by her employer. She has since sued her employer, alleging discrimination based on her HIV status. The case is yet to be determined. Cited at http://www.aegis.com/NEWS/AFP/2004/AF040964.html accessed 20 October 2006.

3 Mute, L.M. and Wanjala, S. (Eds.) (2002) When the Constitution Begins to Flower. Nairobi: Claripress Publishers. p. 122.

4 Sections 204, 40(3) and 296(2) of the Penal Code Cap 63, Laws of Kenya.


the death penalty. But the proposal to expunge capital punishment from statute books has not been something the Kenyan public is ready to accept. Note that the trend under international human rights law is towards abolition of the death penalty.

Article 3 of the draft Bill simply states that everyone has a right to life. It requires boldness to provide for abolition of the right to life considering the international norms around the subject.

On the issue of abortion, the Kenyan public is inclined towards stiffer penalties for abortion. Currently, the law in Kenya criminalises abortion and there is no possibility of legalising abortion in the near future. Section 228 of the Penal Code allows abortion during surgical operation if the life of the mother of the unborn child is in danger.

Section 71(2) of the Constitution outlines other situations under which a person’s life may be deprived. This is where a person dies as the result of the use of force (a) for the defence of any person from violence or for the defence of property; (b) to effect a lawful arrest or prevent escape from lawful; (c) suppressing a riot, insurrection or mutiny; (d) and in order to prevent a person from committing a crime. These exceptions have been subject to abuse by security forces in Kenya, who have been accused of unjustifi able “shoot to kill” orders.

Personal liberty

Both Article 4 of the Draft Bill of Rights and Section 72 of Kenyan Constitution are similar save for a few variances. Section 72(1) (j) permits the State to deprive a person’ of his or her right to personal liberty if there is an order requiring the person to remain within or prohibit him/her from a specifi ed area; or in order to obtain an order to enable a foreigner to extend his/her stay, if his/her presence would otherwise be unlawful. Although, Article 4 does not mention the above scenario, one may use Article 4(1) (h), which provides room for any unforeseeable situation.


The period under the two Bills of Rights within which a person arrested or detained is to be brought before the court varies. Under the draft Bill of Rights, a person can only be held for a maximum of 48 hours from the time of his/her arrest (Article 4(4)). Further, Article 4(6) entitles a person arrested for any criminal offence to apply for bail which the court may grant on such conditions the court deems reasonable. If the person has spent 120 days in remand for an offence triable by the High Court and subordinate court or 360 days in remand for an offence triable by the High Court alone, bail is mandatory.

In contrast, the Kenyan Constitution envisages a person being brought before the court within 24 hours after arrest for offences other than those punishable by death, which must be within 14 days. The onus of proof is upon the arresting or detaining agency to show that the time frame could not be complied with because it was not “reasonably practicable” to bring the person to court earlier. In addition, capital offences are not bailable and as a result security forces have abused these provisions by holding suspects of “capital offences in custody for months before their cases are fi nally adjudicated upon by a court of law”5without any recourse for the victims.

Article 4(5) of the draft Bill of Rights also provides that, upon request by the person detained or restricted, the next-of-kin of that person shall be informed as soon as practicable of the place of restriction. In addition, his or her lawyer or doctor shall be allowed reasonable access to that person. The person should also be allowed medical treatment. Kenya’s Bill of Rights does not have such a provision and there are no mandatory requirements to inform family members of the detainee of his or her whereabouts upon detention. The practice of ensuring access to medical treatment in Kenya is an administrative practice and not a matter of right.

5 Op. cit. pp. 116-117.


Article 4(8) of the draft Bill of Rights proposes that courts should take into account during sentencing of the convicted person, “any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial.” In Kenya time spent in remand before and during trial is only used as a mitigating factor during sentencing. It does not feature as a constitutional consideration.

Notably the phrase “taking into account” has not been defi ned well in the proposals. Two scenarios are possible. On the one hand, the court may subtract the duration spent in remand from the would-be term of imprisonment and give the appropriate sentence. On the other hand, the court may accept the duration spent in remand as persuasive for a more lenient term of imprisonment. A progressive Bill of Rights needs to provide clarity. Right to Privacy

The right to privacy under the Kenyan Constitution is protected under Section 76 and couched as “Protection against arbitrary search or entry.” The section provides that “except with his consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.” The proposed draft Bill is formulated in more specifi c terms to include the right not to have a person’s “home searched,” “possessions seized” and “the privacy of their communication infringed.”

Kenya’s Constitution limits the enjoyment of the right to the extent that it does not jeopardise the interests of defence, public safety, public order, public morality, development etc.; or where the law makes provision that is reasonably required for the enjoyment of the right of others; the law authorises inspection and enforcement of a court order. Indeed, certain limitations must be imposed on this right, especially in the wake of the need to investigate and bring to justice persons who have been accused of corruption. The draft Bill does not state the circumstances under which the right may be derogated from. Presumably, Article 39 anticipates that such rights are derogable.


Protection of freedom of conscience, expression, religion and assembly

Article 7 of the proposed Bill of Rights has broadened these rights and freedoms in comparison to the Kenya’s Constitution. These rights and freedoms are dealt with in three separate sections of the Kenyan Constitution, namely, Section 78 protection of the freedom of conscience, Section 79, protection of the freedom of expression, and Section 80, protection of freedom of assembly and association.

Freedom of Expression

Freedom of expression means that “no person shall be hindered in the enjoyment of his freedom of expression,” including freedom to hold opinions without interference, to receive ideas and information without interference, to communicate ideas and information without interference (to the public generally or to any person or class of persons) and freedom from interference with his correspondence.

The draft Bill of Rights also specifi es freedom of the press and other media, freedom of artistic creativity, academic freedom and freedom of scientifi c research as ingredients of this freedom. Freedom of the press and media under Section 79 of the Constitution is crafted as “freedom to communicate ideas and information without interference”. In the case of Cheserem v. Immediate Media services6 the Court held that:

The right of freedom of expression … should be enjoyed by every news media, the press, newspapers, their journalists and everybody in Kenya, free from the drastic interference… Their freedom however is also subject to the freedom of others. Section 79 does not give absolute freedom to individuals even if it is a news media.

The draft Bill of Rights limits the enjoyment of the freedom of expression under Article 8 (2) stating that the right “does not extend to propaganda for war, incitement of imminent violence, or advocacy or hatred that is based on race, ethnicity, gender or religion…”. The

6 Cheserem v Immediate Media Services, High Court Civil Case, (2000) East Africa Law Reports, Volume 2, at 371.


proviso in Section 79(2) (a) of the Kenyan constitution limits the enjoyment of this right to the extent that it is in not in contravention with public order, public safety, public morality and public health. Hate speech is a precipitate for public disorder, safety and security and needs to be criminalised.7

It is argued that, in Kenya the state through statutes has sought to limit freedom of expression.8 Recent attacks by the state on the Standard Media Group Limited (Standard Newspaper and Kenya Television Network) was a demonstration of unreasonable and excessive methods of controlling the media.

Freedom of Association and Assembly

Unlike the draft Bill of Rights, the freedom of association and assembly under Section 80(1) of the Constitution does not specify what “other associations for the protection of his interests” entails. Article 9 of the proposals lists a broad spectrum of associations to include not only trade unions but “political, cultural, religious, linguistic and other civic organizations.”

Worth mentioning is the fact that the draft Bill of Rights, modifi es the freedom of association and assembly to include the freedom “to demonstrate, peacefully and unarmed, to picket and to present petitions.” The right to demonstrate is not part of the Kenya’s Bill of Rights. Interestingly, in the recent past Kenya has experienced spates of peaceful public demonstrations against government offi cials due to what could be termed as culture change by the police force with respect to public demonstrations.

Article 9(2) provides that “no one may be compelled to belong to any association or union – political or otherwise.” This is likely to be defeated in Kenya where the Constitution in Section 80(2) (d) states expressly that registration of a trade union may be denied on:

7 The Kenya National Commission on Human Rights has been advocating for hate speech legislation.

8 Op. cit. Section 56.


grounds that another trade union already registered, as the case may be, is suffi ciently representative of the whole or of a substantial proportion of the interests in respect of which registration of trade union is sought.

Under the Trade Unions Act, Cap 233, the Registrar-General wields much discretion in determining whether or not to register a trade union.9

Freedom of Religion

While the draft Bill of Rights uses the semantic of “freedom of religion” (Article 11), Section 78 of the Constitution uses “freedom of conscience” which includes freedom of thought and religion, freedom to change religion or belief, and freedom to manifest and propagate his or her religion in worship, teaching, practice and observance. The tone of the proposed Bill of Rights tends to simplify the language of the Kenya’s Constitution without distorting the meaning.

Freedom of Movement

The re-emergence of the East African Community has introduced an important aspect to the freedom of movement. Article 10 of the proposed Bill of Rights expands the exercise of this freedom to all citizens of East Africa. This will enable them to reside and work in any part of East Africa; enjoy the right to enter, leave and return to East Africa; and to possess a passport or travel document.

A passport in Kenya is not a fundamental entitlement. It has no constitutional backing. Indeed, the process of acquiring a passport in Kenya borders on a nightmare. It has also been held by the Courts that:

The issue of withdrawal of a passport is the prerogative of the president and it is upon the minister responsible to decide on

9 For a long time the registrar had refused to register the Universities Academic Staff (Union); Kenya Medical Practitioners and Doctors Association; and Kenya Union of Timber Workers, among other unions. See Angaha v. Registrar of Trade Unions, (19739) E.A. 297.


each application whether or not to make a request in respect of the applicant.10

It is therefore important that the right to hold a passport should be well defi ned for the avoidance of doubt.

Further, Section 81 provides circumstances under which the enjoyment of the freedom of movement may be suspended. These circumstances could involve situations where any other written law has made provision with respect to interest of defence, public safety, order, health, control of nomadic peoples; where the court has imposed restrictions; where the law makes restriction on acquisition or use of land; where a person is removed to be tried or punished in another country for a criminal offence; or where the person is required to fulfi l an obligation under law. It is apparent, also, that under Article 39, the freedom is derogable, the extent of which is not specifi ed.

Access to Justice

Access to justice is a broad principle that, according to the draft Bill of Rights, comprises a person’s right to: be presumed innocent until proven guilty by a competent court or tribunal; a defence, by a person of his or her own choice; a competent national and regional court; be tried within a reasonable time; access to alternative dispute resolution methods; and a fair hearing.

The period spent in lawful custody by a convict before completion of the trial (see also rights of persons in detention or places of restriction) is should be considered during sentencing. It is a matter of notoriety that, because of weak law enforcement agencies in Kenya, suspects of crime are held in remand for excessively long periods before trial and during trial. The proposed article is sound but its enforcement requires an express provision of law and a proactive judiciary.

10 Mwau v Attorney-General, cited in Ojwang, J.B. and Otieno-Odek, J.A. (1988) The Judiciary in Sensitive Approaches to Human Rights Litigation in Kenya. Netherlands International Law Review, Volume XXXV No. 1.


Access to a fair trial, the subject matter of Section 77 of Kenya’s Constitution, is fundamental and cannot be compromised. The section entitles a person charged with a criminal offence to a fair hearing within a reasonable time by an independent and impartial court established by law. It also includes the right to be presumed innocent until proven guilty. In the case of Njeru Gatabaki v. Republic11, where the court was deciding on the question of bail it stated that:

The presumption of innocence as enshrined in the Constitution is absolute, hence the use of the word ‘shall’. In this regard I respectively agree with the learned counsel for the applicant that admission to bail is the effective mechanism of giving practical meaning to the spirit of the constitutional presumption of innocence. If this were not the case, the presumption of innocence would be a hollow platitude.

Every accused person has a right to put up a defence. He or she must be provided with the necessary facilities to do so. The person shall be permitted to defend himself/herself or appoint an advocate of his/her own choice. As it shall be seen elsewhere, indigent suspects cannot always afford an advocate. This may amount to poor preparation of his/her defence resulting in a conviction that should not have been. Unless convicted for a capital offence or murder or treason, the state cannot provide any legal assistance to accused persons. Reports from various prisons in Kenya indicate that death row convicts are those guilty of the offence of robbery with violence. Robbery with violence does not benefi t from the privilege of state- sponsored legal representation. In a nutshell, fair trial must also be assessed from the social and economic circumstances of the accused person to enable him or her to put up a defence.

11 High Court at Nairobi Civil Application No. 43 of 1993, also cited in Kibwana, K. (Ed.) (1997) Human Rights and Democracy in East Africa: The Constitutional Implication of East African Co-operation, Nairobi: East Africa Law Society. p. 62.


Respect of Human Dignity and Protection from Inhuman Treatment

Both Article 16 of the Draft Bill of Rights and Section 74 of Kenya’s Constitution protect persons from torture, inhuman or degrading treatment. “Inhuman treatment” has been taken to mean: “not having the qualities proper or natural to a human being, destitute of natural kindness or pity, brutal and unfeeling.”12 In the case of Felix Marete v. Republic,13 the court held as follows:

I have not doubt that to subject a man to (two and a half) years without pay, without work, is a mental torture and is inhuman and degrading treatment. Such treatment becomes even more reprehensible when infl icted upon a married man with four children.

Critics observe that claims based on this right have been made in a number of cases, but in most of them the argument has been unsuccessful. The courts have always been guilty of perpetuating the policy of the executive even where it proposes draconian punishment.14

An aspect for consideration under Section 74(2) is the existence of the proviso that allows “infl iction of punishment that was lawful at independence.” The proviso forms the bedrock for corporal and capital punishment that now exists in Kenyan statutes.15 So far no determination has been made in Kenya as to whether capital punishment amounts to inhuman and degrading treatment. However, according to developments in other jurisdictions, capital punishment is inhuman and degrading and as such should be abolished.16

Freedom from slavery, servitude and forced labour

Both Article 17 and Section 73 of Kenya’s Constitution contain similar objectives of protecting persons from being held in slavery and servitude or being subjected to forced labour. Both Bills of

12 Ojwang and Otieno-Odek, op. cit. 13 High Court Civil Case No. 668 of 1986, reported (1987) Nairobi Law Monthly, III.14 Ojwang and Otieno-Odek, op. cit.15 Op.cit.,p. 4.16 Kenya National Commission on Human Rights is currently developing a case for the

abolition of the death penalty.


Rights give exceptions as to when this right and freedoms may not apply.

In the case of R. v. Kadhi of Kisumu ex parte Nasreen, a husband brought an action against Mrs. Nasreen, his wife, for leaving her matrimonial home and denying him his conjugal rights. She then applied to the High Court for a declaration and an order of certiorari on the basis that enforcement of the Kadhi’s court decision would be an infringement of her right to personal liberty, freedom of movement and freedom from servitude. In his judgement the judge observed that:

the implementation of the Kadhi’s order would in the circumstances … subject the applicant to the effective dominion of the [husband] to an extent constituting servitude.17

Since slavery, servitude and forced labour are not defi ned in both Bills, a question of unjust wages may arise under this article. The failure to affi rm the principle of just wages may tantamount to having a person as a serf to the extent that personal freedom is absent, consequently undermining this freedom.

Human traffi cking and child labour are some of the areas that precipitate the violation of this freedom from slavery, servitude and forced labour. Kenya’s Constitution is silent on human traffi cking and child labour; although child labour issues have been addressed under the Children’s Act.

Right to Property

The proposed Article 22 is borrowed from Section 75 of Kenya’s Constitution. The right to property was core, especially at independence. Colonialists who owned large tracts of land in Kenya feared what would happen when the regime changed at independence. The constitutional guarantee of the right to private property was an avenue for the white settlers to seek protection, such as claiming compensation on exit.

17 [1973] E.A. 153, at 161.


Essentially, Section 75 protects a person’s right to property from compulsory acquisition by the state without compensation. In the case of Haridass Chhaganlal v. Kericho Urban District Council,18 the Court affi rmed the position that an enactment could not take away private rights to property without compensation, unless the intention is expressed in clear and unambiguous terms.

This section of the Constitution has come under criticism because it bears “the same classical provision in the former colonies of Britain [which]…. lacks a pro-people and a pro-democracy approach.”19

Kenya’s history on land ownership also confi rms that unless the phrase “public benefi t” is defi ned20 authorities are likely to abuse the provision. Courts have held that:

‘purpose in the public interest’ defi nitively included aims and objects in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. Acquisition of private property is outside the scheme of the guarantee unless it is the ‘primary purpose to benefi t the public -not just - indirect or incidental purpose’.21

A matter for consideration from Kenya’s experience is the question of property set aside for “public benefi t” of “public interest”. For purposes of political expediency public land was illegally allocated to individuals. After 2002, the National Rainbow Coalition (NARC) government constituted a Commission of Inquiry to inquire into illegal allocation of public land in Kenya. The fi ndings of the Commission of Inquiry were startling. Recommendations were made to the effect that all public land illegally allocated to individuals should revert to the public. But the challenge was how such would be implemented without infringing on a private title. In

18 [1965] E.A. 370.19 Ibid at 118.20 The South African Constitution defi nes public interest to include the nation’s commitment

to land reform, to bring about equitable access by all to South Africa’s natural resources.21 B.P. Bhatt v Habib Vershi Rajani, [1958] A.A. 536, cited byOjwang and Otieno-Odek, op.

cit.


an interview with the KNCHR, Mr. Paul Ndung’u, the chairman of the Commission of Inquiry, shared his insights:

We took the opinion that sanctity of a title under the constitution and statute could still be challenged if it is illegal. You cannot protect an illegal title. Most lawyers refer to Section 75 of the Constitution on the Bill of Rights which stipulates that no private property can be acquired without compensation. This provision protects only legal titles … Secondly, previous regimes had erroneously believed that the president was above the law and therefore his decision could not be challenged anywhere in the court of law … the powers vested in the presidency to make grants of freehold and leasehold of unalienated Government lands to individuals and corporate bodies are not absolute and unfettered… Kenya being a republic, its people have entrusted the management of the state to elected leaders. This trust includes management of public assets. The trust cannot therefore include the looting or dishing out of public assets by elected leaders.22

It is therefore an implicit duty of a government in power to protect public property. The proposed Article 22(3) of the Draft Bill of Rights innovatively obligates “both a Partner State and society [as matter of duty] to ensure the protection of public property for the public benefi t.” As observed above, the enforcement of this provision in Kenya has a higher probability of acceptance than refusal.

Limitation, Derogation and Scope of Rights

Not all human rights can be enjoyed in the absolute without limitations. The law must defi ne the scope of enjoyment of the rights and freedoms in any Bill of Rights. The United Nation’s Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights23 provides guidelines that states may adopt while determining the scope of enjoyment and enforcement of the Bill of rights.

22 Kenya National Commission for Human Rights (2006) Land and Human Rights. Nguzo za Haki, Issue No. 5, April 2006: 15.

23 United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1985/4, Annex (1985).


Broadly, the proposed Article 39 of the Bill of Rights states as a matter of principle when rights may be limited in the following sense:

The rights in this Bill of Rights may only be limited in terms of law of general application to the extent that the limitation is reasonable and justifi able in an open and democratic society based on respect for human dignity, equality and freedom, taking into account all relevant factors, including:(a) the nature of the right;(b) the importance of the purpose of the limitation;(c) the relation between the limitation and its purpose; and (d) less restrictive means to achieve the purpose.

In addition, the Constitution of Kenya does not interpret certain phrases whose effect is to limit the enjoyment of the Bill of Rights; for example, “democratic society,” “public safety”, public morality”, “public health”, “rights and freedoms of others,” or “rights and reputations of others” among others. In such cases, it is upon the judiciary to interpret the extent of limitation clauses and statutes. At the drafting stage, it is imperative to consider some of the phrases that require defi nition for purposes of interpreting the draft Bill of Rights.

Derogation from the Bill of Rights

Section 83 of the Constitution in no uncertain terms has been abused severally by the State with no reasonable justifi cation. Section 83(1) states:

Nothing contained in or done under the authority of an Act of parliament shall be held to be inconsistent with or in contravention of section 72 [right to personal liberty], 76 [freedom from arbitrary search], 79 [freedom of expression], 80 [freedom of assembly and association], 80 [freedom of movement] and 82 [protection against discrimination] when Kenya is at war, and nothing contained or done under the authority of any provision of Part III of the Preservation of Public Security Act shall be held to be inconsistent with or in contravention of those sections of this Constitution when


and in so far as the provision is in operation by virtue of an order made under section 85 [ on preservation of public security].

The above enumerated rights can be suspended in situations, fi rstly, when Kenya is at war or secondly, under Part III of the Preservation of Public Security Act Cap 57 of the Laws of Kenya.

Part III allows the state the following derogations: detention of persons; restriction of freedom of movement into, out of or within Kenya, compulsory movement of persons and the imposition of curfews; control of aliens, including removal of diplomatic privileges; censorship, control or prohibition of information; control or prohibition of the acquisition of any movable or immovable property; compulsory acquisition of any movable or immovable property; requiring persons to work or render services, and conscription into any of the disciplined forces, among other acts of state. In the early eighties, when the executive wielded unlimited powers under a single-party system, detention laws were excessively used by the then president of the Republic.

Article 42 permits an Act of Parliament to contravene certain rights and freedoms only in a state of emergency. The Act must only authorise the taking of measures that are reasonably justifi able for dealing with a state of emergency. Presumably, Part III of the Preservation of Public Security Act enjoys this accommodation.

The Article further states that persons detained under such an Act of Parliament shall be informed of the reasons of detention within 24 hours. In Kenya, such information shall be provided within not more than 5 days Section 83(2) (a). The Article requires that the spouse or next of kin of such person shall be informed within 72 hours and be allowed access into the place of detention. In Kenya there is no mandatory duty to inform the next of kin. Finally, the Article requires that within not more than 30 days, a notifi cation shall be published in the Gazette stating reasons and grounds for detention. In Kenya a shorter period of 14 days is provided for


publication the reasons and grounds for detention in the Kenya Gazette. Perhaps the draft Bill should consider adoption of a shorter period to ensure quicker justice.

The draft Bill of Rights is silent as to whether a tribunal should be constituted to review the case.24

The Siracusa Principles with respect to civil and political rights envisage circumstances when some of the rights and freedoms may be derogated from, only when faced with “a situation of exceptional and actual or imminent danger which threatens the life of the nation.” A threat to the life of the nation is one that:

(a) affects the whole of the population and either the whole or part of the territory of the state, and

(b) threatens the physical integrity of the population, the political independence or the territorial integrity of the state or the existence or basic functioning of institutions indispensable to ensure and project the rights recognised in the Covenant.25

As stated above, Section 83 of the Constitution states circumstances under which the state may derogate from the fundamental rights. It does not however state which rights and freedoms under the Bill of Rights shall not be derogated from. It can only be assumed that all other rights and freedoms not listed in Section 83 are non-derogable. Comparatively, the proposed draft Bill of Rights lists rights and freedoms that shall not be derogated from. The former demonstrates the state’s readiness to interfere with the Bill of Rights, assert power and relegate the Bill of Rights (autocratic approach). While the latter approach tends to elevate the Bill of Rights and provide minimums that the state must not violate (protectionist approach).

It is an expressed opinion that derogations from the Bill of Rights in Kenya are wide and demean the purpose of its protection. A number of rights and freedoms are muzzled by claw-back clauses

24 Sections 83(2) (c), (e) and (d); 83(3) of the Constitution allows the president to constitute an independent and impartial tribunal to review the case of a detained person.

25 Op. cit. at par. 39.


and statutes that take away with the left hand that which has been given by the right hand. There are proposals afoot that some of these laws should be abolished and others amended to ensure full enjoyment of human rights with limited derogations, which follows the established human rights standards.

Comparison of non-derogatory provisions

Right and Freedom Draft Bill of rightsKenya’s Bill of

Rights

Equality and non-dis-crimination Non derogable Derogable

Life Non derogable Non derogable but for death penalty

Personal liberty Non derogable -Habeas corpus order Derogable

Personal liberty Non derogable -Place of deten-tion Not applicable

Children Non derogable -hazardous em-ployment, inappropriate work, child labour, prostitution etc

Not applicable – See Children’s Act

Access to justice/Le-gal protection and fair trial Non derogable Non derogable

Presumption of in-nocence Non derogable Non derogable

Respect for human dignity and protec-tion from inhuman treatment

Non derogable Non derogable

Slavery, servitude and forced labour

Non derogable – slavery and servitude Non derogable

Both bills must exhaust what is/ought to be non derogable or derogable.


NON-DEROGABLE RIGHTS58. No state party shall, even in time of emergency threatening the life of the

nation, derogate from the Covenant’s guarantees of the right to life; free-dom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientifi c experimentation without free consent; free-dom from slavery or involuntary servitude; the right not to be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation.

59. State parties to the Covenant, as part of their obligation to ensure the enjoyment of these rights to all persons within their jurisdiction (Art. 2(1)) and to adopt measures to secure an effective remedy for violations (Art. 2(3)), shall take special precautions in time of public emergency to ensure that neither offi cial nor semi-offi cial groups engage in a practice of arbitrary and extra-judicial killings or involuntary disappearances, that persons in detention are protected against torture and other forms of cruel, inhuman or degrading treatment or punishment, and that no persons are convicted or punished under laws or decrees with retroactive effect.

60. The ordinary courts shall maintain their jurisdiction, even in a time of public emergency, to adjudicate any complaint that a non-derogable right has been violated.

SOURCE: Siracusa Principles

Enforcement of Human Rights

Enforcement of human rights is dependent upon a number of factors which include independence of the judiciary and ingenuity of human rights lawyers, the scope of rights, the political culture of a nation, rules of interpretation of rights and freedoms, and the role of other institutions in the promotion and protection of human rights, among others. Depending on the nature of these elements, the Bill of Rights may become a strong tool for protection of human rights, or as Justice Philip Tunoi stated, “reduced to an arid parchment of mere promises by narrow and insensitive interpretation.”26

26 Bujra, A. (Ed.) (2005) Democratic Transition in Kenya: The Struggle from Liberal to Social Democracy. Nairobi and Addis Ababa: ACEG and DPMF. p. 222.


On analysis, Gibson Kamau Kuria, senior state counsel,27 concludes that the effi cacy of the Bill of Rights in Kenya is impeded by:

a) the rules of constitutional interpretation that make it diffi cult, if not impossible, to enforce the Bill;

b) lack of courage by lawyers and judges to use procedures that give the courts power to grant private law remedies like injunctions, declarations, mandamus, certiorari and prohibition;

c) confusion surrounding the right of appeal to the Kenya Court of Appeal;

d) casting of human rights in a language which appears to give the courts many escape routes in the form of qualifi cation of rights.

Enforcement under the Bills of Rights

The proposed Bill of Rights entitles any person claiming that a fundamental right or freedom guaranteed by the Bill of Rights has been infringed or threatened, to apply to a court of competent jurisdiction for redress. Locus standi has also been extended to include organisations that “may bring any action against the violation of another person’s or group’s human rights.” Further, the draft Bill provides for decisions of the High Court with respect to human rights violations appeallable to the EACJ.

The Kenyan Constitution under Section 84(2), on the other hand, gives the High Court original jurisdiction to hear and determine an application with respect to violations of human rights. Any person aggrieved by the decision of the High Court may appeal under Section 84(7) to the Court of Appeal as of right. Section 84(3) gives subordinate courts the opportunity to refer matters touching on the Bill of Rights to the High Court for purposes of interpretation under Section 67(1) of the Constitution.

The broad discretion given to the subordinate courts to decline to refer human rights matters to the High Court on the basis that they

27 Kibwana, op.cit. p. 68.


are “frivolous and vexatious” hinders the promotion and protection of the human rights, apart from slowing the development of a body of human rights jurisprudence in local jurisdictions. Notably, a case referred to the High Court by the subordinate court is not subject for appeal to the Court of Appeal. This is because the case, on a technical basis, is cloaked as a constitutional reference.28

A number of issues arise from the above comparison. Firstly, an assumption could be made under Article 41(1) that “a court of competent jurisdiction” is any court; lower court or High Court, as long as domestic law allows. In the case of Kenya, only the High Court has original jurisdiction over human rights cases. Due to high demand for justice services, it is high time to consider lower court jurisdiction over human rights cases.

Secondly, the issue of locus standi is not defi ned under Section 84 of the Constitution. However, the Courts in the recent past have been fl exible enough to allow, for instance, groups to use Section 84 to access justice.29

Thirdly, the draft Bill of Rights assumes that High Court decisions on human rights are not appeallable in respective countries. That would be erroneous in the sense that, in Kenya, as mentioned above, decisions of the High Court are appeallable to the Court of Appeal. Perhaps, the framing of the article on appeal under the draft Bill of Rights should consider appeals from the highest courts in respective countries.

Fourthly, what may remain an issue for a long time is how decisions of the East African Court of Appeal will be enforced in local jurisdictions. Enforcement of decisions of other international and regional human rights courts has always been an elusive affair that requires stringent sanctions and political will of the member states to comply. There are two possibilities: One is that if the EACJ

28 Section 67(1) allows subordinate courts to make constitutional references to the High Court which references are not appeallable.

29 Kibwana, Op. cit., 1


is considered to be part of the legal systems of member states, then decisions of the Court will be directly enforceable in local jurisdictions with the least resistance being expected.

The second possibility is that if EACJ is modelled on other international human rights bodies, then other mechanisms of enforcement will be required. In this case, when the East Africa Legislative Assembly (EALA) makes laws for the enforcement of the rights and freedoms under the Draft Bill, specifi c mechanisms for non-cooperation and non-compliance with those decisions will be made.

The last issue raised here is on the principle of access to justice. Section 84(5) of the Constitution makes provision for parliament to make laws that will enable indigent citizens of Kenya alleging violation of his of her rights to engage the services of an advocate to prosecute his/her case. While this may not have been actualised, it is a provision for consideration in the draft Bill of Rights. The EALA may make laws establishing a special fund to advance fi nancial legal aid to poor citizens seeking redress for violations of human rights.

Possible Remedies

The draft Bill of Rights anticipates that competent courts will provide redress including compensation. Section 84(2) of the Constitution provides that the High Court may make such orders, issue such writs and give such directions for purposes of enforcing or securing the enforcement of the Bill of Rights. The Section enables a litigant to determine in advance the nature of the remedy he/she may fi nally be granted by the courts. According to Kamau Kuria, both private law and public law remedies should be available for redress of violations of human rights in Kenya. They include, inter alia declaration, mandamus, habeas corpus, certiorari, injunctions, prohibition and damages or compensation.30

30 Kibwana, op. cit. p. 98.


Place of the kenya national commission of human rights

The KNCHR is a public NHRIs, a creature of statute31 that has a broad mandate to protect and promote human rights in Kenya. The functions of the Commission are stipulated in Section 16 of the constitutive Act, inter alia:• to investigate complaints of the violation of any human rights;• to visit prisons and places of detention with a view of assessing

and inspecting prisons conditions and making appropriate recommendations;

• to inform and educate the public on human rights for the purpose of enhancing respect for such rights;

• to recommend to parliament effective measures to promote human rights, including provision of compensation to victims of violations of human rights or their families;

• to formulate, implement and oversee programmes intended to inculcate in the citizenry awareness of civic responsibilities and an appreciation of their rights and obligations as free people;

• to act as the chief agent of the government in ensuring the government’s compliance with its obligations under international treaties and the conventions on human rights;

• to encourage the efforts of other institutions working in the fi eld of human rights and co-operate with such other institutions for the purpose of promoting and protecting human rights in Kenya; and

• to investigate and conciliate complaints on alleged human rights violations when appropriate.

In carrying out its mandate the National Commission is vested with the powers of the court.32 As such it can issue summonses or other orders requiring the attendance of any person before it; question

31 The Kenya National Commission on Human Rights Act No. 9 of 2002. The National Commission is formed on the Paris Principles however, it not a constitutional body.

32 Ibid. Section 19.


any person in respect of any subject matter under investigation before it; require any person to disclose any information within such person’s knowledge relevant to any investigation. If satisfi ed that there has been an infringement of any human right or freedom, the Commission, may order:

• the release of any unlawfully detained or restricted person;• the payment of compensation; or• any other lawful remedy or redress.

What is important here is that the National Commission, under Kenyan law, is another avenue, apart from the High Court, through which victims of human rights violations may seek redress. The National Commission has set up a tribunal to hear and determine petitions on human rights violations. Since then, only one case has been heard and the decision is yet to be delivered. There are several petitions of human rights violations which, in the estimation of the National Commission, cannot be managed by its current capacity. There is also the fear that, by setting up a tribunal, issues of jurisdiction are likely to be raised by opponents to the Commission.33

The challenges that bog down the National Commission are numerous. The executive has often sought to interfere with the independence of the National Commission in an attempt to scuttle its effectiveness. Regardless of the challenges, the role of NHRIs cannot be underestimated, especially with the EACJ on its human rights jurisdiction. In formulation of rules and regulations for the EACJ attention should be paid to this fact.

Conclusion and Recommendations

Conclusions

The draft Bill of Rights contains all rights including ESCRs and group rights. It also provides for duties of a person in relation to the state. The scope of substantive rights and freedoms and duties 33 KNCHR (2005) Annual Report. Nairobi: Kenya National Commission on Human

Rights .p 9.


is broader than Kenya’s Bill of Rights, which is the preserve of civil and political rights.

There are nuances of similarities and dissimilarities with respect to rights and freedoms found in both Bills of Rights. All have been demonstrated under specifi c rights or freedoms.

The limitation and derogable clauses and provisions in the Kenyan Constitution are overarching. The draft Bill of Rights has developed principles to determine when limitation or derogation should be entertained. There is a sense in which non-derogable rights in the draft Bill may not be complete. The Siracusa Principles cite a state of emergency as the only ground for suspension of rights.

Finally, on the enforcement mechanisms, not only the judiciary but other institutions also have a role to play. NHRIs have a role to play in the enforcement of human rights. Both private and public law remedies are available for redress for human rights violations.

Recommendations

After analyzing the two Bills of Rights, the following recommendations are presented for purposes of informing the discussion on improving the draft Bill of rights.

• There is a need to reaffi rm the inter-dependence of rights; • Include the right to food as part of the Bill of Rights;• Consider the status of customary law practices in the face of

potential discrimination;• Include an article or a paragraph to the draft Bill abolishing

the death penalty;• Provide a defi nitional article on all phrases that are likely

used to undermine the Bill of Rights;• Link corruption and the right to privacy;• Defi ne the scope of the fundamental freedom of movement

vis-à-vis the right to a passport. Countries should take an audit of their respective domestic legislation to identify laws that are likely to discriminate against foreigners;

• Consider the inclusion of a Special Fund for indigent litigants;


• Issues on just wages should also be considered for infusion into the Bill of Rights;

• Defi ne “public benefi t” or “public interest” and other phrases that have the potential of limiting rights and freedoms. The non-derogable provision should be rephrased and made clearer.

• Limitation and derogation clauses should be limited to the minimum. One may need to borrow from Siracusa principles;

• Consider the inclusion of a paragraph or article on enforcement to include both private and public law remedies;

• Enforcement mechanisms should be revised to ensure minimum confl ict of laws;

• The role of National Human Rights Institutions should be underscored;

• An article establishing a Human Rights Litigation Fund must be included.


Annex: Comparisons of Economic, Social and Cultural Rights in the Draft Bill versus Kenya Law

Protection under Draft Bill Protection under Kenya LawRight to participation (Article 14) No formal policy or legislation.Right to contest elections as an inde-pendent candidate (Article 15) No constitutional provision -

Protection of minorities (Article 18) None Right to health (Article 19) Health Act and Policy, not as a rightRight to marry and found a family (Article 20) None

Rights of children (Article 21) Children Act

Right to education (Article 23) Children Act and government policy, on free primary education

Sexual and reproductive rights (Article 24) None

Affi rmative action (Article 25) None

Rights of women (Article 26) National Commission on Gender and Development Act

Self-determination (Article 27) NoneRights of Internally displaced persons (Article 19) None

Traffi cking of persons (Article 29) Children’s Act (minor)Prohibition of the mass expulsion of “aliens” (Article 30) None

Right to a clean environment (Article 31)

Environmental Management and Coor-dination Act

Rights of persons with disabilities (Article 32) Persons with Disabilities Act

Economic rights (Article 33) Government policyRight to housing (Article 34) Government policyRight to health care (Article 35) Government policy

Citizenship (Article 36) Section 91 of the Constitution, not part of the Bill of Rights

Right to culture (Article 37) Children’s Act (minor) Right to food (None) None Access to Information (civil and politi-cal right Article 6) None

152

8Achievements of the National Commission

for Human Rights of Rwanda, the Rwandan Bill of Rights and Prospects

vis-à-vis the East African Community

Jean Marie Vianney Gashirabake

Introduction

Since their creation by the First International Workshop held in Paris from 7 to 9 October 1991 and by Resolution No. 48/134 of 20 December, 1993 of the UN General Assembly, NHRIs are valued as essential partners in the task of protecting and promoting human rights at the national and regional levels. There is indeed a signifi cant increase in the demands made on NHRIs by all stakeholders to act as key actors in the protection and promotion of human rights.

The Paris Principles provide that a national institution should be established in the national constitution or by law, clearly setting out its role and powers and that its mandate should be as broad as possible. The principles state that national institutions should be pluralist and should co-operate with a range of social and political groups and institutions, including NGOs, judicial institutions, professional bodies and government departments.

Today, a country governed by the rule of law and by democracy must have a NHRI for the protection and promotion of human rights. In many countries, these constitutions are called “National HRCs”. The task of promoting and protecting rights, however, is not one which could or should be assumed by only one organisation. It requires concerted efforts of every Government, every individual, every group and every organ in society.

Achievements of the National Commission for HR-Rwanda 153

The Paragraph 3 (e) of the Paris Principles, relating to the status of national institutions adopted by the General Assembly Resolution 48/134 of 20 December 1993, stipulates:

A national institution shall, inter alia, have the following responsibilities: to co-operate with the United Nations and any other organization in the United Nations system, the regional institutions and national institutions of other countries that are competent in the areas of the promotion and protection of human rights.

In our eastern region of Africa, we can be proud that we have Kituo Cha Katiba, which enhances the capacity of HRCS in Eastern Africa in relation to the EAC and enables HRCs to conduct dialogue and share experiences with a view to learning from each other’s experiences, best practices, challenges and mistakes. Thus, every state member of the EAC or state to become member of the EAC in the near future should commit itself to support the efforts of Kituo Cha Katiba aimed at promoting and protecting human rights in our region.

The RHRC applauds the idea of an East African Bill of Rights to serve as the human rights code, to guide the human rights jurisprudence and operations of the EACJ.

Main Achievements of Rwanda Commission for Human Rights

The RHRC was established by Law No. 04/99 of 12 March, 1999, voted by the National Assembly of Transition in accordance with the Arusha Peace Agreement of August 1993, signed by the Rwandese Patriotic Front and Government of Rwanda of the time. Also, in promulgating this law, Rwanda observed the obligation of all NHRIs relating to creating awareness of human rights and their protection as provided for by the Paris Principles mentioned above.


The creation of the RHRC is largely due to the fact that Rwandans themselves realised that their country’s recent history has been characterised by the failure to respect human rights, by the impunity that symbolised the public powers for a long time, and which culminated in genocide.

At the beginning and as provided for by the Law No. 04/99 of 12 March 1999, the duties of the National Commission for Human Rights are inter alia to examine and analyse all causes of the systematic violation of Human Rights and any other acts of violation of human rights that have been committed or could be committed by a state institution or by whoever acting offi cially, or by associations working on Rwandese Territory (Article 3).

Article 4 of the abovementioned law stipulates that the Commission is especially responsible for:

- The sensitisation and education of the population of Rwanda in matters of human rights;

- Informing relevant authorities to eventually initiate judicial proceedings in case of human rights violations by anyone.

On 31 December, 2002, the Law No. 04/99 of 12 March 1999, establishing the National Commission for Human Rights, was modifi ed and supplemented by Law No. 37/2002 of 31 December 2002 with a view to assigning more duties to the Commission and give it more powers to enable it to carry out its duties more smoothly. In particular, the new responsibilities of the Commission were the following:• sensitising and training all categories of the Rwandan population

as regards human rights;• giving, upon its own initiative or upon request, its advice on bills

relating to human rights;• sensitising government institutions as regards ratifi cation of

international conventions relating to human rights and making sure such conventions are integrated in internal laws;


• receiving and examining claims relating to human rights violations;

• visiting any place where allegations of human rights violations are reported;

• visiting prisons and checking whether the rights of detainees therein are secured;

• providing the relevant authorities with suggestions as to actions which may be taken in order to stop and punish perpetrators of human rights violations in accordance with the law;

• requesting that any person committing human rights violations be prosecuted;

• collaborating with HRCs in other countries, associations operating in the country and international organizations as regards activities working to respect and promote human rights.

Regarding the structure of the Commission, the modifi ed law created one more post, that of vice-chairperson, which had not been provided for in the previous law.

Apart from this law, the new Constitution of the Republic of Rwanda establishes the National Commission for Human Rights that shall be an independent national institution, responsible for:• educating and mobilising the population on matters relating to

human rights;• examining the violations of human rights committed on Rwandan

territory by state organs, public offi cials using their duties as cover, by organisations and by individuals;

• carrying out investigations of human rights abuses in Rwanda and fi ling complaints in respect thereof with the competent courts;

• preparing and disseminating an annual and other reports as may be necessary on the situation of human rights in Rwanda.

In 2001, the Commission recruited one hundred and seven (107) staff members for its different departments. In July 2001, the


Commission set up ten provincial offi ces to enable it to pursue cases in all corners of the country. But, by the end of 2003, these provincial offi ces had been closed following a government policy stating preference for a small but effective number of civil servants in its different institutions.

Sensitising and training all categories of rwandan population on human rights

Since its establishment, and with a view to promoting human rights, the RHRC has paid particular attention to activities relating to sensitisation and training of different categories of Rwandan citizens on human rights. These activities of the Commission include public lectures and seminars, radio and television programmes as well as a variety of publications on human rights. Lectures are given, for instance, to secondary school teachers and students, ordinary people, administrative authorities, security authorities, members of associations, wardens of prisons, ex-detainees released by the Presidential Communiqué of 1 January 2003, prisoners, leaders at provincial level, students preparing to join tertiary educational institutions, etc. The Commission also participates in the preparation of school curricula in order to make sure that the curricula include human rights lessons.

Following up issues relating to human rights violations

As required by its main mission, the RHRC follows up a variety of issues relating to the violation of human rights, and every year the number of violations increases. Among these violations are some which the Commission followed up upon its own initiative, while others were cases reported to it.

Most of the cases followed up by the Commission concern unlawful arrest and detention, court decisions that are not respected, cases that are delayed and those not executed, people being retained in prison having served out their sentences, issues regarding respect of human rights in Gacaca Courts, cases concerning property,


violation of the rights of children, the right to health, and the right to employment.

Follow-up of respect to human rights in gacaca courts

It is well known that the genocide that was perpetrated in Rwanda between 1 October 1990 and 31 December, 1994 was one of the most dreadful crimes against humanity that the world has experienced. The loss of human life, estimated at more than one million, and enormous damage to infrastructure, resulted in overwhelming upheavals and a torn social fabric. In this context, justice was seen as an indispensable process to restore civil peace and social harmony and to eradicate the culture of impunity.

As conventional forms of justice were inadequate to deal with the huge caseload of defendants, it became necessary to fall back on an innovative system of justice that has roots in Rwandan culture: The Gacaca Courts or Jurisdictions.

The Organic Law No. 16/2004 of 19 June 2004 relates to the organisation, competence and functioning of Gacaca Courts. It permits prosecution of persons accused of genocide and other related crimes. The implementation of this Organic Law was, however, susceptible to challenges with regard to respect for the rights of victims, of witnesses and of the accused. It is for that reason, the RHRC, whose main mission is to promote and protect human rights, stepped in to monitor the Gacaca Courts, with the aid of fi nancial support from the European Union.

This monitoring project involves two monitoring agents in every province, with a coordinating offi ce in Kigali. The project started in February 2003 and it produces reports that are addressed to the National Service in charge with Gacaca Courts every year, with a view to pointing out breaches of law or violations of human rights. Thus, the mission of monitoring agents’ is essentially to observe whether there is respect for human rights and to point out possible dysfunctions of the Gacaca Courts that could impact to rights to a fair trial.


Advsing on bills relating to Human Rights

The Commission regularly gives advice on bills relating to human rights before the bills are adopted by parliament. This activity aims to check whether all laws relating to human rights are in compliance with the fundamental principles of human rights.

Sensitising government institutions regarding the country’s international obligations

Its part of its continuing sensitisation of the government of Rwanda as regards the ratifi cation of international conventions relating to human rights and to help everybody understand and know the importance of international conventions, the Commission published a third booklet entitled A List of International and Regional Conventions relating to Human Rights, signed and ratifi ed by Rwanda. This booklet contains international conventions relating to human rights, signed and ratifi ed by Rwanda starting from colonial times to the time of its publication.

It also lists some of the international conventions relating to human rights not yet signed or ratifi ed by Rwanda, so that the institutions concerned can work to have them also ratifi ed. The booklet also shows where these international conventions could be found, especially the Offi cial Gazette of the Republic of Rwanda.

Another purpose of the booklet is to help the reader to understand further and know the importance of international conventions especially those relating to human rights, knowing the appellations and provisions of these conventions and how to have recourse to them.

Also in the context of sensitising Rwanda’s government regarding the ratifi cation of international conventions on human rights, the Commission wrote to the Minister for Foreign Affairs and Regional Co-operation, the Letter No. CDRH/338/04 of 11 November, 2004, requesting him ensure that Rwanda ratifi es the following international conventions:


• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984;

• Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956;

• Optional Protocol to the Convention on the Elimination of Discrimination against Women, 1999;

• Convention of 28th September, 1954 relating to the Status of Stateless Persons;

• Convention of 30th August 1961 on the Reduction of Statelessness;

• Employment Policy Convention, 1964 (No. 122);• International Convention on the Protection of the Rights of All

Migrant Workers and Members of their Families, 1990;

In this regard, the cabinet meeting of 26 October 2005 decided that the following Conventions would be ratifi ed:

- Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956;

- Convention of 28 September 1954 relating to the Status of Stateless Persons;

- Convention of 30 August 1961 on the Reduction of Statelessness;

Although there is evident progress with regard to ratifi cation of international conventions relating to human rights, the Commission fi nds that Rwanda should ratify the following International Conventions as well:

- Optional Protocol to the Convention on the Elimination of Discrimination against Women, 1999;

- Employment Policy Convention, 1964 (No. 122);- Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, 1984;


- International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990;

Visiting detention facilities

With a view to determining whether detainees’ rights were being respected, the Commission visits cells and prisons in all the provinces and in Kigali City annually.

The Human Rights Principles provide that the conditions of people’s detention should not be a cause of suffering additional to the detention itself and negative effects resulting from detention should be minimised if not eradicated altogether. That is why a country having people in detention has the following responsibilities:

- to do everything possible so that the detainees live in conditions close to those they were accustomed to;

- to allow visits to prisons and as any other detention premises;

- to detain people in known places, prescribed by the law;- to draw special attention to special categories of detainees:

children, women, foreigners, people with mental diseases and those addicted to narcotics.

While visiting prisons and cells, the Commission paid particular attention to the detainees’ welfare and their fi les.

Collaborating with HRCs and relevant associations in other countries and international organizations

The RHRC collaborates with HRCs in other countries, associations operating in the country and international organisations as well as governmental institutions. This collaboration is one of the activities aimed at protecting and promoting human rights. Among these activities are for example, consultative meetings, seminars and workshops attended by the Commission inside and outside the country, as well as projects launched with the aim of promoting human rights and improving the Commission’s capacity.


An example of good collaboration with HRCs in other countries is the invitation of the Nigerian HRC for the RHRC to attend the 5th Conference of NHRIs in Africa, which took place in Abuja, Nigeria, from 6 to 12 October, 2005. The theme of this conference was Economic, Social, and Cultural Human Rights. At that time, the RHRC was elected vice president of the co-ordinating committee of African NHRIs. This position allows the Commission membership to the International Co-ordinating Committee.

Synopsis of the Rwanda Bill of Rights

From 30 to 31 October, 2002, the RHRC organised a two-day Seminar on the “Draft Rwandan Bill of Rights” in Kigali, with a view to submitting the draft to the National Constitution Commission as its contribution to the constitution making process which was taking place.

The seminar involved different participants from all walks of life in Rwanda, namely politicians, lawyers, judges, women Organisations, university students representatives, security organs, armies, academicians, Rwandans in the Diaspora, journalists, independent human rights organisations, etc.

Among the objectives of the seminar, was to present the participants with the draft Bill of Rights with a view to improving it, and to modify and discuss it , with intent to develop get a better fi nal document that would guarantee Rwandans basic human rights.

After stimulating debate, in both general discussion and within groups, the seminar came up with the following propositions, among others:

- Abolition of the death penalty, save for the crime of genocide and other crimes against humanity;

- Proposed accessibility to Rwandan courts in case of violation of individual human rights;

- Government to be responsible for providing health services;


- Equal education and for all with compulsory primary education;

- Citizens to be duty bound to potect the environment and participate in national development;

- People should have the right to be assisted in courts, to enjoy equality before law and non-discrimination.

In a nutshell, the document for the Rwandan Bill of Rights incorporated all articles that are found in major international instruments for the protection and the promotion of human rights.

At the end of this seminar, the participants recommended that the Rwandan Bill of Rights should be more effective and was likely to be observed if it was fully integrated in the Constitution of the Republic of Rwanda, as it was anticipated by the RHRC. Today, the Title II, Fundamental Human Rights and the Rights and Duties of the Citizen, from Article 10 to Article 51 of New Constitution of the Republic of Rwanda of 4 June 2003 comprises most of the articles of the Rwandan Bill of Rights mentioned above.

Even though the Constitution of 4 June 2003 provides for the death penalty, the scrapping of the death sentence from Rwanda’s legal system is under discussion in different meetings and the media. The Ministry of Justice envisages collecting views of all categories of the Rwandan population on this vital issue shortly.

“Draft East African Bill of Rights” Review

After considering the “Draft East African Bill of Rights” the RHRC has found that it many commonalities with the provisions of the Constitution of the Republic of Rwanda. Thus, it has no major recommendations to make at this stage, but is disposed to participate in the debates on this draft during the workshop.

Prospects of Rwanda Commission for Human Rights vis-à-vis the current EAC Framework

The RHRC intends to continue collaborating with other HRC in Eastern Africa in relation to the EAC. It hopes that this workshop


will be an opportunity to exchange ideas on how to collaborate closely in activities related to the promotion and protection of human rights in the Eastern Africa region.

164

9Reviewing the Draft East African Bill of

Rights in the Context of the Tanzanian Bill of Rights: Practical Challenges

Mary Massay

IntroductionOn behalf of the CHRAGG, and on my own behalf, I wish to commend the organisers of this workshop for their tireless efforts in enhancing the capacity of HRCs in Eastern Africa and in ensuring that the EAC acquires a common jurisprudence on matters relating to human rights. Appreciations are also extended to the task force which prepared the draft East African Bill of Rights and, for the purpose of this presentation, I would like to refer to it as the ‘draft Bill’.

This paper will discuss all three terms of reference as provided for seriatim. The terms of reference are:a) To provide a synopsis of review of the Draft East African Bill of

Rights with a view to assessing its appropriateness vis-à-vis the Tanzania Bill of Rights;

b) To identify practical challenges that may affect its implementation, drawing upon the challenges faced in actualising the Tanzania Bill of Rights; and

c) Drawing on the above discussion, to suggest recommendations.

Draft East African Bill of Rights 165

Review of the Draft East African Bill of Rights

The draft Bill is a very comprehensive document and has covered nearly all the necessary areas of basic rights. Most of the rights provided for in the draft Bill are also provided in the Tanzania Bill of Rights, except for a few rights which are either not provided for, or if provided for are not in express and clear terms. These are:-

• Article 15 – Independent candidate;• Article 17 – Freedom from slavery, servitude and forced

labour;• Article 18 – Protection of minorities;• Article 20 – Right to marry and found a family;• Article 21 – Right to children;• Article 23 – Right to education;• Article 24 – Sexual and reproductive rights;• Article 25 – Affi rmative action;• Article 26 – Rights of women;• Article 28 – Rights of internally displaced persons and

refugees;• Article 29 – Traffi cking of persons;• Article 30 – Prohibition of the mass expulsion of “aliens”;• Article 32 – Rights of persons with disabilities;• Article 34 – Right to housing;• Article 35 – Right to health care;• Article 36 – Citizenship; and• Article 37 – Right to culture.

Articles in the draft Bill which were found to be in line with the Tanzania Bill of Rights will not be discussed in this paper.

The rights entrenched in the draft Bill are necessary to constitute the East African Bill of Rights. There could, however be some practical challenges in implementation of these rights. These challenges will be discussed in the third part of this paper. Before dealing with the challenges, the following are a few general comments with regard to the following specifi c articles of the draft Bill, namely articles 10, 14(1), 16, 18, 19, 34, 35 and 38.


Article 10 of the draft Bill attempts to make movement and residence within the EAC free for any citizen of the region. In my view and for the time being, this may not be practicable.. The nature of the right being proposed would be more appropriate in a situation where there is political union. So far, the Community has only achieved the Customs Union and the Common Market. Alternatively, this right can be made subject to the laws of the individual member states.

A similar situation may be envisaged regarding Article 22(1) of the draft Bill, which provides for the right to acquire, hold and dispose of property by individuals within the EAC. As far as Article 22(1) is concerned, the issue of land is very controversial. Each member state has its own laws regulating land issues as well as different problems relating to it. These problems have not been fully and properly addressed within the region. Although all member states of the Community launched the National Consultative Process on the East African Federation on 13 October, 2006, I am of the opinion that, as a matter of public interest, the issues relating to land should specifi cally be presented to the citizens of the respective states in order to seek their opinions; alternatively, this Article should be subject to the laws of the respective member states.

Article 14(1) of the draft Bill provides for persons from any member state of the Community to have equal rights in the conduct of public affairs, including being elected to various posts and participation in the governance of any partner state. Although the article is qualifi ed by the phrase “without unreasonable restriction” and a condition of three years residence in the case of the right to participate, the same can be exercised by any East African.

Basically, in a political arena, the right to be elected, particularly as a head of state and/or member of parliament, is limited to citizens whose citizenship is by birth. In Tanzania, this is manifested by Article 21(1) of the Constitution, which makes reference to Articles 39, 47 and 67 of the same Constitution. For example, Article 39(1)


(a)34 stipulates clearly that a person shall not qualify to be elected as President unless he or she is a citizen of Tanzania by birth. This is a restriction barring citizens born outside Tanzania from being elected to the presidential position. In the case of members of parliament, the requirement of “citizen by birth” is not necessary and what enables one to qualify as a candidate for the position is citizenship, irrespective of how citizenship was obtained.

The draft Bill, by using the phrase “without unreasonable restriction” in Article 14(1), does not clearly defi ne what amounts to ‘unreasonable’. Since it is a universally accepted standard that certain positions, like that of head of state/government, are reserved for citizens whose citizenship is by virtue of birth, it is suggested that this article should specifi cally state to that this, rather than being as general as it is. Reference can be made to Section 1 of Article II of the United States of America (US) Constitution35 which provides that a U.S. President must be a natural-born citizen of the US or a citizen of the US at the time the US Constitution was adopted. On the question of time /period, to wit, three years residence, it is not clear how that period was arrived at or what factors were taken into account to arrive at the period of three years. The period seems inadequate.

Article 19, which provides for the right to health, is more or less similar to Article 35 which provides for the right to health care. It is suggested that these articles are merged to produce one comprehensive article on the right to health, addressing the issue of HIV and ARVs, among others.

Article 38 of the draft Bill with respect to the tenure of offi ce of the Chief Executive Offi cer (CEO) is not clear. Since there is no defi nition of who a Chief Executive Offi cer is, interpretation of this article may lead to confusion. However one may interpret that the

34 See Constitution of the United Republic of Tanzania, 1977.35 See United States Constitution which was adopted on 1787 and took effect on 4 March

1789.


CEO referred to in this article is a head of state/government in any of the partner states. If this is the case, therefore, it is recommended that the article be re-phrased to refl ect the exact meaning.

Article 34 of the Draft Bill relating to the right to housing, could be reworded to read “right to adequate standard of living”, whereby rights like the right to adequate food, clean water, education and clothing will be included. As far as Article 18 is concerned its heading reads Protection of Minorities. This heading refl ects only the contents of Article 18(1), excluding Articles 18(2) and 18(3) because 18(2) and 18(3) refer to rights of persons belonging to vulnerable groups. Therefore, it is suggested that the heading of this article should read Protection of Minorities and Vulnerable Groups in order to refl ect the contents of the entire article.

Practical Challenges that may Affect Implementation of the Draft East African Bill of Rights

As indicated from the outset, the draft Bill is comprehensive enough to cater for the needs of East African citizens. However, having rights is one thing and implementing them is another. Regarding implemention of the rights provided by the Bill, challenges can be expected. Experience by African governments, including Tanzania, shows that implementing bills of rights can be problematic. On the one hand, the state has not only the duty to promote and protect human rights, but also has to create an environment which upholds human rights principles and enforces respect by every individual. On the other hand, modern international law36 has extended this duty to private institutions as well as to individuals. This is due to the emerging trend seeing private institutions and individuals involved in human rights violations as vividly described in the following words, “increasingly, private security companies, often subsidiaries of transcontinental corporations, are used to guard private, government and foreign corporation premises. The state no

36 Compare with the classic international law which considers the state as the sole human rights violator, with a primary duty to protect and observe human rights.


longer holds the monopoly on the systematic use of violence and, more importantly, it no longer monopolises the systematic violation of human rights – an ironic victory of sorts for privatisation and liberalisation’’.37 In the same vein, domestic violence and mob justice against criminal suspects are also examples of human rights violations. Therefore, the state, and other private institutions as well as individuals are involved in violating human rights.

Some commentators blame this state of affairs on weaknesses in the state of administration of justice in African countries. The question is, to what extent are our systems of justice prepared to uphold the draft Bill. Taking into account the fact that violation of human rights involves both agents of the state and private persons, implementation of the Bill stands to face some challenges.

Article 7(1) (d) of the draft Bill stipulates that every person has a right to peaceful assembly and demonstration. This right is not absolute and can be derogated as envisaged by Article 39 of the draft Bill. The same right is provided for under Article 20(1) of the Constitution of Tanzania of 1977, whereby an individual can enjoy this right subject to the laws of the land. It is at this juncture that the controversy arises. In Tanzania, there are generally two legislations which qualify this right, namely the Police Force and Auxiliary Services Act38 and the Political Parties Act.39

Under the Political Parties Act of 1992, vide Section 11(1), it is provided that every political party may hold and address public meetings after giving notifying a police offi cer in charge of the area within which the meeting is expected to be held, not less than 48 hours before the time planned for the meeting. Section 11(2) of the same Act calls for the applicability of Section 43 of the Police Force and Auxiliary Services Act, which mandates a police offi cer in charge of the relevant area to cancel or suspend the meeting/procession if

37 Cited at http://www.protectionline.org/spip.php?article85, accessed on 17 October 2006.

38 Chapter 322 of the Revised Laws of Tanzania.39 Ibid. Chapter 258.


satisfi ed that the gathering is likely to cause a breach of the peace. These sections were bitterly challenged in a famous case, that of Rev. Christopher Mtikila v Attorney General.40 The court, in its turn was convinced that the alleged provisions were lawful for the purposes of maintaining peace and security. Accordingly, responsible police offi cers shall continue to regulate the conduct of public meetings and/or processions in tandem with court’s decision.

In reality, however, the provisions have often been abused. Some police offi cers have been unreasonable in refusing to permit meetings and processions, particularly those involving opposition political parties. It is in this respect that there is a real challenge regarding the implementation of Article 7(1) (d) of the draft Bill.

Article 15(1) of the draft Bill provides for people to stand for election irrespective of their political affi liation. This position is controversial in Tanzania. The Constitution of Tanzania, vide Articles 21(1), 39(1) (c), 67(1) (b) and 77(3) (a) clearly stipulates that, for a person to qualify for the position of president, vice president or member of parliament she or he has to be affi liated to a registered political party. This stance, however, was reversed by the recent judgment in the case of Christopher Mtikila v The Attorney General.41

In this case, the court ruled that amendments effected to Articles 21(1), 39(1) (c) and 67(1) (b) of the Constitution, which made political affi liation of a candidate mandatory when contesting a political post are unconstitutional in that they infringe upon fundamental rights. Further, the court ordered the government to establish a legislative mechanism that will regulate the activities of private candidates, a task to be completed between the date of judgment (5 May 2006) and the next general election to be held in 2010. The government, on its part, expressed its intention to appeal against the decision.

A victim of a human rights violation, as per Article 41(1) of the Draft Bill, may seek remedy in a competent court. This provision is

40 High Court of Tanzania at Dodoma, Civil Case No. 5 of 1993.41 High Court of Tanzania at Dar es Salaam, Miscellaneous Civil Cause No. 10 of 2005.


similar to Article 30(3) of the Constitution of the United Republic of Tanzania, which provides for similar remedy in the High Court. On the other hand, Section 10(1) of the Basic Rights and Duties Enforcement Act42 stipulates that all petitions in relation to the Bill of Rights be heard and determined by three judges. This has, in one way or another, denied justice to victims of human rights abuses because it is very diffi cult to get three judges sitting at once to deliberate and determine a human rights petition due to the fact that the High Court of Tanzania has only a few judges. Taking into account the limited number of High Court premises and the fact that there are few judges, the requirement of three judges to determine constitutional petitions makes it diffi cult to enforce the Bill of Rights, and the same challenges are likely to face the implementation of the East African Bill of Rights.

Further, Article 41(3) of the Draft Bill provides that a person aggrieved by a decision of the High Court within a respective partner state may appeal to the EACJ. On the other hand, Sections 4(1), 5(1) and 6(1) of the Appellate Jurisdiction Act43 collectively stipulate that decisions of the High Court are appellable in the Court of Appeal. Unless these sections are amended in favour of Article 41(3) of the Draft Bill, implementation of Article 41(3) of the draft Bill is likely to face challenges.

Under the Draft East African Bill of Rights, an arrested person, by virtue of Article 4(4) (b) of the Bill, is supposed to be taken to the courts of law not later than 48 hours after the time of arrest. This article is intended to protect accused persons from being detained longer than necessary. The Tanzanian Bill of Rights lacks a similar provision. Moreover, Section 32(1) of the Criminal Procedure Act44 provides that an arrested person should be brought before a court of law within 24 hours after being arrested. The fact that this right is provided for in the legislation and not in the Constitution, makes its enforcement in the human rights fi eld impractical.

42 Chapter 3 of the Revised Laws of Tanzania.43 Ibid. Chapter 141.44 Ibid. Chapter 20.


Experience has shown that the implementation and enforcement of this Section has been diffi cult. There are a number of reasons why the time limit as stipulated by the Section has proved diffi cult to comply with. Improper administration of criminal justice by law enforcement offi cials is one of the reasons. The presence of well-drafted legislation protecting human rights is one thing, and effective implementation of legislation is another. Implementation needs resources (physical, human and fi nancial), political will and well trained and committed law enforcers.

Equally, the right of an accused person to be tried within a reasonable time as envisaged by Article 12(1) (d) of the Bill is prone to many obstacles. Although the law45 requires any adjournment of criminal cases before or during the hearing not to exceed an aggregate of 60 days, most criminal investigations, particularly those involving serious offences, take a long time before being fi nalised, thus criminal cases remain pending for long periods of time. Police investigations and the entire trial process may take as long as ten years. During this period, the accused might be held in custody; and sometimes, at the end of the case, the accused is found not guilty. A practical example is the case of two detainees, namely Jafari and Said, who were charged with murder and detained for twelve years, but later acquitted by the court.46 Slow police investigations and complicated and cumbersome court processes delayed the determination of the case in question.

Nevertheless, Article 12(1) (d) of the draft Bill which provides for persons to be tried within a reasonable period of time, will address the problem, although not to the desired extent. Implementation of this article, moreover, is likely to face similar challenges, as explained above.

As provided for by Article 4(6) of the draft Bill, bail is expressly provided for as a right. Courts, by virtue of this article, are to be

45 Ibid. Section 225(4).46 See The Legal And Human Rights Centre (2002) Tanzania Human Rights Report. Dar es

Salaam: LHRC. p. 21.


vested with the powers to grant bail on conditions to be imposed by the courts. With regard to the Tanzania Bill of Rights, there is no express article stating that bail is a right. Moreover, Article 13(6) (b) of the Constitution, which provides for presumption of innocence, has been interpreted to include the right to bail. Courts, as manifested in the case of Daudi Pete v The United Republic47 have declared that bail is a constitutional right and not a privilege. Practice and the Criminal Procedure Act,48 on the other hand, claim the opposite. Section 148(5)49 makes treason and murder, among others, unbailable offences.

The author acknowledges that the said offences are serious but, is of the considered view that these offences should be bailable subject to conditions to be imposed by courts after considering all circumstances. It follows, therefore, that under the law a person accused of armed robbery, murder or treason has no right to bail. As such, implementation of Article 4(6) of the draft Bill is likely to face challenges from this position of the law.

Torture, cruel, inhuman or degrading treatment/punishment, as viewed by the international community, are the most serious and greatest sins against human dignity. Article 16 of the draft Bill strictly prohibits torture and other inhuman treatment. To cement the position, the table in Article 39 of the draft Bill prohibits torture as a right which cannot be derogated under any circumstances. A similar provision, which prohibits torture and other inhuman treatment, is also contained in the Constitution of the URT, by virtue of Article 13(6) (e).

Moreover, experience shows that Tanzanian’s law enforcement organs, private entities and individuals, are not innocent when it comes to acts of torture, cruel and inhuman treatment. In the same vein, Tanzania has not ratifi ed the Convention against Torture and

47 High Court of Tanzania at Mwanza, Miscellaneous Criminal Cause No. 80 of 1989.48 Chapter 20 of the Revised Laws of Tanzania.49 Ibid.


Other Cruel, Inhuman or Degrading Treatment or Punishment.50 On some occasions, criminal suspects are being tortured by agents of the state51 in order to extract information relating to alleged crimes.52 In dispersing public political meetings or processions, the police have sometimes acted in a cruel manner and meted out inhuman treatment against demonstrators53.

Apart from a few perpetrators who have been brought to justice, many police offi cers are left unpunished due to insuffi cient evidence.

The fi nal identifi ed practical challenge is based on Articles 18(2) of the draft Bill, providing for the rights of widows and orphans, Article 23 on the right to education, and Article 26, which provides for the rights of women. These rights are basic, taking into account the history of our societies, which embeds cultural practices, some of which are prejudicial to these rights. Some traditions and customs, inter alia, have been denying widows and women in general the right to inheritance, favour early marriages and polygamy. Children in pastoral societies are seldom sent to school and women are always considered inferior to men. These cultural aspects are obstacles to the full implementation of the relevant articles.

Although Article 26(6) of the draft Bill prohibits detrimental cultural practices, the struggle against such practices has not, to date, achieved the desired results. Undesirable cultural practices still exist in our societies, posing a practical challenge to implementing these articles of the draft Bill.50 Adopted by the United Nations General Assembly Resolution 39/46 of 10 December

1984.51 Peter, C.M. (1997) Human Rights in Tanzania: Selected Cases and Materials. Koppe:

Köln. p. 85.52 See the facts of the case of Republic v. Kigadye, High Court of Tanzania at Shinyanga

(Mwanza Registry), Criminal Sessions Case No. 85 of 1980.53 See The International Federation for Human Rights (2001) Zanzibar Wave of Violence: A

Fact Finding Report on Police Brutality and Election Mismanagement in Zanzibar. Paris: IFHR. pp. 10–17.


On the other hand, full realisation of economic and social rights as stipulated in the draft Bill, particularly under Article 23 on the right to education, and under Article 33(1) on the right to work under satisfactory, safe and healthy conditions, can be diffi cult due to poverty. Making education, especially post-primary education, easily accessible by all citizens has been impeded by poor economies which cannot guarantee availability of resources for education. Equally, the same poor economies fail to accommodate job demands and meet standards of good working conditions.

Recommendations

Among the intentions of the draft Bill, is provision of a common jurisprudence which can be used as a tool for promoting and protecting human rights within the East Africa region. As explained above, however, there are many challenges which may affect the smooth operation and implementation of the East African Bill of Rights. To make it operate smoothly, albeit not to the desired extent, the following recommendations are made:

Article 14(1) of the Draft Bill be amended in order to limit participation in governance, particularly election to top government leadership, to citizens of a particular state whose citizenship is by birth. It is also recommended that Article 10 of the draft Bill be qualifi ed to make it subject to the laws of each individual state, and its absolute applicability be attained when the East African Community acquires the status of a political union. The reasons for this recommendation have been alluded to earlier in the paper when discussing the provision.

Articles 19 and 35 can be merged to form one comprehensive article covering both rights, since the rightsas envisaged by both articles are similar.

In the case of Tanzania, the government should take the initiative to amend the Constitution to include some of the rights provided for in the draft Bill which are not currently entrenched in the Tanzania


Bill of Rights. Rights, like those of children and minorities, prohibition of traffi cking of persons and the issue of independent political candidates should be incorporated in the Constitution. Alternatively, there should be a debate to establish the status of the East African Bill of Rights vis-à-vis the respective countries’ Bills of Rights as far as the issue of legal superiority is concerned.

Save for issues which are discussed in this paper, the author is of the opinion that the East African Bill of Rights is legally superior and enforceable in the EACJ.

A state, being vested with the primary duty of protecting human rights, should take and play an active role in the promotion and protection of human rights. It should create an environment in which human rights are respected and observed. Public awareness about human rights issues should be given priority by all member states. The state and its agencies/organs should also observe and practice human rights by complying strictly with all provisions relating to human rights protection and ensuring that matters of justice are disposed of in a timely manner.

Laws which curtail the enjoyment of rights should be amended to make rights, as provided for in the Tanzania Bill of Rights, enjoyable in a more practical sense. For example, inter alia, Section 148(5) of the Criminal Procedure Act,54 which waives the right to bail for the offence of murder, should be amended in order to make all criminal offences bailable subject to reasonable conditions as imposed by courts.

The issue of torture and other cruel, inhuman or degrading treatment should be seriously considered by member states. Those responsible for these acts should be brought to justice and punished accordingly. On the other hand, public leaders and relevant authorities should condemn acts of torture and other cruel, inhuman or degrading treatment and take appropriate measures accordingly.

54 Chapter 20 of the Revised Laws of Tanzania.


If there are circumstances which necessitate justifi able derogation from the rights protected under both East African Bill of Rights and its Tanzania counterpart, as envisaged by Articles 39 and 31 respectively, derogation should never be absolute and arbitrary. It should be exercised strictly and to the extent that the situation requires, and in conformity with other international obligations.

Since some societies embrace and practice certain undesirable traditions and customs, massive and strategic campaigns should be conducted to combat these traditions. Citizens should be imparted with the necessary knowledge on human rights, and also be informed the importance of eradicating undesirable traditional practices.

In conclusion, it is the author’s considered opinion that there is a need for the draft Bill to be presented to the citizens (i.e. the benefi ciaries or stakeholders) so as to give them an opportunity to air their views and make suggestions, as was done on 13 October 2006, when all the presidents of the East African countries simultaneously launched the National Consultative Process on the East Africa Federation.

178

10The Draft Bill of Rights of the East African Community and the 1995 Constitution of

Uganda: Embracing Topical Issues

Margaret Sekaggya

Introduction

A general overview of the draft Bill of Rights for the East African Community shows that the majority of the drafted provisions are adopted from Chapter 4 of the 1995 Constitution of Uganda. The draft Bill of Rights is a progressive attempt to embrace topical issues like HIV-Aids, internally displaced persons (IDPs), prohibition of mass expulsion of aliens, self determination, voting and participation in elections regardless of country of origin within East Africa. The draft Bill further expands the duties imposed on individuals and the states as a whole and seeks to modify the existing social, cultural and economic rights that are presently wanting.

The various provisions adopted from the Ugandan Constitution include the protection of personal liberty, right to privacy, access to information, protection of freedom of conscience, expression, religion and assembly, freedom of expression, freedom of association, protection of freedom of movement, traffi cking of persons, freedom of religion, right to a fair hearing, respect for human dignity and protection from inhuman treatment, freedom from slavery, servitude and forced labour, human rights and freedoms during a state of emergency, enforcement of rights, right to marry and found a family, affi rmative action, duties of citizens, rights of women, right to a clean environment, rights of persons with disabilities, rights of workers, citizenship, habeas corpus and the right to culture.

The Draft Bill of Rights of the EAC 179

General Observations

The notion that fundamental and other human rights are inherent and not granted by the state has been elucidated. However, in the same breath it is important to note that human rights must be reasonable and relevant to the desired aim. Any limitation imposed on the enjoyment of human rights must be an exception and not the rule. It is in the light of this that the following observations are made.

AppropriatenessArticle 2: Equality and Freedom from Discrimination

The Constitution55 prohibits discrimination based on factors like gender, sex, race and colour; however, the Uganda government has not enforced the law effectively in certain cases, for example, locally or culturally accepted discrimination against women with regards to pregnancy, children, and persons with disabilities or HIV- Aids. It is against this background that this article provides an exhaustive account of the issue of discrimination and includes maternal disposition, social identity, old age and HIV status among the forms of discrimination. This paper recognises the growing need for the protection of people from all walks of life and the need to cover all potential grounds of discrimination.Article 3: Right to life

The exclusion of the death penalty and abortion from this article indicates the need for extensive discussion on whether these two issues should be included. The death penalty is a controversial form of punishment carried out in execution of sentences passed by courts in respect of certain offences, for example murder. It should be noted that Ugandan legislation56 establishes death sentences in respect of criminal offences. The death penalty has been condemned

55 Article 21.56 Article 22.


and abolished in many countries as a violation of the right to life,57 though Uganda still retains it as a form of punishment.

It is noteworthy that there have been efforts recently to challenge the legality of the death penalty in Uganda, as evidenced by the constitutional petition of Suzan Kigula & 416 Others v. Attorney General,58 seeking to have the death penalty declared unconstitutional on the basis that it falls within the ambit of a cruel, inhuman and degrading punishment. However, the Constitutional Court held that the Constitution recognises the death penalty as an exception to the right to life and that the right to life is not included in Article 44, which entails non-derogable rights and as such the imposition of the death penalty constitutes no cruel, inhuman or degrading punishment. Additionally, under the Ugandan Penal Code Act,59 the performance of abortions is prohibited, with exception to saving the life of a pregnant woman.Article 4: Personal Liberty

The Article provides that a person has a right to apply for bail if he or she has been remanded for 120 days in case of offences triable by the High Court and subordinate courts, and 360 days with regards to offences triable only by the High Court.

It should be noted that, in the Ugandan Constitution,60 this provision was amended to reduce the time prisoners spend on remand, waiting for trial. The number of days upon which a prisoner on remand is entitled to apply for bail has been reduced from 120 days to 60 days and from 360 days to 120 days. This is a positive attempt to reduce congestion in prisons by detainees awaiting trial. This amendment should be given due consideration in the draft bill of rights for the

57 See Second Optional Protocol to the International Covenant on Civil and Political Rights aimed at the abolition of the Death Penalty, which has been ratifi ed by a large number of countries.

58 Constitutional Petition No. 3 of 2003.59 Section 212.60 Article 23(6) (b) and (c).


EAC.Article 6: The Right to Access Information

The right to access information is a crucial component of the right to freedom of expression and it is necessary for the protection of all other human rights that fall under this particular tenet of rights. The right to access to information is also intended to foster public transparency, accountability and good governance and to strengthen the democracy of a particular state. This right is also a very important aspect of any democratic government and its inclusion in the draft Bill of Rights shows the spirit of accountability that is desired among the partner states.61 This right should be qualifi ed with clear limitations on the content and scope of information and procedures of acquiring the information accessed, as was stipulated in the Ugandan Constitution.62

The Access to Information Act 2005 provides for the right of access to information pursuant to the Constitution.63 However the Constitution and the Act only envision this right for citizens64 and by its very nature limits the full actualisation of this right. In addition, the scope of duty holders is limited to the public arena and disregards private bodies that carry out public functions. Despite the enactment of the Access to Information Act, there are certain laws still in existence in Ugandan legislation that contravene the provisions of the Act and do not comply with the newly enacted provisions, so it is important that these are repealed in order to create consistency among the information laws.65 The above should be taken into consideration when drafting this right.Article 8: Freedom of Expression

Freedom of expression is crucial for the realisation of democracy and good governance and is thus essential for ensuring respect for

61 Commonwealth Human Rights Initiative (2005) p. 13.62 Article 41.63 Ibid.64 Section 5(1) of the Access to Information Act.65 Offi cial Secrets Act Cap 302, Oaths Act Cap 19.


other human rights and freedoms. Freedom of expression facilitates discussion, dialogue and information fl ow and in doing enables realisation of the human right to participate in good governance and decision making. Democracy entails transparency and accountability to the people from whom the mandate to govern is obtained. It is also aimed at keeping government in check and to ensure fairness.66

The article on freedom of expression as adopted in the draft Bill of Rights is very informative because it outlines explicit parameters for what constitutes freedom of expression, clearly elaborates what comprises a violation of this right and clarifi es what constitutes an infringement of this freedom.

The Constitution of Uganda provides for freedom of expression,67 however, the Penal Code Act68 stipulates limits to these freedoms by creating offences like sedition and publication of false news. In the landmark case of Charles Onyango Obbo v. Attorney General69 the petitioners challenged the law on publication of false news as unconstitutional and an infringement on the freedom of expression. The Supreme Court ruled that the offence of “publication of false news” was void and unconstitutional and reaffi rmed that freedom of expression is a fundamental human right. The Supreme Court also ruled that the language of the Penal Code providing for the offence was too imprecise. However, in spite of the ruling, these laws have not been repealed in the Penal Code.Article 12 : Access to Justice

The presumption of innocence70 and right to defence by a person of his or her own choice71 is integral to the right to a fair trial. Alternative Dispute Resolution has been adopted by the Ugandan

66 Uganda HRC, 2004:15567 Article 29 of the Uganda Constitution.68 Sections 39 and 40 provide for the offence of sedition while Section 50 provides for

publication of false news.69 Constitutional Petition No. 2 of 2000.70 Article 28(3) (a).71 Article 28 (d).


courts of judicature especially in the commercial division,72 which are currently actively promoting mediation, conciliation and arbitration as alternative means of resolving disputes. This is contributing to reduction of case backlogs and has aided in the speedy resolution of disputes.

The Ugandan Constitution guarantees the independence of the judiciary.73 The highest court in the land is the Supreme Court and the next in the hierarchy is the Court of Appeal, that handles appeals from the High Court, which has unlimited jurisdiction. Below the High Court are other subordinate courts.74 Under access to justice, it is important to consider the divergence between the EACJ and the hierarchy of Ugandan courts. The question is where the EACJ would fi t into Uganda’s judicial system. This is well expounded that,

“given the poor regional human rights record it is doubtful whether the leaders of the respective states would be willing to vest the East African Court of Justice with more than that authority it has in respect to human rights to put it in a position higher than the national courts to be able to question the misdeeds of political players in the respective states.”75

Article 22: Right to Property

The Constitution of Uganda provides for protection against deprivation of property with certain exceptions.76It further provides for land ownership by the citizens of Uganda.77 In this regard land in Uganda is primarily held according to the customs and traditions of the differing ethnic groups.78 Although the 1995 Constitution cknowledges the right of all Ugandans to own land,79 traditional practices in Uganda leave women with consumer rights only.

72 Under the Uganda Commercial Court Division Pilot Project Rules 2003.73 Article 128.74 Article 129 provides for the courts of judicature.75 Ojienda, T.O. (2004) Alice’s Adventures in Wonderland: Preliminary Refl ections on the

Jurisdiction of the East African Court of Justice. The East Africa Journal Of Human Rights And Democracy. Vol.2 No.2, June, p. 94

76 Article 26.77 Article 237.78 Land tenure systems in Uganda include customary land, freehold, mailo and leasehold

land as per Section 2 of the Land Act 1998.79 Article 26.


Customary doctrine, discriminatory laws and a lack of legal education largely restrict w property ownership by women. In spite of the requirement of obtaining prior written consent by both spouses for transactions involving land ordinarily resided on, the situation as regards women’s, children’s, and orphans’ land rights has not been addressed appropriately.80

It is no secret that due to oppressive customary traditions, laws and policies the majority of African women are poor and trapped in the vicious cycle of poverty because they have no control over the resources. Many customary practices prohibit women from inheriting and owning land and this in turn makes it diffi cult for them to access credit from fi nancial institutions because they have no collateral security81.

In the light of disputes over land and property ownership in Uganda, the draft on the right to property does not adequately capture the disparity in land tenure systems and does not attempt to consider women’s rights. It is therefore important that the draft bill of rights is amended to distinguish between land holding in the three partner states and recognise women’s rights. In doing this, the article on the right to property should aim to develop and strengthen an integrated understanding of the diverse land tenure systems in practice across East Africa.Article 19: Right to Health, Healthcare and Housing

The rights to health, health care and housing are fundamental human rights, these rights only appear in the Ugandan Constitution under the National Objectives and Directive Principles of State Policy82and are thus are not considered part of the Bill of Rights. Uganda has had many policies on health, however, these policies are yet to reate to promoting the right to health. Pertinent issues of availability,

80 Section 40 of the Land Act 1998.81 Nakayi, R.; Twesime-Kirya, M. and Kwagala, D. (2005) The Women’s Initiatives and

Lessons Learnt. East African Journal af Peace and Human Rights. Vol. 11 No. 2, p.265.

82 Objective XX Medical Services, XXI Clean and Safe Water, XXII Food Security and Nutrition, XIV Health Services and Decent Shelter, among others.


accessibility, acceptability and adaptability have not been taken into account in the formulation of the programmes and policies.83 Even though the Health Sector Strategic Plan II for the period 2005-2010 has been formulated in compliance with the human rights-based approach the realisation of the right to health and health care is encumbered by a health sector that is chronically under-funded, with only 3% of gross domestic product (GDP) allocated to health and 30% of the Health Strategic Plan I funding requirements met.84

The Department of Housing falls under the Ministry of Lands, Housing and Urban Development. The Department has a mandate to create an effective and functional urban development structure and to increase building and human settlement in order to enhance the right to housing. However, due to imbalances in budgetary allocations to regions countrywide to facelift their existing infrastructure and to develop new facilities, there have been delays in implementing the strategies proposed by the Ministry. Since these rights are essential to the development of the nation and the attainment of an adequate standard of living these rights form part of the Bill of Rights.Article 28-Rights of Internally Displaced Persons and Refugees

In Uganda at present, rights of IDPs are not catered for in the Constitution. Prior to 2004 internally displaced persons in western Uganda were resettled without application of any policy or united guiding principles.85 An IDP Policy 2004 was later put in place to cater for human rights and obligations in conditions of fl ight, settlement and return of IDPs including the minimisation of internal displacement. Currently, in northern Uganda, IDPs are in the resettlement and re-integration stage.

The U HRC has been anxious to ensure that this programme is conducted in line with human rights principles which require that return of IDPs is voluntary and that the safety and security of

83 Uganda HRC (2005 ) Uganda HRC 8th Annual Report. Kampala: Uganda HRC. p.96.

84 Cited by Hunt, P. (year) Mission to Uganda, Your Rights, Place: The Uganda HRC, p. 30.

85 UHRC (2005) op. cit. p. 99.


IDPs is guaranteed.86 One of government’s challenges is to provide returning IDPs with resettlement inputs and tools as well as tool-kits to support construction and self-employment.87 According to the Local Council 5 Chairman of Lira District Mr. Franco Oyur, government has delayed to supply seeds and farm tools necessary for resettlement. He said that there is a need for government to double its efforts in supplying the necessary resettlement kits.88 Since IDPs have a right to protection from the state and assistance in the form of food, housing, and medical care, these issues should be addressed in the Bill of Rights.Article 39: Creation of Non-Derogable Rights

The draft Bill of Rights for the EAC endeavours to expand the scope within which particular human rights are protected. Respect for human dignity and protection from inhuman treatment, slavery, servitude and forced labour and habeas corpus are all non-derogable rights as provided for under the Ugandan Constitution.89 The other human rights included among the non-derogable rights in the draft Bill of Rights include the whole article on equality and freedom from discrimination with respect to unfair discrimination on all the aforementioned grounds.

The right of arrested and detained persons to be kept in places authorised by law is made a non-derogable right in the draft Bill of Rights. This is important because it ensures the respect of human dignity, safety of persons in custody and protection of personal liberty.

Children’s rights in relation to protection from social or economic exploitation work, and child labour should be mdae non-derogable in the draft Bill of Rights. This is because children, by defi nition, are unable to protect their own rights. Thus, instead of making the above rights non-derogable, the partner states should take a broader, 86 Ibid. p. 99. 87 Section 3.14 of the Internally Displaced Persons Policy.88 Apunyo, H. (2006) Government Delaying Resettlement Programme. Daily Monitor.

Monday, 2 October 2006: 7.89 Article 44 provides for prohibition from derogation from particular human rights and

freedoms.


preventative focus in analysing the socio-political and economic factors, in order to avoid the initial abuses against children from occurring. Until individuals are acknowledged as possessors of rights they may be forced to suffer intolerable treatment because of the absence of a framework within which to mount a challenge.90

Access to justice in its entirety is deemed to be non-derogable; inclusive of the right to defence by a person of one’s own choice, right to appeal to a competent court, right to be tried within a reasonable time, right to alternative dispute resolution methods as well as the presumption of innocence. However, alternative dispute resolution should be left as an option to litigation while appeals, on the other hand, are a creation of statute that also provide litigants with the option to seek further redress.

The right to life is not defi nite because the issues of the death penalty and abortion have not been determined conclusively. Once these are fi nalised then a stand on whether the right to life is non-derogable or not would be possible.

Challenges

The East African Bill of Rights is largely adequate in promoting and protecting human rights. However, the actual realisation of these rights will be dependant on overcoming some of the major challenges that the Uganda HRC has been faced with.

Honouring tribunal awards

The Commission, through its tribunal, has decided cases of human rights violations and has awarded compensation to victims. However, government, through the Attorney- General, has not expedited honouring such awards. Response to appeal of the Commission to pay victims has not been very positive. In 2005 alone the Commission’s awards to complainants accumulated to Ug. Shs. 306,228,000/=, of which Ug Shs. (275,278,000/= was against the Attorney-General.91

90 Van Bueren, G. (1995) The International Law on the Rights of the Child. Place: Martinus Publishers. p. xix.

91 UHRC (2005) op. cit. p. 112.


Adequate funding

The Commission faces a problem of adequate funding to facilitate its national constitutional mandate, which has affected the implementation of the Commission’s mandate and affected its activities severely.92

Restricted access to places of detention

The Commission has a constitutional right to visit any place of detention at any time and without notice, to monitor conditions of inmates. However, in reality, it is required to give notice before it visits these detention facilities, which negates the whole intention of impromptu visits to assess the condition of inmates with regard to torture, the right to personal liberty and access to justice.93

Legal frameworks

There is a glaring absence of legal frameworks that are respected and enforced to maintain full protection of human rights. In Uganda today there is no enabling law on torture to operationalise Article 44 of the Constitution of Uganda. The Refugee Bill 2003 and Domestic Relations Bill 2003 have not been enacted. It is essential that there is a legal framework through which the perpetrators can be punished as well as victims protected.

Unconstitutional laws

There are still laws that hinder free enjoyment of the fundamental rights and freedoms of the individuals, for example, freedom of expression is limited in the Ugandan Penal Code Act, which maintains the law on publication of false news, which should be deleted from the statute books as the Supreme Court has declared it unconstitutional.

Adequate facilitation of law enforcement agencies

Human rights observance goes hand in hand with the justice, law and order sector being well funded. The sector has failed consistently

92 Ibid. p. 113.93 Ibid. p. 112.


to meet its mandate, which includes observing the 48 hour rule, keeping law and order, investigating cases on time and preventing delays in justice. Violations to the right to personal liberty has been multifaceted due to delays caused by police collecting necessary evidence, logistical problems and inadequate staffi ng to deal with the backlog of cases.94

Illiterate population

A large part of the population is illiterate and this has to a large extent contributed to the considerable level of ignorance and failure of the people to appreciate and address human rights issues comprehensively. As a result most people especially the minorities are unaware of their rights as citizens.

Human rights education

There is a need to continue with human rights awareness throughout the country through formal and informal education. This will help every person to understand and assume responsibility for the maintenance of human rights.95 If this is shortfall is remedied, it will act as a foundation for the education and dissemination of the draft Bill of Rights for the EAC.

Recommendations

Sensitization

There is a need to carry out public information campaigns countrywide, which would include sensitisation and training workshops for the masses and the provision for public education (including the training of offi cials of the government and public bodies). Dissemination of information should be carried out effectively in order to foster and maintain a human rights culture among all partner states.

Enactment of Enabling Legislation

94 Ibid. p. 58.95 UHRC 2005, op cit, p.21


Parliaments of the partner states should enact enabling laws that will bring about human rights and freedoms, enforce the new provisions of the constitution and reform or repeal laws that infringe upon the rights and freedoms of the people, so that the existing laws are consistent with the constitution and other international instruments that Uganda has ratifi ed.

Compliance with International Conventions and Treaties

International obligations should be mainstreamed into government strategies and plans, as a way of incorporating compliance and reporting into government programmes. This would facilitate the enforcement of human rights standards through the follow-up of recommendations, which would generate awareness among the public.

Government Commitment

The governments of the respective partner states should be committed to good governance and human rights issues. This will help to establish and strengthen human rights observance and give credibility to the East African Bill of Rights. In addition, governments should ensure that the justice, law and order sectors are adequately funded in order to have a holistic approach to human rights observance.

Establishment of a Victims’ Compensation Fund

In the event that government delays compensating victims on the grounds that compensation was not budgeted for, a victims’ compensation fund should be set up by governments of respective partner states. Such fund will inevitably reduce reliance on specifi c budgetary allocations.

East African Court of Justice

To be effective the EACJ as one of the institutions of the EAC, must earn the respect of East Africans. In order to do so, its competence and independence are of paramount importance. It is envisaged that


its decisions would have direct consequences on individuals and even corporations within the region. The Court should not suffer from a crisis of legitimacy. The procedure for building up its ranks must be open and beyond reproach. Those appointed to offi ciate it must be persons whose qualifi cations and competence is widely acknowledged within member states, if not internationally. 96

Conclusion

The draft Bill of Rights for the EAC is essentially an in-depth development of the 1995 Constitution of Uganda. The effort by the members of the task force to formulate a comprehensive bill of rights for the East African Community is commendable. The East African Bill of Rights will have to adapt to changing trends in society, especially in the social, economic and cultural sphere. With diverse laws already in existence in the different East African countries, the draft Bill of Rights offers a unique opportunity to streamline the laws of the three partner states and create harmony among them.

Additional ReferencesAmnesty International, (2005) Human Rights for Human Dignity: A

Primer on Economic Social and Cultural Rights United Kingdom: Amnesty International Publications. p 19.

Apunyo, H. (2006) Government Delaying Resettlement Programme,” Daily Monitor, Oct 2 2006 at 7.

Makubuya, A. (2000) The Constitutionality of the Death Penalty in Uganda. A Critical Inquiry. East African Journal Of Peace And Human Rights. Vol. 6.No. 2: 222.

Nakayi, R.; Twesime-Kirya, M. and Kwagala, D. (2005) The Women’s Initiatives and Lessons Learnt. East African Journal af Peace and Human Rights. Vol. 11 No. 2: 265.

96 Ojienda, op cit


Ojienda, T.O. (2004) Alice’s Adventures in Wonderland: Preliminary Refl ections on the Jurisdiction of the East African Court of Justice. The East Africa Journal Of Human Rights And Democracy. Vol.2 No.2, June: 94.

Onoria, H. (2005) Review of Major Decisions on Fundamental Rights and Freedoms in Uganda. East African Journal of Peace and Human Rights. Vol. 11.No. 2: 323.

Rodrigues, C. (2006), Implementing Access to Information: A Practical Guide for Operationalising Freedom of Information Laws .New Delhi: Commonwealth Human Rights Initiative. p. 13.

Uganda HRC (year) Uganda HRC 7th Annual Report. Kampala: Uganda HRC. p. 155.

Uganda HRC (year) Uganda HRC 8th Annual Report. Kampala; Uganda HRC. p. 92.

Van Bueren, G. (1995) The International Law on the Rights of the Child. Place: Martinus Publishers. p. 137.

Green Watch (U) Ltd. V Attorney General, HCCS 139 of 2001.

Charles Onyango Obbo v. Attorney General, Constitutional Petition No. 2 of 2000.

Suzan Kigula & 416 Others Vs Attorney General, Constitutional Petition No. 3 of 2003.

http://www.allafrica.com/stories/200609180627.html accessed on 5 October 2006.

http://www.health.go.ug/ accessed on 3 October 2006.

http://www.hurinet.or.ug/docs/Guiding%20Principles%20for%20FOI%20Legislation%20in%20Ugnda.doc accessed on 28 September 2006.

http://www.oxfam.org.uk/what_we_do/issues/livelihoods/landrights/downloads/ulacltr.rtf accessed on 27 September 2006.

http://www.state.gov/g/drl/rls/hrrpt/2004/41632.htm, accessed on 27tSeptember 2006.

193

11The Draft East African Bill of Rights

and the 1984 Constitution of Zanzibar: The Need to Establish a Human Rights

Commission for Zanzibar

Raya Issa Msellem

Introduction

The intention of this paper is to review the Zanzibar Bill of Rights as provided under the Zanzibar Constitution and its best practices.

Zanzibar is part of united Republic of Tanzania. It is within a union of two former separate states, Republic of Tanganyika and the People’s Republic of Zanzibar which existed as different entities until 26 April 1964, when they united.

Although Zanzibar forms part of the Union, it has its own constitution, the 1984 Constitution of Zanzibar, which incorporates a bill of rights and duties. On the issue of promotion and protection of human rights, Tanzania mainland and Zanzibar have had distinct histories. Before its merger with Tanganyika in 1964 Zanzibar had fundamental rights and freedoms entrenched into the fi rst comprehensive constitutional document, the Independence Constitution of 196397. However, this Constitution only lasted for a month. It consisted of eleven chapters, including a chapter on rights and freedoms of the individual.

After the revolution of 12 January 1964, the Independence Constitution of 1963 was discarded and replaced by the Constitutional Decree No. 5 of 1964. The Constitutional Decree had no provision

97 See Chapter 11 of the Constitution of Zanzibar 1984.


concerning the Bill of Rights because human rights were not considered as priorities of the post – revolutionary governments.

The Presidential Decree No. 6 of 1964 was separate from the Constitutional Decree which provided for equality, reconciliation and unity of Zanzibar people after years of racial segregation and class antagonisms.

Since then the Constitution of Zanzibar has been silent on the issue of human rights, until 1984, when Zanzibar enacted the new Constitution of Zanzibar, Act. No 5 of 1984. This Constitution98 incorporates provisions of a fundamental bill of rights99 which is still applicable today. It came into force on the same day as the constitution.

The rights contained in the bill of rights includes the right to equality before the law, the right to life, the right to privacy and personal security, the right to freedom of movement, freedom of expression, freedom of religion, freedom of association, freedom of participation in public affairs and the right to work.

However, these rights were enshrined in the Zanzibar Constitution with claw-back clauses such as “Subject to the provisions of the relevant laws of the land, not contrary to procedures provided”, “Subject to law”, “in accordance with law”. For example, the rights of freedom of expression,100freedom of religion101 and freedom of association102 are subject to the law of the land.

These claw-back or limitation clauses therefore curtail enjoyment of the rights and freedom guaranteed in the constitution, since they impose restrictions on those same rights and freedoms. These rights appear to be given by the right hand and taken away by the left hand.

98 Ibid. as amended time to time.99 Ibid, Chapter 111.100 Article 18(1), Zanzibar Constitution, 1984.101 Ibid. Article 19(2)102 Ibid.Article 20(1)


Fundamental Rights Enshrined in the Zanzibar Constitution of 1984

The Zanzibar Constitution of 1984 guarantees fundamental rights and freedoms under Chapter III. The categories of these rights are as follows:

The Right to Equality

It is stated in the Constitution of Zanzibar, 1984103 that all human beings are born free and equal. Individuals are entitled to recognition and respect of their dignity. Furthermore, Article 12 of the Constitution provides for equality before the law. The Constitution goes on to prohibit discrimination by saying that all persons are equal and without discrimination and entitled to be protected and be equal before the law.

Additionally, this Article stipulates that there will be no law that is discriminatory, either in its face or in its effect. Sub-article (5) of Article 12 defi nes the word discrimination as:

to privilege the needs, rights or other requirements of persons on the basis of their nationality, tribe, place of origin, political opinion, colour, religion or station in life, such that other categories of people are regarded as weak or inferior and subjected to restrictions or conditions to their detriment.

To ensure equality before the law the Constitution further provides for the following principles to be taken into consideration:

• No person shall be condemned unheard and shall be entitled to right of appeal,

• The presumption of innocence until the contrary is proved by a competent court;

• No law enacted shall have retrospective effect for any person;

• Protection of human dignity in respect of criminal investigations matters and other matters concerning the restrain of a person or execution of a sentence;

103 Ibid. Article 11.


• Fair and speedy trial; and• Right of representation by the advocate of a person’s choice

in a criminal case.

This Article was interpreted in the case of Laurent s/o Joseph and Another v. Republic104 The Tanzania Court of Appeal established that indigent accused have the right to free legal aid, paid for by the state.

However, this right is only exercised through equal access to justice, which means more than access to legal advice and representation in court. It is the one of the most basic aspects in a democracy. It can ensure the enjoyment of many other rights. Therefore there must be public awareness of the law and how to effect change upon it.

The Zanzibar Government only provies legal assistance for serious cases, like treason and murder, while other offences, especially those that carry capital punishment, such as armed robbery, manslaughter etc. do not have this priviledge. In general, legal aid in Zanzibar is lacking because there is no provision of law that provides legal assistance to poor people in both civil and criminal cases. Poor litigants are entitled to a waiver of court fees when they fi le their cases but the process is long and complicated. The only CSO which offers assistance to the poor is Zanzibar Legal Service Centre (ZLSC), situated at Unguja, with a branch in Pemba. This situation makes poor litigants in Zanzibar to be completely vulnerable, because ZLSC does not represent people in court.105

Right to Life

This right is incorporated in the Constitution of Zanzibar, 1984.106 According to this Article every person has the right to live and the protection of his/her life by society subject to the law.

104 [1981] TLR, 351.105 Othman, H. and Peter, C.M. (2003) Perspective Legal Aid and Access

to Justice in Zanzibar. Zanzibar: Zanzibar Services Centre. p. 37.106 Zanzibar Constitution, op. cit. Article 13.


This right is linked to the right to personal freedom.107Therefore, it is prohibited that a person to be arrested, imprisoned, confi ned, detained, deported or otherwise deprived of her/his freedom unless there are special circumstances and it is done in accordance with the prescribed law, or in the execution of a judgment, order, sentence passed by the court in a legal proceeding or a conviction for a criminal offence.

Although it is clearly stated that every person has the right to life, there are some offences which still carry the so-called capital punishment of death. The law of the country still recognises the death penalty as one of the punishments which can be infl icted by the court.108 The offence of treason,109 entering Zanzibar with intent to organise a counter revolution,110 instigation invasion,111 and murder112 are all punishable by death penalty, and once a person is convicted of those offences, she/he is liable to be sentenced to death. A good example is a case of the High Court of Zanzibar, which had the death penalty confi rmed by the Supreme Court of Tanzania namely, the case of Sangaru Lugaira Mathias v. SMZ.113 In this case, the appellant was charged with and convicted of the offence of murder and sentenced to death. On appeal to the Court of Appeal, the conviction and sentence of death were upheld and the appeal dismissed.

Therefore, this right is only partially protected, as there are cases where people can die under the law.

Right to privacy and personal security

The Zanzibar Constitution provides that every person is entitled to respect and protection of his/her person, family, matrimonial life,

107 Zanzibar Constitution, op. cit. Article 14.108 The Criminal Procedure Act No. 7/2004, Laws of Zanzibar, Part 1V, Section 26(a).109 The Penal Act no. 6/2004, Laws of Zanzibar, Section 28.110 Ibid. Section 29.111 Ibid. Section 30.112 Ibid. Section 197113 Court of Appeal of Tanzania, Criminal Appeal No. 183/2005 (unreported).


residence and private communications.114 Sub-article (2) of Article 15 it is emphasises that without prejudice to the provisions of this Article, the state authority has to form legal procedures for the preservation of this right with regard to the circumstances, manner and extent to which the right to privacy, security of the person, property and residence.

Right to freedom of movement

It is clearly stated in the Constitution of Zanzibar that every person is free to move and live anywhere in Zanzibar. It is further stated that no person shall be denied the right to enter and leave Zanzibar, and people have the right not to be expelled from Zanzibar.115 Thus, if this right is curtailed by personal restraint or imprisonment, it should be done according to the law.

Therefore, any law contrary to this provision is null and void. Deportation law116 is an exemplary of law that curtails the freedom of a person to move anywhere he/she wishes. In the case of Chumchuua s/o Marwa v. Offi cer i/c of Musoma Prison and Another,117 the son of deportee Chumchum Marwa fi led an application for a writ of habeas corpus in respect of his father, who had been deported by the order of the president of United Republic of Tanzania from Mara region to Lindi region. This case raised the question of the constitutionality of the Deportation Ordinance, 1921. The issue was whether the Deportation Ordinance was constitutional. The Court held that the Deportation Ordinance, 1921 is unconstitutional, for it offended the Bill of Rights contained in the Constitution of the United Republic of Tanzania.

Deportation Law is one amongst the more than forty plus unconstitutional laws reported by the Nyalali Commission.118

114 Zanzibar Constitution, op. cit. Article 15(1).115 Ibid. Article 16(1) (2).116 Deportation Decree, Chapter 40, Volume 11, Laws of Zanzibar.117 High Court of Tanzania, Miscellaneous Criminal Cause No. 2/1990, Cited by Peter,

C.M. (1997) Human Rights in Tanzania. Rudiger Koppe Verlag: Koln, Germany. p. 633.118 Ibid. p. 17.


Freedom of expression

The right of freedom of expression is guaranteed in the Constitution. As far as Article 18 (1) and (2) is concerned, this right includes freedom of opinion and expression. The Article provides that every person has the right to seek, receive and impart or disseminate information and ideas through media, regardless of national frontiers, and the right of freedom from interference with communications. In addition to that, a people have a right to access information relating to various events, which are important to their lives, and of importance to society, at all times.

Right to freedom of religion

The Constitution of Zanzibar also provides for freedom of religion namely, that every person has the right to freedom of thought, conscience, belief or faith and choice in matters of religion.119 The practice of religion, worship and propaganda of religion shall be the free and private affair of an individual.

Right to freedom of association

This right is refl ected in the Constitution, whereby a person is entitled to freely and peaceably assemble, associate and cooperate with other persons. People are free to express views publicly and specifi cally to form or join legal association and organisations for the purposes of preserving their interests.120

There are situations in which people of Zanzibar are denied this right. The Police Force of Zanzibar has been given power to prevent public rallies of political parties until the parties obtain permission from the police authority. In addition, the Offi ce of the Mufti Act121 poses an ongoing breach of the right to assembly within Zanzibar. Under this Act the Mufti of Zanzibar has been given power to approve any Islamic activities (including Ijitimai and lectures) or

119 Zanzibar Constitution op. cit. Article 19.120 Ibid. Article 20.121 Laws of Zanzibar. Act No. 9 of 2001.


any Islamic gathering in Zanzibar. This situation legally restricts Muslims from gathering in ways not applicable to non-Muslim Zanzibaris.122

Freedom to participate in public affairs

The Constitution of Zanzibar provides for the right to take part in the governance of the country, stating that every Zanzibari is entitled to participate in matters pertaining to governance, either directly or through freely elected representatives.123 Furthermore, a Zanzibari is entitled to work and equal terms to hold offi ce and, without discrimination, deserves remuneration according to nature of the work.Duty to Work

It is provided by the Constitution that every person has a duty to work. However, forced labour is prohibited in Zanzibar124. Under this right a person has a duty to participate fully and lawfully in work. He/she has to observe work discipline and strive to attain individual and group production targets as described or set by law.Right to Own Property

In the Constitution of Zanzibar the property of every person is protected against deprivation.125 This is because every person has the right to own property and no- one shall be arbitrarily deprived hers/his property. Further, the Constitution of Zanzibar requires fair and adequate compensation when any person’s property is taken by the government for the purpose of acquisition, national development, town planning and so forth.

122 Legal and Human Rights Centre (2005) Tanzania Human Rights Report 2005. Dar es Salaam: LHRC. p. 32.

123 Zanzibar Constitution op. cit. Article 21(1).124 Ibid. Article 22.

125 Ibid. Article 17.


Procedures on Enforcing Basic Rights

Any person who claims a violation of the fundamental rights guaranteed by the Zanzibar Constitution is entitled to apply before the High Court of Zanzibar,126 presided over by a single judge. The High Court has been given powers to declare and order any relief or compensation to a person whose rights or freedoms have been violated. Appeal against the decision of a single judge shall be heard by the High Court, presided over by three judges excluding the judge who decided the matter in the fi rst instance.127

Furthermore, the Zanzibar Constitution entitles any person to institute proceedings in the High Court if she/he thinks that the provision of the Constitution has been, is being, or is likely to be violated. The High Court shall have the power to require any offi cer or organ of the government to give information and to declare and order that the Constitution has been, is being or is likely to be violated128.

Even though the Zanzibar Constitution provides for the basic fundamental rights, but one way or another rights are not fully enjoyable. This is because of the following reasons:

Excessive Circumscription of the Rights

The Bill of Rights in Zanzibar earned the name Bill of Exceptions due to the fact that it contains excessive circumscription of the rights. Claw-back clauses such as “Subject to the provisions of the relevant laws of the land”, “without prejudice to law”, “Subject to law”, in accordance with law”, permit the restrictions of guaranteed rights, that is to say, basic rights guaranteed by our the Constitution are enjoyable subject to existing laws.

126 Ibid. Article 24 (2).127 Ibid. Article 24 (3).128 Ibid. Article 25A (1).


Limitation as Provided under Article 24(1)

The limitations upon enforcement and the preservation of basic rights and freedoms provided for by the said Article stand as a blanket validation of all laws that offend the Bill of Rights.

The Article provides that:

The human rights and freedoms, the principles of which are set out in this Constitution can be restricted by the law enacted by the House of Representatives save only to the extent that are necessary and accepted in the democratic system. In any way that restriction shall not,a) interfere with the right to freedom from torture,

inhuman and degrading treatment; orb) interfere with human rights principles; or c) Cause more effect to the society from the act that

restriction is intended.

Incompleteness of the Catalogue of Rights

A good model of a Bill of Rights is the one that will conform to International Instruments on Human Rights, such as The Universal Declaration on Human Rights, 1948, International Covenant on Civil and Political Rights, 1966, American Convention on Human Rights, 1969, European Convention on Human Rights, 1950, and The African Charter on Human Rights and Peoples’ Rights, 1981. But the categories of rights in the bill of rights enshrined in Zanzibar’s Constitution very defi cient.

Much as the modern bill of rights depends on the nature of its constitutional provisions and procedural laws relating to its enforcement in the courts of law, practical and effective enforcement depends on a number of factors. Some of these factors have been mentioned, but the factors which are truly lacking in Zanzibar are both social and institutional; social in the sense that public and political administration in Zanzibar has, for the last 40 years, been based essentially on mistrust between the starkly divided political affi liations characterised by the ins (the ruling power) and the outs


(the opposition camp). Politics, and even constitutional development, revolves around the game of the ins fencing themselves in and therefore locking out the outs for as long they can and whatever it takes, including curtailing constitutional rights. Therefore, an effort to improve the political situation in Zanzibar is part of human rights enforcement.

Another important factor is weak governance institutions in Zanzibar both, governmental and non governmental. Institutions dealing with law enforcement, administration of justice and NGOs are very important in the enforcement of human rights, but in Zanzibar few of them are strong enough to face the challenge.

Review of Draft East African Bill of Rights

After having discussed the Zanzibar Bill of Rights, a brief review of the East African Bill of Rights follows.

The East African Bill of Rights emphasises that rights and freedoms are essentially inherent and should not be proposed as having been granted by the state, thus they are justifi able.129

The Bill mentions equality and freedom from discrimination.130 It demands that all subjects be treated equally before the law in all spheres and it guarantees equality of all people in the enjoyment of civil and political rights without discrimination.

The draft also provides for the right to life and the right to personal liberty131 in which it emphasises that freedom is inviolable and every person is entitled to his/her personal freedom.

Neither is the Bill silent on the issue of privacy. It provides for the right to privacy,132 which includes the right not to have their person or home searched, their property searched and even their possessions seized.

129 Draft Bill of Rights for the East Africa, Article 1.130 Ibid. Article 2.131 Ibid. Articles 3 and 4.132 Ibid. Article 5.


The right to access to information within the Community is also guaranteed by the draft Bill, whereby freedom of speech, expression, and freedom to form, join and maintain association or unions133 are adequately explained.

Apart from that, the draft has also ensured freedom of movement,134whereby every person shall have the right to move freely within the Community and also to practice any religion of his/her choice.135

Cognisant that access to justice is the one of the most basic aspects in a democracy, and without it, enjoyment of many rights cannot be ensured, the draft Bill incorporates the right to access to justice,136 and the right to a fair hearing137.

The draft East African Bill of Rights also demands that every person shall have the right and opportunity to take part in the conduct of public affairs of any partner state, to vote and to be elected at genuine periodic elections held with any partner state, regardless of their country of origin, and to contest elections as an independent candidate within any partner state.138

The Bill does not lag behind on the issue of human dignity. It suggests that no person shall be subjected to any form of torture, cruel and inhuman treatment, no person shall be held in slavery or servitude and perform forced labour.139

Article 19 of the draft Bill provides for the right to health, in which every individual shall have the right to enjoy the best attainable state of physical and mental health.

The right to marry and have a family is included in the draft Bill.140

133 Ibid. Articles 6, 7, 8 and 9.134 Ibid. Article 10.135 Ibid. Article 11.136 Ibid. Article 12.137 Ibid. Article 13.138 Ibid. Article 14 and 15.139 Ibid. Articles 16 and 17.140 Ibid. Article 20.


Rights of children and protection of property,141whereby every person has the right to acquire, hold and dispose of property, either individually or in association with others in the Community is also covered.

Education as a basic element for the development of any society has also been included as a right in the draft Bill.142 It is suggested that all persons have a right to a basic primary education which shall be compulsory and free to all, also to secondary and further education.

The rights of women is also mentioned in the Article 26 of the Bill. It presupposes that women shall be accorded full and equal dignity of the person with men.

Other rights which have been included are sexual and reproductive rights, affi rmative action, self determination, rights of internally displaced persons and refugees, traffi cking of persons, prohibition of the mass expulsion of aliens, right to a clean environment, rights of persons with disabilities, economic rights, right to housing, rights to health care, citizenship, and right to culture.143

The draft Bill has also provided for the tenure of offi ce for the chief executive offi cer, 144 ( CEO) in which it is provided that the CEO shall be elected at genuine periodic elections held within any partner state and shall hold offi ce for a fi xed maximum of two terms of fi ve years.

In addition, it also provides for limitation, derogation and scope of the rights under Article 39. It further suggests that any person where rights as guaranteed by the Bill have been infringed is entitled to apply to a competent court for redress, which may include compensation145.

141 Ibid. Articles 21and 22.142 Ibid. Article 23.143 Ibid. Article 24 up to 37.144 Ibid. Article38.145 Ibid. Article 41.


Finally the draft Bill has imposed corresponding duties on both individuals and state as provided for under the African Charter on Human Rights under Article 43 of the Bill.

The intention is to review the draft East African Bill of Rights with a view to assess its appropriateness and to identify practical challenges that may affect its implementation in the Zanzibari context.

The draft Bill is more comprehensive and it will be more useful in the maintenance and protection of East African people’s rights. The Bill has pay enough attention to economic, social and cultural rights, to which in the real sense, most of the East African Constitutions do not pay enough attention, except Uganda’s Constitution.

The establishment of the East African Bill of Rights will be more benefi cial to Zanzibari civil society when it is implemented. This is because other rights which have been included in it are also found in the Zanzibar Bill of Rights, for instance:

• Equality and freedom of discrimination• Right to life • Personal liberty• Right to privacy• Freedom of expression, association and assembly• Freedom of religion• Freedom of movement• Right to participation, and others

The inclusion of these rights corroborates the Bill of Rights of Zanzibar. These rights will emphasise the importance and implementation of these rights in Zanzibar.

Nevertheless, not all rights which are provided in draft Bill are harmonised with the Zanzibar Constitution. They are however, to some extent encapsulated in other laws of Zanzibar. Notably among the missing rights are:

• Right to access to justice• Rights to children146.

146 Children and Young Persons Decree, Chapter 58, Volume 11, Laws of Zanzibar.


• Right to education147.• Right to environment148.• Right to a fair hearing• Right to contest an election as an independent candidate149. • Rights of women and children and persons with disabilities• The rights that guarantee an adequate standard of living

such as the right to clean water, health, housing and social security150


In conclusion the following is recommended:

If the East Africa Bill of Rights is established and accepted by the partner states, Zanzibar’s government should incorporate certain rights, which are not presently addressed in the Constitution of Zanzibar.

Unlike Tanzania Mainland, Zanzibar has no HRC, it is suggested that the government of Zanzibar should establish a HRC specifi cally to deal with human rights matters separately from those of Tanzania mainland. The establishment of a HRC in Zanzibar will make the majority of Zanzibaris more aware of their rights, and inform them of the procedures to be followed to enforce their violated rights. The HRC will also help to ensure effective and practical protection and enforcement of human rights in Zanzibar.

147 The Education Act No. 6/1982 as amended by Act No. 4/1993.148 The Environmental Management for Sustainable Development Act No. 2/1996.149 Christopher Mtikila v. Attorney General, High Court of Tanzania at Dar es Salaam,

Misc. Civil Cause No. 10 of 2005. The applicant in this case wanted to contest election as an independent candidate but he was denied doing so. His application before the High Court was granted and it was held that “it will be valid to contest for Presidential and parliamentarian post as independent candidate”.

150 The Establishment of Zanzibar Social Security Fund Act No. 2/1998.

208

12Human Rights in the Region:

The Community and the Members

Edith Kibalama

Introduction

A workshop on Strengthening HRCs Collaboration at the East African Community Level, organized by KCK took place in Arusha, Tanzania, from 26 to 27 October, 2006. The programme, which was funded by the Swedish International Development Agency (SIDA), falls under KCK’s project on advocacy for an East African human rights jurisprudence. The workshop was the second, organised by KCK intended to enable HRCs in the region to hold dialogue and share experiences with a view to learning from each other’s experiences, best practices, challenges and mistakes. The fi rst Regional Workshop on HRCs and Accountability in Eastern Africa, also took place also in Arusha from 12 to 13 November, 2004. This workshop was organised in light of the need for common mechanisms of operation, uniform standards and fundamental principles amongst HRCs in the region before advocating for the expansion of the jurisdiction of the EACJ.

The workshop on Strengthening HRCs Collaboration at the EAC Level was organised in furtherance of the abovementioned objective of developing common mechanisms of operation and uniform standards requisite for the operation of the EACJ, specifi cally of a legal framework to guide the EACJ in exercising its human rights jurisdiction. The workshop aimed at building on the process of developing an East African Bill of Rights under KCK’s programme component on advocacy for the expansion for the EACJ to hear human rights cases and the adoption of the East Africa Bill of Rights supported by the Austrian Development Cooperation Agency.

Human Rights in the Region 209

Under the programme, KCK commissioned a Task Force comprising four representatives from the HRCs in East Africa namely from the KNCHR, CHRAGG, UHRC, and a representative from the Ministry of Justice in Zanzibar to work on the draft Bill of Rights.151 The draft Bill of Rights is intended to be the human rights code that will guide the EACJ. The workshop objectives were:

(i) To enable HRCs to refl ect on where they started, where they are and how they envision their participation at regional level in relation with the EACJ.

(ii) To provide a forum to enable HRCs to hold dialogue on the draft East African Bill of Rights with a view to improving it, taking into consideration the experiences of HRCs in actualising their respective Bills of Rights at national level;

(iii) To enable HRCs to discuss existing opportunities and practical challenges facing the EACJ as a human rights court as well as to identify key implementation mechanisms necessary to make the Court a fully fl edged and effective regional human rights court as envisaged by the Protocol to Operationalise the Extended Jurisdiction of the EACJ.

This chapter summarises what transpired at this workshop.

Critique of the East African Court of Justice as a Human Rights Court

Hon. Lady Justice Solomy Bossa, a judge at the ICTR presented a critique of the EACJ as a human rights court. This is a court she knows very well, having served as a judge in this East African institution. Her presentation began by highlighting the diffi culty of envisioning the fi nal stages of the draft Protocol given the uncertainty surrounding the extent to which its current shortcomings would be addressed, since the draft Protocol is still a subject of debate. In

151 Although Zanzibar does not have its own HRC independent of the United Republic of Tanzania, its participation as a key regional actor was secured through a representative from the offi ce of the Director of Public Prosecutions.


the event, her discussion focused on the structure of the EACJ as provided under the EAC Treaty and how the draft Protocol should improve on it.

Background, origin and progress of the draft protocol

The EAC Treaty provides for the EACJ as a judicial body, which shall ensure the adherence to law in the interpretation and application of, and compliance with the Treaty (Article 23). Initially the Treaty limits the jurisdiction of the Court to interpretation and application of the Treaty (Article 27(1). However the Court was at a suitable subsequent date to have such other original, appellate, human rights and other jurisdiction as will be determined by the Council of Ministers. To this end, the Treaty enjoined partner states to conclude a Protocol to operationalise the extended jurisdiction (Article 27(2). The draft Protocol originated from the EAC Secretariat and was specifi cally drafted on the direction of the Sectoral Council on Legal and Judicial Affairs (herein referred to as “the sectoral council) for reasons mainly twofold. First, the Protocol was adopted urgently in the spirit of fast-tracking the political federation and second, and more specifi cally, to handle disputes which would arise from the implementation of the East African Community Competition Law and other trade disputes. Though mainly trade oriented, the Protocol was drafted in accordance with Article 27 (2) and was therefore to provide for original, human rights, appellate and other jurisdiction. While the stipulated time for the process of consultation on the Draft Protocol was the end of August, the process had not yet been completed by end of October 2006. Thus, given the importance of the Protocol, the schedule set for the consultation process was unrealistic. Worse still, the diversity and number of stakeholders consulted was limited.

Nature of the court

As noted above, the EACJ is established under the Treaty as a judicial body (Article 23). In addition, the EACJ has been described as an international court following certain parameters. Traditionally, an


international court is permanent in that it is not established to deal with a case or cases; it is established by an international instrument; it applies international law as opposed to national law in disposing of cases before it; its decisions are binding; its judges are selected by the state through an impartial and transparent procedure before any case is handled and fi nally, one of the parties to the disputes to the Court must be a state or an international organisation. Accordingly, the EACJ qualifi es as an international court since it is a standing court established by the Treaty (Articles 23 and 27); it has resort to international law to solve cases before it (Articles 6(d); 7(2) and 23 of the Treaty); it bases its decisions on rules set up before its existence, which rules parties cannot modify; its decisions are binding on the parties (Articles 35(1) and 36); parties do not appoint the judges but respective nations do so (Article 24) and lastly, its decisions relate to cases between states or between states and an organ of the EACJ or between a state and a person (Articles 28, 29, 30, 31, 32, 35 of the Treaty and the draft Protocol Articles 11, 12, 13). The only provision which may bring into question the international stature of the Court, but does not in any way diminish the Court’s international stature, is the Court’s jurisdiction to deal with matters arising from an arbitration clause contained in a commercial agreement or contract conferred on it by the parties. Ostensibly, the international stature of the Court heightens expectations on its performance and inadvertently calls for a strong EACJ, which must be competent, impartial, and reputable and whose decisions must carry the force of law.

Identifi ed constraints

Bureaucratic inertia, ignorance of the law and legal illiteracy, the political landscape and the expansion of the EAC were singled out as constraints to the integration process as well as factors that impact on the operationalisation of the draft Protocol. The Committee charged with fast tracking the Political Federation, among other issues, discovered a degree of bureaucratic inertia with respect to EAC decisions, specifi cally that EAC decisions requiring amendments to


national laws remain outstanding for long periods for a number of reasons. These included inter alia an apparent lack of commitment towards implementation of agreed decisions; failure to communicate in a timely fashion or at all to agreed decisionsfor implentation; apparent resistance by high-level bureaucrats in government institutions to the integration process; delays in the ratifi cation of protocols; frequent backtracking on decisions taken due to divided loyalty between state and regional pressures; and lack of road maps with implicit time frames for implementation of decisions taken. In addition, ignorance of the law and legal illiteracy has dogged peoples’ understanding of the law, legal processes and implications and has drastically affected realisation of their rights. Furthermore, at national level, the political landscape is pre-occupied by strong and explosive constitutional and governance issues, which dominate and take priority over EAC business. As a result, Summit and Council of Ministers’ meetings, which are decisive, are postponed at short notice. Lastly, while Rwanda and Burundi’s joining the EAC might diminish issues such as ethnicity within a wider political entity, it is predicted that it might slow down key issues in the integration process, including enactment of a meaningful draft Protocol, as areas of disagreement are likely to multiply.

Law applicable

As earlier observed, the Treaty provides that the EACJ shall ensure adherence to law in the interpretation and application of and compliance with the Treaty (Article 23). However, the law the EACJ should adhere to is not specifi ed. The Treaty only makes oblique reference to the law applicable in Article 6 and Article 7 where it articulates the standard as being universal principles and principles of the African Charter on Human and Peoples Rights (herein referred to as ACHPR). Quoting one commentator, the presenter argued that the principles embedded in the ACHPR are the highest standards in human rights and thus place the EACJ on a very high pedestal in terms of stature. Be it as it may, it was contended that the Treaty does not offer adequate guidance to the EACJ on the law to


apply and lacks a specifi c Treaty regime on human rights. Moreover, the EAC partner states have not yet harmonized their human rights laws or their respective Bills of Rights, nor have they domesticated the majority of international human rights instruments they have signed and ratifi ed. Worse still, courts remain reluctant to invoke international human rights instruments.

The presenter commended the ACHPR, which is the African regional treaty governing human rights, as the preferred source of human rights law for the EACJ, for a number of reasons. First, that the ACHPR has an enforcement procedure stronger than any other since it enjoys the discretion of allowing actions based on any instrument, including international human rights treaties ratifi ed by the appearing state party. Second, compared to the European Convention, the ACHPR has no derogation clauses, such as on war or on public emergency. Third, the ACHPR is backed by the African Court on Human Rights (ACHR), which has been established by a protocol to the ACHPR and has been operational since its judges have been appointed. And lastly, the African Union (AU) has adopted an additional protocol, The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, which is now operational. The other option to the ACHPR is the draft East African Bill of Rights drafted by KCK. Some skepticism was however cast around the swift acceptance and inclusion of the draft Bill in the Treaty especially due to the pending enactment of the draft Protocol. Overall, the dire need for a categorical, clear and distinct provision on the law applicable in the Treaty or draft Protocol was underscored.

Combined jurisdiction of the EACJ as a Court of Justice, Appellate and a Human Rights Court

The combined role of the EACJ as a Court of Justice for the EAC and a human rights and appellate court portends a very wide jurisdiction which, coupled with a paltry number of only six Judges, casts doubt on the Court’s ability to handle the work-load. In comparison, the


European Community has two separate courts; the European Court of Justice (ECJ), established to deal with disputes arising from the functioning of the Treaty of the European Union, and a European Court of Human Rights (ECHR), set up under the European Convention on the Protection of Human Rights, to deal specifi cally with human rights violations.

Admissibility of state and individual claims

Admissibility refers to the criteria the Court should apply in determining which cases it can hear. While the standard with regard to claims between States is ordinarily consideration of the viability of the claim itself, the nationality of the claimant, exhaustion of local remedies, undue delay in presenting the claim and any other matter, the draft Protocol goes beyond this to include the inter-state complaint procedure. The procedure, which involves claims between states, entails states not concerned with a matter committing themselves without involvement in bilateral interests, to the human rights of persons in other states by intervening in the event of gross and systematic violations by making inter-state complaints. The procedure was highly commended on the basis of the European experience for having brought down the Greek military junta in 1974. In this sense, it was recommended that the inter-state procedure should be retained and refi ned in the draft Protocol to enable EAC partner states to monitor and audit each other’s performance in human rights protection as well as bring about political and economic pressure on states to uphold and enforce human rights. Similarly, the judicial individual complaints procedure in the draft Protocol, which allows victims of human rights violations to have direct access to the EACJ, was applauded. Again, the European experience, believed to be the real strength and reason for the success of the Council of Europe, was instructive. It was argued that the European experience would be useful in guiding the criteria for determining individual claims under the draft Protocol. In this context, individuals who want access to the ECHR have to fi rst exhaust local remedies; the application has to


be lodged within six months of the fi nal decision by a judicial body; anonymous decisions are inadmissible; a matter already decided by a court which is substantially the same or a matter submitted to a body of comparable international jurisdiction is not admissible. In addition, the applicant has to show personal detriment and the injury must have accrued after the coming into force of the ECHR. Accordingly, a review and refi nement of the admissibility criteria in determining individual claims under the draft Protocol was recommended along the similar lines as the provision in the ECHR. Furthermore, the provision should, in addition to individuals, grant NGOs, regional and international organisations access to the EACJ. More signifi cantly, such access by individuals and NGOs should not be hampered by political infl uence. In other words, the states from which an individual originates should have no say in determining the admissibility of the claim.

In sum, a functional, comprehensive and clear human rights regime is critical for a vibrant EACJ. The primary source of law should be clearly provided for and a concise admissibility criterion for individuals, NGOs and international organisations developed. In the same regard, a competent, qualifi ed, reputable bench is essential in order to guarantee the quality of judgments delivered and ultimately bolster the trust and confi dence of the people of East Africa in the EACJ. To achieve all this, a well-drafted and comprehensive fi nal version of the draft Protocol vital for standard setting, observance as well as enforcement of human rights, is inescapable. The enactment of the Draft Protocol also affords a unique opportunity to push for the domestication of all international instruments by partner states.

Plenary discussion

Several issues were raised during the plenary. Among these, clarifi cation was sought on the progress of the draft Protocol. The overwhelming need for a clear source of law for the EACJ to execute its human rights jurisdiction was stressed, especially in light of the option between the ACHPR and a law that suits the local


circumstances of East Africa, such as the Bill of Rights. A related concern was the imperative for the partner states to attain the same level of ratifi cation and domestication of international human rights instruments as part of the process of developing a common East African human rights jurisprudence. Equally signifi cant was apprehension relating to the existence of other international courts, such as the ACHR which, like the EACJ, East Africans could access, moreover when both courts rely on the African Charter on Human and People’s Rights as their primary source of human rights law, and are both based in Arusha, Tanzania. In the same vein, the complexity surrounding the overlapping jurisdictional role of the ACHR and the African Commission vis-à-vis the role of the EACJ was raised, especially in view of the disgruntlement surrounding the manner in which human rights have been handled at regional level.In the same vein, the need to elucidate whether the EACJ constitutes a local remedy in the event of recourse to the ACHR was discussed. Still on appeals, standardising the hierarchy of courts at national level within the EAC states for purposes of appeals was deemed necessary. It was also questioned whether the EACJ will have commonalities with the previous East African Court of Appeal (EACA), and how the military court martial, in the case of Uganda, which by law has its own appellate structure, would fi t within the appeal system to the EACJ. Other issues raised were the challenge of standardising the law to refl ect the common law and continental law positions once Rwanda and Burundi join the EAC. There was also trepidation surrounding the integrity of judges of the EACJ vis- à- vis the pre-requisite of having a strong EACJ, especially in view of recent developments in Kenya, were the integrity of some judges who also happened to be judges of the EACJ was brought into disrepute. In response, Hon. Lady Justice Bbosa, drawing on the European experience, contended that once Rwanda and Burundi joined the EAC, a hybrid of common and continental law would not pose much diffi culty in the East African context. She however underscored the need for judges to familiarise themselves


with continental law. Further clarifi cation was made by the registrar of the EACJ, who contrasted the development of the legal system of Rwanda with that of Burundi. He disclosed, that unlike Burundi, Rwanda had advanced considerably in the development of its legal system. Rwanda had moved away from the continental law position and currently had a unique hybrid of both continental and common law, drawn after consolidating relevant and progressive aspects of both legal systems. Furthermore, it was envisioned that harmonisation of the Rwandan legal system with that of the current EAC States would be easier since Rwanda has ratifi ed most of the international instruments and boasts of a considerable number of lawyers with common law training.

Defending the ACHR, it was explained that the disgruntlement surrounding the mishandling of human rights cases at regional level should not be levelled against the African Commission and not the Court. This is on account of the Court being a newly- established institution yet to handle any cases, with its judges having been in offi ce for hardly four months. On the other hand, the African Commission had hitherto been exercising some of the jurisdiction of the African Court, including deciding cases, but had performed unsatisfactorily partly because it was mainly constituted of political appointees. A case was made for a clear primary source of law on human rights to be incorporated in the draft Protocol. Partner states were also urged to attain the same level of ratifi cation and domestication of international human rights instruments in order to facilitate the process of achieving a common human rights law. Affi rming the proliferation of international courts and the reality of court shopping open to the people of East Africa, the imperative for a strong EACJ was emphasised. To this end, it was strongly contended that a dependable EACJ in terms of affordability and reputation would be a lynchpin for winning the trust and confi dence of the people of East Africa. Accordingly, judges of the EACJ have to be competent, qualifi ed and upright. And as a human rights court, the EACJ has to be guided by equality and democratic principles


as well as a gender-balanced bench. A clarion call was therefore made for the selection criteria of Judges of the EACJ to be revisited and harmonised for all the EAC countries. Alluding to allegations of corruption against the judiciary in Kenya, the judge expressed reservations on commenting against her professional colleagues and invited a comment from the registrar of the EACJ. He advised of the existence of a clear procedure for the removal and suspension of judges of the EACJ under the EAC Treaty, which can be relied upon should the need to invoke it arise. Distinct differences were drawn between the old EACA and the current EACJ. Unlike EACA, which was an appellate court, the Treaty provides for appellate jurisdiction of the EACJ as well as for its human rights jurisdiction as a separate docket. It was conceded that there have been proposals for appeals to the EACJ to be limited to commercial and criminal matters. It was also explained that, in dealing with its human rights jurisdiction, the EACJ would consider a matter afresh and not necessarily as an appeal. The second major difference between the two courts lay in the law applicable. In contrast to EACA, which applied the national law of the court of origin of the appeal, the EACJ applies international law. For purposes of appeal and to operationalise the principle of exhaustion of local remedies, it was recommended that the court systems of the partner states have to be synchronised so that the highest court is the same in all EAC countries. In this respect and following the recent decision of the Constitutional Court in Uganda, the Military Court Martial should constitute part of the ordinary court system for purposes of the EACJ.

Country Papers

The country papers were intended to review the respective East African countries’ Bills of Rights and discuss best practices and practical challenges faced by each of them in actualising their Bills of Rights. The country papers were also intended to review the draft East African Bill of Rights with a view to assessing its


appropriateness and identifying practical challenges that may affect its implementation and to suggest recommendations.

Tanzania MainlandReview of the Provisions of the Draft Bill of Rights

The draft Bill of Rights was lauded for its comprehensive nature and for providing the basic rights necessary for the promotion and protection of human rights in the region. It was described as essential to constitute the East African Bill of Rights. In addition, the draft Bill was commended for containing certain rights omitted under the Tanzanian Bill of Rights, among which are the rights of children, protection of minorities and prohibition of traffi cking of persons. Commenting on the substantive content of the draft Bill, it was argued that the articles of the draft Bill that provide citizens with the right to free movement and residence in East Africa as well as the right to acquire, hold and dispose of property by individuals within the EAC would most appropriately apply once East Africa attains a political union. Given the controversy and the unique problems of each country relating to land matters, it was recommended that the views of the citizens of the respective states should be sought on issues relating to land. The phrase without unreasonable restrictions in the right to participation under Article 14 of the draft Bill should clearly be defi ned. The right to participation under the draft Bill gives every person the right, regardless of country of origin within the EAC, and without unreasonable restrictions, to take part in the conduct of public affairs in any state, to vote and be elected at genuine periodic elections held in any partner state and to have access to public services in each state, provided such a person has been resident in the partner state for a consecutive period of at least three years. Furthermore, the practice in most countries including Tanzania, which limits the position of presidency strictly to citizens by birth, should be adopted by the draft Bill of Rights. In view of the similarity in Articles 19 and 35 of the draft Bill, it was suggested that the two should be merged into one comprehensive article. The


phrase, chief executive offi cer under Article 38 which implies head of state/government should be clearly defi ned; and Article 34 on the right to housing should be expanded to include the right to adequate food, clean water, education and clothing and its title accordingly changed to read, right to adequate standard of living. Lastly, it was recommended that the title of Article 18, which reads, protection of minorities’ should be changed to refl ect all the provisions of the article which relate to vulnerable groups and to read, protection of minorities and vulnerable groups.

Practical challenges that may affect implementation of the draft bill of rights

It was observed that the right to freedom of assembly and demonstration provided for under Article 7(1) (d) of the draft Bill of Rights was liable to face certain practical challenges in its implementation in the light of the Tanzanian experience. Not only is the article derogable under the draft Bill Article 39, the Tanzanian experience reveals that the right is subject to the Police Force and Auxiliary Services Act and the Political Parties Act of Tanzania. Accordingly, the enjoyment of this right is curtailed by the requirement to obtain police notices with discretionary powers given to the police to determine whether or not a breach of peace may occur. Under the same provisions of the law, the Tanzanian police has also been accused of unreasonably withholding permission for public meetings, especially those of opposition political parties. Moreover, these limitations have been affi rmed by the High Court of Tanzania in the case of Rev. Christopher Mtikila v. Attorney General,152 as lawful for purposes of maintaining peace and security, thus giving police offi cers the right to continue regulating the conduct of public meetings/processions. The second likely area of tension between the Tanzanian position and the Draft Bill relates to independent political candidature. Until the recent decision in the Mtikila case, a contestant of political offi ce had to be affi liated to a political party, while the view-point in the draft Bill under Article 152 High Court of Tanzania at Dodoma, Civil Case No. 5 of 1993.


15(1) grants a contestant for political offi ce the right to contest elections as an independent candidate. This state of affairs remains ominous given that the government of Tanzania has expressed its intention to appeal against the Mtikila decision. The High Court of Tanzania in Christopher Mtikila v. Attorney General,153 ruled that the requirement for a contestant of political offi ce to be affi liated to a political party was unconstitutional and the government was tasked to establish mechanisms to regulate political contestation of private candidates by the next elections in 2010. In addition to the above, the draft Bill Article 41(1), like Article 30(3) of the Constitution of Tanzania, provides for victims of human rights violations, to seek remedy in a competent court. In Tanzania however, realisation of this right is undermined by the legal requirement that such petitions need to be heard and determined by three judges which, because of the limited number of judges in the country is impracticable. The need to harmonise the appeal system from the national level to the level of the EACJ was also emphasised in the light of Article 41(3) of the draft Bill of Rights, which allows an aggrieved person to appeal a decision of the High Court to the EACJ vis-à-vis the Tanzanian position, which stipulates that appeals from decisions of the High Court lie to the Court of Appeal. Furthermore, Article 4(4) (b) of the draft Bill provides for a period for 48 hours for an arrested person to be taken to Court. While the Tanzanian Criminal Procedure Act provides for someone to be taken to court within 24 hours, the Tanzanian Bill of Rights is silent on the matter, which might make enforcement of the right impractical. Similarly, the right of an accused person to be tried within a reasonable time as envisaged by Article 12(1) (d) of the draft Bill is likely to be frustrated by delays in criminal investigations as well as cumbersome court processes. Differences in law and practice with respect to the right to bail pose a hindrance to the realisation of this right. While the draft Bill of Rights makes bail a right, the Tanzanian Bill of Rights does not expressly state it as a right. Furthermore, no right to bail accrues for certain offences, especially capital offences such as armed

153 High Court of Tanzania, Miscellaneous Civil Case No. 10 of 2005.


robbery, murder and treason under the law. While torture, cruel and inhuman treatment and degrading punishment are categorised as serious offences internationally and Articles 16 and 39 of the draft Bill of Rights, which makes the right non-derogable, infringement of this right by law government enforcement agents, private entities and individuals is rife in Tanzania. Moreover, perpetrators of this right often go unpunished due to lack of suffi cient evidence. Worse still, Tanzania has not ratifi ed the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment of 1984. The actualisation of the rights of widows and orphans (Article 18(2), the right to education (Article 23) and the rights of women (Article 26) is prejudiced by negative African cultural practices and traditions, manifested in womens inability to own property and practices that favour early marriage and polygamy. Likewise the realisation of ESCRs, such as the right to education, housing and right to work under safe and healthy conditions, is greatly undermined by poverty.

Recommendations1. Election to the presidency should, at the regional level, be limited

to citizens by birth.2. The right to freedom of movement in East Africa should apply

when the EAC becomes a political union.3. Article 19 on the right to health and Article 35 on the right

to health care should be merged to form one comprehensive article.

4. The Tanzanian government should harmonise its Bill of Rights with the draft East African Bill of Rights, to include rights appearing in the latter.

5. There should be a debate to streamline the status of the national Bills of Rights vis-à-vis the East African draft Bill of Rights. This notwithstanding, the East African Bill of Rights should supersede national Bills of Rights and should be enforced by the EACJ.


6. Laws at national level which curtail the enjoyment of human rights, such as the Criminal Procedure Act, which waives the right to bail, should be amended.

7. Acts of torture and inhuman or degrading treatment should be discouraged and perpetrators brought to book.

8. Should circumstances of derogation of rights arise, such derogation should not be absolute and arbitrary but should be exercised to the extent to which a situation requires and in conformity with international law.

9. Awareness campaigns should be launched extensively to fi ght negative cultural practices and traditions and to promote human rights.

10. The draft East African Bill of Rights should be presented to East Africans to allow them to discuss it and make their input.

Rwanda

The Rwanda country paper underscores the key role NHRIs or HRCs play as essential partners in promoting and protecting human rights at national and regional levels, as reinforced by Paragraph 3(e) of the Paris Principles which inter alia provide that HRCs have the responsibility to co-operate with the UN and any other organisation in the UN system; regional institutions and national institutions in other countries that are competent in the promotion and protection of human rights. Against this backdrop, the RHRC applauded KCK for initiating the idea of a draft Bill of Rights. The RHRC, on its part, reiterated its commitment to collaborate further with other HRCs in the region in relation with the EAC. While no review of the draft Bill of Rights was done under the Rwanda country paper, it was emphasised that considerable commonalities existed between the draft Bill of Rights and the Bill of Rights of Rwanda. The Rwanda country paper mainly focused on the achievements of the RCHR. Established by Law No. 04/99 of 13 March, 1999, the RHRC’s duties included examining, analysing all cases of systematic violations of


human rights and other acts of violation of human rights committed by state institutions or associations working on Rwandan territory (Article 3). The Commission, under Article 4, was also responsible for sensitisation and education of the population of Rwanda in matters of human rights, as well as instructing authorities to initiate judicial proceedings in instances of human rights violation.

Law No.37/2002 of 31 December 2002 subsequently gave the RHRC more responsibilities. In addition to its previous mandate, the Commission had the duty to sensitise and train the Rwandan population on human rights; at its own initiative or upon request advise on bills relating to human rights; sensitise government institutions on ratifi cation and domestication of international human rights conventions; receive and examine claims relating to human rights violations; visit places where human rights violations have been reported; visit prisons and monitor adherence to and promotion of prisoners’ rights; advise different authorities on actions to stop human rights violations; ensure the prosecution of perpetrators of human rights violations and collaborate with HRCs in order to promote human rights. The modifi ed law also established the post of vice chairperson of the Commission. The duties of the RHRC are also provided under the Rwanda Constitution. In 2001, the RHRC recruited 107 staff in its different departments and set up 10 provincial offi ces as part of its strategy of linking up with people at the grassroots. The 10 provincial offi ces were however closed in 2003, following government policy to downsize the civil service. In pursuit of its duty of sensitising and training the Rwandan population on human rights, the RCHR has carried out public lectures and seminars; radio and television programmes, conducted lectures for various stakeholders, among them students, teachers, prisoners, administrative authorities and ex-detainees. The Commission has also had different publications on human rights and has been instrumental in ensuring that the school curricula includes human rights. Most of the cases followed up by the Commission concern unlawful arrest and detention; delayed court


cases; court decisions that are disrespected; respect of human rights in Gacaca Courts; children’s rights, and violation of rights to health and employment. In February 2003, the RHRC began monitoring the Gacaca Courts, given the challenges the Gacaca Courts faced relating to human rights, especially with respect to the right to a fair trial brought about by the huge caseload of the courts. Every year, the RHRC hands over reports to the National Service in charge of Gacaca Courts for action. In addition, the Commission reviews all laws before they are passed by parliament to ensure their conformity to human rights. With respect to sensitising government institutions on ratifi cation and domestication of international conventions, the RHRC has published a booklet listing all international and regional human rights instruments ratifi ed and not yet ratifi ed by Rwanda. The booklet also emphasises the importance of international human rights instruments and where they can be accessed in Rwanda. However, Rwanda is yet to ratify the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery; the 1993 Optional Protocol to the Convention on the Elimination of Discrimination against Women; Convention of 28 September 1954 relating to the Status of Stateless Persons; Convention of 30 August 1961 on the Reduction of Stateless; the Employment Policy Convention No. 122 of 1964 and the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families . The RHRC, when visiting detention centres, pays attention to detainees’ welfare and the progress of their cases. They also try to ensure that detentions occur in places prescribed by law; visitors are allowed, living conditions are close to those prisoners usually living in and that special attention is drawn to children, women, foreign detainees, drug addicts and those with mental diseases. In fulfi llment of their duty to collaborate with other HRCs, the RHRC at the invitation of the Nigerian HRC participated in the 5th Conference


of National Human Rights Institutions in Africa that took place in Abuja in October 2005, at which Rwanda was elected vice president of the Coordinating Committee of African HRCs, a position which gives the Rwanda Commission membership to the International Coordinating Committee at global level.

In October 2002, the RCHR presented the Draft Bill of Rights to different stakeholders for discussion as part of the constitution-making process. The process also ensured compliance with international human rights standards. Most of the articles were adopted as part of the Bill of Rights of the new Constitution of Rwanda of June 2003. One of the propositions made during the discussion of the Bill of Rights was the abolition of the death penalty. Although the Constitution of Rwanda still maintains the death penalty, there are ongoing discussions to scrap it.

Kenya

Comparison of the Draft Bill of Rights and the Kenyan Bill of Rights

The Kenyan paper gave an exhaustive comparison of the draft Bill of Rights and the Kenyan Constitution. Unlike the Kenyan Bill of Rights, which contains mainly civil and political rights (CPRs), the draft Bill of Rights is extensive and covers both CPRs as well as ESCRs. Some of the rights found in the draft Bill that are absent in the Kenyan Bill of Rights include protection of minorities, the right to marry and found a family; sexual reproductive rights, self determination, rights of internally displaced people, right to food, and right to access to information to mention but a few. The second major difference between the draft Bill and the Kenyan Bill of Rights is that the draft Bill, like the ACHPR, includes duties of the individual while the Kenyan Constitution lacks such provisions. Despite the absence of ESCRs in the Kenyan Bill of Rights, some enjoyment of these rights is realised through existing policy and legislation and international human rights standards, the Universal


Free Primary Education programme being a case in point. Be it as it may, realisation of ESCRs in Kenya is curtailed by the fact that Kenya has not domesticated all the important international human rights law and mere ratifi cation does not automatically make these instruments law in Kenya. This omission provides a loophole for governments, which may abrogate their obligation in fulfi lling ESCRs.Comparative review of common provisions and practical challenges that may affect implementation of the draft east african bill of rights

As noted earlier, one point of commonality between the Kenyan Bill of Rights and the draft Bill of Rights is that both contain CPRs – the fundamental tenets of human rights.

While the draft Bill of Rights has a preamble which outlines fundamental tenets of human rights, that rights are inherent; sovereignty of the people and of the state; and the duty of the state to protect human rights, the Kenyan Constitution does not have such a preamble. It is the courts in Kenya that have been affi rming these important tenets of the Bill of Rights. Secondly, the draft Bill of Rights makes reference to rights and freedoms of individuals and groups and thus introduces the concept of group rights. The Kenyan Constitution, on the other hand, refers to the Protection of Fundamental Rights and Freedoms of the Individual. It is the courts, which have ruled that groups or communities can approach a court to seek redress if their rights have been infringed.

(a) Freedom from discrimination

With respect to the right of equality and freedom from discrimination, the draft Bill of Rights Article 2 introduces areas of possible discrimination including social or economic standing, social identity or political opinion, maternal disposition, disability or HIV status, which grounds are absent in the Kenyan Constitution. The draft Bill does not list customary practices that are discriminatory while the Kenyan Constitution does. Furthermore, the draft Bill does not defi ne the term discrimination, which the Kenyan Constitution


does in Article 82. Nonetheless, it was observed that Kenyan Courts are not limited in interpreting such grounds.

(b) Right to life

The right to life raises a contemporary discourse of issues such as the death penalty, abortion and euthanasia. Kenya has de facto abolished the death penalty since no executions have occurred since 1987. However crimes such as murder, treason and robbery with violence carry a capital punishment. The draft Bill of Rights simply states that everyone has a right to life without indicating abolition of the death penalty. It is critical for the draft Bill of Rights to boldly state that the death penalty is not an option, in view of the contemporary international human rights law discourse, which propounds the abolition of the death penalty. Abortion in Kenya is allowed during surgical operation if the life of the mother of an unborn child is in danger. In practice, chances of legalising abortion in Kenya are slim. Other situations where the life of a person can be deprived include for the defence of any person from violence or for the defence of property; to effect a lawful arrest or prevent escape from lawful custody; suppressing a riot, insurrection or mutiny; and to prevent a person from committing a crime. Unfortunately, these instances have been the subject of abuse by security forces in Kenya and have led to loss of life.

(c) Personal liberty

Except for a few variances, the provision on personal liberty under the draft Bill of Rights (Article 4) and the Kenyan Bill of Rights (Section 72) are similar. However the period within which a person who has been arrested or detained is to be brought to court varies. Under the draft Bill a person can only be held for 48 hours from the time of his/her arrest, while the Kenyan Constitution stipulates a period of 24 hours for cases not punishable by death. For cases punishable by death, a person must be taken to court within 24 days. The onus of proof is upon the arresting/detaining agency to show that the timeframe could not be complied with because it


was not reasonably practical to bring the person to court earlier. Secondly, the draft Bill of Rights gives a person arrested for any criminal offence the right to apply for bail on grounds the court deems fi t. The draft Bill makes bail mandatory in the case of a person who has spent 120 days in remand for an offence triable by the High Court and a subordinate court or 360 days in remand for an offence triable by the High Court. In contrast, capital offences are not bailable under the Kenyan Constitution. Another variance between the draft Bill and the Kenyan Bill of Rights is the right a detained or restricted person enjoys upon her/his request, to inform his/her next of kin as soon as practicable of the place of restriction, and his /her lawyer or doctor to access the detained person. This is stipulated in the draft Bill but not provided for under the Kenyan Bill of Rights. In Kenya access to medical treatment by a detained person is more an administrative practice than a matter of right. In addition, the Draft Bill (Article 4(8)) also provides for courts to take into account any period spent in lawful custody before completion of the trial while sentencing. In Kenya time spent on remand before or during trial is only a mitigating factor during sentencing and not a constitutional consideration. However, for clarity, the phrase “take into account” under this section should be defi ned.

(d) Right to privacy

The right to privacy under the Kenyan Constitution is subsumed under protection against arbitrary search or entry and is limited to search of a person, his /her property and protects against entry by others on his/her premises. The draft Bill (Article 5) is wider and more specifi c and includes the right not have a person or home, property searched, his/her possessions seized or privacy of their communications infringed. While the draft Bill is silent on the grounds on which this right can be derogated from, the Kenyan Constitution limits the enjoyment of this right if it jeopardises the interests of defence, public safety, public order, public morality and development. The paper underscored the need for limitating the right to privacy, in the light of investigation and delivering justice in cases of corruption.


(E) freedom of conscience, expression, religion and assembly

The draft Bill of Rights under Article 7 broadens these rights and freedoms compared to the Kenyan Constitution. The draft Bill of Rights defi nes freedom of expression to include freedom of the press and other media, freedom to receive and impart information and ideas, freedom of artistic creativity, academic freedom and freedom of scientifi c research. This freedom is limited and does not extend to propaganda for war, incitement of imminent violence, advocacy of hatred based on race, ethnicity, gender or religion. The Kenyan Constitution, on the other hand, provides for these rights under three different sections (Sections 78, 79, 80) and restricts enjoyment of freedom of expression to situations where public order, public safety, public morality and public health are not infringed. In Kenya freedom of expression has been limited by statutes such as the Penal Code. The media has also been controlled through unreasonable and excessive methods.

(f) Freedom of association

Unlike the draft Bill of Rights, the enjoyment of the freedom of association under the Kenyan Constitution is not fully elaborated. The draft Bill clearly specifi es that the right to freedom of association includes the right to form, join and maintain associations or unions including trade unions, political, cultural, religious, linguistic and other civic organisations. Furthermore, the draft Bill modifi es the freedom of association and assembly to include freedom to demonstrate, peacefully and unarmed and to picket and present petitions. In comparison, the right to demonstrate is vividly absent in the Kenyan Constitution. The draft Bill (Article 9(2)), which prohibits compulsion of any one from belonging to any association or union or otherwise is likely to be compromised in the light of the provisions of the Kenyan Trade Union law, which gives the registrar general wide discretionary powers in determining whether or not to register a trade union.


(g) Freedom of religion

Although freedom of religion is stipulated as freedom of conscience under the Kenyan Constitution (Section 78), and as freedom of religion under Article 11 of the draft Bill, the latter, which seems simpler, still captures the meaning of the Kenyan provision.

(h) Freedom of movement

The re-establishment of the EAC brought with it a new conceptualisation of freedom of movement refl ected under the draft Bill as a right to all East Africans to reside and work in any part of the region; to enter, leave or return to East Africa; and a right to a passport or other travel document. In the Kenyan context however, having a passport is not a fundamental entitlement and has no constitutional backing. The draft Bill was hence lauded for this provision and for making the right derogable though it may be suspended where written law has made provisions in the interest of defence, public safety, order, health, control of nomadic people; where courts have imposed restrictions; where law makes restrictions on acquisition or use of land; where a country is removed to be tried or punished in another country for a criminal offence or where a person has to fulfi ll a legal obligation.

(i) Access to justice

The draft Bill of Rights provides for the presumption of innocence until proven guilty by a competent court or tribunal; a right to defence by a person of choice; a right to appeal to a competent national and regional court; a right to be tried within a reasonable time; a right to a fair hearing and to alternative dispute resolution methods (ADR). In practice suspects in Kenya have been held in custody for excessively long periods prior to and after trial hence the need for an express provision of the law and a proactive judiciary. While access to fair trial is a fundamental right in Kenya, which entitles one to be tried within a reasonable time by an independent, competent and impartial court, and entails the presumption of innocence till proven


guilty as well as the right of the accused to put up a defence through self or advocate, indigent suspects cannot afford counsel. Worse still, the state only provides legal assistance to those convicted of capital offences. To a large extent, accessing fair trial is dictated by the social economic circumstances of the accused.

(J) Respect of human dignity and protection from inhuman treatment

This right is provided for under Article 16 of the draft Bill of Rights and Section 74 of the Kenyan Constitution. It was observed that court claims based on this right have largely been unsuccessful, with courts perpetuating the policy of the executive even in instances where draconian punishment is proposed. Worse still, Section 74(2) of the Kenyan Constitution allows capital punishment but Kenyan courts do not consider it as inhuman and degrading treatment, as is the case in other jurisdictions.

(K) Freedom from slavery, servitude and forced labour

Article 17 and Section 73 of the Kenyan Constitution provide for this right and both provide exceptions to the right. The draft Bill specifi cally outlines the exceptions, if a person is lawfully detained and labour is required in consequence of a sentence or order of court, as part of duties of being a member of a disciplined force or as part of reasonable communal or other civic duties. However neither Bills defi ne slavery, servitude and forced labour, which omission might provide lee-way for the payment of unjust wages. In the same vein, while the Children’s Act of Kenya addresses human traffi cking and child labour, the Kenyan Constitution is silent on these issues, which might precipitate these acts in Kenya.

(l) Right to property

Crafted against the background of protecting the private property of colonialists in Kenya, Section 75 of the Kenyan Constitution rested on the principle of compensation in the event of compulsory acquisition of land by the state. Kenya has, in recent times, been


characterised by allocation of public land to individuals by the executive. The draft Bill obligates both a partner state and society to ensure the protection of public property for the public benefi t and was commended as a viable opportunity for challenging the sanctity of an illegal title acquired in respect of public land. Given Kenya’s experience, it was recommended that the term public benefi t, or public interest, which appears in the provision of the draft Bill, should be defi ned clearly for avoidance of doubt.

(m) Limitation, Derogation and Scope of Rights

The imperative for the law to defi ne the scope of enjoyment of the rights and freedoms in any Bill of Rights cannot be overstated. The UN Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (ICCPR) provide a guide which states can adopt to determine the scope of enjoyment and enforcement of the Bill of Rights. Under these Principles, derogation can occur in a situation of exceptional and actual or imminent danger, which threatens the life of the nation. A threat to the life of a nation is one that affects the whole of the population and either the whole or part of the territory of the state and threatens the physical integrity of the population, the political independence or the territorial integrity of the state or the existence or basic functioning of institutions indispensable to ensure and project the rights recognised in the ICCPR.

Article 39 of the draft Bill states when rights may be limited:

The rights in this Bill of Rights may only be limited in terms of law of general application to the extent that the limitation is reasonable and justifi able in an open and democratic society based on respect for human dignity, equality and freedom, taking into account all relevant factors, including, the nature of the right; the importance of the purpose of the limitation; the relation between the limitation and its purpose and less restrictive means to achieve the purpose.


Since the Kenyan Constitution does not defi ne certain phrases whose effect is to limit enjoyment of the Bill of Rights, such as democratic society, public safety, public morality, public health, rights and freedoms of others or rights and reputations of others, it is proposed that such phrases should be defi ned in the draft Bill of Rights.

Derogation from the Bill of Rights

The Kenyan Constitution Section 83 states circumstances under which the state may derogate from fundamental rights. The right to personal liberty, freedom from arbitrary search, freedom of expression, freedom of assembly and association, freedom of movement and protection against discrimination can be suspended when Kenya is at war and under Part III of the Preservation of Public Security Act Cap 57. Part III of the Preservation of Public Security Act allows the state the following derogations: detention of persons; restriction of free movement into, out of or within Kenya; compulsory movement of persons and imposition of curfews; control of aliens, including removal of diplomatic privileges; censorship; control or prohibition of information; control or prohibition of acquisition of any movable and immovable property; compulsory acquisition of any movable or immovable property; requirement of persons to work or render services and conscription into any disciplined forces. Detention laws were used excessively during the 1980s in Kenya. The draft Bill of Rights Article 42 allows an Act of parliament to contravene certain rights and freedoms granted under it only in a state of emergency. However, the Act of parliament must only authorise the taking of measures that are reasonably justifi able for dealing with a state of emergency. The provision further states that a person detained under a law made for the purpose of a state of emergency shall be informed of the reasons of detention within 24 hours; his/her spouse or next of kin must be informed of the detention within 72 hours and allowed access to the place of detention and, within 30 days of detention, have a notice published in the Gazette and in the media stating that such person has been detained, the law under which the person was detained and


the grounds for the detention. It was also observed that the draft Bill is silent on a tribunal to review the case of the detained person, as is the case in Kenya, where the president is empowered to constitute an independent and impartial tribunal for this purpose. In contrast with the draft Bill of Rights, the Kenyan Constitution provides that persons detained under such circumstances should be informed of the reasons of detention within 5 days; there is no mandatory duty to inform the next of kin of the detained person and only 14 days are provided for a notice to be published in the Gazette stating the reasons and grounds of detention. To ensure quicker justice, it was advised that the draft Bill should adopt a period of less than 30 days with respect to the notice in the Gazette. Again, while the draft Bill of Rights provides for rights that cannot be derogated from, the Kenyan Constitution does not do so. The approach of the Kenyan Constitution, was in this sense, described as autocratic, exhibiting readiness to interfere with and relegate the Bill of Rights, whereas the draft Bill was interpreated as considerably elevating the Bill of Rights and providing minimums for state violation of rights. It was indeed observed that derogations from the Kenyan Bill of rights are wide, with several claw- back clauses which grossly undermine rights protection.

Enforcement of Human Rights

Enforcement of human rights is dependent on a number of factors, which include independence of the judiciary, ingenuity of human rights lawyers, scope of rights, the political culture of a nation, rules of interpretation of rights and freedoms, and the role of various institutions in the promotion and protection of human rights. In Kenya, the effi cacy of the Bill of Rights has been attributed to rules of constitutional interpretation that create diffi culty or make its enforcement impossible; lack of courage by lawyers and judges to use procedures that give courts power to grant both private law remedies such as injunctions, declarations, mandamus, certiorari and prohibition; confusion surrounding the right to appeal to the Kenya


Court of Appeal and casting human rights in a language which gives courts lee-way that takes the form of qualifi cation of rights. Under the draft Bill of Rights (Article 41), a person claiming infringement or a threat of a fundamental right or freedom guaranteed by the Bill of Rights can apply to a court of competent jurisdiction for redress. Locus standi has also been extended to include any person or organisation to bring any action against violation of a person’s or group’s human rights. A person aggrieved by the decision of the High Court within a respective state can appeal to the EACJ. The Kenyan Constitution, on the other hand, gives the High Court original jurisdiction to hear and determine applications relating to violations of human rights. Subordinate courts have the discretion to refer cases relating to Bills of Rights to the High Court for interpretation. Appeals in such cases lie to the Court of Appeal. The wide discretionary powers given to subordinate courts to refer matters to the High Court on grounds that they are frivolous and vexatious have been construed as a hindrance to the promotion and protection of human rights as well as prejudicial to the development of a human rights jurisprudence. Besides, cases originating from subordinate courts to the High Court are not a subject for appeal to the Court of Appeal on the basis that they are deemed to be constitutional references. Furthermore, although locus standi for groups is not specifi cally provided for, Kenyan courts have made interpretations allowing it. It was proposed that the draft Bill should be amended to provide for appeals to the EACJ to originate from the highest courts of the respective countries. In this way the differing appeal systems of the respective countries would be harmonised. In Kenya, for example, decisions of the High Court go to the Court of Appeal. Redress for violations of human rights under the draft Bill go beyond compensation to encompass the wide range of remedies under both private and public law, namely declaration, mandamus, habeas corpus, certiorari, injunctions and prohibition. It was cautioned that enforcement of human rights remains elusive in the face of wavering political will of member states. In this regard,


the Bill of Rights provision that enables indigent citizens alleging violation of human rights to engage the services of an advocate to prosecute their case was lauded. The dire need for the EALA to make a law establishing a special fund to advance fi nancial legal aid to poor citizens seeking redress for violations of human rights was however emphasised as was the role of the HRCs with respect to the human rights jurisdiction of the EACJ. HRCs, were recognised to be key actors in the promotion and protection of human rights, given their mandate to act as courts, create human rights awareness and investigate cases of human rights violations.

Conclusion

Several dissimilarities exist between the Kenyan Bill of Rights and the draft Bill of Rights. The draft Bill of Rights was commended for providing for both ESCRs and CPRs as well as for enumerating the duties of a person in relation to the state, thus making the scope of the rights and freedoms contained in the draft Bill of Rights much broader than that of the Kenyan Bill of Rights. The Kenyan Constitution has a number of clauses that can be derogated and limitations to actualisation of rights while the draft Bill contains principles, which determine when derogation or limitation should be entertained. All in all the judiciary, in concert with other human rights institutions including HRCs have a major role to play in the enforcement of human rights and freedoms. Finally, the wide range of remedies under both private and public law should be available for redress in the case of human rights violations.

Recommendations

In order to improve the draft Bill of Rights, the following recommendations were made:1. There is a need to reaffi rm the interdependence of rights.2. The right to food should be included in the Draft Bill of Rights.


3. The status of customary law practices need to be considered as a potential ground for discrimination.

4. The draft Bill of Rights should specifi cally make the death penalty illegal.

5. Certain limitations need to be imposed on the right to privacy in the light of the need to investigate and bring justice to people accused of corruption.

6. The scope of fundamental freedom of movement vis-à-vis the right to a passport should be defi ned. To this end, countries should conduct audits of their domestic legislation and identify laws likely to discriminate against foreigners.

7. A special fund for indigent litigants should be provided for under the draft Bill of Rights.

8. The issue of just wages should be infused in the draft Bill of Rights.

9. Public benefi t and public interest and other phrases that have the potential for limiting rights and freedoms should be defi ned. Non – derogable provisions should be rephrased and made clearer.

10. Limitation and derogation clauses should be reduced to a minimum and to this end the Siracusa Principles could be instructive.

11. Enforcement of human rights should cover both public and private remedies.

12. Enforcement mechanisms should be revised to ensure minimum confl ict of laws.

13. The role of HRCs in the promotion and protection of human rights as well as with respect to the human rights jurisdiction of the EACJ should be underscored.

14. A provision establishing a human rights litigation fund should be included.


Tanzania–Zanzibar

Introduction

Although Zanzibar forms part of the Union between the Republic of Tanganyika and the People’s Republic of Zanzibar, Zanzibar has its own constitution, which has a bill of rights. Whereas the Independence Constitution of Zanzibar of 1963 had a bill of rights, it was short-lived and lasted only one month. It was however succeeded by the Constitutional Decree No.5 of 1964, which had no bill of rights since human rights were not considered priorities by post-revolutionary governments. It was not until 1984 that Zanzibar promulgated a new constitution that had a bill of rights, which constitution is still operational to date.

Review of the provisions of the zanzibar bill of rights and practical challenges that may affect implementation of the draft bill of rights(a) Right to equality

Article 11 of the Zanzibar Constitution provides that all human beings are born free and equal and are entitled to recognition and dignity. It further stipulates that all human beings are equal before the law. The Constitution prohibits discrimination and also defi nes it.

To ensure equality before the law, certain principles are stipulated under the Zanzibar Constitution. These include the right of every person not to be condemned without a hearing and the right of appeal; presumption of innocence till proven guilty by a competent court; enacted laws should not have a retrospective effect on any person; human dignity should be protected in respect of criminal investigation and other matters concerning restraint of a person or execution of a sentence; the right of every person to a fair and speedy trial and the right of representation by an advocate of one’s choice in a criminal case. However, despite the ruling of Court of Appeal


of Tanzania in Laurent s/o Joseph and Another v. Republic154 to the effect that that indigent accused are entitled to free legal aid paid for by the state, the reality is different. There is no legal provision for legal assistance to poor people in civil and criminal matters. Poor litigants are only entitled to waiver of court fees, a long and tedious process. In rare cases, legal aid is provided for serious offences such as treason and murder and capital offences including armed robbery and manslaughter. Worse still, enjoyment of the right to legal advice and representation is limited and is often subject to other factors, such as legal awareness.(b) Right to life

Article 13 grants everyone the right to life and protection of life by society subject to law. Nonetheless some offences in Zanzibar, such as treason, entering Zanzibar with intent to organise a counter-revolution, and murder carry capital punishment.(c) Personal freedom

It is prohibited for a person to be arrested, imprisoned, confi ned or detained, deported or otherwise deprived of his/her freedom except under special circumstances or in accordance with the law or in execution of a judgment, order, sentence passed by court in a legal proceeding or conviction of a criminal offence.(D) Right to privacy and personal security

The Zanzibar Constitution, Article 15 provides for respect and protection of one’s person, family, matrimonial life, residence and private communications. The state has a duty to put legal procedures in place for the preservation of this right.(e) Freedom of movement

Every person is granted the right to move freely and live anywhere in Zanzibar. Every person has the right to enter and leave Zanzibar and the right not to be expelled from Zanzibar. Curtailment of this right in instances of imprisonment should be in accordance with the law. The Deportation Decree of Zanzibar was cited as an example 154 [1981] TLR 351.


of such law. Fortunately, the Deportation Decree was declared unconstitutional in the case of Chumchuua s/o Marwa v. Offi cer i/c of Musoma Prison and Anor, HC of Zanzibar Misc. Application Criminal Cause No. 2/1990.(f) Freedom of expression

Freedom of expression is guaranteed under the Zanzibar Constitution and also includes freedom of opinion and expression. Accordingly every person has a right to seek, receive and impart or disseminate information and ideas through the media regardless of national frontiers and should enjoy the right of freedom from interference of communication. A person also has a right of access to information relating to various events of signifi cance to their lives and to society.(g) Freedom of religion

This right includes the right to freedom of thought, conscience, belief or faith and choice in matters of religion. It is also provided that the practice of religion, worship and propaganda of religion should be a free and private affair of an individual.(h) Freedom of association

Article 20 of the Zanzibar Constitution grants every person the right to freely and peacefully assemble, associate and cooperate with other persons. This also includes the right to freely express their views publicly, to form or join legal associations and organisations for purposes of preserving their interests. Enjoyment of this right in Zanzibar has been subjected to police authorisation of public rallies, especially in the case of political parties. In addition, the Mufti is given discretionary powers under the Mufti Act to approve Islamic activities, such as Islamic gatherings, Ijitimai and lectures. In view of this, it was contended that Muslims in Zanzibar are restricted in a way non-Muslims are not.(I) freedom to participate in public affairs


Under Article 21, every Zanzibari has a right to participate in matters pertaining to governance directly or indirectly through their freely elected representatives. They are also entitled to equal terms of holding offi ce.(j) Duty to work

Article 22 of the Zanzibar Constitution obligates every Zanzibari to work. Zanzibaris have a duty to participate fully and lawfully in work, to observe work discipline and to strive to attain individual or group production targets as set by law. Forced labour is however prohibited.(k) Right to own property

Every one is granted the right to own property and not to arbitrarily be deprived of it. In the event of a person’s property being acquired by government for purposes of national development, town planning etc, fair and adequate compensation should be made.(l) Enforcement of basic rights

Any person whose fundamental rights have been violated can apply to the High Court of Zanzibar, presided over by a single Judge, for redress including compensation. An appeal lies from a decision of a single judge of the High Court to the High Court presided over by three judges excluding the judge who presided in the fi rst instance. The Zanzibar Constitution also grants every person a right to institute proceedings in the High Court should he/she think that any provision of the constitution has been, is being or is likely to be violated. In this respect, the High Court may request any offi cer or organ of government to provide it with the necessary information to enable it arrive at a decision. Overall enjoyment of human rights and freedoms in Zanzibar is inhibited by several factors. While the Zanzibar Constitution contains some of the basic rights, such as the right to equality, life, privacy and personal security, freedom of movement, freedom of expression, freedom of religion, association, participation in public affairs and the right to work, enjoyment of these rights is curtailed by many claw-back clauses. The claw-back


clauses include clauses such as “subject to the provisions of relevant laws of the land”, “subject to law”, and “in accordance with the law”. The right to freedom of expression, freedom of religion and freedom of association are, for instance, subject to the law of the land.

Secondly, under Article 24(1) of the Zanzibar Constitution, human rights and freedoms can be restricted by laws enacted by the House of Representatives, except if the rights and freedoms are deemed necessary and acceptable in a democratic society. In any case, such restriction shall not interfere with the right to freedom from torture, inhuman and degrading treatment; human rights principles or cause effect to society from the act that restriction is intended. Thirdly, the Bill of Rights of Zanzibar falls short of certain salient freedoms and rights prescribed in key international human rights instruments, such as the Universal Declaration of Human Rights (UDHR); the ICCPR; the American Convention on Human Rights; the European Convention on Human Rights and the African Charter on Human and People’s Rights (ACHPR). Fourthly, the mistrust and power struggles between the ruling party and the opposition which have characterised Zanzibar’s public administration and politics for the last 40 years, compounded by a feeble institutional framework with weak law enforcement agencies, and the poor administration of justice at governmental and non-governmental level were blamed for seriously curtailing enjoyment and enforcement of human rights. In this respect, it was posited that improvement of human rights enjoyment and enforcement in Zanzibar are contingent upon improved or better governance of the country.

Review of the provisions of the draft Bill of Rights

The draft Bill was commended for being comprehensive and for capturing ESCRs which are visibly absent in the Bills of Rights of most East African countries. It was also noted that certain rights, namely the right to access to justice, the rights of children, right to education, environment, fair hearing, to contest elections as an independent candidate, the rights of women, children and persons


with disabilities coupled with the right to an adequate standard of living contained in the Draft Bill of Rights were visibly absent from the Zanzibar Bill of Rights.


It is hoped that, once adopted, Zanzibar would incorporate those rights contained in the Draft Bill of Rights that are not found in the Zanzibar Bill of Rights. The draft Bill of Rights is thus expected to complement and widen the scope of the Zanzibar Bill of Rights, which would ultimately contribute to the enhancement of enjoyment of human rights in Zanzibar. Equally, Zanzibar’s not having its own HRC separate from Tanzania mainland was seen as a major stumbling block, which grossly affected monitoring, awareness, enforcement and ultimately realisation of human rights in Zanzibar. A strong case was therefore made for Zanzibar to have its own HRC.

Uganda

Like the previous presentations, the draft Bill of Rights was lauded as a thorough document and a progressive attempt to embrace contemporary issues such as HIV/Aids, internal displacement of persons, mass expulsion of aliens, self determination, voting and participation in elections across countries within East Africa. It was also commended for modifying the poor ESCR component of the Bill of Rights of the East African countries. Similarly, the draft Bill was acclaimed for having taken cognisance of the basic human principle that human rights are inherent and not granted by the state. To concretise this principle, it was underscored that human rights must be reasonable and relevant to the aim desired and any limitation imposed on their enjoyment should be an exception rather than the rule.


Review of the provisions of the draft bill of rights and practical challenges that may affect their implementation(a) Equality and freedom from discrimination

Against the backdrop that discrimination against women, children, persons with disabilities and with HIV/Aids is still common in Uganda, Article 2 of the draft Bill of Rights, which exhaustively captures protection from discrimination of people from all walks of life including inter alia areas such as maternal disposition, social identity, old age and HIV status, was commended.(b) Right to life

Pertinent to the right to life is the issue of the death penalty and abortion. Despite recent efforts to challenge the legality of the death penalty in Uganda, it still remains a form of punishment in the country. In the recent case of Suzan Kigula & 416 Others v. Attorney General Constitutional,155 the Constitutional Court in Uganda ruled that the death penalty is an exception to the right to life and does not constitute cruel, inhuman or degrading punishment. The right to life was also declared a derogable right not covered under Article 44 of the Constitution. In Uganda, abortion is prohibited except to save the life of a pregnant woman. More extensive discussions were called for on the issue of abortion and the death penalty in the light of Article 3 of the draft Bill, which does not discuss its abolition. However in the event of a stand being taken on the death penalty and abortion, a clear decision should be made as to whether the right to life is non derogable or not.(c) Personal liberty

It was proposed that Article 4 of the draft Bill should take due consideration of the situation pertaining in the amended Ugandan Constitution. Article 4 provides for the right to apply for bail once remanded for 120 days in case of offences triable by the High Court and subordinate courts and 360 days with regards to offences triable only by the High Court. In a bid to decongest prisons, the period 155 Constitutional Court of Uganda, Petition No. 3 of 2003.


of remand with respect to entitlement to bail was reduced to 60 days in case of offences triable by the High Court and subordinate courts and 120 days with regards to offences triable only by the High Court under the amended Ugandan Constitution.(d) Right to access of information

The right of access to information is an integral part of the right to freedom of expression. The right is intended to foster public transparency, accountability, good governance and democracy in any particular state. Inclusion of this right in the draft Bill of Rights was thus deemed reminiscent of the spirit of accountability desired of partner states. Nonetheless, there was a recommendation that the right as provided under the draft Bill should be qualifi ed with clear limitations on the content and scope of information and procedures of acquiring the information accessed as stipulated in Article 41 of the Ugandan Constitution. Equally signifi cant is the need to move beyond Ugandan constitutional provisions and those of the Access to Information Act of Uganda, which limit enjoyment of this right to only citizens and duty holders, to include the public arena. Accordingly, the right should be enjoyed by all people and not only citizens and the scope of duty holders should be extended to include private bodies that carry out public functions. For consistency, it was also proposed that Ugandan legislation which is not in conformity with the newly-enacted provisions of the Access to Information Act should be repealed.(e) Freedom of expression

Freedom of expression facilitates discussion, dialogue and information fl ow crucial for the realisation of human rights. The provision of the draft Bill on freedom of expression was applauded for being informative, since it outlines explicit parameters of what constitutes freedom of expression, clearly elaborates what comprises a violation of this right and clarifi es what constitutes infringement of the right. Unfortunately, despite the existence of the right under the Constitution of Uganda and a recent Supreme Court decision


viz., Charles Onyango Obbo v. Attorney General,156 which declared the Penal Code offence of publication of false news void and unconstitutional, the Ugandan Penal Code provisions relating to the offence have not been repealed.(f) Access to justice

Presumption of innocence and the right to defence by a person of one’s own choice are central to the right to a fair trial. These rights are provided for under the Ugandan Constitution and are reinforced by Article 128, which guarantees independence of the judiciary. In addition, the use of ADR by Ugandan courts especially the Commercial Division, through mediation, conciliation and arbitration, has facilitated access to justice and have been instrumental in reducing case backlogs and aiding speedy resolution of disputes. In order to ensure access to the EACJ, it was recommended that the place of the EACJ vis à vis the hierarchy of national courts should be clarifi ed especially amidst issues of clinging to national sovereignty and reluctance by national actors to surrender power at regional level. However, ADR should remain an option to litigation alongside the option of pursuing further redress through appeals.(g) Right to property

The Ugandan Constitution Article 26 provides protection against deprivation of property with some exceptions, while Article 237 provides for land ownership by the citizens of Uganda. The Land Act provides for land to be held in accordance with the customs and traditions of the various ethnic groups. Unfortunately, oppressive customary traditions, laws and policies continue to deny women, children and orphans their right to own land in Uganda. What is more, the co-ownership clause under Section 40 of the Land Act of Uganda, which requires the consent of a spouse in transactions involving land ordinarily resided on, has not been helpful. As a result, women are trapped in a vicious circle of poverty since they are unable to access credit from fi nancial institutions due to lack of collateral, which always takes the form of land. In view of the 156 Supreme Court of Uganda, Constitutional Petition No. 2 of 2000.


highlighted disparities in land and property ownership in Uganda, it is imperative that the draft Bill adequately captures the disparity in land tenure systems and ownership as well as its gender dimension in East Africa.(h) Right to health, health care and housing

Existing policies on health in Uganda do not promote the right to health. The Health Sector Strategic Plan II (2005-2010) of Uganda is encumbered by a chronically ill- funded health sector, which enjoys only 3% of the Growth Domestic Product (GDP). Likewise, the Ministry of Lands, Housing and Urban Development mandated to create an effective and functional urban structure and to take care of human settlement has failed in its mandate due to unbalanced budgetary allocations for different regions of the country. Worse still, the rights to health, health care and housing are part of the National Objectives and Directive Principles of State Policy of the Constitution of Uganda, which is not part of the Bill of Rights and are therefore not justiciable. It was underscored that the right to health, health care and housing are essential for the development of a nation and fundamental rights of human beings, which should form part of the draft Bill of Rights.(i) Rights of internally displaced persons and refugees

The Ugandan Constitution is silent on the right of internally displaced persons (IDPs). Only recently, in 2004, a policy for IDPs came into existence in Uganda to address their human rights and obligations, including minimisation of internal displacement. The supply of resettlement kits such as inputs and tools for self-employment and to support construction by the government of Uganda to IDPs who were being resettled and re-integrated in northern Uganda remained a challenge. Given that the rights to protection by the state and assistance in the form of food, housing and medical care are core to IDPs, these rights should be paramount in the draft Bill of Rights.


(j) Rights of Children

States were urged to adopt a broader preventive focus in analysing and addressing socio-political and economic factors which create conditions of social and economic exploitation of children, in order to avert abuses against children.(k) Non Derogable Rights

The draft Bill of Rights endeavours to expand the scope within which human rights are protected. The rights to human dignity and protection from inhuman treatment, slavery, servitude and forced labour; habeas corpus, right to equality and freedom from discrimination, are all non derogable rights under the draft Bill of Rights. Others include the right of arrested and detained persons, children’s rights in relation to protection from social or economic exploitation, work and child labour and access to justice.

Challenges

A number of challenges faced by the UHRC offer important lessons which are likely to affect the implementation of the draft Bill of Rights. Foremost, the Commission is fi nancially constrained and cannot handle its constitutional mandate effectively. Secondly, UHRC Tribunal awards to pay victims of human rights violations by the Government have not been honoured. In 2005 alone, the UHRC awards totaled Ug. Shs. 306,228,000, of which Ug.Shs. 275,278,000 was against the Attorney General. Thirdly, the Commission’s duty to visit places of detention and monitor conditions of inmates has been negated by the requirement of giving notice before the visits. Fourthly, enabling legislation to support the protection and promotion of human rights is absent. For example, there is no enabling law on torture to operationalise Article 44 of the Uganda Constitution. The Refugee Bill 2003 and the Domestic Relations Bill 2003 are also yet to be enacted. This has been compounded by the existence of unconstitutional laws on the statute books, some of which have been declared unconstitutional by courts of law, as is the case with the Penal Code provision on publication of false news.


An understaffed and fi nancially constrained Justice, Law and Order Sector (JLOS), unable to meet its mandate, including conducting police investigations in a timely manner, maintaining law and order and observing the 48 hour rule, is yet another challenge and an obstacle to access to justice. All the above issues are compounded by an illiterate population, which has a limited appreciation of human rights issues.

Recommendations

To address the above challenges, human rights awareness through formal and informal education is a necessary measure that will enable the populace to understand and assume responsibility for ensuring human rights. Country-wide human rights campaigns, sensitisation and training workshops, and information dissemination, would do much to foster and maintain a human rights culture in East Africa. In addition, governments need to comply with international treaties and conventions and have international obligations mainstreamed into government strategies and plans. Parliaments should enact enabling laws to effectuate human rights and freedoms, enforce new constitutional provisions, and repeal laws which are inconsistent with constitutional provisions and ratifi ed international instruments. In the same vein, governments should ensure that the justice, law and order sectors are adequately funded to enable them to actualise their mandate, which would ultimately boost access to justice and realisation of human rights. Governments were also urged to set up a victims’ compensation fund to enable expeditious compensation to victims of human rights violations and to reduce the burden of relying on specifi c budgetary allocations. Furthermore, East African governments were called to commit themselves to good governance and human rights observance as a means of giving credibility to the East African Bill of Rights. In order to win public confi dence, the EACJ, must be competent and independent. Its judges must be reputable, competent and qualifi ed and persons of regional or international repute. To this end, governments need to improve the


selection criteria of the judges of the EACJ as well as streamline the qualifi cations and procedures for their appointment.

Conclusion

The development of an East African Bill of Rights and above all, a comprehensive Bill of Rights was commended. The draft Bill was also perceived as a unique opportunity to harmonise diverse laws of the East African states. It was however cautioned that the Draft Bill of Rights has to adapt to changing trends in society, especially in the socio-economic and cultural sphere, in order for it to be effective.

Synopsis of the Country Papers

The country papers encapsulated a number of challenges that impede the work of HRCs in the actualisation of their respective countries’ bills of rights. Challenges include factors such as lack of government commitment; state-instigated, perpetrated and condoned violence; political interference; and inconsistencies between legislation of partner states, for example the detention rule, which is either 24 hours or 48 hours in different countries. Other issues, including the numerous derogation or claw-back clauses contained in the bills of rights, the copious unconstitutional laws on the statute books; lack of enabling statutory legal frameworks to operationalise constitutional provisions and differences in practice and law as exemplifi ed in the right to bail also emasculate realization of rights. Furthermore, Eastern African governments have not ratifi ed key international human rights instruments. This not only limits the number of international human rights instruments applicable at national level, but also undermines the development of a common human rights jurisprudence for Eastern Africa. There is limited access to justice due to an inadequate number of judges, absence of legal aid, especially for capital offences, long distances to courts and above all poverty. For example, poverty negates access to justice at individual level as well as in terms of preventing governments,


especially from delivering ESCRs. Coupled with the above is the poor fi nancial support by governments to law- enforcement bodies, the judiciary and HRCs. HRCs are unable to fulfi ll their mandate, and police investigations are delayed, which all impact on access to justice. There is poor enforcement of decisions and awards of HRCs by governments in respect of human rights violations. In addition HRCs experience restricted access to places of detention, thus frustrating their efforts to monitor human rights violations. The cardinal principle of separation of powers has been eroded tremendously, with judicial decisions being overturned by the legislature in some countries and vice versa. Other outlined challenges include weak governance institutions, both at government and non-government level, to spearhead the fi ght for human rights effectively. Retrogressive cultural practices and illiteracy also greatly affect the actualisation of rights, including property rights particularly for women. Diverse land tenure systems in East African are a challenge and may require more scrutiny at national level. Finally, issues such as the right to abortion and abolition of the death penalty, which currently preoccupy the international discourse, need to be discussed thoroughly and addressed.

To counter the above challenges, governments were urged to commit themselves to good governance and human rights, enact enabling legislation to actualise human rights and freedoms, scrap statutory laws inconsistent with constitutions and constitutional rulings, ratify key international human rights instruments and harmonise national bills of rights. Furthermore, governments were also urged to mainstream international obligations into government strategies and plans to ensure compliance and reporting. The need for governments to adequately fund the justice, law and order sector was also emphasised. To address the problem of poor enforcement of HRCs awards and decisions, it was advised that governments should set up victim compensation funds at national level as a reliable source of money to compensate victims of human rights violations. The imperative to sensitise people about human rights


was underscored as was the need to establish effective mechanisms for such sensitisation through formal and informal education. For the draft Bill to be owned as truly East African, the views of the people of East Africa on it ought to be sought. Finally, it was stressed that the EACJ should be accorded superiority over national courts and the EACJ made a strong and independent court with competent, reputable and qualifi ed judges.

Plenary Discussion – Country Papers

Various clarifi cations and observations were made with respect to the fi ve country papers presented.

Zanzibar

The main issue that arose with respect to the Zanzibar country paper related to the establishment of an independent HRC for Zanzibar. While it was appreciated that three out of the seven commissioners of the CHRAGG are Zanzibaris, which is half the number, in Zanzibar there was a demand for Zanzibar to have a HRC of its own. However the Rules of the Accreditation Committee for HRCs allow only one HRC per country. Accordingly, since Zanzibar is part of United Republic of Tanzania (URT) there can only be one national human rights institution for the URT. In fact it was confi rmed that the Act establishing the CHRAGG applies to both Tanzania mainland and Zanzibar. Cognisance was however taken of the problems surrounding the functioning of CHRAGG in Zanzibar. Hitherto, CHRAGG only functions in Tanzania mainland and not in the Republic of Zanzibar because Zanzibar was yet to ratify the Act establishing CHRAGG. Nonetheless, it was confi rmed that a bill allowing the functioning of CHRAGG in Zanzibar was in the offi ng and was due to be presented to the October 2006 parliamentary session of the Zanzibar House of Representatives.


Kenya

Emphasising the need to domesticate key international instruments, it was elucidated that, for international instruments to apply in Kenya, they have to be domesticated into law by parliament or else they remain of persuasive value. The contradiction regarding the applicability of the presumption of innocence and the right to bail was discussed. It was noted that while courts in Kenya have upheld the presumption of innocence, bail is not granted for capital offences. It was proposed that the Ugandan situation, where a judge has the discretion to grant bail in exceptional cases, could be emulated. Under the right to work, the absence of a defi nition of what amounts to just wages in Kenya, was singled out as a challenge that could affect the practical implementation of human rights. However, reference was made to the ICESCR for a standard stipulated as pay which can sustain an adequate standard of living, for guidance. The need to uphold constitutional supremacy over and above statutory interpretation and legislative decisions by ensuring adherence of human rights litigation to constitutional interpretation was stressed. This was particularly signifi cant given the trepidation over the overturning of judicial decisions by parliament in Kenya, which was feared could have a ripple effect and similarly affect EACJ decisions. This was confi rmed in a recent event in which the vice president was charged with corruption but was exonerated by the parliament in Kenya. On being charged in court, court declared and conceded with Parliament’s earlier decision of seting him free. Again, Uganda’s example, where laws passed by the legislature have to be in accordance with the constitution, was instructive.

Tanzania Mainland

Access to justice is one of the key issues that dominated the discussion of the Tanzania mainland country paper. Apart from primary courts being inaccessible on account of geographic distance; courts not being within less than fi ve hours walking distance; an additional impediment to justice is that human rights cases in Tanzania are


handled by a panel of three High Court judges. Because Tanzania mainland boasts of not more than twenty High Court judges who are supposed to serve 21 High Court regions, constituting a panel of judges is diffi cult. Moreover most of the judges are based in the capital, Dar es Salaam. Worse still, the likelihood of adequately expanding the bench is also problematic in view of the diffi culty of acquiring lawyers of integrity to join the bench. Despite the above, the judicial activism of Tanzanian courts demonstrated in the case of Rev. Mtikila was commended. However there is uncertainty as to whether the Mtikila decision would stand the test of time, especially since the government has appealed against the decision. While the need to standardise constitutional frameworks is undisputable, the requisite approach to do so remains a question for further debate. While Tanzania adopted a piecemeal approach to constitutional review, with a total of 13 amendments since 1977, Uganda adopted a one-time process while Kenya’s constitutional review process remains in limbo. Nonetheless, a strong case was made for a constitutional review process for East African countries at national level, with a view to developing a common regional framework. Likewise, the imperative to evolve an East African Bill of Rights was underscored. But, more signifi cant, a truly East African Bill of Rights that is widely debated by the people of East Africa and subjected to a referendum, was proposed.

Rwanda

Reactions to the Rwanda country paper were in relation to the current debate on abolishing the death penalty; challenges faced by the RHRC in implementing the Rwanda Bill of Rights; the new strategies used by the RHRC to reach the grassroots since the abolition of the provincial offi ces, particularly whether or not the abolition was in contravention of the Paris Principles which advocate for HRCs to have access to the people and on operation of the Gacaca Courts. In response, fi nancial constraint was identifi ed as the major challenge that mars the operations of the RHRC, which depends on government for its funding. It was also for fi nancial reasons that the


Commission was forced to close the provincial offi ces. Fortunately, the closure of the provincial offi ces was of minimal consequence since the Commission has since introduced an alternative system whereby every commissioner has three assistants, who visit citizens at the grassroots to collate people’s claims. Since 1996 no single person has been committed to death in Rwanda, despite the existence of the death penalty. After the genocide, the campaign against the death penalty was popularized in Rwanda because killing perpetrators of genocide made no logical sense nor offered a solution,and would only reduce the Rwandan population further. Rehabilitation of the individual was preferred to death. Concerning the Gacaca Courts, it was explained that these are traditional courts established after the genocide to expedite delivery of justice by reducing the workload of ordinary courts in dealing with cases of genocide. Gacaca Courts operate at cell and sector levels and primarily aid in the collection of evidence from the ordinary people at the grassroots level about the perpetrators of genocide. Some offences classifi ed as fi rst category offences are dealt with by ordinary courts.

Uganda

Underlining the challenge surrounding enforcement of decisions of HRCs, it was revealed that the government of Uganda had initially wanted to absolve itself of some responsibility of honouring UHRC awards by making enforcement of judgements discretionary. To ensure enforcement of awards, it was recommended that a time limit should be set, following which the human rights violator should be arrested and/ or an option of attachment made available. It was clarifi ed that although the chapter on the National Objectives under the Ugandan Constitution contains several important provisions relating to ESCRs, these are not justiciable and are merely national aspirations. Nonetheless, the chapter on National Objectives was underscored as critical for purposes of measuring the president’s performance every year. The president, in his annual State of Nation Address, outlines key steps taken in fulfi lling the National Objectives. In other words, it is a method of holding the president


accountable to the people, since it could be used as a basis to vote him out of offi ce. The use of quasi-judicial powers by UHRC was singled out as an important practice, which has been instrumental in making the UHRC a strong institution. Publicising cases or fi ndings of the Tribunal in the media and making people appear before it has been particularly useful, as has been the payment of money to victims of human rights violations. The monies awarded by the Tribunal are charged on the responsible ministries, in this case the Ministry of Justice and Constitutional Affairs. Administrative action against the offenders has also been effective. Cognisance was taken of the fact that, although the Constitution of Uganda is a progressive model constitution, it requires enforcement. Accordingly, courts need to declare laws that are inconsistent with the Constitution unconstitutional. Enabling legislation is also a pre-requisite for enforcing constitutional provisions and where enabling legislation exists, proper enforcement is necessary. An example cited was the constitutional position which provides for discrimination against women but which, in practice manifests itself in discrimination against women regarding land ownership. Law Reform Commissions (LRCs) are obliged to network with other institutions to ensure the existence of a comprehensive human rights regime and that laws conform to the constitution. However LRCs were not entirely blamed for these problems, some blame was apportioned to parliaments which, to a large extent, frustrate the efforts of LRCs when they delay passing laws or when their terms expire before they have passed important laws. The delay in passing the Domestic Relations Bill in Uganda was cited as an example. In addition, LRCs are not independent enough to take certain decisions and as a result, they are often caught up in intricacies of government. Lastly, underscoring the importance of ESCRs, it was acknowledged that, while some ESCRs may not be easily enforced, those which can be enforced or realised progressively should be enumerated or categorised.


The East African Bill of Rights

In order to place issues emerging from the workshop in context, a presentation on the draft Bill of Rights was made. The presentation illuminated the defi nition of human rights; key human rights principles and standards; the East African context in which the Bill is to apply; the rationale for the draft Bill of Rights; existing weaknesses, challenges and opportunities which affect realisation of human rights; the content of the draft Bill; an explanation on the grouping or categorisation of rights under the draft Bill; limitation, derogation and scope of rights; enforcement of rights and concluding remarks.

Defi nition of Human Rights and Human Rights Principles and Standards(A) Defi nition of human rights

Human rights were defi ned as entitlements or claims to basic conditions of life enjoyed by all people, anywhere, at all time, that give rise to legal obligations on the part of others. They are universal legal guarantees enshrined in international legal and moral standards and incorporated in constitutional bills of rights and legislation.(b) Human rights principles and standards

A number of human rights principles and standards were outlined. The fi rst principle is that human rights are universal; inalienable; indivisible and interdependent. Secondly, human rights infer certain standards namely equality and non-discrimination; participation and inclusion; progressive realisation and monitoring and accountability. Rights, on the other hand, come with responsibilities. Upholders of rights (duty bearers) are obliged to respect laws, policies, programmes and practices and must not violate human rights. They have a duty to protect and promote human rights while violations by others must be prevented. Duty bearers also have the responsibility of providing affordable and accessible redress in case of human rights violations. They have to undertake positive actions in order to realise human rights. On the fl ip side of the coin, benefi ciaries of rights or holders


of rights need to understand and claim their rights.The East African Context

In discussing the draft Bill of Rights, it is critical to appreciate the East African context. Characteristically, East Africa is a semi-industrial/agricultural society in a post-modern globalised world ruled by the market, with free circulation of persons, money, goods and services. East African countries also share a common past between 1967 and 1977, when they had a single currency and a common market. Earlier, the countries shared a common colonial heritage under which they inherited common geographical borders, bureaucracy and a legal and constitutional tradition. Subsequently, East African countries have participated in regional and global human rights initiatives. For instance, they have all signed the UDHR, ICCPR and the International Covenant for Economic, Social and Cultural Rights (ICESCR) and so on. On a negative note, East African countries are mutually characterised by poverty, high debt ratios and HIV/Aids. They also suffer violence against women and children, ethnic confl icts and civil war and are economically exploited or experience resource depletion.

Why a Bill of Rights?

Justifi cation was made for an East African Bill of Rights on the basis of a number of reasons. First is the need for domestication of global human rights standards at sub-regional level. Second, the disharmony in human rights jurisprudence application warrants a common jurisprudence. Third, there is a common anticipation among East Africans for a single judicial and political system under the East African Political Federation. Fourth, East Africans seek to establish a single market and freedoms such as free movement of persons, goods and services and form a strong motivation for the existence of a single market. Lastly, the indivisibility of rights needs to be promoted by bringing CPRs and ESCRs together in a single document, the draft Bill of Rights.


Weaknesses and Challenges affecting Realisation of Human Rights

Several weaknesses, challenges and opportunities dog the realisation of human rights at national level. All four bills of rights of Kenya, Tanzania mainland, Tanzania Zanzibar and Uganda concentrate on CPRs with less or no attention paid to ESCRs. The bills of rights also protect the human rights of individuals and not group or collective rights. They offer little or no protection to vulnerable groups namely women, children, persons with disabilities, people living with HIV and Aids (PLWHA), the elderly, minorities, etc. A number of challenges also accrue. These include competing perspectives on human rights, the African concept of human rights versus the western concept of human rights; culture and traditions impede human rights enjoyment; competing and confl icting rights of the individual on the one hand and of society on the other; and lack of protection for group or solidarity rights. Additionally, there is non-justiciability of certain human rights; there is regressive realisation of ESCR and there exists general and specifi c limitations on human rights. Another challenge is that, because of existing internal borders and since nationality is still defi ned at national level, community citizenship is not yet defi nitive. Finally, there is a need to accommodate new or controversial rights; to award damages for human rights violations; and to pursue human rights violators across borders.Grouping of rights and freedoms

Rights and freedoms under the Draft Bill of Rights have been grouped. The different categorisations are dignity rights; freedoms; equality rights; social rights; citizen’s rights and justice rights. Dignity rights include the right to personal liberty (dignity and integrity); the right to life; protection of privacy; prohibition of torture and inhuman or degrading treatment or punishment; prohibition of slavery, servitude and forced labour; prohibition of mass expulsion of aliens; and traffi cking of persons. Fundamental freedoms consist of the right to marry and found a family; sexual and reproductive rights;


freedom of thought, conscience and religion; freedom of expression; freedom of assembly; freedom of association; freedom of religion; the right to education; and the right to property. Equality rights are enumerated as equality before the law and non-discrimination; the rights of women; affi rmative action; the rights of children; the rights of persons with disabilities and the rights of minorities (widows, orphans, the aged and disabled). Social rights entail the rights of workers; the right to health and the right to health care; the right to housing; the right to education; the right to culture; the right to a clean and healthy environment; the right to property; the right to self-determination (political status and natural wealth) and the rights of IDPs and refugees. Citizen’s rights consist of citizenship; the right to participation; the right to vote; the right to contest as an independent candidate in national elections; the right to participation; the right of access to information and freedom of movement and of residence.

Justice rights are composed of access to justice: presumption of innocence; the right to fair hearing; the principle of legality and proportionality; and the right against double jeopardy. The above grouping of rights was explained. Primary rights are intended to protect the individual as a human being, which is a precondition of his/her protection in the context of his/her relationship with society or with other persons. Freedoms are fundamental freedoms, whether individual or collective, which guarantee each person a line of protection within society. Some freedoms can be invoked against public authorities and some against private individuals. More specifi cally, equality rights were defi ned as those rights of which the benefi ciaries are individuals. Equality rights can be invoked against public authorities and private individuals. Social rights, on the other hand, are obligation rights. Their implementation implies state action and/or a political choice involving the legislative body. Social rights are also part of the welfare state and not rule of law, in that the state allows leeway in their application, without being tied by requirements, which govern restrictions accepted to freedom


rights. Citizen’s rights are traditional political rights transposed to fi t the reality of the EAC. However the derivation of Community authority and Community citizenship are still unclear. Lastly, Justice or guarantee rights ensure fundamental protection for individuals against public authorities’ repressive powers.Limitation, derogation, scope of rights

Reasonable and justifi able limitation is provided for under Article 39 of the Draft Bill, the non-derogable rights are contained in Article 39 and the additional rights fall under Article 40.Enforcement of rights

Article 41 allows one to lodge a claim with National Courts. An appeal lies from national courts to the EACJ.Duties

Under Article 43, every one has a duty towards family, society, state and other communities. There is also a duty to live in a corruption free society.

Conclusion

A number of issues were advanced for further refl ection. The issue of cross-border assistance and cooperation in human rights violation cases; the role of CSOs and human rights defenders in ensuring realisation of the East African Bill of Rights; the handling of systemic grave/mass violations of human rights; and the relationship of the East African human rights protection mechanism vis-à-vis the existing UN and African systems require further consideration. Other issues requiring further contemplation include the nature of the bill of rights. Specifi cally, whether a human rights charter or protocol for the EAC Treaty should be adopted or whether the EACJ jurisdiction should be extended with the Draft Bill of Rights as a schedule. Whether the jurisdiction of EACJ should be extended, whether an East African court for human rights should be established or an East African commission for human rights created is yet another indefi nite matter. Also signifi cant is the nature and


level of accountability and the reporting procedures.

In conclusion, the imperative for further consultations and dialogue with strategic stakeholders in order to build consensus and generate a common understanding of critical issues was underscored. It was also deemed critical to consider the impact of the expanded EAC, which will comprise of Burundi, Kenya, Uganda, Tanzania, Rwanda and Zanzibar (BUKUTARWAZA) and principally issues of citizenship, free movement, residence, establishment and provision of services, especially amidst increasing ethnicity and xenophobia, social inequality and economic disparities within and among the countries. Equally signifi cant, is the need to consider whether existing social structures and institutions that impede enjoyment of human rights should be reformed and the extent of such reform. It is also vital for the draft Bill of Rights to adopt new wording to extend its scope as well as to adapt to contemporary changes to pave the way for exercising rights at the EAC level and beyond geographical borders.

Plenary Discussion

In the plenary discussion, the key issues raised were whether the East African Bill of Rights will replace national bills of rights or whether the East African Bill of Rights should be mainstreamed through national bills of rights fi rst; and further scrutiny of some articles recommended. Among the articles of the draft Bill recommended for review is the one relating to religion. In view of the contemporary attacks on Islam, it was advised that the article should be reviewed to determine whether it offers adequate protection to all religions including Islam. Similarly, the provision relating to access to information should effectively prevent states from interfering with this right on grounds such as in the interest of national security. There is a need to balance culture and tradition to enhance human rights realisation. Likewise, there is a challenge to balance religion and women’s rights. For example, balancing the Islamic belief of having four wives vis-à-vis realisation of the rights of women was cited. How


to guarantee environmental sustainability, consumer protection and human rights in the light of foreign investment; as well as how to address contemporary rights such as abortion and gay rights was raised. In response to some of the issues advanced, it was opined that national Bills of Rights should exist side by side with an East African bill of rights. However, it was argued that the East African bill of rights should be superior to national bills of rights, which calls for the existence of a superior national body to implement it. It was also advised that indivisibility and interdependence of rights should be central to the draft Bill of Rights so CPRs should not take precedence over ESCRs. The necessity of East African priorities or issues unique to East Africa taking priority in the draft Bill of Rights was also emphasised. In this context, national interests need to be balanced against international interests. For example, environmental standards need to be promoted as measures against pollution and toxic waste disposal in the region. And in order to guarantee such standards, it is important to refl ect them in the Bill of Rights supported by statutory law and a strong institutional framework. In order to put human rights in context, a clear distinction needs to be made between culture and harmful traditional practices since not all cultural practices are harmful. Additionally, public order and public morality could be vital in standard setting of human rights. In this case, sensitive rights could be measured against the degree or extent to which they invade the morality of certain cultures. Issues such as the death penalty, which carry religious and moral connotations, also need to be examined in this context. By the same argument, enforcement of rights may also have to be put in context.

Protocol to Extend the Jurisdiction of the East African Court of Justice

In his introduction, Dr. Ruhangisa pointed out the existence of a number of cross-cutting issues raised in the presentations. The discussion below takes cognisance of this and attempts to highlight key issues of Dr. Ruhangisa’s presentation.


Background, Origin and Progress on the Draft Protocol

Both papers are in agreement about the origin of the draft Protocol being the Sectoral Council. It is also agreed that the Protocol was introduced mainly for trade purposes. Likewise both presentations outline the desire of the people of East Africa to have a political federation and the need for a functionally and institutionally strong EACJ to buttress the Political Federation. Both papers also state that, despite the multiple jurisdictions of the EACJ, only one protocol will extend the jurisdiction of the EACJ in accordance with Article 27. Dr. Ruhangisa points out certain recommendations that have been made by the EACJ with respect to the Protocol and its operationalisation. The EACJ has recommended that the provision of original jurisdiction be excluded from the draft Protocol since it is already contained in the Treaty. The EACJ has also noted the need for the respective judiciaries to harmonise interpretation of laws by the national courts through the appellate system. Specifi cally, that preambular statement to the draft Protocol should include a recital on appellate jurisdiction. Again, the ambitious and unrealistic schedule of the consultative process, its limited number and variety of stakeholders was noted. However, Dr. Ruhangisa clarifi ed the national consultative process. He disclosed that workshops took place in all three capitals of the partner states, that a consolidated report prepared and sent to the Sectoral Council. Subsequently, the Sectoral Council directed that the outcome of the consultative process be forwarded to partner states for review of the consolidated report and consideration of the views of stakeholders who participated in the process as well as conduct further consultations with relevant government agencies and stakeholders, to receive comments in preparation for a regional workshop scheduled for late October 2006. Unfortunately, the workshop had not taken place by the end of October 2006.


Identifi ed constraints and challenges

Like the lead presentation, this paper outlines bureaucratic inertia, ignorance of the law and legal illiteracy, the political landscape, expansion of the EAC and the legal backdrop as factors constraining the integration process and impacting on the operationalisation of the draft Protocol. Similarly, the legal backdrop is refl ective of the disharmony in the respective bills of rights, the non-domestication of ratifi ed international human rights instruments by partner states and the absence of a primary source of law for litigation of human rights in the EACJ.

In addition to the above, infl uence, jurisdiction and sovereignty are identifi ed as threats to the role and jurisdiction of the EACJ. It is contended that politicians are likely to fear a vibrant EACJ which is ready to enforce human rights; appeal courts may want to retain their jurisdiction; nationalists may see their infl uence waning, to mention a few. Arguably, these are inexcusable and optimal political will and courage is necessary for the successful enactment of the Protocol. The draft Protocol is also perceived as a unique opportunity for civil society actors, the judiciary and other institutions such as the East African Judges and Magistrates Association (EAJMA) to shape the outcome of the Protocol through substantive contributions and to make the process truly people- driven. In this context, a workable law (draft Protocol) for prosperity and not a situational one meant to serve political interests is agitated for. Other challenges mentioned include wide jurisdiction of the Court vis- à- vis its paltry number of judges; the issue of the concurrent human rights jurisdiction of the EACJ and ACHPR; whether the EACJ will constitute a local remedy in case East African citizens need to take cases to the ACHPR, all already discussed above. This presentation dwells on provisions of the Treaty and the Protocol, which require revisiting, refi ning, deleting or rearranging in more detail.


Revisiting some Provisions of the EAC Treaty and the Draft Protocol1. The admissibility of state claims, specifi cally the inter –state

procedure as well as the admissibility of individual claims, were discussed and commended as positive provisions of the Draft Protocol.

2. More specifi c recommendations for amendment of certain provisions were made by the EACJ namely:

i) Articles 24, 25 and 26 of the Treaty, which deal with the appointment, number, terms, tenure and removal of judges of the EACJ, should be amended to accommodate the extended jurisdiction of the EACJ.

ii) The following appeals should start within the draft Protocol: appeals from the EAC Committee on Trade Remedies; appeals from the fi nal courts of partner states on customs law, and appeals from commercial courts of partner states.

iii) Further consultations should be take place on the criteria for determining the type of appeals that should lie to the EACJ. Special consideration should be given to the international character of the transaction; parties to the dispute, litigation costs, time and money, since the business community prefers litigating at minimal cost. In the same vein, the Protocol should have an appeal system from national courts to the EACJ, which takes care of these concerns.

iv) Article 24 of the draft Protocol relating to enhanced reparation seems to extend to all manner of breaches, including breach of the EAC Treaty by partner states while Article 41 of the European Convention for the Protection of Human Rights (ECPHR) ,which is a similar provision, is restricted to reparation to human rights cases. Article 41 of ECPHR limits itself to compensation for damages and procedural costs and does not cover measures such as restitution of property or commencement of criminal proceedings against offenders since these are within the


realm of national jurisdictions. The placement of Article 24 of the Protocol outside the section dealing with human rights jurisdiction in the draft Protocol also appears to reaffi rm this.

For purposes of clarity the two sections are produced below: Article 24 on Enhanced Reparation provides:

If the Court fi nds that a decision or a measure taken by a legal authority or any other authority of a Partner State is completely or partially in confl ict with the obligations arising from the Treaty, and if the internal law of the said Partner State allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.

On the other hand, Article 41 of the ECPHR on Just Satisfaction states:

If the Court fi nds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary afford just satisfaction to the injured party.”

Recommendation: Article 24 of the Protocol should be limited to human rights violations. Further research should be undertaken to determine how this provision has played out with regard to human rights violations in the ECHR and other international courts before it can be extended to cover other breaches.v) Contradictory provisions:a) Article 9 and Article 14(2)

Article 9 of the Protocol states that the court shall have original jurisdiction in the disposition of all matters on human rights referred to it. Article 14(2) of the same Protocol provides that the court may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law. Recommendation: There is a need to clarify the meaning of Article 9 within the context of Article 14(2).


b) Articles 14 and 15

The EACJ recommended adding the phrase notwithstanding at the beginning of Article 15 to harmonise Articles 14 and 15.

vi) Deleting Article 11(3) and refi ning Article 13

The two articles relate to individual access to the EACJ. Article 11(3) states:

The Court may entitle relevant non- governmental organisations (NGOs) with observer status before the Community and individuals to institute cases directly. Article 13 provides: The Court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the Partner States of the rights set forth in a Human Rights instrument to which the Partner State is party to.

On the basis that Article 13 encapsulates the content of Article 11(3), it was recommended that Article 11(3) should be deleted. In addition, Article 13 should ultimately be revised to refl ect the content of Article 35 of the ECPHR, which was considered more elaborate for guiding the EACJ in determining admissibility of a claim. Article 35 of the ECPHR provides as follows: -

Article 35 - Admissibility criteria 341. The Court may only deal with the matter after all domestic

remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the fi nal decision was taken.

2. The Court shall not deal with any application submitted under Article 34 that

a. Is anonymous. b. Is substantially the same as a matter that has already been

examined by the Court or has already been submittedto another procedure of international investigation or settlement and contains no relevant new information.


3. The Court shall declare inadmissible any individual application submitted under Article 34 which it considered incompatible with the provisions of the Convention or the protocols thereto, manifestly ill-founded or an abuse of the right of application.

4. The Court shall reject any application, which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”

Refi ning the Draft Protocol

Judges of the EACJ have levelled criticism about the style and structure of the Protocol and have made some recommendations, which include the following:

i) Whatever is defi ned in the EAC Treaty need not be redefi ned in the draft Protocol. This specifi cally refers to Articles 1-8 and 16 of the Protocol. To this end, it was proposed that a general statement of the effect that words defi ned in the Treaty carry the same meaning in the draft Protocol could suffi ce.

ii) Since the Protocol makes no distinction between original and extended jurisdiction, the draft Protocol should not provide for original jurisdiction since it is already spelt out in the Treaty.

iii) The defi nition of appellate jurisdiction should be clarifi ed since it is misleading as it refers to matters that are not of an appellate nature, like reference to the court by the secretary general, which is actually a matter of fi rst instance. It was also argued that appeals also differ from reviews and revisions in the national courts. To minimise confusion with respect to appeals, it was recommended that appeals to the EACJ should originate from one court and not from either the High Court or Court of Appeal. Accordingly, Articles 20, 21, and 22 need to be refi ned. The three articles in question are cited below:

Article 20: Appeals on Matters under Customs Union Unless otherwise provided, the Court shall have jurisdiction to hear and


determine appeals from decisions of the highest courts of appeal of Partner States arising under the Customs Law of the Community.”

Article 21: Other Appellate Jurisdiction: The Court shall have jurisdiction to hear and determine appeals from decisions of the Commercial Courts of Partner States.”

Article 22: Court to have Powers of the Court of Original Jurisdiction for purposes of hearing and determining an appeal, the Court shall have powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated.”

iv) The phrase legal authority in the Protocol which appears in Article 24, should be defi ned.

v) The Latin phrase ex aequo bono which appears in Article 8 should be stated in English for purposes of making the draft Protocol user friendly.

Misplaced Mattersi) The judges of the EACJ singled out Articles 2 to 8 as

misplaced. It was proposed that an Act detailing the operations of the EACJ would deal with some of the matters specifi ed under the abovementioned articles.

ii) Similarly, Articles 24, 26, 29 to 37 should form part of the Rules of the EACJ.

Plenary discussion on the Draft Protocol

Several questions were raised after the presentation. Again, the question of whether the EACJ constituted a local remedy in case recourse was made to the ACHR came to the fore. Similarly, the effectiveness and role of the EACJ in the context of the multiple sub-regional courts in the Southern African Development Community (SADC), Common Market of Eastern and Southern Africa (COMESA) and Economic Community of West African States (ECOWAS) also arose again. Other clarifi cations sought related to the involvement of rural populations in the national consultative process on the draft Protocol which took place at national level;


whether the recent landmark decision of the EACJ rendered earlier decisions of the Sectoral Council for Legal and Judicial Affairs void; and how and to whom to present the observations of the workshop for effective action. There was concern as regards the restrictive nature of Article 8 of the Protocol, relating to sources of law and a recommendation that it should be widened. Responding to the above issues, it was conceded that the principle of exhaustion of local remedies could indeed complicate access to the EACJ. In order to circumvent this rule, the Protocol could allow for options such as seeking leave from the court to access the EACJ or taking due consideration of having reasonably exhausted available national remedies. The apprehension surrounding the increasing number of multiple international courts to which East Africans could have resort was dispelled when it was elucidated that both COMESA and SADC courts deal with purely economic issues and currently had no human rights courts. Though it has established a human rights court, the jurisdiction of ECOWAS is limited to West African states, beyond the precincts of East Africa. In addition, EAC partner states have been given a deadline of December 2006 by the World Trade Organisation (WTO), to streamline their multiple memberships to the different customs regimes. Currently, Uganda, Kenya, Rwanda and Burundi belong to COMESA and Tanzania to SADC, yet all the three states of Tanzania, Kenya and Uganda are currently members of the EAC. It was recommended that the issue of court shopping should be dealt with in a more comprehensive manner. A detailed study of the ACHPR to ascertain the overlapping role of the ACHR and the Commission, as well as a comparison of the human rights jurisdictional role of the EACJ should be undertaken. The study would, among other matters entail exploring issues such as whether the EACJ constitutes a local remedy for purposes along the principle of exhaustion of local remedies in the event of recourse to the ACHR. Given its restrictive nature, it was agreed that Article 8 should be amended to allow other sources of law including the draft Bill of Rights. On the issue of the involvement of rural communities


in the national consultative process, it was once again acknowledged that EAC issues were at the periphery in partner states compared to national issues. And to this extent, rural populations, let alone urban populations including the elite such as lawyers, are generally ignorant of the functioning of the EAC and its organs. It was exemplifi ed that the rule of prospective annulment was applied by the EACJ in its fi rst decision and did not vitiate earlier decisions made by the Sectoral Council.

Finally, the need for HRCs to review critically the draft Protocol and to make comments on it, was stressed. Since coordinating ministries were entrusted with co-ordinating the consultative process on the draft Protocol at national level and the EAC Secretariat with the role of the overall co-ordinating organ, HRCs were advised to consult with them closely in order to monitor developments relating to the draft Protocol. The registrar to the EACJ however undertook to request the secretary-general to send communication on the consultative process at regional level directly to HRCs. This notwithstanding, the registrar undertook to personally inform the HRCs of developments at national and regional levels.

Group Discussions

The workshop was structured into working groups based on four thematic areas namely, access to EACJ; enforcement of judgments of the EACJ; the draft Bill of Rights and domestication of international instruments and harmonisation of bills of rights.

Recommendations by the Working Group on Access to EACJ1. On the role of HRCs in promoting access to the EACJ, HRCs

should:i) Carry out awareness programmes/campaigns on the

EACJ and its human rights jurisdiction.ii) Represent litigants as counsel (Article 12 of the Draft

Protocol).iii) Act as parties and friends of the Court.iv) Seek advisory opinions.


2. Structures at institutional, national and regional level must enable HRCs to promote access to the EACJ.

i) At institutional level, an institutional framework within HRCs should be established to deal with legal aspects and awareness campaigns on EACJ matters.

ii) At national level, HRCs should:a) Act as sub-registries of the EACJ, in addition to

ordinary courts of law, which most people fi nd inapproachable and inaccessible due to geographical distance and/ or their limited numbers.

b) Liaise with national bar associations and law reform commissions on matters relating to the EACJ.

iii) At regional level, a regional committee of HRCs should be formed for purposes of addressing EAC and EACJ matters.

3. Action by HRCs with respect to reviewing the draft Protocol, HRCs should:

i) Study the draft Protocol, identify gaps and make the necessary recommendations.

ii) The respective HRCs should collectively engage in dialogue on the identifi ed gaps and recommendations. For purposes of easing amendment of the Draft Protocol as well as to capture the gist of the arguments, a representative of the EAC secretariat should attend the above forum.

iii) Submit the fi nal recommendations of the HRCs on the Draft Protocol to the EAC secretariat for action.

Recommendations by the Working Group on Enforcement of Judgments of the EACJ

To ensure the enforcement of the decisions of the EACJ, HRCs should:

i) Monitor enforcement of decisions of the EACJ by the state as well as ensure state compliance of treaty obligations.

ii) Carry out sensitisation as well as capacity building on the use of current mechanisms of the EAC –how it works and its jurisdiction.


iii) Publicise decisions of the EACJ in Annual Reports of the HRCs and in the media.

iv) Incorporate the role of HRCs in the Draft Bill of Rights.v) Hold joint meetings with various stakeholders including

civil society, the media, attorneys -general and other government departments with a view to building synergy and discussing challenges with the ultimate aim of strengthening the EACJ.

2. Best practices/lessons of HRCs that can be drawn on by the EACJ in fulfi lling its human rights jurisdiction:

i) Releasing popular versions of decisions of the EACJ to the general public in different languages and in the media.

ii) Encouraging public interest litigation.iii) EACJ should adopt circuit hearings in the different EAC

countries.iv) For its proper functioning, the EACJ should work in

collaboration with other bodies such as ACHPR and the UN offi ce of the High Commissioner, National Institutions Unit; the International Coordination Commission as well as the African Co-ordination Committee for training, information and other support.

v) EACJ should, as far as possible, use ADR as a non-confrontational method of settling disputes.

vi) There is a need to set up a government compensation fund to cater for victims of human rights violations.

3. Structures at institutional, national and regional level to enable HRCs to ensure execution of judgments of the EACJ.

i) At institutional level, HRCS should: a. Set up directorates within HRCs to report and consult

on regional human rights issues and other important EAC matters.

b. Establish a website link of all HRCs in the region for the purpose of exchanging information amongst HRCs on the EACJ, EAC as well as other issues.

ii) At national level, establish a national forum constituted of different strategic stakeholders with a view to exchanging ideas and information.


iii) At regional level, establish a regional forum of HRCs to exchange ideas and information and facilitate the protection and promotion of human rights. The regional forum should have a secretariat that operates on a rotational basis.

Recommendations by the Working Group on the East African Draft Bill of Rights1. For a clear /precise human rights regime for the EACJ:

i) East Africans want an apex court as opposed to an international court.

ii) There should be harmonisation of interpretation of laws by giving the EACJ apex jurisdiction.

iii) The expertise of judges in human rights should form part of the selection criteria of judges of the EACJ.

iv) There should be a provision for effective remedies.v) The court hierarchy at national level should be harmonised

in order to determine the highest court at national level for purposes of actualising the principle of exhaustion of national remedies.

vi) A common ratifi cation status should be achieved by EAC partner states within a set timeframe.

vii) The decisions of the EACJ should be binding for all national courts and institutions.

viii) Review the enforcement measures applied by the European Court of Human Rights for purposes of applying them to the EACJ.

ix) Clearly determine the criteria for admissibility of claims by the EACJ.

x) Include a clause in the Bill of Rights indicating the justiciability of ESCRs.

2. The primary source of law of the EACJ should include the following:

i) The East African Bill of Rights as the supreme source of law.


ii) Article 8(g) of the draft Protocol should specify the international human rights instruments; national constitutions and precedents of the EACJ as sources of law.

iii) It was pointed out that while the East African Bill of Rights might not be exhaustive, any right that may have been omitted is not in any way marginalised in importance on the basis of this omission. Such right can still be enforced through interpretation of the bills of rights at national level.

The above sources of law were recommended against the fol-lowing backdrop:

i) The need to contextualise East African experiences.ii) It signifi es regional commitment to human rights.iii) The need to harmonise laws across borders.iv) It allows for a unique opportunity to improve the current

legal system.v) For purposes of creating a strong East African federation

a strong federation requires a strong legal regime.a) The Protocol of San Salvador was commended for containing

certain elaborate provisions which can be incorporated in the draft Bill of Rights.

b) A critical review of the draft Bill also disclosed that a number of rights, such as the right to food, the right to social protection, a right to benefi t of culture, and protection of the elderly were absent and needed to be included.

c) Equally signifi cant is the imperative to include a provision in the Bill of Rights calling for domestication of international law and the establishment of enforcement mechanisms at national level, such as the establishment of a fund for victims.


Recommendations by the working group on domestication of international instruments and harmonisation of bills of rights1. Immediate necessary measures for domestication of regional and

international human rights instruments:i) Identifi cation of all regional and international human rights

instruments by HRCs and civil society organisations, by 30 November, 2006.

ii) Identifi cation of ratifi ed and non-ratifi ed instruments by HRCs and CSOs, by 30 November, 2006.

iii) HRCs to draw to the attention of the respective governments, the non-ratifi ed instruments by 15 December, 2006.

iv) KCK to follow up on above items with the HRCs of Tanzania, Uganda, Kenya and Rwanda by the second week of January 2007.

v) KCK to fast track Burundi immediately by taking the country through the deliberations of this workshop.

2. Immediate measures for national bills of rights to be ratifi ed:i) HRCs and CSOs to lobby governments, parliaments and

the EAC immediately.ii) HRCs and CSOs to sensitise the general public on the

draft Bill of Rights, beginning January 2007.iii) KCK is to follow up on progress of the above activities.iv) HRCs are to provide KCK with feed-back to plan a way

forward by 1 April 2007.

Way Forward

The Way Forward focused on identifying priority actions for intervention with respect to:i) Extending the human rights jurisdiction of the EACJ and the

related amendment of the Zero Draft Protocol.ii) Advancing a bill of rights for East Africa.iii) Enhancing the collaboration of HRCs in the region by various

actors including HRCs, EACJ/EAC and KCK.


The Zero Draft Protocol

Cognisant of the fact that HRCs are critical actors who can make valuable contributions to discussions of the draft Protocol, especially the human rights jurisdiction of the EACJ, but that HRCs were excluded from the consultative process at national level; and mindful that a regional forum for discussion of the draft Protocol by key stakeholders had been scheduled to take place at the end of October 2006, assembling the views of HRCs on the Protocol was considered a matter of the utmost urgency. Against this background, the following propositions were made:1. HRCs should review the draft Protocol with a view to

identifying gaps and areas requiring amendment and making recommendations.

2. To this end, all comments, criticisms and recommendations relating to the draft Protocol from the lead presentation and other workshop presentations and discussions should be compiled by KCK and forwarded to the respective HRCs by 1 November, 2006.

3. HRCs are to conduct dialogue on the draft Protocol via email and present a joint position.

4. The HRC of Uganda agreed to co-ordinate the process through Hon. Aliro Omara and Ms. Patricia Nduru.

5. Comments of HRCs on the draft Protocol should be circulated among the HRCs by email by 15 November 2006.

6. The joint and fi nal position of the national HRCs on the draft Protocol should be submitted to the EAC secretariat by the HRCs themselves and not through KCK. This will also enable HRCs establish direct contact with the EAC secretariat and to pave the way for future rapport with the EAC.

7. KCK was mandated to follow up the EAC secretariat and the co-ordinating ministries on the prospects involving HRCs in future national consultations on the draft Protocol, as well as on date


of the regional forum originally scheduled for end of October 2006. KCK should communicate with the HRCs on receipt of the information.

8. KCK should commission a consultancy to undertake a thorough study of the African Charter on Human and People’s Rights in order to determine any contradictions between its role and that of the ACHR, on the one hand, and the human rights jurisdictional role of the ACHR and the EACJ on the other. Other areas of study should include the principle of exhaustion of local remedies, appeals and remedies. It is hoped that the information gained from this research will also contribute to the improvement of the draft Bill of Rights.

The Draft East African Bill of Rights1. All workshop comments relating to the Bill of Rights should be

tracked and compiled by KCK and the Task Force.2. KCK should organise another meeting of the Task Force to

incorporate the changes and revise the draft Bill of Rights.3. HRCs should introduce and publicise the idea of the Bill of Rights

in their own countries by holding round table discussions with different stakeholders, including law reform commissions, bar bssociations and wider civil society. These should initially be in the form of HRC in-house meetings, which should start as soon as possible and need not wait for the revised draft Bill of Rights. The aim of the round table discussions should, in addition to introducing and publicising the idea of an East African Bill of Rights, forge a way forward on the draft Bill.

4. KCK is to follow up HRCs by mid-January 2007 to obtain feed-back on the progress made.

Enhancing Collaboration by HRCs in the Region by various Actors, Including HRCs, EACJ/EAC and KCK1. Kenya as the secretariat for the African National HRC, is due

to recruit someone to play a coordinating role; this person can


play a key role in enhancing coordination among HRCs in the region.

2. HRCs should:i) Set up a website linking them together. Provision should

be made for this in their 2007/8 budgets.ii) Share information on landmark human rights decisions

by HRCs and the national courts. Uganda undertook to share two landmark Constitutional Court decisions; the one on the death penalty and the one on freedom of information.

iii) Arrange exchange visits.iv) Identify common training needs and hold joint sessions.v) Present joint programmes/research activities by extending

invitations to their counterparts.vi) Work on a joint proposal relating to the draft Protocol

and present it to the Commonwealth, which is convening its fi rst conference for HRCs, for funding. It was noted that Rwanda has applied to join the Commonwealth.

vii) Work out modalities of exchanging staff for purposes of building synergy. It was however emphasized that contact points should be established in each of the HRCs to deal with this issue. Kenya appointed Mr. Ezra Chiloba, Uganda Ms. Patricia Nduru and Tanzania is to communicate their appointment.

viii) The RHRC extended an invitation to its counterparts in the region, for a meeting in Kigali in November 2007.

PART THREE

Protection and Promotion of Human Rights at East African Level

284

13A Critique of the East African Court of

Justice as a Human Rights Court

Solomy Balungi Bbosa

Introduction

I feel honoured and privileged that the executive director and programme offi cer of Kituo Cha Katiba, invited me to give this keynote address on this important subject, to this august gathering of human rights experts, professionals and practitioners. I thank them most sincerely for the invitation.

Background

It is diffi cult to give a comprehensive review on the stature of the EACJ given that it is yet to function as a human rights court. The Zero draft Protocol to operationalise its extended jurisdiction is still under debate. Further diffi culty lies in envisioning what the fi nal version will encompass, and how far it will go in addressing the shortcomings already apparent. The logical option then appears to be to focus on the structure as provided for in the EAC Treaty and how the draft Protocol should improve on it. The contextual background in which the EAC seeks to introduce the draft Protocol is also a relevant consideration. In addition, the author considers the EACJ’s operations, as and when it will be ready to adjudicate on human rights issues. Finally, there is a conclusion. However, a short history on the establishment of the EACJ is necessary before delving into these elements.

EACJ as a Human Rights Court 285

The Establishment of the EACJ: Historical Backgrounda) The Revival of the EAC

The three East African nations of Uganda, Kenya and Tanzania (the partner states), revived the EAC in a different form through the enactment, in 1999, of the EAC Treaty.157 Among considerations that motivated them to do so was the determination to strengthen their economic, social, cultural, political, technological and other ties for rapid and balanced and sustainable development. They were also convinced that co-operation at the regional levels in all fi elds of human endeavour would raise the standards of living of African peoples, maintain and enhance the economic stability, foster close and peaceful relations among African states and accelerate the successive stages in the realisation of the proposed African Economic Community and Political Union (AECPU).158

The EAC Treaty provides for fundamental principles that shall govern the achievement of the objectives of the EAC. They include, among others, good governance, including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people‘s rights in accordance with the provisions of the ACHPR.159 As for principles that shall govern the practical achievement of those objectives, the partner states undertook to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards on human rights.160 While the EAC Treaty does not spell out human rights specifi cally, references made to equality, gender equality, freedom, democracy, fundamental freedoms, the rule of law, and maintenance of universally accepted standards of human rights amply demonstrate that the partner states consider human rights important in the process of the EAC integration.

157 The fi rst EAC set up by the defunct Treaty for East African Corporation of 1967 and based on the provision of common services collapsed, in 1977.

158 See Preamble to the EAC Treaty.159 EAC Treaty, Ibid, Article 6.160 Ibid Article 7.


b) Political Federation as the Ultimate Goal

The ultimate goal for the EAC is to attain political integration in stages, beginning with a customs union, then free movement of people and goods (a Common Market), then a monetary union, and ultimately political union.161 East Africans appear to share the same ideals as their leaders, and perhaps more so. Indeed, from fi ndings of a workshop with stakeholders, the committee on fast-tracking the federation found that the people of East Africa are united in their quest for the federation.162

Like most regional economic integration bodies, the EAC seeks to remove trade barriers and trade freely, and hence lower the cost of doing business. In the globalised world, this is the logical and even the only option. The EAC Treaty163 encapsulates this aspiration. In the implementation of such a grand scheme, disputes are bound to arise. There is also a need to uphold the EAC Treaty regime and to ensure that one or more of the states do not collapse it. The EAC created the EACJ partly to deal with disputes arising from the implementation of the EAC Treaty.

On its role as stated in the EAC Treaty,164 it provides that it shall be a judicial body, which shall ensure adherence to law in the interpretation and application of and compliance with it. It has jurisdiction over the interpretation and application of the EAC Treaty as well as original, appellate, human rights and other jurisdiction, as will be determined by the Council at a suitable subsequent date. To this end, the EAC Treaty enjoins the partner states to conclude a protocol to operationalise the extended jurisdiction.165 It also has jurisdiction to hear disputes between the EAC and its employees.166

161 See Preamble to the EAC Treaty.162 See the Report of the Committee of three persons appointed to examine how to fast-track

the ultimate goal of Political Federation contained in the Report of the Sixth Summit of the EAC Heads of State, November 26, 2004 Para 4.1 p.48-Ref: EAC/SHS/06/2004.

163 See Preamble to the EAC Treaty.164 EAC Treaty, Ibid, Article 23.165 Ibid Article 27.166 Ibid, Article 31.


c) Origin of the draft Protocol

The draft Protocol on extending the jurisdiction of the EACJ, baptised the Zero draft, originated from the EAC Secretariat. The reason for its introduction is that the EAC needs to adopt the draft Protocol urgently … in the spirit of fast tracking regional integration, a principle that was accepted by the EAC Summit at its 3rd Extra Ordinary meeting in Dar es Salaam in May 2005.167

More specifi cally, the EAC Secretariat drafted it on the direction of the Sectoral Council on Legal and Judicial Affairs (the Sectoral Council) because of the need to provide for the handling of disputes that may arise from the implementation of the EAC Competition Law and other trade disputes.168 The Secretariat drafted the draft Protocol in accordance with Article 27(2) of the Treaty for the East African Cooperation of 1967.169

The draft Protocol accordingly provides for original, human rights, and appellate and other jurisdiction, including alternative dispute resolution.

While the reasons for seeking to introduce the draft Protocol appear to be trade oriented, nevertheless there is tacit agreement that the EAC needs to enact only one Protocol to extend the jurisdiction of the EACJ in accordance with Article 27 of the EAC Treaty.

The Sectoral Council scheduled the process of consultation on the draft Protocol to end at the end of August 2005.170 By the end of October 2006 the process had yet to be completed, let alone begun in earnest. The schedule set for the consultative process was unrealistic, given the importance of the draft Protocol and its ramifi cations, as well as the variety and number of stakeholders that the EAC needs to consult.

167 See opening statement of the Attorney General of Kenya, Hon. Amos Wako to the Sectoral Council on Legal and Judicial Affairs (hereinafter referred to as ‘the Sectoral Council’) of July 8, 2000, and Session of the Attorneys General-REF: EAC/SR/31/2005.

168 See the report of the Meeting of the Sectoral Council of November 24, 2004-Ref: EAC/SC/01/2004.

169 Ibid170 Ibid


Contextual Background: Identifi ed Constraints

a) Bureaucratic Inertia

The Committee of three persons charged with fast-tracking the federation, identifi ed several problems hindering regional integration. Among them was a fi nding that EAC decisions requiring amendments to the national laws remain outstanding for long periods.171

Other factors cited include the following:• Apparent lack of commitment towards implementation of agreed

decisions;• Failure to communicate, in timely fashion or at all, agreed

decisions for bureaucrats to implement;• Apparent resistance by high level bureaucrats in government

institutions;• Delays in the ratifi cation of protocols;• Frequent backtracking on decisions taken due to divided loyalties

between state and regional pressures;• Lack of roadmaps with implicit timeframes for implementation

of decisions taken.

b) Ignorance of the Law and Legal Illiteracy

Ignorance of the law and illegal literacy are rampant in the whole of East Africa. Few people understand the law or its processes, let alone its implications or their rights.

c) The Political Landscape

Presently, the political landscape looks rather grim. Strong and explosive constitutional and governance issues continue to preoccupy the partner states. These and other national agendas consume a lot of time, leaving little room for the EAC business. Summits and Council of Ministers meetings are often postponed at short notice, without due regard to the urgency of the business to be transacted or the inconvenience caused to all concerned. These issues were mentioned in an earlier paper and will be referred to shortly.171 Ibid, p.46.


d) Expansion of the EAC

Rwanda and Burundi are poised to join the EAC in November 2006, if the conditions are ripe for them to do so. The EAC Treaty allows new members to join.172 Already, implementation of agreed positions, particularly on the Customs Union, is causing friction. No doubt, expansion of the EAC is a welcome development that might promote peace in the region, as ethnicity should diminish in importance in a greater political entity. However, progress on key issues in the integration process will be slower, with the increase in member states, as areas of disagreement are likely to multiply. The same problems stand in the way of enacting speedily a meaningful protocol. It is incumbent on those whose duty it is to do it to see as priority the need to speedily enact the protocol.

The Structure of the EACJ

a) The EACJ as an International Court

This century has seen a revival, expansion and considerable growth in the number of international courts. One of the writers who have commented on this development173 attribute the phenomenon to several reasons. First, he argues that international law has now encompassed areas that it did not reach previously. This has resulted in states creating obligations for themselves and organisations to deal with these obligations. This has, in turn, created a need to establish mechanisms and institutions to resolve attendant disputes.

Secondly, he argues that the demise of the Soviet Union and the end the Cold War changed the world. It removed a strong political and philosophical hindrance to the resort to international judicial bodies. Socialist states considered international law and international adjudication as a continuation of class struggles of capitalist states. They therefore resorted to diplomatic solutions whenever they had

172 See Article 3 of the EAC Treaty.173 See Romano, Cesare P.R., “The Proliferation of International Judicial Bodies: The Pieces of

the Puzzle,” Volume 31 New York University Journal of Law and Politics, pp.709, 710.


disputes. They have since accepted and even resorted to international judicial fora for settlement of some of their disputes.

At the regional level, he argues that the collapse of the communist ideology has led to the realisation and acceptance of benefi ts of the doctrines of market economies and free trade. He considers establishment and expansion in regional institutions like the EAC as one of the stark consequences of the collapse of Marxist ideas. States have since come together because of shared ideals, values and norms and in some instances cultural, economic and historic ties, to form economic blocs that can assist states to lower the cost of trading and business, stimulate economic growth, transform their economies, and improve the lives of their peoples.

States have established regional organisations or bodies by treaty regimes. As states handle the implementation of the treaties, they require mechanisms to resolve disputes arising from the implementation. They have therefore established courts and other mechanisms to settle such disputes. The EACJ is one of these courts.

The question then arises as to whether the EACJ is an international court and if so, what this stature portends for it as well as the East African peoples. An answer to this question entails a close examination of the EAC Treaty provisions relating to the EACJ, as well as the defi nition of an international court. Reference has already been made to the role of the EACJ.174

International courts have the following features, as opposed to tribunals, which are, by defi nition ad hoc.175 International courts are permanent in that states do not establish them to deal with a case or cases. An international legal instrument establishes these courts. They apply international law in disposing of cases before them, as opposed to national law. Their rules of procedure have existed before the cases they handle arose. They make binding decisions, even if

174 Op.cit.175 Op.cit. pp.713 and 714.


they may have additional jurisdiction to render advisory opinions as well. States select their judges before any case in an impartial and transparent procedure. One of the parties to the disputes they handle must be a state or an international organisation.

From the above defi nition, the conclusion that EACJ is an international court is inescapable. It is a standing court established by the EAC Treaty, and for purposes of resolving a case or cases.176 It has to resort to international law to resolve the cases brought before it.177 It bases its decisions on rules that existed before cases came into existence, and which the parties could not modify.178 Its decisions are binding on the parties.179 Parties do not appoint the judges. Rather, their respective nations select them through an impartial procedure.180 It decides, or is supposed to decide cases between states or between states and an organ of the EACJ, or between a state and a person.181 Only one type of jurisdiction may bring into question the international stature of the EACJ. This relates to any matter arising from an arbitration clause contained in a commercial contract or agreement in which the parties have conferred jurisdiction on the court.182 This is an additional jurisdiction: it does not detract or even diminish its stature as an international court. The EACJ therefore meets the criteria of an international court.183 This stature heightens the expectations of East Africans regarding performance.

b) The law applicable

The question of the applicable law however needs amplifi cation.

On the role of the Court, the EAC Treaty184 provides that the EACJ shall ensure adherence to the law in the interpretation and 176 See Articles 23 and 27 of the EAC Treaty.177 Ibid Articles 6(d), 7(2) and 23.178 Ibid.179 Ibid Articles 35(1) and 36.180 Ibid Article 24.181 Ibid Articles 28, 29, 30, 31, 32, 33, and 35 and the draft Protocol.182 See Article 32 (c) of the EAC Treaty.183 The Court of Justice of the Common Market for Eastern and Southern Africa (hereinafter

referred to as ‘COMESA’) based on a similar Treaty is classifi ed as an international court, see Romano Op cit. at p. 717.

184 Ibid.


application and compliance with the EAC Treaty. It does not state the law it should adhere to specifi cally. However, the EAC Treaty gives further guidance in this regard, to the fundamental principles185 and in the operational principles of the EAC.186

This may appear an oblique reference but it is a pointer to the standards any organ of the EAC, the EACJ inclusive, should set and apply, in any matter. It incorporates universal principles as well as principles of the ACHPR on human rights. These are among the highest standards in human rights187 and as such place the EACJ on a very high pedestal in terms of stature. However, the framers of the EAC Treaty could have been more categorical. The EAC should enact a clear and distinct provision on the law applicable on the model of the ACHR Protocol on the establishment of the ACHR in the EAC Treaty and/or the draft Protocol. No doubt, the fundamental and operational principles serve a purpose but may not be the best place for guidance to the EACJ on the law to apply.

It is apparent therefore that the EACJ does not have a specifi c Treaty-based regime on human rights to enforce, unlike its oldest sister, the European Court of Human Rights (ECHR). The author pointed to this weakness in two earlier papers188 and discussed the legal backdrop in East Africa against which the EAC introduced the draft Protocol. The EAC is yet to harmonise its human rights laws. While the partner states have signed and ratifi ed a number of International Human Rights Instruments, they are yet to domesticate many of

185 Ibid .186 Ibid.187 Ibid, p. 722. He comments on the provisions of the ACHPR and states that several African

states could end up with a dispute settlement and implementation control system stronger and with more bite than the one ordinarily provided for by those treaties for the rest of the world.

188 The fi rst paper is entitled Towards a Protocol extending the jurisdiction of the East African Court of Justice- A paper presented to the East African Law Society Annual General Meeting on November 25, 2005 at Dar es Salaam published in the East African Lawyer of March 2006 Issue No. 10. The second paper is entitled The draft Protocol extending the jurisdiction of the East African Court of Justice, a paper presented to the East African Magistrates and Judges’ Association Annual Meeting at Kampala on 21st April, 2006.


them. On their part, the courts remain reluctant to invoke them.189 In addition, the three partner states have not yet harmonised their respective bills of rights.

Kituo cha Katiba supplied a bill of rights together with the invitation to participate in this event. It is due for discussion later in this workshop. Whatever its origin and its content, the road to its acceptance and inclusion in the EAC Treaty is bound to be a long and arduous one. The important issue is whether this is feasible in the near future, given the contextual background and the fact that the draft Protocol is still pending enactment.

At the regional level, ACHPR is the African regional treaty governing human rights. It has several provisions governing people’s rights. Compared to the ECPHR it has no derogation clauses, e.g. on war or other public emergencies. The question therefore arises as to whether it should be the primary source of law for litigation of human rights in the EACJ, and whether this is desirable.

Two important developments deserve mention at this stage. The fi rst one is that the Protocol to the ACHPR for the Establishment of the African Court on Human Rights adopted by the heads of state of the former Organisation of African Unity (AU) in 1999 became operational after the attainment of the requisite ratifi cations. The AU has already selected the judges to sit on the African Court on Human Rights. Secondly, the AU has adopted an additional Protocol on Women that spells out women‘s rights, which is also operational.

One writer has commended that the ACHR as a unique judicial body distinct from the Inter-American Court of Human Rights (IACHR) and ECHR. He bases this commendation190 on several grounds. It allows actions based on any instrument, including international human rights treaties ratifi ed by the appearing state 189 See the United Nations Charter (UN Charter), the ICCPR, the CEDAW, the ACHPR

among others, and the East Africa Law Reports (EALR) of 2005.190 Op.cit at p. 722.


party. Further, it may rely on, in addition to the ACHPR, any human rights instrument ratifi ed by any state appearing before it. Reliance on any instrument may assist in enforcement of the instruments that lack enforcement procedures. This, in his submission, makes it an enforcement procedure stronger than any other. In these circumstances, enforcing human rights in the EACJ based on the ACHPR model may be the preferred option.

c) The combined jurisdiction of EACJ as a Court of Justice and a Human Rights Court

Another challenge is that the EACJ combines the role of a court of justice for the EAC as well as a human rights and appellate court. In this regard, one may describe it in the words used to describe the Central American Court of Justice of 1991 (Corte Centroamericana de Justicia), (SICA), whose jurisdiction extends over the entire spectrum of possible judicial powers. It includes contentious, advisory, preliminary, arbitral, appellate, constitutional, and administrative jurisdictions.191 There is therefore need to ensure that the totality of the provisions of the EAC Treaty as well as the fi nal Protocol encompass these various jurisdictional roles.

As an example, the EC has two separate courts. The ECJ deals with disputes arising from the functioning of the Treaty of the European Union (EU Treaty).192 The communities referred to in the EU Treaty establishing the European Community, include the European Atomic Energy Community Treaty (EUROTOM) (1958), the European Coal and Steel Community (ECSC) (1951) as well as the European Economic Community under the Treaty of Rome (1958). Like the EAC, the European Communities established the ECJ to achieve a European free market for provision of goods and services within their frontiers.

On the other hand, the ECHR established under the ECPHR (1950) as amended by various Protocols, deals specifi cally with human

191 Op. cit. at p.733.192 See the European Communities Act, 1972.


rights violations under the ECPHR. This is a separate and distinct legal regime. The Council of Europe enacted it at the end of the Second World War to prevent a recurrence of the scale of human rights violations that occurred before and during the Second World War. It came into force in 1953.

Following the fall of the Soviet Union, the CE expanded to include East European countries. It revived the ECHR and restructured it. Various writers have described it as the most accomplished and successful international system for the protection of human rights.193

The European Community194 and the Council of Europe 195 are bigger than the EAC, in terms of the numbers of countries involved as well as population. Nevertheless, the combined docket of the EACJ is cause for worry. Compared to the ECJ and ECHR courts, the EACJ has very wide jurisdiction and the paltry number of six judges, i.e. two per country, might not be suffi cient to handle the work that the enactment of the Protocol is likely to generate.

D. The Concept of Admissibility: Lessons from the European Court of Human Rights

a) The Concept of Admissibility of State Claims

Admissibility defi nes the criteria on which the EACJ should admit claims between partner states or between persons and any partner state(s). Simply stated, it means the procedure of screening the cases with a view to determining those that the Court may validly hear. With regard to claims between states, it is usual to consider viability of the claim itself, nationality of a claimant, exhaustion of local remedies, undue delay in presenting the claim and any other matter affecting admissibility before considering the merits.196

193 Op.cit. at p. 730, Nowak, Manfred, Introduction to the International Human Rights Regime, The Hague: Martinus Nijhoff Publishers, p. 160.

194 The EU consists of 25 states. Bulgaria and Romania have been cleared to join in January 2007. Candidate countries include Croatia, Turkey and the former Yugoslav Republic of Macedonia.

195 The CE consists of 45 States.196 See Brownlie, Ian, Principles of Public International Law (5th Edition), p. 479.


The procedure known as inter-state complaint refers to claims between states. The European System is instructive in this regard. There, this procedure entails states not concerned with the matter to commit themselves, without involvement of any bilateral interests, to the human rights of persons in other states, and to intervene in the event of gross and systematic violations by making inter-state complaints in the name of a common European ordre publique.197 The Europeans credit this procedure with bringing down the Greek Military Junta in 1974.

This is a welcome procedure in the draft Protocol. It should be refi ned and retained, in reliance on the European experience, as it should enable partner states to monitor and audit each other‘s performance in human rights protection and bring political and economic pressure to bear on partner states to uphold and enforce human rights.

b) Admissibility of Individual Claims

The provision in the draft Protocol allowing for judicial individual complaints procedure is a welcome development as it allows victims of human rights violations to access the EACJ. International justice has been transformed from a situation where it was limited to sovereign states, to a state where fundamental common values are shared, protected, and enforceable by all members of the wider society, composed not only of states but also of international organisations and individuals in all of their legal incarnations (i.e. NGOs, people, corporations, natural persons, etc.).198 The EACJ cannot justify being the exception.

Further, the ACHPR Protocol on the ACHPR, whose regime the EACJ is enjoined to uphold, gives access to individuals where a state party has made a declaration to that effect.199

197 See Nowak, Manfred, Introduction to the International Human Rights Regime, op. cit. at p. 166.

198 Ibid p. 728.199 See Articles 5(3) and 34(6) the Protocol to the ACHPR on the EACHR.


Once again, it might be useful to borrow from the European experience. The ECPHR sets various conditions for an individual who wants to access the ECHR.200 The fi rst condition is exhaustion of domestic remedies. The individual has to lodge the application within six months of the fi nal decision by a judicial body. Anonymous applications are not admissible. If the Court has already decided on a matter that is substantially the same or that a party submitted to a body of comparable international jurisdiction, it will not be admissible. The applicant has to show personal detriment, and the injury must have occurred after the coming into force of the ECHR. A similar provision in the Protocol might be clearer. It would give more guidance to the Court on situations in which it could reject a claim from an individual as being inadmissible.

The European experience becomes even more poignant in light of the fact that Western European Nations, through the Council of Europe, were the pioneers in establishing a human rights court in the 1950s. They did not however establish an individual complaints procedure against alleged human rights violations to the ECHR until the early 1990s. They considered it interference in domestic matters and unacceptable to lay individual complaints against alleged human rights violations to an international court. However, since its introduction, it has turned out to be the real strength and success of the Council of Europe for protecting human rights as it facilitates fi nal and binding decisions on whether a state has violated a civil or political right guaranteed under the ECPHR.201

The EAC should revisit and refi ne the admissibility criteria in the draft Protocol for human rights cases. It should further provide for access by NGOs, regional and international organisations. Already organs of the EAC and even individuals have access in that they may seek advisory opinions.202 Granting them further access to litigate human rights would ensure complete access.

200 See Article 35 of the ECPHR.201 Nowak Op.cit., pp. 164 & 168.202 See Article 28,29,30,32,33 and 36 of the EAC Treaty .


Access by individuals and NGOs should be unhampered by political infl uence. Thus, the partner state from which the individual originates should have no say on whether the matter should be admissible and should not consider this as an interference with domestic matters.

Conclusion

The EACJ, being an international court, must live up to this stature. Consumers of its services will gauge its effi cacy from the way it conducts its business, particularly in upholding human rights. Many of the decisions the EAC and its organs have the potential to affect human rights. At the national level, violation of human rights by government agencies is rampant. National sensitivities, considerations or even weaknesses might affect realization of human rights. The international constitution and nature of the EACJ bench should insure its decisions against national sensitivities and considerations. This is crucial to the upholding, enforcement and realization of human rights. The EACJ should boldly stand up to this role.

Its decisions should have a bearing on whether the resurrected EAC is limited to a mere experiment in mere economic co-operation, based on tariff reduction and a free trade zone.203

For the EACJ to perform its functions effectively the EAC should facilitate its operations by providing it with a treaty and protocols based on a functional human rights regime. Signifi cant outstanding issues relating to human rights jurisdiction need to be addressed. If the ACHPR is to be the primary source of law for litigation of human rights or all ratifi ed universal instruments, the EAC Treaty and draft Protocol need to specifi cally make provisions in this regard.

The draft Protocol should guarantee the all-important question of access by individuals, NGOs and international organisations.

In the EC, the ECHR decisions, based on a comprehensive and clear human rights regime, have triggered far-reaching national reforms.

203 Op.cit. where a similar statement has been made.


In the EC, decisions of the EACJ could have similar effects. This will however largely depend on how suited the fi nal version of the draft Protocol is for facilitating standard setting and observance as well as enforcement of human rights of individuals. The East African Bar, national institutions and NGOs should be resourceful; as should the judges.

In this regard, the EC should continue to ensure the quality of individual judges, as this has a direct bearing on their independence and affects the esteem of the court.

One writer has argued:

Respect for a judicial institution turns on the perceived fairness of the substantive law to be applied; the degree of confi dence in the independence, impartiality, and competence of the judges, and the quality of the judgments rendered.204

This comment is still valid, and the EC and partner states should heed it. The enactment of the draft Protocol also affords a unique opportunity to force the domestication of all ratifi ed international instruments by the partner states.205

Given the choices now available to potential litigants for solving their disputes, the EACJ needs to strive to attain, through its handling of each and every case, the trust of the East African peoples.

Meaningful integration will be achieved only if the EC and its peoples enjoy equal rights in an economically vibrant federation where states, individuals, NGOs, regional and international organisations have the capacity to challenge actions and decisions that not only contravene the EAC Treaty but also internationally recognised fundamental values and norms relating to human rights.

204 Caron, David D., “War and International Adjudication: Refl ections on the 1899 Peace Conference,” Volume 94 No. 4 American Journal of International Law, 2000 pp. 4-30 at p. 25.

205 Op. cit.

300

14The draft Protocol to Operationalise the Extended Jurisdiction of the East African Court of Justice: Progress, Challenges and

Prospects

John Eudes Ruhangisa

Introduction

This paper seeks to present a critical analysis of the draft Protocol to Operationalise the Extended Jurisdiction of the East African Court of Justice. It also examines the progress regarding operationalisation of the said draft Protocol, the challenges facing this move and possible future prospects for the draft Protocol. It is important to state at this early stage of the presentation that the EACJ has welcomed and commended the draft Protocol as a positive move towards making the EACJ operational in the future.

Background

Origin of the draft Protocol

The draft Protocol, originated from the EAC Secretariat. The reason for its introduction is that the EAC needs to adopt the Protocol urgently in the spirit of fast tracking regional integration, a principle that was accepted by the EAC Summit at its 3rd Extra Ordinary meeting in Dar es Salaam in May 2005.206 More specifi cally, the EAC Secretariat drafted it on the direction of the Sectoral Council in order to provide for the handling of disputes that may arise from

206 See opening statement of the Attorney- General of Kenya, Hon. Amos Wako, to the Sectoral Council on Legal and Judicial Affairs of July 8, 2005, and Session of the Attorneys General-REF: EAC/SR/31/2005.

The draft Protocol 301

the implementation of the East African Community Competition Law and other trade disputes.207

According to the Secretariat, the basis of the draft Protocol is provisions for the of the Treaty for the EAC Treaty which under Article 27 (2), provides that:

The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the partner states shall conclude a protocol to operationalise the extended jurisdiction.208

The draft Protocol accordingly provides for original, human rights, and appellate and other jurisdiction, including alternative dispute resolution (ADR).

The EACJ has levelled criticism against the draft protocol in respect of style and restructuring, as it does not appear to make a distinction between original and extended jurisdiction. To this end, the EACJ has expressed the view that, since the EAC Treaty spells out the original jurisdiction, there is no need to include it in the draft Protocol.

While the reasons for seeking to introduce the draft Protocol appear to be trade- oriented, nevertheless there is tacit agreement that the EAC needs to enact only one Protocol to extend the jurisdiction of the EACJ in accordance with Article 27 of the EAC Treaty.

The Sectoral Council had scheduled the process of consultation on the draft Protocol to be completed at the end of August 2005.209 By the end of October 2006 the process was yet to be completed. National consultative workshops on the matter were convened in the three capitals on 27 April 2006 (Kampala), 15 May 2006 (Dar es Salaam), and 28 June 2006 (Nairobi), during which, views of various

207 See Minutes of the Meeting of the Sectoral Council of November 24, 2004-Ref: EAC/SC/01/2004.

208 See the Report of the Meeting of the Sectoral Council, Session of the Attorneys General of July 8, 2005, op cit.

209 See Minutes of the Sectoral Council of July 8, 2005, op cit.


stakeholders were sought. A consolidated report on the consultative process was prepared and then considered by the Sectoral Council, which directed that the outcome of the consultative process be forwarded to the partner states. The purpose of circulating the consolidated report was to enable the partner states to:(a) consider the views expressed by different stakeholders who

participated at the national workshops;(b) further consult with all relevant governmental agencies

and stakeholders and receive comments in preparation for the regional workshop on the draft Protocol which was planned to be held in Arusha in late October 2006.

The author’s opinion on the schedule is that it was ambitious and unrealistic, given the importance of the draft Protocol and its rami-fi cations, as well as the variety and number of stakeholders that the EAC needs to consult.

Political Federation as the Ultimate Goal

The desire of East Africans to ultimately attain the lofty goal of a political federation should inform the debate on the draft Protocol. Indeed, from the fi ndings at a workshop with stakeholders, the committee on fast-tracking the federation states that the people of East Africa are united in their quest for a federation.210

Need to Strengthen the EACJ

Clearly, the resurrected EAC should not be limited to an experiment in mere economic co-operation, based on tariff reduction and a free trade zone, contrary to the wishes of the people of East Africa. The people desire to share sovereignty, to achieve meaningful integration. Political federation requires a strong EACJ to buttress it.

210 See the Report of the of the Committee of three persons appointed to examine how to fast track the ultimate goal of Political Federation contained in the Report of the Sixth Summit of the EAC Heads of State, November 26, 2004 Para 4.1 p.48-Ref-EAC/SHS/06/2004).


The Committee on fast-tracking the federation further reported that it received overwhelming evidence of the need to strengthen the EACJ, both functionally and institutionally. It spoke of the need to extend the jurisdiction of the EACJ during the transition period, when the Customs Union will be operative and when the partner states will achieve higher levels of economic integration. It further recommended that the partner states conclude the Protocol to extend the jurisdiction of the EACJ as a matter of urgency.211

The Need to Harmonize Interpretation of Laws by Courts in East Africa through the appellate system

The EACJ has pointed to the need for the respective judiciaries to harmonise interpretation of laws by the courts through the appellate system. In this regard, the EACJ has recommended that recitals are a form of placing in context the reasons for concluding the draft Protocol and, as such, the preambular statements to the Protocol should include a recital on appellate jurisdiction.

Identifi ed Constraints

Bureaucratic inertia

The committee comprising three eminent persons charged with fast-tracking the federation identifi ed several problems hindering regional integration. Among them was a fi nding that EAC decisions requiring amendments to the national laws remain outstanding for long periods.212

Other factors cited include the following:• Apparent lack of commitment towards implementation of agreed

decisions;• Failure to communicate, in timely fashion or at all, agreed

decisions for implementation by bureaucrats;• Apparent resistance by high level bureaucrats in government

institutions;211 Ibid, Para 6.3.5. p. 91212 Ibid, p. 46.


• Delays in the ratifi cation of protocols;• Frequent backtracking on decisions taken due to divided loyalty

between state and regional pressures;• Absence of road maps with implicit timeframes for implementation

of decisions taken.

The above demonstrate the challenges facing meaningful integration.

The legal backdrop

The legal backdrop in East Africa against which the EAC introduced the draft Protocol is less than harmonious. While the partner states have signed and ratifi ed a number of international human rights instruments, they are yet to domesticate many of them. On their part, the courts remain reluctant to invoke these international instruments.213

In addition, the three partner states have not yet harmonised their respective bills of rights. At the regional level, ACHPR is the African Regional Treaty governing human rights. It has several provisions governing peoples’ rights.

Compared to the ECPHR, the ACHPR has no derogation clauses, e.g. on war or other public emergencies. It has an additional Protocol on Women that spells out women‘s rights. The question therefore arises whether the ACHPR should be the primary source of law for litigation of human rights in the EACJ, and whether this is desirable. There are two different schools of thought on this matter. One school of thought proposes that there is no need to re-invent the wheel since the EAC Treaty acknowledges that one of the fundamental principles that shall govern the achievement of the objectives of the EAC by the partner states include recognition, promotion and protection of human and peoples‘ rights in accordance with the provisions of the ACHPR. Article 6 of the EAC Treaty provides under thus:

213 See the UN Charter, the ICCPR, the CEDAW, the ACHPR, et cetera, and the EALR of 2005.


Fundamental Principles of the Community

The fundamental principles that shall govern the achievement of the objectives of the Community by the partner states shall include:

(a) mutual trust, political will and sovereign equality;

(b) peaceful co-existence and good neighbourliness;

(c) peaceful settlement of disputes;

(d) good governance including adherence to the principles of de-mocracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peo-ples rights in accordance with the provisions of the ACHPR; (emphasis added)

(e) equitable distribution of benefi ts; and

(f) co-operation for mutual benefi t.

Another school of thought takes the view that it is important that the people of East Africa formulate a bill of rights that is focussed and suits their circumstances. Kituo Cha Katiba belongs to this school of thought and it has gone further to put down a proposed draft bill of rights for the EAC, the subject one of the papers to be presented during this workshop.

Ignorance of the Law and Legal Illiteracy

Ignorance of the law and illegal literacy are rampant in the whole of East Africa. Few people understand the law or its processes, let alone its implications or their rights.

The Political Landscape

Presently, the political landscape looks rather grim. Strong and explosive constitutional issues continue to preoccupy the partner states. No doubt, these national agendas consume a lot of time, leaving little room for EAC business. Summits and Council of Ministers meetings have often been postponed at short notice,


without due regard to the urgency of the business to be transacted thereat or the inconvenience caused to all concerned. Furthermore, Rwanda and Burundi are poised to join the EAC in November 2006, if the conditions are ripe for doing so.

Excellent Opportunity

Having said that, the author considers to be an excellent opportunity for all civil society organisations and institutions like the EAJMA to make their contributions and shape the outcome of the draft Protocol. The adoption of the Protocol should be a defi ning moment for individual freedom and for development of jurisprudence in East Africa as it is poised to give recognition to judicial individual complaint procedures similar to the protection of fundamental rights before the national courts, and confer appeal jurisdiction to the EACJ, among other matters.

Challenges

Melding Minds-turf wars against the greater good

The Sectoral Council realistically stated the need for broad consultation on matters pertaining to the role and jurisdiction of the EACJ. It pointed out that the EAC should fi nalise the Protocol through a broad consultative process involving the attorneys-general, the judiciaries, and the law reform commissions, the EACJ, the EALA, the national assemblies, bar associations, the business community and civil Society.214 It detailed the matters to be attended to include the following:(a) The partner states’ different court hierarchical systems as provided

for in their respective constitutions, which has an impact on appellate jurisdiction;

(b)The proposed court’s original jurisdiction over matters that are normally within the domain of domestic jurisdiction, e.g. protection of human rights;

214 Minutes of the Sectoral Council of July 8, 2005, Op cit.


(c) The fact that harmonisation of municipal laws, legal training and standardisation of judgments in the EAC context as provided in Article 126(2)(b) of the EAC Treaty, is yet to be accomplished;

(d) The need to harmonise provisions on human rights jurisdiction with the AU strategy on recognition, promotion and protection of human and people‘s rights; and

(e) Proposed jurisdiction on disputes arising out of the implementation of the Protocol on the Establishment of the East African Community Customs Union.215

It is reasonable to expect considerable jostling for space and pushing and pulling in various directions by individuals, institutions and forces reluctant to surrender their sovereignty or even jurisdiction. It is therefore necessary to deal squarely and fi rmly with turf wars that are bound to erupt. Politicians are likely to fear a vibrant EAC ready to enforce human rights. Appeal courts will want to retain their jurisdiction. Nationalists may see their infl uence waning. These may be genuine fears on the part of those who have such infl uence. However, such fear is clearly indefensible. Political will and courage is necessary to see to the successful enactment of the Protocol. The expectation of East Africans is that those in decision making positions will not fail them in this regard. In the quest to bring all stakeholders on board, the EAC should pay attention to national judiciaries and the EACJ. All too often, judicial offi cers have little or no input in legislation concerning the judicial system. Yet, they have a distinct role to play in legal reform. The draft Protocol also affects them in a profound way. The author’s experience in Kampala and Dar es Salaam, at the national consultation forum on the draft Protocol that he attended, confi rmed this reality as there was no-one in attendance from the Judiciary. The desire to have a people-driven EAC dictates that civil society must participate fully in this debate. As Hon. Amanya Mushega, the former secretary-general of the EAC observed, full participation of the people in the regional integration

215 See Meeting of the Sectoral Council , Session of the Attorneys General, of July 8.2005, op cit.


process would give meaning and purpose to the noble objectives of the EAC Treaty and propel the region to prosperity.216

Combined Role of a Court of Justice and Human Rights

One of the major challenges facing the EAC is that the EACJ combines the role of a court of justice for the EAC as well as acting as a human rights and appellate court. There is therefore a need to ensure that the totality of the provisions of the EAC Treaty as well as the Protocol encompass these various jurisdictional roles.

As an example, the EC has two separate courts. The European Court of Justice (ECJ) deals with disputes arising from the functioning of the Treaty of the EU, the Treaty establishing the European Community, and the European Atomic Energy Community Treaty. On the other hand, the ECHR established under the ECPHR as amended by various protocols, deals specifi cally with human rights violations under the ECPHR. Compared to the other two courts, the EACJ has very wide jurisdiction and the paltry number of six judges might not be suffi cient to handle the work that the enactment of the Protocol is likely to generate.

A Workable Law

The importance of melding minds has been discussed. There is a need to present a workable law, and not one meant to serve political or other purposes, at the expense of the largely ignorant public. The EAC should not construct a situational law, but rather as a law for posterity.

To avoid the scenario of a situational law, politicians in the executive and the various legislatures in the partner states, including EALA, need to demonstrate that they value judicial independence and full East African integration. They should not be afraid of either.Concurrent Jurisdiction with the African Court on Human and Peoples’ Rights

216 He was addressing a workshop on the EAC Outreach and publicity programme in Uganda at Hotel Africana organized by the EAC Desk and Foreign Affairs Ministry on Tuesday November 1, 2005.


Whereas, under the AU, there is another dispute settlement organ, the African Court on Human and People’s Rights (ACHPR) , established by the Protocol to the ACHPR,217 the EAC Treaty also vests in the EACJ, jurisdiction on human rights.218 The aim of the draft Protocol is to operationalise this particular jurisdiction on the part of EACJ. In effect, it means therefore that the citizens of EAC partner states have the option to take their human rights cases to any of the said two courts which have concurrent jurisdiction on human rights. It is not clear whether the EACJ will constitute a list of local remedies that the citizens of East Africa may have to exhaust fi rst before taking their cases to the ACHPR.219 It is very interesting to note that the African Court on Human and People’s Rights, whose permanent seat has been located in Arusha, Tanzania, where EACJ is located, also intends to perform the overlapping functions, which were otherwise being performed by the African Commission on Human and Peoples’ Rights.

General Legal Principles

The EACJ has had occasion to address the content of the draft and has sent its recommendations for the attention of those concerned. The author has included most of their recommendations relating to form and content in this paper.

Needless to mention, it is imperative to effect amendments to the EAC Treaty in Articles 24, 25, and 26 in order to accommodate the extended jurisdiction.220

217 See Article 1, Protocol to the ACHPR on the Establishment of the African Court on Human and Peoples’ Rights, 1998.

218 See Article 27 of the EAC Treaty.219 For more discussion on multiplicity of regional courts in Africa with overlapping jurisdiction

and the need for harmonization, read Ruhangisa, John Eudes, “The East African Court of Justice vis a vis African Courts of Justice and Other Initiatives,” in Ajulu, Rok (ed.), The Making of a Region, Midrand, South Africa: Institute of Global Dialogue, 2005, pp. 95-110.

220 These articles of the EAC Treaty concern appointment of judges, number of judges of the Court, tenure of offi ce of judges and removal from offi ce.


Appellate Jurisdiction

The EACJ has identifi ed the following proposed appeals to start with in the draft Protocal:(a) Appeals from the EAC Committee on trade remedies;(b) Appeals from the fi nal courts of partner states on customs law;(c) Appeals from commercial courts of partner states.

There is a need to further consult on the criteria for determination of the type of appeals that should lie with the EACJ. Matters to consider include the international character of the transaction in issue, and parties to the dispute. Furthermore, litigation costs time and money. The business community needs to see fi nality regarding litigating commercial disputes with minimal cost. The Protocol should design the appeal system from national courts to the EACJ in such a way as to take care of their concerns.

Human Rights Jurisdiction

(i) The concept of admissibility: admissibility of state claims

Admissibility defi nes the criteria on which the EACJ should admit claims between partner states or between individuals and any partner state(s). Simply stated, it means the procedure of screening cases with a view to determining those that the court may validly hear. With regard to claims between states, it is usual to consider viability of the claim itself, nationality of a claimant, exhaustion of local remedies, undue delay in presenting the claim and any other matter affecting admissibility before considering the merits.221

The procedure known as inter-state complaint refers to claims between states. The European system is instructive in this regard. There, this procedure was meant for unconcerned states to commit themselves, without bilateral interests whatsoever, to the human rights of persons in other states, and to intervene in the event of gross and systematic violations by making inter-state complaints in

221 See Brownlie, Ian, Principles of Public International Law, op. cit. p. 479.


the name of a common European ordre publique.222 The Europeans credit this procedure with bringing down the Greek Military Junta in 1974.

The author considers this a welcome procedure in the draft Protocol and recommends its retention and refi nement, using the European experience. It should enable partner states to monitor and audit each other‘s performance in human rights protection and bring political and economic pressure on partner states to bear in upholding and enforcing of human rights.

(ii) Admissibility of Individual Claims

The provision in the draft Protocol allowing for judicial individual complaints procedure is a welcome development, as it allows victims of human rights violations to access the EACJ. Be that as it may, great care and caution must be exercised to ensure that individuals are allowed to bring their cases and represent themselves before the EACJ, and their access is not hampered by political infl uence. Thus the partner state from which the victim comes should have no say on whether the matter should be admitted by the EACJ or not. Partner states should not consider this as an interference with domestic matters.

Again, the European experience is very instructive. Western European nations, through the Council of Europe, were the pioneers in establishing a human rights court in the 1950s. They did establish individual complaint procedures against alleged human rights violations to the ECHR until the early 1990s. They considered it to be an interference in domestic matters and unacceptable. Individual Complaints against alleged human rights violations were referred to an international court. However, since its introduction, it has turned out to be the real strength and success of the CE in the protection of human rights as it facilitates fi nal and binding decisions on whether

222 See Nowak, Manfred, Introduction to the International Human Rights Regime, op. cit. p. 166.


a state has violated a civil or political right guaranteed under the ECPHR.223

The EAC should examine the jurisdiction of the EACJ with regard to human rights carefully. By conferring on EACJ human rights jurisdiction, the EAC Treaty as well as the draft Protocol will, in effect, transfer national systems of human rights protection to the regional level. This is an achievement and not a setback. The EACJ should be able to achieve success similar to Europe’s, only if it alone makes the determination conclusively regarding whether a case is admissible or not.

Just Satisfaction/Enhanced Reparation

This concept appears in Article 24 of the draft Protocol. The EAC modelled it on Article 41 of the ECPHR, which sets up the ECHR already mentioned. Both provisions are set out below for comparative purposes.

Article 24 of the Zero draft Protocol provides:

Enhanced Reparation

If the court fi nds that a decision or measure taken by a legal authority or any other authority of a Partner State, is completely or partially in confl ict with the obligations arising from the Treaty, and if the internal law of the partner state concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

On the other hand, Article 41 of the ECPHR provides:

Just Satisfaction

If the Court fi nds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High contracting party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

223 Ibid., pp. 164 and 168.


While ECHR would appear to restrict the reparation to human rights cases, the draft Protocol has extended a similar provision to all manner of breaches, including breach of the EAC Treaty by partner states, which might have nothing to do with human rights violations. The placement of Article 24 in the draft Protocol outside the section dealing with human rights jurisdiction appears to suggest this.

The ECPHR provision in Article 41 premised the reparation clause on the fact that this is the only redress the ECHR can offer to a victim of violation of human rights, i.e. compensation for damages and procedural costs. Other measures like restitution of property, commencing criminal proceedings against offenders, etc. are in the realm of national jurisdictions.

The author recommends that this provision is limited to human rights violations and that the EAC should establish provisions in the draft Protocol to ensure compliance with reparation. There is need to do further research on how this provision has played out with regard to human rights violations in the ECHR and other international courts, and then decide if and how, if at all, it could be extended to other breaches in practice, if desired.

A Window of Opportunity?

This is as an opportunity to advocate for the domestication of all ratifi ed international instruments, as it would help the harmonisation of at least the bills of rights.

Revisiting Some Provisions

There appear to be a few contradictions in the draft Protocol.

Article 9 and Article 14(2)Article 9 in the draft Protocol states that the EACJ shall have original jurisdiction in the disposition of all matters on human rights referred to it. Article 14(2) provides that the EACJ may only deal with a matter after exhaustion of all domestic remedies, according


to the generally recognised rules of international law. The question then arises as to what the former stipulation means.

Articles 14 and 15There also appears to be a contradiction between Articles 14 and 15. The judges of the EACJ have recommended additions of the word ‘notwithstanding’ to the beginning of Article 15 to harmonise the two articles.

Article 11(3) and Article 13As the above articles concern the important issue of individual access to the EACJ, the author has found it necessary to reproduce the articles for maximum appreciation.

Article 11(3) provides:The Court may entitle relevant nongovernmental organizations (NGOs) with observer status before the Community, and individuals to institute cases directly before it.

Then Article 13 provides as follows:1. The Court may receive applications from any person,

nongovernmental organization or group of individuals claiming to be the victim of a violation by one of the partner states of the rights set forth in a human rights Instrument to which the Partner State is party.

2. The partner states undertake not to hinder, in anyway the effective exercise of this right.

The author submits that, while the former may not contradict the latter, the latter adequately guarantees individual access as well as granting audience to NGOs. The author therefore fails to see the relevance of sub-Article 3 of Article 11.

Once again, it might be useful to borrow from the European experience. In this author’s considered opinion, Article 35 of the ECPHR is elegantly constructed.


It provides as follows:

Article 35 - Admissibility Criteria

1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the fi nal decision was taken.

2. The Court shall not deal with any application submitted under Article 34 that

a) Is anonymous; orb) Is substantially the same as a matter that has already

been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.

3. The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the protocols thereto, manifestly ill-founded, or an abuse of the right of application.

4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.

The Article thus gives more guidance to the Court on the situations in which it may reject a claim as being inadmissible. The EAC should adopt Article 13 to it, discarding what is unnecessary.

This paper has dwelt at length on the human rights provisions, more than any other provision. This is for a good reason. This subject is pertinent and signifi cant to the individual citizen in East Africa. It is a subject more talked about than practiced, as recent events in East Africa clearly demonstrate. In the European Council’s experience, the ECHR decisions have triggered far-reaching national reforms.224 In East Africa, decisions of the EACJ could have a similar effect, depending on the extent to which the fi nal version of the draft

224 See Ibid., p.171.


Protocol will be able to facilitate standard setting and observance and enforcement of human rights of the individual, as well as the resourcefulness of counsel and the judges.

Refi ning the draft Protocal

Defi nitions

There is a need to revisit the construction of various articles in order to clear a few gray areas. Judges of the EACJ have recommended that whatever is defi ned in the EAC Treaty need not be redefi ned in the draft Protocol. Articles 1, 2-8 and 16 fall into this category. They further recommend that a general statement to the effect that words as defi ned in the EAC Treaty carry the same meaning in the draft Protocol could suffi ce.

They also point out that the defi nition of appellate jurisdiction is misleading and confusing as it includes matters that are not of appellate nature, like reference to the court by the secretary-general that is actually a matter of fi rst instance. Appeals differ from reviews, and revisions in the national courts.

To avoid confusing litigants, and to force them to make a choice as to where they should lodge their appeals, the judges recommend that appeals should be from one and not either of the High Courts or Courts of Appeal. To this end Articles 20, 21 and 22 need to be refi ned.

The judges also point out that the draft Protocol should defi ne the phrase legal authority while the Latin phrase ex aequo bono should be stated in English to make the draft user- friendly.

Misplaced Matters

The judges specifi cally single out Articles 2-8. They recommend that a law for detailed operations of the EACJ would best provide for some of these matters. They also recommend that Articles 24, 26, and 29 to 37 should form part of the rules of the court.


Conclusion

The author has not discussed each provision in the draft Protocol exhaustively. It has not been possible because of time constraints; the intention of the discussion was the stimulation of general debate.

If East Africans are serious about meaningful regional integration, they must be willing and prepared to invest in it, particularly in institutions that will make its people develop with dignity. A fully-fl edged EACJ with all its attendant jurisdictional roles is one such institution. A strengthened EALA is another. No doubt, there are many other important institutions. East Africans cannot expect a strong EAC if they are not willing to invest in institutions that will guarantee its existence. They should not expect to reap where they have not sown seed. Gaining support for the draft Protocol is not an option. It is an obligation for every East African.

318

15

The Way Forward for the East African Human Rights Institutions

Chris Maina Peter

Introduction

Protection and promotion of human rights are important matters in the agenda at all levels in the world today; on global, regional and municipal levels. The days when governments of the day could harass or torture its own citizens and claim that to be an internal affair are history now.225 Human rights have become a concern of the international community. 226 Therefore a state or a leader can 225 Such notion of internal affairs of states was given impetus by documents such as the

Charter of the OAU which in Article III prohibited interference in internal affairs of member States. On this see inter alia, LEVITT, Jeremy I. (ed.), Africa: Selected Documents on Consultative, Confl ict and Security, Humanitarian, and Judicial Issues, Ardsley, New York: Transnational Publishers, Inc., 2003, p. 53; and WEMBOU, Michel-Cyr Djiena, “The OAU and International Law,” in EL-AYOUTY, Yassin (ed.), The Organisation of African Unity after Thirty Years, Westport, Connecticut and London: Praeger, 1994, p 15 at 16 . See also NALDI, Gino J. (ed.), Documents of the Organisation of African Unity, London: Mansell, 1992; NALDI, Gino J., The Organisation of African Unity: An Analysis of its Role (2nd Edition), London and New York: Mansell, 1999; and WALRAVEN, Klaas van, Dreams of Power: The Role of the Organisation of African Unity in the Politics of Africa 1963 – 1993, Doctoral Thesis, University of Leiden, 1997.

226 Recently, the attempt by Mr. Kibaki of the Party of National Unity (PNU) who had been controversially declared the winner of the December, 2007 presidential elections and his supporters to claim that the problems in Kenya which have led to over 1,000 deaths and numerous displacements was an internal Kenyan problem was rejected by the international community. As a result, the African Union (AU) initiated a dialogue led by the former United Nations Secretary-General Dr. Kofi Annan, an initiative which is supported by the UN and the EU. On the intiative by the international community to bring peace in Kenya see BARASA, Simiyu, “Kenya’s Striffe: The War of Words,” International Herald Tribune (European Edition), 13th February, 2008, p. 8; MILLS, Greg, “Kenya’s Striffe: Defusing the Ethnic Time-Bomb,” International Herald Tribune (European Edition), 13th February, 2008, p. 8; “British Minister Hopeful of Kenya Deal,” The Guardian (Tanzania), 13th February, 2008, p. iii; “Annan Moves Kenya Talks in Drive for Speedy Deal,” ThisDay (Tanzania), 13th February, 2008, p. 12; OGOSIA, Kenneth, “Annan Briefs Legislators on Efforts to End Dispute,” The Citizen (Tanzania),

Way Forward for the EAHR Institutions 319

only undertake to violate fundamental rights and freedoms at his or her own peril.227

The road to this state of affairs has not been easy. It has been full of struggles of all kinds – some fatal, depending on countries and situations. Lives have been lost in the battlefi eld so that others, more fortunate, can live a more dignifi ed life in future.228 In this struggle, institutions known as HRCs or human rights institutions have played a very central role. Originally, these institutions were established to cover the mischief of governments and their offi cials involved in violation of the rights of the ordinary citizens.229 However, now things are changing. Human rights institutions are demanding more autonomy and independence and are being

13th February, 2008, p. 11; “Kenyans Consider Coalition,” The African (Tanzania), 13th February, 2008, p. 4; and GETTLEMAN, Jeffrey, “Progress, With Devils in the Details,” International Herald Tribune (European Edition), 16th and 17th February, 2008, p. 5.

227 It is now a settled matter in international law that there is no time limitation to human rights violators. They will be pursued as long as they live – whether in offi ce or retired. A good case is that of the leader of the Chilean junta, the late Augusto Pinochet (1974-1990). At the time of his death in December, 2006 over 300 charges were still pending against him in Chile for human rights abuses including torture, forced disappearances, assassinations etc. On this dictator see inter alia, ROHT-ARRIAZA, Naomi, The Pinochet Effect: Transitional Justice in the Age of Human Rights, Philadelphia: Pennslyvania University Press, 2004; and STERN, Steve J., Remembering Pinochet’s Chile, Durham, NC: Duke University Press, 2004.

228 Each struggle has its own casualties. In Tanzania for instance, the struggle for pluralism witnesses detention without trial of a number of activists. One of them is Mr. James Mapalala who wrote several petitions to the then Chairman of the then sole ruling party Chama Cha Mapinduzi Mwalimu Nyerere on behalf of the Movement for the Revocation of the One-Party Law. He ended up spending a few years on the Mafi a Island. Those he had consulted for political or legal advice spent a few days in police cells. They include Mzirai Kangero, then a lecturer in the Political Science and Public Administration Department of the University of Dar es Salaam; Prof. Sam Ntiro of the then Department of Art, Theatre and Music of the same University; and Said El Maamry, an Advocate of the High Court of Tanzania. On this see Volume 16 No. 3 Index on Censorship, March, 1987, p. 40; and MWAIKUSA, Jwani T., “Freedom of Association and the One-Party State Syndrome in Tanzania,” in VYAS, Yash; Kivutha Kibwana; Okech Owiti; and Smokin Wanjala (eds.), Law and Development in the Third World, Nairobi: Faculty of Law, University of Nairobi, 1994, p. 141. See also the case of United Republic of Tanzania v. Inspector-General of Police, ex-parte James Mapalala and Mwinyijuma Athumani Upindo, High Court of Tanzania at Dar es Salaam, Miscellaneous Criminal Cause No. 30 of 1986 (Unreported).

229 A case in point in the Permanent Commission of Enquiry (hereinafter referred to as the ‘PCE’) of the United Republic of Tanzania which was established in lieu of providing a bill of rights in the Independence Constitution of 1961.


demanding of governments.230 It is this claim of independence which is giving these institutions authority and turning them into an arena of struggle for a better world.

Bills of rights in East African Constitutions

Human rights institutions can only be effective if they have a “take-off pad,” i.e a premise from which they can mount their promotional and protective mandate. In most cases, this is the bill of rights in the constitution of the country. In most African countries, including East Africa, the various rights to which the individual is entitled are enumerated in the bill of rights. It is common knowledge that bills of rights are not uniform. Much depends on the generosity of the state concerned. The more liberal the State is the more rights and fl exibility will be provided for. Conservative regimes squeeze these rights much further. Therefore, by and large, states agree to incorporate bills of rights in their constitutions because of pressure. In the East African region it was the status of the territory and pressure, either from the departing colonial powers at independence or from the people. In Kenya, Uganda and Zanzibar, where the territories were either colonies or protectorates, it was easy to force a bill of rights in the independence constitutions of these countries.231 In the former Tanganyika which was a mandate and later a trusteeship territory, the new leadership was happy to accept their independence without a bill of rights.232

230 The UHRC is a good example which has proved too independent for the liking of the National Resistance Movement (hereinafter referred to as ‘NRM’) government in Kampala, Uganda.

231 The Independence Constitution of Kenya of 1963 had a bill of rights and the Independence Constitution of Zanzibar of 1963 too had a bill of rights. While the 1963 Constitution of Kenya is still in force, that of Zanzibar was abrogated a month later in January, 1964 in a revolution that brought a completely new regime in power.

232 Tanzania, then known as Tanganyika categorically refused to have a bill of rights on its independence citing technical reasons but actually relying on its strong status as a trustee territory. On this see CHIDZERO, Bernard T.G., Tanganyika and International Trusteeship, London: Oxford University Press, 1961; LISTOWEL, Judith, The Making of Tanganyika, London: Chatto & Windus, 1965; JHAVERI, K.L., Marching with Nyerere: Africanisation of Asians, New Delhi: BR Publishing Corporation, 1999; MUSTAFA, Sophia, The Tanganyika Way, Nairobi: East African Literature Bureau, 1961; and COLE, J.S.R. and W.N. Denison, Tanganyika: The Development of Its Laws and Constitution, London: Stevens & Sons, 1964.


Although the contents of the bills of rights are supposed to be tested in courts of law, the bill of rights provides useful guidance to active human rights commissions. The same rights which are otherwise enforced by courts of law can be easily handled by a human rights institution through a more cordial alternative dispute resolution mechanism which will, at the end of the day, leave all parties happy as winners and losers at the same time.

Introducing Human Rights Institutions in the Region

The oldest human rights institution in the East African region was the PCE of the United Republic of Tanzania. It was introduced as an alternative to the protection normally provided in a bill of rights.233 The Commission was fully under the control of the president, who could easily control its operations remotely, indicating which cases to take up and which offi cers to leave alone.234 This was not healthy and did not encourage the reputation of the Commission or respect by the people. It was replaced, in 2001, by CHRGG.235

233 The PCE was originally established under Chapter VI of the Interim Constitution of 1965 following the Report of the Presidential Commission on the Establishment of a Democratic One-Party State. Later on the Permanent Commission of Enquiry Act, 1966 (Act No. 25 of 1966) provided for its jurisdiction, powers and functions. On the performance of the Commission see McAUSLAN, J.P.W.B and GHAI, Yash P., “Constitution Innovation and Political Stability in Tanzania: A Preliminary Assessment,” Volume 4 No. 4 Journal of Modern African Studies, 1966, p. 474; NORTON, Patrick M., “The Tanzanian Ombudsman,” Volume 22 International and Comparative Law Quarterly, 1973, p. 603; and OLUYEDE, Peter A., “Redress of Grievances in Tanzania,” Public Law, 1975, p. 8.

234 Under the Interim Constitution and the Act establishing it, the president of the United Republic of Tanzania had enormous powers over the Commission. He could stop any enquiry and direct the Commission not to continue with a specifi c enquiry. To cap it all – the fi nal report of its work went to the president.

235 The CHRAGG was established in 2001 as an independent government department under Article 129 of the 1977 Constitution of the United Republic of Tanzania as amended in 2000. It combines the functions of human rights and “ombudsman.” CHRAGG took over the functions of the fi rst ombudsman on the African continent, the Permanent Commission of Enquiry (hereinafter referred to as the ‘PCE’), which was established in 1966 and abolished in 2000 when the new commission was created. See also Chapter Four in the book entitled Empowering People on their Rights in Tanzania written by the vice chairperson of the Commission Hon. Ambassador Mohamed Ramia Abdiwawa. See also Annexture IV (C) of this Book.


The UHRC was provided under the Ugandan Constitution of 1995.236 This Commission was established under a very strong constitution and was managed by very able people. It was effective in the process of interpretation of a more buoyant bill of rights for Uganda, which was modern and covered all forms of rights in all the three generations i.e. civil and political rights; economic social and cultural rights and people’s rights. This Commission has been hailed as one of the current models on the continent; only comparable to that of Ghana and the Republic of South Africa.237

Following in the footsteps of other commissions are the RHRC238 and the KNCHR.239 While the RHRC has proved a vital institution in the post-genocide period, which required a lot of patience in reconciling the population,240 the Kenyan Commission is currently 236 The UHRC, the oldest in the East African region, was established as an independent body

of government, vide Article 54 of the 1995 Ugandan Constitution. In Uganda, issues of mal-administration are handled by the inspectorate of government.

237 See the evaluation in the book Protectors or Pretenders: Government Human Rights Commissions in Africa, New York: Human Rights Watch, 2001.

238 The National Commission on Human Rights of Rwanda is established under the new Constitution adopted by Referendum on 26 May, 2003 and confi rmed by the Rwanda Supreme Court in Decree No. 772/14.06/2003 of 02/06/2003. It is an independent institution with four main objectives: (1) Educate and sensitise the population on human rights; (2) Examine human rights violations perpetrated by state organs, individuals under the state cover, organisations and private individuals; (3) Conduct investigations on human rights violations and bring to court all the culprits; and (4) Prepare and distribute annual reports on human rights situation in Rwanda. See Chapter Three of this book entitled Rwanda: Realising Economic, Social and Cultural Rights and authored by Hon. Commissioner Emmanuel Murangwa.

239 The Kenya National Commission on Human Rights which was established in 2003) is the “new kid on the block” – the latest addition to the family of government human rights commissions in Sub-Sahara Africa. See Chapter Two in this book which is written by Commissioner Lawrence Murugu Mute titled: Infusing Human Rights in Policy and Legislation: Experiences from Kenya National Commission on Human Rights.

240 The Rwanda Human Rights Commission is one of the institutions which have been established in the post-genocide era in the process of promoting peace and reconciliation in the country. On this see PETER, Chris Maina and Edith Kibalama (eds.), Searching for Sense and Humanity: Civil Society and the Struggle for a Better Rwanda, Kampala: Fountain Publishers Ltd, 2006; CENTRE FOR CONFLICT MANAGEMENT, Rethinking Peace, Coexistence and Human Security in the Great Lakes: Proceedings of a Workshop, Butare: Centre for Confl ict Management, 2002; JHA, Uma Shanker and Surya Narayan Yadav, Rwanda: Towards Reconciliation, Good Governance and Development, New Delhi: Association of Indian Africanist, 2003; REPUBLIC OF RWANDA, Opinion Survey on the Process of Decentralisation and Democratisation in Rwanda, Kigali: National Unity and Reconciliation Commission (NURC), March, 2004; REPUBLIC OF RWANDA,


facing a test of its impartiality in a bitterly divided country and chaos following the disputed general elections of 27 December 2007. The unrest has led to mass killings, many of which have been attributed to police and other state organs, and displacement of populations.241

Report of the National Summit on Unity and Reconciliation, Kigali: National Unity and Reconciliation Commission, October, 2002; CARVER, Richard, “Neutralising the Voices of Hate: Broadcasting and Genocide,” in MANJI, Firoze and Patrick Burnett (eds.), African Voices on Development and Social Justice, Dar es Salaam: Mkuki na Nyota Publishers, 2005, p. 69; DORSEY, Michael, “Violence and Power-Building in Post-Genocide Rwanda,” in DOOM, Ruddy and Jan Gorus (eds.), Politics of Identity and Economics of Confl ict in the Great Lakes Region, Brussels: VUB University Press, 2000, p. 311; EDOMWONYI, Oghogho, “Rwanda: The Importance of Local Ownership of the Post-Confl ict Reconstruction Process,” Volume 4 Confl ict Trends, 2003, p. 43; ELTRINGHAM, Nigel & Saskia Van Hoyweghen, “Power and Identity in Post-Genocide Rwanda,” in DOOM, Ruddy and Jan Gorus (eds.), Politics of Identity and Economics of Confl ict in the Great Lakes Region, Brussels: VUB University Press, 2000, p. 215; ELTRINGHAM, Nigel, “Institutions and Individuals: The Rwanda Church and the Discourse of Guilt,” in GOYVAERTS, Didier (ed.), Confl ict and Ethnicity in Central Africa, Tokyo: Institute for Study of Languages and Cultures of Asia and Africa, Tokyo University of Foreign Studies, 2000, p. 225; GAPARAYI, Idi T., “Justice and Social Reconstruction in the Aftermath of Genocide in Rwanda: An Evaluation of the Possible Role of the Gacaca Tribunals,” Volume 1 No. 1 African Human Rights Law Journal, 2001, p. 78; GASARASI, Charles, “Electoral Conduct as a Tool for Rwanda’s Peaceful Exit from the Transition in 2003,” No. 8 Cahiers du Centre de Gestion des Confl icts; Rwanda: Sortir de la Transition et Construire une paix durable, Butare: National University of Rwanda, 2003, p. 17; HOYWEGHEN, Saskia Van, “The Rwanda Villagisation Programme: Resettlement for Reconstruction? in GOYVAERTS, Didier (ed.), Confl ict and Ethnicity in Central Africa, Tokyo: Institute for Study of Languages and Cultures of Asia and Africa, Tokyo University of Foreign Studies, 2000, p. 209; KOMINE, Shigetsugu, “Towards National Reconciliation in Rwanda: The Challenge to a Japanese NGO,” in GOYVAERTS, Didier (ed.), Confl ict and Ethnicity in Central Africa, Tokyo: Institute for Study of Languages and Cultures of Asia and Africa, Tokyo University of Foreign Studies, 2000, p. 263; MUSAHARA, Herman and Chris Huggins, “Land Reform, Land Scarcity and Post-Confl ict Reconstruction: A Case Study of Rwanda,” in HUGGINS, Chris and Jenny Clover (eds.), From the Ground Up: Land Rights, Confl ict and Peace in Sub-Saharan Africa, Pretoria: Institute of Security Studies, 2005, p. 269; NEWBURGER, Emily, “Putting Together the Pieces,” Volume 56 No. 3 Harvard Law Bulletin, 2005, p. 24; PLATE FORME DE LA SOCIÉTÉ, “The Postion of Organisations constituting the Platform of the Rwandan Civil Society concerning the Ad hoc Commission set up by the Chamber of Deputies on January 21st 2004, to investigate the killings in Gikongoro and the Ideology of genocide in Rwanda”, August 11, 2004; REPUBLIC OF RWANDA, Ministry of Local Government and Social Affairs, National Strategy Framework Paper on Strengthening Good Governance for Poverty Reduction in Rwanda, March 2002; and REPUBLIC OF RWANDA, National Commission for Human Rights: Annual Report for 2004, Kigali, March, 2005.

241 It is interesting to note that by the KNHRC standing by justice in this crisis, its chairperson Hon. Maina Kiai has become a target of attacks verbal and threats to his person and family by the regime in power.


The Difference Which Human Rights Commissions Could Make

Although most human rights institutions are established by regimes which do not believe in upholding human and fundamental rights and freedoms in the fi rst place, experience over the years has indicated that, if managed by people of principle and high moral integrity, these institutions could achieve much.

Firstly, unlike courts which sit by and wait for parties to seek justice in them, human rights commissions have the opportunity to take up the initiative towards antagonists who are reluctant to face each other. This could be by way of conciliation or arbitration or some other alternative dispute resolution (ADR) method.242 Secondly, human rights commissions are able to infl uence law reform through research and making concrete recommendations regarding issues of public interest which have a bearing on the improvement of a human rights situation in a country. Thirdly, human rights commissions can directly intervene and inspect institutions in which human rights violations are likely to occur. These include police cells and other detention facilities, as well as prisons.243 This is a vital pre-emptive measure which is important for vulnerable persons in the hands of state organs and the measure can curb impunity. Success in all these areas depends on the people entrusted to manage the human rights commissions. Not every person can operate these institutions. The work should be undertaken by people who believe in and respect human rights, who are prepared to face the violators of human rights and demand that they cease. In short, human rights should

242 Resorting to alternative dispute settlement is important as it leads to justice and fairness and avoids winning by technical legal ground by a person who should have otherwise been on the wrong.

243 Frequent visits by members of the human rights commissions of detention facilities and their dialogue with both the offi cers and inmates creates a spirit of co-operation between the two sides and thus promotes protection of human rights. A good example is Shimo la Tewa Maximum Security Prison in Mombasa where the trust between the prison authorities and the inmates has been so much consolidated by the KNCHR to the extent of establishing a direct contact between the inmates and the Commission without intervention by the prison authorities. This has been facilitated by the vision and far-sightedness of the hard-working current head of the Prison Ms. Wanini Kireri, the fi rst female head of a maximum security prison in Kenya.


be managed by people who are prepared to stand by justice at all costs.244

Keeping Governments of the Day on their Toes

It is possible for human rights institutions to play a major role in revolutionalising the way states perceive human rights and to approach the rights and freedoms of their people. This depends on a variety of factors. One, is the way the law establishing the institutions has been framed. That is, how much independence the institution is given under the law and whether that conforms with the provisions of the Paris Principles of 1993. Two, relates to the integrity and the public standing of the people appointed to manage these institutions. Not every person can be a commissioner. For these institutions to be worth their names, they should have people of high moral integrity, people with a sense of fairness and belief in justice. Three, the appointed commissioners should be able to provide a progressive and purposeful interpretation of both the law providing their mandate and various parts of the bill of rights which is brought to their attention and action.245

If the human rights institution can meet this minimum threshold, then it will be possible for it to check any possible abuse of power by the state and its offi cers and institutions. In return, that will mean better lives for the citizens and other individuals, as their rights and freedoms will be safeguarded and assured.

Conclusion

This work relates to human rights institutions in the East African region. As indicated earlier, its genesis was two workshops which

244 It is unfortunate to note that in most African countries, governments do not look for the most brilliant and honourable people to manage human rights institutions. At times, it is used as a dumping ground for those who have failed elsewhere and those preparing for retirement.

245 It is important for human rights institutions to try and avoid behaving like courts and law and focus mainly on justice and fairness. This became very clear in the Nyamuma Villagers Case in Serengeti, Musoma Region where the CHRAGG began the prococeedings in a very technical manner and had to be reminded of its role in settlement of human rights issues.


brought them together in Arusha in 2004 and 2006.246 These two workshops provided an opportunity for the human rights institutions to discuss two major issues. These are economic, social and cultural rights; and a bill of rights for the region to assist the EACJ as a source; once its mandate has been extended to handle human rights matters.247 The workshop offered an opportunity for commissions and commissioners to meet and exchange their experiences and it served as an inspiration for those East African countries whose human rights institutions are just beginning, such as Kenya,248 and those without institutions of this nature, such as Burundi, to begin thinking of what type of institution to establish.249

It is our earnest belief that this initiative by Kituo Cha Katiba has strengthened the resolve of East African human rights institutions to perform better in the future and to correct past mistakes. It was also an opportunity to know each other and exchange experiences and learn from each other. Therefore, it is obvious that this was a well-considered undertaking by KCK to bring together such important institutions in the region together. This initiative has contributed to the marketing of human rights in the region. For that, KCK should be commended for its role in promoting the protection of and respect for fundamental rights and freedoms in the region.

246 The two workshops which were both held in Arusha, Tanzania were under the following themes: “Human Rights Commissions and Accountability in Eastern Africa,” held between 12 and 13 November, 2004; and “Strenghthening Human Rights Commissions Collaboration at EAC Level,” held between 26 and 27 October, 2006.

247 The possibility of extending the jurisdiction of the EACJ to include handling human rights matters was already envisaged in the EAC Treaty itself.

248 As indicated earlier, the KNCHR, having been established in 2003 is the newest institution in the region.

249 Rwanda as member of the EAC was invited to join other East Africans and also to encourage the country to establish a human rights institution.


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BUJRA, Abdalla, (ed.), Democratic Transition in Kenya: The Struggle from Liberal to Social Democracy, Nairobi and Addis Ababa: ACEG and DPMF, 2005.

CARVER, R. and P. Hunt, National Human Rights Institutions in Africa (Occasional Paper No. 1), Banjul: African Centre for Democracy and Human Rights Studies, 1991.

CHAMBERS, Robert, Rural Development: Putting the Last First, Harlow: Longman, 1983.

COMMONWEALTH HUMAN RIGHTS INITIATIVE, Millennium Report, Human Rights and Poverty Eradication, New Delhi: CHRI, 2001.

DE VOS, Pierre, “Pious Wishes or Directly Enforceable Human Rights?: Social and Economic Rights in South Africa’s 1996 Constitution,” Volume 13 South African Journal of Human Rights, 1997, p. 67.

DRZEWICKI, Krzysztof “Internationalization of Human Rights and Their Juridization,” in Raija Hanski and Markku Suksi (eds.), An Introduction to the International Protection of Human Rights: A Textbook (Second Revised Edition), 1999, p. 31.

EIDE, Asbjørn, “Economic, Social and Cultural Rights As Human Rights” in EIDE, Asbjørn, Catarina Krause and Allan Rosas (eds.) Economic, Social, and Cultural Right: A Textbook, 1995, p. 21.

GOVERNMENT OF THE UNITED REPUBLIC OF TANZANIA, Report and Recommendations of the Presidential Commission on Single Party or Multiparty System in Tanzania, 1991: On the Democratic System in Tanzania (Book I), Dar es Salaam: Dar es Salaam University Press, 1992.


GUTTO, Shadrack, “Beyond Justiciability: Challenges of Implementing/Enforcing Socio-Economic Rights in South Africa,” Volume 4 Buffalo Human Rights Law Review, 1998, p. 79.

HIGGINS, Rosalyn, “Derogations under Human Rights Treaties,” Volume 48 British International Lawyer, 1978, p. 281.

HUMAN RIGHTS WATCH, Protectors or Pretenders? Government Human Rights Commissions in Africa, New York: Human Rights Watch. Rights Watch, 2001.

INTERNATIONAL FEDERATION FOR HUMAN RIGHTS, Zanzibar Wave of Violence: A Fact Finding Report on Police Brutality and Election Mismanagement in Zanzibar, Paris: IFHR, 2001.

KENYA NATIONAL COMMISSION FOR HUMAN RIGHTS, “Land and Human Rights,” Issue No. 5 Nguzo za Haki Journal, 2006.

KESSING, Peter Vedel, “Implementation of the Western Ombudsman Model in Countries in Democratic Transition,” in LINDSNAES, Birgit et al (eds.), p. 121.

KIBWANA, Kivutha, (ed.), Human Rights and Democracy in East Africa: The Constitutional Implication of East African Co-operation, Arusha: East Africa Law Society, 1997.

KIJO-BISIMBA, Helen and Chris Maina Peter (eds.), Justice and Rule of Law in Tanzania: Selected Judgements and Writings of Justice James L. Mwalusanya and Commentaries, Dar es Salaam: Legal and Human Rights Centre, 2005.

LEGAL AND HUMAN RIGHTS CENTRE, Tanzania Human Rights Report for 2001, Dar es Salaam, LHRC, 2002.

MAKUBUYA, Apollo, “The Constitutionality of the death penalty in Uganda. A Critical Inquiry,” Volume 6 No. 2 East African Journal of Peace and Human Rights, 2000, p. 222.

MANJI, Firoz, “Depoliticisation of Poverty,” in EADE, D. (ed.), Development and Rights: Development in Practice Readers Series, London: Oxfam, 1998, p. 1.


MURRAY, Rachel, The Role of National Human Rights Institutions at the International and Regional Levels: The Experience of Africa, Oxford and Portland, Oregon: Hart Publishing, 2007.

MUTE, Lawrence Murugu and Smokin Wanjala (eds.), When the Constitution Begins to Flower, Nairobi: Claripress Publishers, 2002.

NAKAYI, Rose; Monica Twesime-Kirya and Dorothy Kwagala, “The Women’s Initiatives and Lessons Learnt,” Volume 11 No. 2 East African Journal of Peace and Human Rights, 2005, p. 265.

NARAYAN, Deepa, (ed.), Empowerment and Poverty Reduction: A Sourcebook, Washington D.C.: The World Bank, 2002.

OJIENDA, Tom O., “Alice’s Adventures in Wonderland’: Preliminary Refl ections on the Jurisdiction of the East African Court of Justice,” Volume 2 No. 2 East African Journal of Human Rights and Democracy, June, 2004, p. 94.

OJWANG, J.B. and J.A. Otieno-Odek, “The Judiciary in Sensitive Approaches to Human Rights Litigation in Kenya, Volume XXXV No. Netherlands International Law Review, 1988.

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VAN BUEREN, Geraldine, The International Law on the Rights of the Child, Martinus Publishers, 1995 at 137.

PART FOUR:

Annextures

I. The Paris Principles

II. The Draft East African Bill of Rights

III. Bills of Rights of Each of the East African Countries

IV. Key Contact Information on East African Human Rights Institutions

332

ANNEXTURE I

The Paris Principles250

Principles Relating to the Status and Functioning of National Institutions for Protection and Promotion of Human Rights

A. Competence and Responsibilities

1. A national institution shall be vested with competence to protect and promote human rights.

2. A national institution shall be given as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence.

3. A national institution shall, inter alia, have the following responsibilities:

(a) To submit to the government, parliament and any other competent body, on an advisory basis either at the request of the authorities concerned or through the exercise of its power to hear a matter without higher referral, opinions, recommendations, proposals and reports on any matters concerning the protection and promotion of human rights. The national institution may decide to publicize them. These opinions, recommendations, proposals and reports, as well as any prerogative of the national institution, shall relate to the following areas:

(i) Any legislative or administrative provisions, as well as provisions relating to judicial organization, intended to preserve and extend the protection of human rights. In that connection, the national institution shall examine the legislation and administrative provisions in force, as well as bills and proposals, and shall make such recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights. It shall, if necessary, recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures;

(ii) Any situation of violation of human rights which it decides to take up;

(iii) The preparation of reports on the national situation with regard to human rights in general, and on more specifi c matters;

250 Paris Principles relating to the status of national institutions adopted as United Nations General Assembly Resolution No. 48/134 of 20th December, 1993.

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(iv) Drawing the attention of the government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the government;

b) To promote and ensure the harmonization of national legislation, regulations and practices with the international human rights instruments to which the State is a party, and their effective implementation;

c) To encourage ratifi cation of the above-mentioned instruments or accession to those instruments, and to ensure their implementation;

d) To contribute to the reports which States are required to submit to United Nations bodies and committees, and to regional institutions, pursuant to their treaty obligations, and, where necessary, to express an opinion on the subject, with due respect for their independence;

e) To cooperate with the United Nations and any other agency in the United Nations system, the regional institutions and the national institutions of other countries which are competent in the areas of the protection and promotion of human rights;

f) To assist in the formulation of programmes for the teaching of, and research into, human rights and to take part in their execution in schools, universities and professional circles;

g) To publicize human rights and efforts to combat all forms of discrimination, in particular racial discrimination, by increasing public awareness, especially through information and education and by making use of all press organs.

B. Composition and Guarantees of Independence and Pluralism

1. The composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights, particularly by powers which will enable effective cooperation to be established with, or through the presence of, representatives of:

Non-governmental organizations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organizations, for example, associations of lawyers, doctors, journalists and eminent scientists;

Trends in philosophical or religious thought;

Universities and qualifi ed experts;


Parliament;

Government departments (if they are included, these representatives should participate in the deliberations only in an advisory capacity).

2. The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the government and not be subject to fi nancial control which might affect this independence.

3. In order to ensure a stable mandate for the members of the institution, without which there can be no real independence, their appointment shall be effected by an offi cial act which shall establish the specifi c duration of the mandate. This mandate may be renewable, provided that the pluralism of the institution’s membership is ensured.

C. Methods of Operation

Within the framework of its operation, the national institution shall:

1. Freely consider any questions falling within its competence, whether they are submitted by the government or taken up by it without referral to a higher authority, on the proposal of its members or of any petitioner,

2. Hear any person and obtain any information and any documents necessary for assessing situations falling within its competence;

3. Address public opinion directly or through any press organ, particularly in order to publicize its opinions and recommendations;

4. Meet on a regular basis and whenever necessary in the presence of all its members after they have been duly consulted;

5. Establish working groups from among its members as necessary, and set up local or regional sections to assist it in discharging its functions;

6. Maintain consultation with the other bodies, whether jurisdictional or otherwise, responsible for the protection and promotion of human rights (in particular, ombudsmen, mediators and similar institutions);

7. In view of the fundamental role played by the non-governmental organizations in expanding the work of the national institutions, develop relations with the non-governmental organizations devoted to protecting and promoting human rights, to economic and social development, to combating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialized areas.

Annextures 335

D. Additional Principles Concerning the Status of Commissions with Quasi-Jurisdictional Competence

A national institution may be authorized to hear and consider complaints and petitions concerning individual situations. Cases may be brought before it by individuals, their representatives, third parties, non-governmental organizations, associations of trade unions or any other representative organizations. In such circumstances, and without prejudice to the principles stated above concerning the other powers of the commissions, the functions entrusted to them may be based on the following principles:

1. Seeking an amicable settlement through conciliation or, within the limits prescribed by the law, through binding decisions or, where necessary, on the basis of confi dentiality;

2. Informing the party who fi led the petition of his rights, in particular the remedies available to him, and promoting his access to them;

3. Hearing any complaints or petitions or transmitting them to any other competent authority within the limits prescribed by the law;

4. Making recommendations to the competent authorities, especially by proposing amendments or reforms of the laws, regulations or administrative practices, especially if they have created the diffi culties encountered by the persons fi ling the petitions in order to assert their rights.

Notes:

Note: In October, 1991, the United Nations Centre for Human Rights convened an international workshop to review and update information on existing national human rights institutions. Participants included representatives of national institutions, States, the United Nations, its specialized agencies, intergovernmental and non-governmental organizations.

In addition to exchanging views on existing arrangements, the workshop participants drew up a comprehensive series of recommendations on the role, composition, status and functions of national human rights instruments. These recommendations, which were endorsed by the Commission on Human Rights in March, 1992 (Resolution 1992/54) and by the General Assembly in its resolution A/RES/48/134 of 20 December 1993.

A/36/440 (1981), A/38/416 (1983), E/CN.4/1987/37 (1987), E/CN.4/1989/47 and Add. 1 (1989), E/CN.4/1991/23 and Add. 1(1991).

336

ANNEXTURE IIThe Draft East African Bill of Rights

The Draft East African Bill of Rights251

Table of Contents

Preamble

Article

1. Interpretation

2. Fundamental rights

3. Equality and freedom from discrimination

4. Right to life

5. Personal liberty.

6. Right to fair hearing

7. Right to privacy

8. Right to access to information

9. Protection of freedom of conscience, expression, religion and assembly

10. Freedom of association

11. Freedom of expression

12. Protection of freedom of movement

13. Right to participation.

14. Right to contest elections as an independent candidate

15. Respect for human dignity and protection from inhuman treatment

16. Freedom from slavery, servitude and forced labour

17. Right to social protection

18. Protection of minorities

19. Right to health

20. Right to marry and found a family

21. Rights of children251 Developed by the National Human Rights Institutions in the region under the auspices of

Kituo Cha Katiba (Eastern African Centre for Constitutional Development), P.O. Box 3277, Kampala, Uganda, Website: www.kituochakatiba.co.ug, November, 2007

Annextures 337

22. Right to property.

23. Right to food

24. Right to education

25. Rights of women

26. Sexual and reproductive rights

27. Traffi cking of persons

28. Affi rmative action

29. Rights of internally displaced persons and refugees

30. Prohibition of mass expulsion of non citizens

31. Right to clean environment.

32. Rights of persons with disabilities

33. Protection of the elderly

34. Economic rights/ rights of workers

35. Right to housing

36. Citizenship

37. Language, culture, ethics and science

38. Tenure of offi ce for the chief executive

39. Limitation, derogation and scope of rights

40. Human rights and freedoms additional to other rights

41. Enforcement of rights

42. Human rights and freedoms during state of emergency

43. Duties

44. Obligations to enact domestic legislation


THE PREAMBLE

The East African Partner States party to the present Bill of Rights entitled, “Bill of Rights for the East African Community”,

RECOGNISING that the peoples of East Africa have enjoyed close historical, commercial, industrial, cultural and other ties for many years;

AND WHEREAS the Partner States, with a view to strengthening their cooperation are resolved to adhere to the fundamental principle of good governance as set out under Treaty Establishing the East African Community including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality as well as promotion and protection of human and peoples rights;

CONVINCED that an East Africa guided by the above principles and specifi cally by a common East African human rights regime shall foster peace, unity, democracy, social justice, progress and development;

CONSIDERING that the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone;

AGREE AS FOLLOWS:

INTERPRETATION

Article 1: Interpretation

In this Bill, unless the context otherwise requires:-

(a) “Article” means an article of this Bill;

(b) “Bill” means the Draft Bill of Rights for the East African Community;

(c) “Chief Executive Offi cer” means a person designated as the Head of State by a Partner State’s Constitution;

(d) “Child” means a person under the age of eighteen years;

(e) “Community” means the East African Community established by Article 2 of the Treaty establishing the East African Community;

(f) “Court” means a court of judicature established by or under the authority of the Constitution of each Partner State or by or under the authority of the Treaty establishing the East African Community;

(g) “Discriminate” means to give different treatment to different persons attribut-able only or mainly to their respective descriptions by gender, sex, race, col-our, ethnic origin, tribe, birth, old age, creed or religion, social or economic standing, social identity or political opinion, maternal disposition, disability or HIV status whereby persons of one such description are subjected to dis-

Annextures 339

abilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description;

(h) “Environment” means the natural resources of air, water, soil, fauna and fl ora, eco-systems, land, man-made physical features, cultural heritage, the charac-teristics of the landscape and the socio-economic interaction between the said factors and any living and non-living organisms;

(i) “Internally displaced person” means a person who has been forced to leave their home or place of habitual residence for reasons such as natural or man-made disasters, including religious or political persecution or war, but has not crossed an international border.

(j) “Marginalisation” means the process by which disempowered groups are denied the means to improve their position.

(k) “Minorities” means a group which is smaller in number than that of the rest of the population in the East African Community or one that has been disempowered whose members have different ethnic, religious and linguistic features from the rest of the population.

(l) “Partner States” means the Republic of Kenya, the Republic of Uganda, the United Republic of Tanzania, the Republic of Rwanda, the Republic of Bu-rundi and any other country granted membership to the Community under Article 3 of the Treaty establishing the East African Community;

(m) “Person” means a natural or legal person;

(n) “Political party” means a political party which has been granted full registra-tion in accordance with the relevant legislation governing such registration in the Partner State within whose jurisdiction it claims to operate;

(o) “Refugee” means a person who owing to a well-founded fear of being persecut-ed for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of their nationality, and is unable to or, owing to such fear, is unwilling to avail him/herself of the protection of that country. The concept of a refugee includes persons who have fl ed war or other violence in their home country.

(p) “The East African Community” means the East African Community estab-lished by Article 2 of the Treaty establishing the East African Community signed on 30th November 1999 and includes any organ or agency specifi ed in Article 9 of that Treaty.

(q) “Vulnerability” means the inability of the individual, community and society to protect themselves from socioeconomic factors, disease or natural disas-ters.


RIGHTS AND FREEDOMS

Article 2: Fundamental Rights

1. Fundamental rights and freedoms of the individual are inherent and not granted by the Partner States.

2. All power belongs to the people who shall exercise their sovereignty in accord-ance with this Bill of Rights.

3. The Constitution of each Partner State shall guarantee and provide full protec-tion to exercise their sovereignty in accordance with this Bill of Rights.

4. The Constitution of each Partner State shall guarantee and provide full protec-tion to people’s rights in accordance with the provisions herein.

5. The rights and freedoms of the individual and groups identifi ed in the Constitu-tions of the Partner States as well as by the East African Bill of Rights shall be respected, upheld and promoted by all organs and agencies of the Partner States, the Community and by all persons.

Article 3: Equality and Freedom from Discrimination

1. All persons are equal before and under the law in all spheres of civil, political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.

2. No person shall be discriminated against on the ground of gender, sex, race, colour, ethnic origin, tribe, birth, age, creed or religion, social or economic standing, social identity or political opinion, maternal disposition, disability or HIV status.

3. Laws, cultures, customs or traditions which are against the dignity, welfare or interest of individuals which undermine their status shall be prohibited by law.

4. In this article the expression “discrimination” means affording different treat-ment to different persons attributable wholly or mainly to their respective descriptions by gender, sex, race, colour, place of origin or residence or other local connection, tribe, birth, age, creed or religion, social or economic stand-ing, social identity or political opinion, maternal disposition, disability or HIV status.

5. Partner States shall enact laws to protect vulnerable persons from discrimina-tion.

Article 4: Right to Life

1. Every person has the right to life.

2. No person has the right to terminate the life of an unborn child except as may be authorized by law.

Annextures 341

Article 5: Personal Liberty

1. No person shall be deprived of personal liberty except in any of the following:-

(a) in execution of the sentence or order of a court, whether established for one of the Partner States or of an international court or tribunal in respect of a criminal offence of which that person has been convicted, or of an order of a court punishing the person for contempt of court;

(b) in execution of the order of a court made to secure the fulfi llment of any obligation imposed on that person by law;

(c) for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of any of the Partner States;

(d) quarantine for the purpose of preventing the spread of a fatal, infectious or contagious disease;

(e) in the case of a person who has not attained the age of eighteen years, for the purpose of the education or welfare of that person;

(f) in the case of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol, for the purpose of the care or treat-ment of that person or the protection of the community;

(g) for the purpose of preventing the unlawful entry of that person into any of the Partner States, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from any of the Partner States or for the purpose of restricting that person while being conveyed through the Partner States in the course of the extradition or removal of that person as a convicted prisoner from one country to another; or

(h) as may be authorised by law, in any other circumstances similar to any of the cases specifi ed in paragraphs (a) to (g) of this clause.

2. A person arrested, restricted or detained shall be kept in a place authorised by law.

3. A person arrested, restricted or detained shall be informed immediately, in a language that the person understands, of the reasons for the arrest, restriction or detention and of his or her right to a lawyer of his or her choice.

4. A person arrested or detained:-

(a) for the purpose of bringing him or her before a court in execution of an order of a court; or

(b) upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of any of the Partner States, shall,


if not earlier released, be brought to court as soon as possible but in any case not later than twenty-four (24) hours from the time of his or her arrest.

5. Where a person is restricted or detained:-

(a) the next-of-kin of that person shall, at the request of that person, be in-formed as soon as practicable of the restriction or detention; It shall be the duty of the detaining authority to inform the person restricted or detained of his or her right.

(b) the next-of-kin, lawyer and personal doctor of that person shall be allowed reasonable access to that person; and

(c) that person shall be allowed access to medical treatment including, at the request and at the cost of that person, access to private medical treatment.

6. Where a person is arrested in respect of a criminal offence:-

(a) the person is entitled to apply to the court to be released on bail and the court may grant that person bail on such conditions as the court considers reasonable; It shall be the duty of the court to inform the person of his or her right to bail.

(b) in the case of an offence which is triable by the High Court of any of the Partner States as well as by a subordinate court, the person shall be released on bail on such conditions as the court considers reasonable, if that person has been remanded in custody in respect of the offence before trial for one hundred and twenty (120) days;

(c) in the case of an offence triable only by the High Court of any of the Partner States the person shall be released on bail on such conditions as the Court considers reasonable, if the person has been remanded in custody for three hundred and sixty (360) days before the case is committed to that High Court.

7. Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment.

8. The right to an order of habeas corpus shall be inviolable and shall not be sus-pended.

9. A person unlawfully arrested, restricted or detained by any other person or au-thority, shall be entitled to compensation from that other person or authority whether it is the State or an agency of the State or other person or authority.

Article 6: Right to Fair Hearing

1. In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independ-ent and impartial court or tribunal established by law.

Annextures 343

2. Nothing in clause (1) of this article shall prevent the court or tribunal from ex-cluding the press or the public from all or any proceedings before it for reasons of morality, public order or national security, as may be necessary in a free and democratic society.

3. Every person who is charged with a criminal offence shall:-

(a) be presumed to be innocent until proved guilty or until that person has pleaded guilty;

(b) be informed immediately, in a language that the person understands of the nature of the offence;

(c) be given adequate time and facilities for the preparation of his or her defence;

(d) be permitted to appear before the court in person or at that person’s own expense, by a lawyer of his or her choice;

(e) in the case of any offence which carries a sentence of imprisonment for life, be entitled to legal representation at the expense of a Partner State;

(f) be afforded, without payment by that person, the assistance of an inter-preter if that person cannot understand the language used at the trial;

(g) be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court.

4. Nothing done under the authority of the law shall be held to be inconsistent with:-

(a) paragraph (a) of clause (3) of this article, to the extent that the law in ques-tion imposes upon any person charged with a criminal offence, the burden of proving particular facts;

(b) paragraph (g) of clause (3) of this article, to the extent that the law impos-es conditions that must be satisfi ed if witnesses called to testify on behalf of an accused are to be paid their expenses out of public funds.

5. Except with his or her consent, the trial of any person shall not take place in the absence of that person unless the person so conducts himself or herself as to render the continuance of the proceedings in the presence of that person impracticable and the court makes an order for the person to be removed and the trial to proceed in absence of that person.

6. A person tried for any criminal offence, or any person authorized by him or her, shall, after the judgement in respect of that offence, be entitled to a copy of the proceedings upon payment of a fee prescribed by law.

7. No person shall be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place constitute a criminal offence.


8. No penalty shall be imposed for a criminal offence which is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time when it was committed.

9. A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence, shall not again be tried for that offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

10. No person shall be tried for a criminal offence if the person shows that he or she has been pardoned in respect of that offence.

11. Where a person is being tried for a criminal offence, neither that person nor the spouse of that person shall be compelled to give evidence against that person.

12. Except for contempt of court, no person shall be convicted of a criminal of-fence unless the offence is defi ned and the penalty for it prescribed by law.

Article 7: Right to Privacy

1. Every person has the right to privacy, which includes the right not to have -

(a) their person or home searched;

(b) their property searched;

(c) their possessions seized;

(d) the privacy of their communications infringed;

Except as authorized by law.

Article 8: Right to Access to Information

1. Every person has the right of access to information in the possession of a Part-ner State or any organ or agency within the Community, except where such release of the information is likely to prejudice the security and sovereignty of the State or interfere with the right to privacy of any other person.

2. Partner States shall enact laws to enable access to information.

Article 9: Protection of Freedom of Conscience, Expression, Religion and Assembly

1. Every person shall have the right to:-

(a) freedom of speech and expression, which shall include freedom of the press and other media;

Annextures 345

(b) freedom of thought, conscience and belief which shall include academic freedom in institutions of learning;

(c) freedom to practice any religion and manifest such practice which shall include the right to belong to and participate in the practices of any religious body or organization in a manner consistent with this Bill;

(d) freedom to assemble, and to demonstrate, peacefully and unarmed, to collec-tive bargaining and to petition; and

(f) No-one shall be subject to coercion which would impair their freedom to have, adopt or freely change their religion or belief.

Article 10: Freedom of Association

1. Every person shall have the right to freedom of association which shall include the freedom to form, join and maintain associations or unions, including trade unions and political, cultural, religious, linguistic and other civic organizations.

2. No one may be compelled to belong to any association or union – political or otherwise.

Article 11: Freedom of Expression

1. Every person shall have the right to freedom of expression, which includes free-dom of the press and other media, freedom to receive and impart information and ideas, freedom of artistic creativity, and academic freedom and freedom of scientifi c research.

2. The right in this article does not extend to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to harm.

Article 12: Protection of Freedom of Movement

1. Every person shall have the right:-

(a) to move freely throughout East Africa and to reside and conduct business in any part of East Africa;

(b) to enter, leave and return to, East Africa; and

(c) to a passport or other travel document.

Article 13: Right to Participation

1. Every person shall have the right and the opportunity and without unreason-able restrictions:-

(a) to take part in the conduct of public affairs of their Partner State, directly or through freely chosen representatives;


(b) to vote and to be elected at genuine periodic elections held within their Partner State and which shall be by universal and equal suffrage and shall be by secret ballot, guaranteeing the free expression of the will of the elec-tors; and

(c) to have access, on general terms of equality, to public service within their Partner State.

2. All East Africans shall have the right and the opportunity to take part in the conduct of public affairs of the Community, directly or through freely chosen Community representatives.

3. All elections for public offi ces shall be conducted by an independent Electoral Commission.

Article 14: Right to Contest elections as an Independent Candidate

Every person shall have the right and the opportunity to present themselves for elections, and to be elected, at genuine periodic elections held within any Partner State in such manner as provided for by the relevant legislation, regardless of their political affi liation or lack of it.

Article 15: Respect for Human Dignity and Protection from Inhuman Treat-ment

No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment.

Article 16: Freedom from Slavery, Servitude and Forced Labour

1. No person shall be held in slavery or servitude.

2. No person shall be required to perform forced labour.

3. For the purpose of this article, the term “forced labour” shall not include:

(a) any work or service normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during condi-tional release from such detention;

(b) any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscien-tious objectors;

(c) any service exacted in cases of emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civil obligations.

Article 17: Right to Social Protection

1. Social protection shall be extended to all who, because of reasons beyond their control, are unable to provide for themselves a dignifi ed and descent living.

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2. In the case of persons who are employed, the right to social protection shall cover at least medical care and an allowance or retirement benefi t in the case of work accidents or occupational disease and, in the case of women, paid mater-nity leave before and after childbirth.

Article 18: Protection of Minorities

Minorities have a right to participate in decision-making processes and their views and interests shall be taken into account in the making of both national and regional plans and programmes.

Article 19: Right to Health

1. Every individual shall have the right to enjoy the best attainable state of physi-cal and mental health.

2. Partner States shall take the necessary measures including legislative measures to enable their people access health care services including reproductive health and for the protection of persons living with HIV, AIDs and other diseases.

3. No one may be refused emergency medical treatment.

Article 20: Right to Marry and Found a Family

1. The family shall be the natural unit and basis of society which shall be protect-ed and assisted by each Partner State.

2. Marriage shall be between a man and woman who have attained the age of majority and who shall have the right to found a family and be entitled to equal rights in marriage, during marriage and at its dissolution.

3. For purposes of this article, the age of majority shall be eighteen years of age.

Article 21: Rights of Children

1. Each Partner State shall ensure the elimination of all forms of discrimination against children and also ensure the protection of the rights of children as stipu-lated in international declarations and conventions.

2. Children shall have the right to be cared for by their parents or those entitled by law to bring them up.

3. A child is entitled to basic nutrition, shelter, basic health care services and edu-cation which shall be the responsibility of each Partner State and the parents of the child.

4. No child shall be deprived by any person of medical treatment, education or any other social or economic benefi t by reason of religious or other beliefs.

5. Children are entitled to be protected from social or economic exploitation and shall not be employed in or required to perform work that is likely to be hazardous or to interfere with their education or to their health or physical, mental, spiritual, moral or social development.


6. No child shall be subjected to perform work or provide services that are inap-propriate for a person of that child’s age, or place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development.

7. All forms of child labour, including but not limited to child traffi cking, slavery and prostitution, shall be prohibited and punishable by law.

8. Every child accused of an offence, arrested or detained has the right to be kept separately from persons over the age of eighteen years, and to have a legal prac-titioner assigned to the child by the State, and at the State expense, and in civil proceedings affecting the child, if substantial injustice would otherwise result.

Article 22: Right to Property

1. Every person has the right to acquire, hold and dispose property either individ-ually or in association with others, in any part of the East African Community.

2. (1) No person may be deprived of property or any interest in or right over property except where the following conditions are satisfi ed:-

(a) the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public morality or public health, town and country planning or the development or utilization of such property so as to promote the public benefi t; and

(b) the necessity therefore is such as to afford reasonable justifi cation for the causing of hardship that may result to any person having an inter-est in or right over the property; and

(c) provision is made by a law applicable for taking of possession or acqui-sition and for the prompt payment of fair and adequate compensation before such deprivation is effected.

(2) Every person having an interest or right in or over property which is compulsorily taken possession of or whose interest in or right over any property is compulsorily acquired shall have a direct access to a court, tribunal or other forum for:-

(a) the determination of his or her interest or right, the legality of the tak-ing of possession or acquisition of the property, interest or right, and the amount of any compensation to which s(h)e is entitled; and

(b) the purpose of obtaining prompt payment of that compensation.

(3) Nothing contained or done under the authority of any law shall be held to be inconsistent with or in contravention of sub-section (1) or (2):–

(a) to the extent that the law in question makes provision for the taking of possession of property:-

(i) in satisfaction of any tax, duty, rate, cess or other impost;

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(ii) by way of penalty for breach of law, whether under civil process or after conviction of criminal offence under the law of the relevant Partner State;

(iii) as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contract;

(iv) in the execution of judgments or orders of a court, tribunal or other forum in proceedings for the determination of civil rights or obligations;

(v) in circumstances where it is reasonably necessary so to do because the property is a danger or injurious to the health of human beings, animals or plants;

(vi) in consequence of any law with respect to the limitation of actions; or

(vii) for so long as may be necessary for the purposes of an examination, investigation or trial or inquiry or, in the case of land, for the purposes of carrying out thereon of work of soil conservation or the conservation of other natural resources or work relating to agricultural development or improvement (being work relating to the development or improvement that the owner or occupier of the land has been required, and has without reasonable excuse refused or failed, to carry out).

(b) to the extent that the law in question makes provision for the taking of possession or acquisition of:-

(i) enemy property;

(ii) property of a deceased person, a person of unsound mind or a person who has not attained the age of eighteen years, for the purpose of its administration for the benefi t of persons entitled to the benefi cial interest therein;

(iii) property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefi t of the creditors of the bankrupt or body corporate and, subject thereto, for the benefi t of other persons entitled to the benefi cial interest in the property; or

(iv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court, tribunal or other forum or, by order of a court, tribunal or other forum, for the purpose of giving effect to the trust.

(4) Nothing contained in or done under an Act of Parliament in any of the Partner States shall be held to be inconsistent with or in contravention of this article to the extent that the Act in question makes provision for the compulsory taking possession of property or the compulsory acquisition of any interest in or right over property where that property, right or in-terest is vested in a body corporate, established by law for public purposes,


in which no moneys have been invested other than moneys provided by the relevant Parliament.

3. Each Partner State and its society shall have a duty to ensure the protection of public property for the public benefi t.

Article 23 - Right to Food

1. Everyone has the right to adequate food and nutrition, which guarantees an adequate standard of living.

2. In order to promote the exercise of this right and eradicate malnutrition, the Partner States undertake to improve methods of production, supply and distri-bution of food, and to this end, agree to promote greater regional cooperation in support of the relevant national policies.

Article 24: Right to Education

1. All persons have a right:-

(a) to basic primary and secondary education which shall be compulsory and free to all;

(b) to access to technical and vocational education in its different forms; and

(c) to further education, including adult basic education, which each Partner State, through necessary measures, shall make progressively available and accessible.

2. In order to ensure the effective access to, and implementation of, this right, each Partner State shall consider all necessary measures to provide educational alternatives, including single medium institutions, taking into account:-

(a) equity;

(b) quality

(c) practicability; and

(d) the need to redress the results of past discriminatory laws and practices.

3. The development of schools at all levels, whether public or private, shall be actively pursued by the Partner States with a view to achieving the full realiza-tion of this right.

Article 25 - Rights of Women

1. The State shall provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realize their full potential and advance-ment.

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2. The State shall protect women and their rights, taking into account their unique status and natural maternal functions in society.

3. Women shall have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities.

4. Without prejudice to the clause on “affi rmative action”, women shall have the right to affi rmative action for the purpose of redressing the imbalance created by history, tradition or custom.

Article 26: Sexual and Reproductive Rights

1. Each Partner State shall take all appropriate measures:-

(a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

(b) to ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases;

(c) the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction;

(d) the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, Partner States shall take appropriate measures.

(a) to prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;

(b) to introduce maternity leave with pay or with comparable social benefi ts without loss of former employment, seniority or social allowances;

(c) to encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;

(d) to provide special protection to women during pregnancy in types of work proved to be harmful to them;


(e) to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.;

(f) to provide appropriate services in connection with pregnancy, confi nement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientifi c and technological knowledge and shall be revised, repealed or extended as necessary.

Article 27: Traffi cking of Persons

1. Each Partner State shall guarantee and provide for the safety and security of its people.

2. The traffi cking of persons shall be prohibited and shall be punishable by law.

3. Partner States shall take reasonable legislative and other measures, within its available resources, to prevent the traffi cking of persons within the Commu-nity.

Article 28: Affi rmative Action

Each Partner State shall guarantee and provide for affi rmative action in favour of groups marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom, subject to a periodic assessment as to the necessity of such provision to be carried out every fi ve years.

Article 29: Rights of Internally Displaced Persons and Refugees

1. Partner States have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons and refugees within their territorial jurisdiction, as well as provide the means which allow internally displaced persons and refugees to return voluntarily, in safety and with dignity, to their homes or place of habitual residence, or to settle voluntarily in another part of the Community or elsewhere.

2. At the minimum, regardless of the circumstances, and without discrimination, Partner States shall provide internally displaced persons and refugees with and ensure safe access to:-

(a) essential food and clean water;

(b) basic shelter and housing;

(c) appropriate clothing; and

(d) essential medical services and sanitation.

3 Partner States shall allow external humanitarian and other forms of assistance to internally displaced persons and refugees within their territorial jurisdiction.

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Article 30: Prohibition of the Mass Expulsion of Non-citizens

Non-citizens lawfully in the territory of any Partner State shall not be expelled therefrom unless in pursuance of a decision reached in accordance with law before a competent court, tribunal or other forum established by law.

Article 31: Right to a Clean Environment

1. Every person has the right to a clean and healthy environment and to have ac-cess to basic public services.

2. The Partner States shall promote the protection, preservation, and improve-ment of the environment.

Article 32: Rights of Persons with Disabilities

1. Persons with disabilities have a right to respect and human dignity and each Partner State, as well as the Community, shall take appropriate measures to ensure that they realize their full potential.

2. Programs of special education shall be established for persons with disabilities, so as to provide special instruction and training to persons with physical, men-tal, visual or other disabilities.

Article 33: Protection of the Elderly

1. Everyone has the right to special protection in old age. With this in view, the Partner States agree to progressively take the necessary steps to make this right a reality and, particularly, to:–

(a) Provide suitable facilities, as well as food and specialized medical care, for elderly individuals who lack them and are unable to provide them for themselves;

(b) Undertake work programs specifi cally designed to give the elderly the op-portunity to engage in a productive activity suited to their abilities and consistent with their vocations or desires;

(c) Foster the establishment of social organizations aimed at improving the quality of life for the elderly.

Article 34: Economic Rights / Rights of Workers

1. Every person has the right to work under satisfactory, safe and healthy condi-tions, equal pay for equal work without discrimination, rest and reasonable working hours and periods of holidays with pay, as well as remuneration for public holidays.

2. Every person has the right to practice his or her own profession and to carry on any lawful occupation, trade or business.

3. Every worker has a right to form or join a trade union of his or her choice for


the promotion and protection of his or her own economic and social interests, to collective bargaining and representation, to withdraw his or her labour ac-cording to law.

4. The employer of every woman worker shall accord her protection during preg-nancy and after childbirth, in accordance with the law.

5. Every person who works has the right to a just and fair remuneration suffi cient for a decent standard of living for themselves and their families.

6. The Partner States shall endeavour to fulfi l the fundamental rights of all people to social justice and economic development and shall, in particular, ensure that:-

(a) all development efforts are directed at ensuring the maximum social and cultural well being of the people.

(b) all people enjoy rights and opportunities and access to work, pension, retire-ment benefi ts and an adequate standard of living.

(c) there is an integrated and coordinated planning approach and measures necessary to bring about balanced development of the different areas of the Community and between rural and urban areas are undertaken.

(d) Sustainable development and utilization of natural resources is promoted in such a way as to meet the development and environmental needs of the present and future generations.

Article 35: Right to Housing

1. Everyone has the right to have access to adequate housing.

2. Partner States shall take reasonable legislative and other measures, within their available resources, to achieve the progressive realization of this right.

3. No-one shall be evicted from their home, or have their home demolished, with-out an order of court. No legislation shall admit arbitrary evictions.

Article 36: Citizenship

1. No citizen of a Partner State may be deprived citizenship of that Partner State.

2. Every child has the right to a name and a nationality from birth.

Article 37: Language, Culture, Ethics and Science

1. Every person has a right as applicable, to belong to, enjoy, practice, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others, provided that these rights are not exercised in a manner inconsistent with any provision of this Bill of Rights.

2. The Partner States recognize the right of everyone:-

(a) To take part in the cultural and artistic life of their community;

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(b) To enjoy the benefi ts of scientifi c and technological progress;

(c) To benefi t from the protection of moral and material interests deriving from any scientifi c, literary or artistic production of which they are the author as regulated by law.

3. The steps to be taken by the Partner States to ensure the full exercise of this right shall include those necessary for the conservation, development and dis-semination of science, culture and art.

4. The Partner States undertake to respect the freedom indispensable for scientifi c research and creative activity as regulated by law.

5. The Partner States recognize the benefi ts to be derived from the encourage-ment and development of international cooperation and relations in the fi elds of science, arts and culture, and accordingly agree to foster greater international cooperation in these fi elds.

Article 38: Tenure of Offi ce for the Chief Executive

1. All East Africans have the right to participate in the affairs of the Community, individually or through his or her representatives in accordance with the law.

2. No person shall be eligible to serve for more than two terms of fi ve years each as a Chief Executive of a Partner State.

Article 39: Limitation, Derogation and Scope of Rights

1. The rights in this Bill of Rights may only be limited in terms of law of general application to the extent that the limitation is reasonable and justifi able in an open and democratic society based on respect for human dignity, equality and freedom, taking into account all relevant factors, including:-

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the relation between the limitation and its purpose; and

(d) less restrictive means to achieve the purpose.

2. Notwithstanding anything in this Bill, there shall be no derogation from enjoy-ment of the following rights and freedoms:-

(a) freedom from unfair discrimination;

(b) the right to life;

(c) the right to fair hearing;

(d) detention in places authorized by law;

(e) the right to an order of habeas corpus;


(f) respect for human dignity and protection from inhuman treatment;

(g) freedom from slavery or servitude.

Article 40: Human Rights and Freedoms Additional to other Rights

1. The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifi cally mentioned in this Bill shall not be regarded as excluding others not specifi cally mentioned.

2. When interpreting the Bill of Rights, a court, tribunal or other forum estab-lished by law:-

(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; and

(b) may consider international law, whether or not such law has been domesti-cated by a Partner State.

Article 41: Enforcement of Rights

1. Any person who claims that a fundamental right or freedom guaranteed by this Bill of Rights has been infringed or threatened is entitled to apply to a compe-tent court for redress which may include compensation.

2. Any person or organisation may bring any action against the violation of another person’s or group’s human rights.

3. Any person aggrieved by the decision of the highest court within a respective Partner State may appeal to the East African Court of Justice.

4. The East African Legislative Assembly shall make laws for the enforcement of the rights and freedoms under this Bill.

Article 42 - Human Rights and Freedoms during a State of Emergency

1. A state of emergency may be declared only in terms of an Act of Parliament, and only when:-

(a). the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; or

(b) the declaration is necessary to restore peace and order.

2. A declaration of a state of emergency, and any legislation enacted or other ac-tion taken in consequence of that declaration, may be effective only:-

(a) prospectively; and

(b) for no more than twenty-one (21) days from the date of the declaration, unless the Parliament of a respective Partner State resolves to extend the declaration. Parliament may extend a declaration of a state of emergency for no more than three (3) months at a time. The fi rst extension of the

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state of emergency must be by a resolution adopted with a supporting vote of a majority of the members of Parliament. Any subsequent extension must be by a resolution adopted with a supporting vote of at least two-thirds majority of the members of the Parliament. A resolution in terms of this paragraph may be adopted only following a public debate in the Parliament.

3. Any competent court may decide on the validity of:-

(a) a declaration of a state of emergency;

(b) any extension of a declaration of a state of emergency; or

(c) any legislation enacted, or other action taken, in consequence of a declara-tion of a state of emergency.

4. For purposes of this sub-section, the competent court shall be the High Court whose decision will be appealable.

5. Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that:-

(a) the derogation is strictly required by the emergency; and

(b) the legislation:

(i) is consistent with a Partner State’s obligations under international law applicable to states of emergency;

(ii) conforms to sub-section (6); and

(iii) is published in the national Government Gazette as soon as reasonably possible after being enacted.

6. No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise:-

(a) indemnifying the state, or any person, in respect of any unlawful act;

(b) any derogation from this section; or

(c) any derogation from a right mentioned as a non-derogable right.

7. Where a person is restricted or detained under a law made for the purpose of a state of emergency, the following provisions shall apply:-

(a) he or she shall within twenty-four (24) hours after the commencement of the restriction or detention, be furnished with a statement in writing specify-ing the grounds upon which he or she is restricted or detained;

(b) the spouse or next-of-kin of or other person named by the person restricted or detained shall be informed of the restriction or detention and allowed


access to the person within seventy-two (72) hours after the commence-ment of the restriction or detention;

(c) not more than thirty (30) days after the commencement of his or her restric-tion or detention, a notifi cation shall be published in the Gazette and in the media stating that he or she has been restricted or detained and giving particulars of the provisions of the law under which his or her restriction or detention is authorized and the grounds of his or her restriction or detention.

Article 43: Duties

1. Every person shall have duties towards his family and society, the State and other legally recognized communities and the international community.

2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

3. Every individual shall have the duty to respect and consider his or her fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.

4. The individual shall also have the duty:-

(a) to preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his or her parents at all times, to maintain them in case of need;

(b) to serve his or her national community by placing his or her physical and intellectual abilities at its service;

(c) not to compromise the security of the State whose national or resident he or she is;

(d) to preserve and strengthen the national independence and the territorial integrity of East Africa and to contribute to its defence in law;

(e) to preserve and strengthen social and regional solidarity of East Africa whose resident he or she is;

(f) to work to the best of his or her abilities and competence, and to pay taxes imposed by law in the interest of the Community;

(g) to preserve and strengthen positive African cultural values in his or her relations with other members of society, in the spirit of tolerance, dia-logue and consultation, and, in general, to contribute to the promotion of the moral well-being of society;

(h) to contribute to the best of his or her abilities, at all times and at all levels, to the promotion and achievement of African unity.

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5. Every individual shall not only have the right to live and work in a corruption-free society, but shall also have a corresponding duty to fi ght, resist and report corruption.

6. It will be incumbent on the Partner States to take reasonable legislative and other measures to provide for a corruption-free society as well as to ensure protection for whistle-blowers in the progressive realization of this right.

7. All corporations operating within the [East African] Community shall have the duty to provide for a corruption-free environment for the public benefi t.

Article 44: Obligation to Enact Domestic Legislation

Where the rights and freedoms set forth in this Bill are not already guaranteed by legislative provisions, the Partner States undertake to adopt, in accordance with their constitutional processes and the provisions of this Bill, such legislative or other measures as may be necessary for making these rights a reality.


Notes and Introduction to the East African Bill of Rights1.0 Defi ning Human Rights

Human rights are those fundamental entitlements or claims to basic conditions of life enjoyed by all people, anywhere and at all times, that give rise to legal obligations on the part of others. These rights are inalienable: that means, a person has them forever and they cannot be taken away. But a recurring theme in constitutional law is whether private individuals and bodies (such as multi-national enterprises, companies and private schools) are also obliged to observe such rights. It is widely recognised that some private bodies, such as large companies, can have great power. Shouldn’t citizens be protected from non-state bodies that, for example, discriminate unfairly?

To answer this question, international covenants have inadvertently provided that the Bill of Rights does not only apply vertically (from the state downwards, to its citizens) - it also applies, where applicable, horizontally (between one citizen or private body and another).

Human rights fall into two broad classes - fi rst and second generation rights. Civil and political rights are considered fi rst-generation rights. They begin with the basic rights to life, dignity, equality and privacy. But they also include the funda-mental freedoms associated with democracy: freedom of expression, association, assembly, opinion, belief and religion, and movement.

Second-generation rights are those connected to the social and economic features of life - such as access to food, water, housing, healthcare and social security. The right to education and the special rights of children, the elderly and women also comprise second-generation rights.

Third-generation rights - a relatively new fi eld in human rights - concern the right to a clean and safe environment and the right to development, as well as the preservation of culture and language.

Human Rights Principles & Standards

All human rights are based on the following principles and standards. They are:

1. Universal

2. Inalienable

3. Indivisible and interdependent

4. Equality and non-discrimination

5. Participation and inclusion

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6. Progressive realization

7. Monitoring and accountability

However, rights come with responsibilities, such that the upholders of rights (duty bearers) are obliged to:

1. Respect human rights by ensuring that any laws, policies, programmes and practices put in place do not violate human rights;

2. Protect and promote human rights in a manner that ensures that violations by others are prevented, and affordable and accessible redress is provided in instances where violations occur; and

3. Fulfi l human rights whereby positive actions to realise human rights are taken.

And yet, there must be capacity of benefi ciaries of these rights as holders of these rights to understand and claim their rights.

Since people will inevitably have competing and confl icting rights, the Bill of Rights has a clause that allows rights to be limited. One person’s right to dignity, for example, may confl ict with another’s right to freedom of expression. Like-wise, one citizen’s right to be protected from violent suspected criminals will confl ict with that suspect’s right to freedom of movement.

It is an established principle, then, that rights can be limited. The challenge, however, is to allow them to be limited only under strict conditions. If the Bill of Rights simply allowed any kind of restriction its very purpose would be under-mined. As a result, any restriction on a right must be reasonable and the impact or extent of the restriction must match the importance of the aim served by the limitation of the right.

2.0 Review of the Bills of Rights of Kenya, Tanzania Mainland, Uganda and Tanzania Zanzibar

2.1 General Commonalities

In general, it was found that all the Bills of Rights of Kenya, Uganda and Tanzania respectively (incorporating Zanzibar) have similar provisions with regard to most civil and political rights, including:

1. Right to life.

2. Right to privacy.

3. Right to property.

4. Right to a fair hearing.

5. Right to personal liberty.

6. Equality and freedom from discrimination.


7. Human dignity and protection from torture, cruel, inhuman or degrading treat-ment.

8. Right to freedom of conscience, expression, movement, religion, assembly and association, participation in the political affairs of the country.

All the three East African Constitutions have limitations on the enjoyment of human rights for public interest and when it is reasonable or in violation of other peoples’ rights. The rights can be derogated from in certain circumstances such as war.

General Weaknesses and Challenges

While all three East African Bills of Rights dwell elaborately on civil and political rights little or no attention is paid to economic, social and cultural rights. Furthermore the rights elaborated therein are largely the human rights of individuals, ignoring the concept of group/collective right, with the exception of the Ugandan Constitution which attempts to make provision for group rights.

All three Bills of Rights do not adequately cover vulnerable people such as women, children, persons with disabilities, people living with HIV and AIDS, the elderly and minorities.

The Ugandan Constitution’s provisions are more elaborate than the rest but is still lacking. In addition, the infl uence of culture and traditions is evident.

Restrictions on speech specifi cally to protect against hate speech are absent in all the three Bills of Rights. This restriction must be enumerated in a way so as to not give the state excessive control of freedom of speech but limit misuse of it through clearly laid down criteria. This is necessary given the history of tribalism and ethnicism in Africa.

The family forms an important aspect of African culture and society. It must be awarded protection in its privacy and undue interference from the state. A corresponding right should obligate states to enact legislation which seeks to protect the family unit from unforeseen circumstances – particularly with regard to employment, social welfare and social insurance and cultural rights.

The revival of the East African Community does not seem to have had an impact on “Community Citizenship”. Nationality is still defi ned at national level such that pursuing human rights violators across the borders is embroiled in bureaucracy.

1.3 Rationale for a Draft Bill of Rights and Freedoms

Putting East Africa into Context

Kenya, Uganda and Tanzania (together referred to as the East African Commu-nity) have had a long history of close historical, commercial, industrial, cultural and political ties.

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These can be chronologically identifi ed with the construction of the Kenya-Uganda Railway from 1897 to 1901; the establishment of the Customs Collection Centre in 1900; the East African Currency Board in 1905; the Court of Appeal for Eastern Africa in 1909; the Customs Union in 1919; the East African Common Services Organisation from 1961 to 1966, and the East African Community as successive joint organisations of the three countries. These were set up to control and administer certain matters of common interest and to regulate the commercial and industrial relations and transactions between the countries. Unfortunately, in 1977, the then East African Community collapsed.

Re-activation of the East African Community

1. On 30 November 1993, the Agreement for the Establishment of a Permanent Tripartite Commission for East African Cupertino was signed thus ushering in the revival of regional cooperation in East Africa.

2. On 14 March 1996, the Secretariat of the Commission was established in Aru-sha, Tanzania.

3. On 30 November 1999, the Tripartite Agreement was made into a Treaty. It came into force on 7 July 2000.

Establishment and Principles of the Community

Article 2(2) of the East African Community Treaty lays out the stages the coun-tries would go through to establish the Community.

Full integration shall be achieved through the following stages:

Stage 1: The establishment of a Customs Union to oversee trade liberalization and development in accordance with the Treaty through the removal of taxes on goods between the countries of the Community, as well as through the standardization of import tax on all goods from outside East Africa. The Protocol on the Establishment of the East African Customs Union was signed on 2 March 2004 and came into force on 1 January 2005.

Stage 11: The establishment of a Common Market to provide for the free move-ment of labour, goods, services, people and the right of establishment and residence.

Stage 111: The countries of the Community shall develop a Monetary Union whereby they will have the same economic policies and use the same money.

Stage IV: The formation of a Political Federation is the fi nal stage of the Commu-nity. The three countries shall have one central government.

With the revival of the East African Community, comes a shared anticipation in favour of a single political and economic market system that is envisaged to


transform our semi-industrial/agricultural society into a formidable player in a post-modern globalised world ruled by the “market” where free circulation of persons, money, goods and services prevails.

The ravages of poverty, debt, HIV and AIDS, economic exploitation, resource depletion, civil wars and ethnic confl icts are also a part of our shared inheritance. The “domestication” of global human rights standards at sub-regional level is envisaged to strengthen the indivisibility of human rights.

1.4 The Content of the Draft Bill of Rights

The rights and freedoms contained in the Draft East African Bill of Rights are grouped as follows:

1. Dignity or “Primary” rights – these are those rights that protect the indi-vidual as a human being, which is a precondition of his/her protection in the context of his/her relationship with society or with other persons. They would include the right to life (art.4); personal liberty (art.5); protection of privacy (art.7); prohibition of torture and inhuman or degrading treatment (art. 15); prohibition of slavery, servitude and forced labour (art.16), traffi ck-ing of persons (art.27) and prohibition of the mass expulsion of non-citizens (art.30).

2. Freedoms – these are fundamental freedoms, whether individual or collective, which guarantee each person a line of protection within society. Some can be invoked against public authorities and some against private individuals. They include freedom of thought, conscience and religion (art.9); freedom of association (art.10); freedom of expression (art.11); the right to marry and found a family (art.20); the right to property (art.22) and the right to educa-tion (art.24).

3. Equality rights – the benefi ciaries are usually specifi c groups of individuals and will include equality before the law and non-discrimination (art.3); the rights of minorities (art.18); the rights of children (art. 21); affi rmative action (art.28), the rights of women (art.25) and the rights of persons with disabili-ties (art.32).

4. Social rights or “Obligation rights” - their implementation implies State action and/or a political choice involving the legislative body. These include the right to health (art.19); the right to education (art.24); rights of internally displaced persons and refugees (art.29); the right to a clean environment (art.31); the rights of workers (art.34), the right to housing (art.35); and the right to culture (art.37).

5. Citizen’s rights – these are the traditional political rights which have been transposed to fi t the reality of the East African Community. They would include freedom of movement and of residence (art.12); the right to partici-pation, incorporating the right to vote (art.13), the right to contest as an independent candidate (art.14) and citizenship (art.36).

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6. Justice rights or “Guarantee rights” – ensure fundamental protection for indi-viduals against public authorities’ repressive powers. These include the prin-ciple of legality and proportionality (art.6); the right against double jeopardy (art.6), the presumption of innocence (art.6) and access to justice (art.6).

As is usual, the scope of limitation of rights is elaborated in Article 39 under the non-derogable rights and rights additional to other rights under Article 40.

The enforcement aspect is by lodging of a claim with the respective National Courts (Art.41); thereafter, recourse can be sought from the East African Court of Justice. Human rights and freedoms during a “State of Emergency” are elaborated in Article 42.

Finally the duties are laid down in Article 43 – fi rstly, duties imposed on individuals towards the State, family, society and other communities and, secondly, the duty of the State, as well as corporate bodies, to the people, to provide for a corruption free society.

366

ANNEXTURE III

Bills of Rights of Each of the East African Countries

1. CONSTITUTION DE BURUNDI

TITRE III

DES DROITS DE LA PERSONNE HUMAINE, DES DEVOIRS DE L’INDIVIDU ET DU CITOYEN

Article 12.

Le respect des droits et des devoirs proclamés et garantis par la Déclaration Universelle des droits de l’homme, les pactes internationaux relatifs aux droits de l’homme, la Charte africaine des droits de l’homme et des peuples ainsi que la Charte de l’unité nationale est garanti par le présent Acte Constitutionnel. Aucune restriction de ces droits ne peut être imposée que par la loi.1. DES DROITS DE LA PERSONNE HUMAINE

Article 13.

La personne humaine est sacrée et inviolable. L’Etat a l’obligation absolue de la respecter et de la protéger.

Article 14.Chacun a droit au développement et au plein épanouissement de sa personne dans le respect de la présente constitution, de l’ordre public, des bonnes moeurs et des droits d’autrui.

Article 15.Chacun a droit à la vie, à la sûreté de sa personne et à son intégrité physique.

Article 16.La liberté de la personne humaine est inviolable. Des restrictions ne peuvent être apportées à cette liberté qu’en vertu de la loi. Toute personne privée de sa liberté est traitée avec humanité et avec le respect de la dignité inhérente à la personne

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humaine.

Article 17.Tous les hommes sont égaux en dignité, en droit et en devoirs sans distinction de sexe, d’origine, d’ethnie, de religion ou d’opinion. Tous les hommes sont égaux devant la loi et ont droit, sans distinction, à une égale protection de la loi.

Article 18.Nul ne peut être inculpé, arrêté ou détenu que dans les cas déterminés par la loi promulguée antérieurement aux faits qui lui sont reprochés. Le droit de la défense est garanti devant toutes les juridictions. Nul ne peut être distrait contre son gré, du juge que la loi lui assigne.

Article 19.Toute personne accusée d’un acte délictueux est présumée innocente jusqu’à ce que sa

culpabilité ait été légalement établie au cours d’un procès public durant lequel toutes

les garanties nécessaires à sa libre défense lui auront été assurées.

Article 20.Nul ne sera condamné pour des actions ou omissions qui, au moment où elles ont été commises, ne constituaient pas une infraction. De même, il ne peut être infl igé de peine plus forte que celle qui était applicable au moment où l’infraction a été commise.

Article 21.Nul ne peut être soumis à des mesures de sûreté que dans les cas et les formes pré-vus par la loi notamment pour des raisons d’ordre public ou de sécurité de l’Etat.

Article 22.Nul ne peut être soumis à la torture, ni à des sévices ou traitements cruels, inhu-mains ou dégradants.

Article 23.Nul ne peut faire l’objet d’immixtion arbitraire dans sa vie privée, sa famille, son domicile ou sa correspondance, ni d’atteintes à son honneur et à sa réputation. Il ne peut être ordonné de perquisitions ou de visites domiciliaires que dans les formes et les conditions prévues par la loi. Le secret de correspondance et de com-munication est garanti dans le respect des formes et conditions déterminées par la loi.


Article 24.Tous les Burundais ont le droit de se déplacer et de se fi xer librement sur le terri-toire national ainsi que le quitter et d’y revenir. L’exercice de ce droit ne peut être limité que par la loi pour des raisons d’ordre public ou de sécurité de l’Etat, pour parer aux dangers collectifs ou pour protéger des personnes en danger.

Article 25.Aucun citoyen ne peut être contraint à l’exil.

Article 26.Le droit d’asile est reconnu dans les conditions défi nies par la loi. L’extradition n’est autorisée que dans les limites prévues par la loi. Aucun Burundais ne peut être extrude à l’étranger.

Article 27.Toute personne a droit à la liberté de pensée, de conscience, de religion et de culte dans le respect de l’ordre public et de la loi. L’exercice du culte et l’expression des croyances s’effectuent dans le respect du principe de la laïcité de l’Etat.

Article 28.Toute personne a droit à la liberté d’opinion et d’expression dans le respect de l’ordre public et de la loi. La liberté de presse est reconnue et garantie par l’Etat.

Article 29.Toute personne a droit à la propriété. Nul ne peut être privé de sa propriété que pour cause d’utilité publique, dans les cas et de la manière établis par la loi et moy-ennant une juste et préalable indemnité ou en exécution d’une décision judiciaire coulée en force de chose jugée.

Article 30.La liberté de réunion et d’association pacifi ques est garantie dans les conditions fi xées par la loi.

Article 31.Tout Burundais a le droit de participer, soit directement, soit indirectement par ses représentants, à la direction et à la gestion des affaires de l’Etat sous réserve des conditions légales, notamment d’âge et de capacité. Tout burundais a également le droit d’accéder aux fonctions publiques de son pays.

Article 32.La famille est la cellule de base naturelle de la société. Le mariage en est le sup-port légitime. La famille et le mariage sont placés sous la protection particulière

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de l’Etat. Les parents ont le droit naturel et le devoir d’éduquer et d’élever leurs enfants. Ils sont soutenus dans cette tâche par l’Etat et les collectivités publiques. Tout enfant a droit, de la part de sa famille, de la société et de l’Etat, aux mesures de protection spéciale qu’exige sa condition de mineur.

Article 33.Toute personne est fondée à obtenir la satisfaction des droits économiques, sociaux et culturels indispensables à sa dignité et au libre développement de sa personne, grâce à l’effort national et compte tenu des ressources du pays.

Article 34.Tout citoyen a droit à l’égal accès à l’instruction, à l’éducation et à la culture. L’Etat a le devoir d’organiser l’enseignement public. Toutefois, le droit de fonder les écoles privées est garanti dans les conditions fi xées par la loi.

Article 35.L’Etat reconnaît à tous les citoyens le droit du travail et s’efforce de créer des conditions qui rendent la jouissance de ce droit effective. Il reconnaît le droit qu’a toute personne de jouir des conditions de travail justes et satisfaisantes et garantit au travailleur la juste rétribution de ses services ou de sa production.

Article 36.A compétence égale, toute personne a droit, sans aucune discrimination, à un salaire égal pour un travail égal.

Article 37.Tout travailleur peut défendre dans les conditions déterminées par la loi, ses droits et ses intérêts, soit individuellement, soit collectivement ou par l’action syndicale. Le droit de grève s’exerce dans les conditions défi nies par la loi.

Article 38.Chacun a droit à la protection des intérêts moraux et matériels découlant de toute production scientifi que, littéraire ou artistique dont il est l’auteur.

Article 39.Tout étranger qui se trouve sur le territoire de la République jouit de la protection accordée aux personnes et aux biens en vertu du présent Acte Constitutionnel et de la loi.

Article 40.Dans l’exercice de ses droits et dans la jouissance de ses libertés, chacun n’est soumis qu’aux limitations établies par la loi exclusivement en vue d’assurer la


reconnaissance et le respect des droits et libertés d’autrui et afi n de satisfaire aux justes exigences de la morale, de l’ordre public et du bien-être général, dans une société démocratique.

Article 41.Le pouvoir judiciaire, gardien des droits et des libertés publiques, assure le respect de ces droits dans les conditions prévues par la loi.

Article 42.Nul ne peut abuser des droits reconnus par l’Acte constitutionnel ou par la loi pour compromettre l’unité nationale, l’intégrité territoriale ou l’indépendance du Burundi, porter atteinte au régime républicain, à la laïcité de l’Etat ou violer de toute autre manière le présent Acte Constitutionnel.

2. DES DEVOIRS DE L’INDIVIDU ET DU CITOYEN

Article 43.Chaque citoyen a des devoirs envers la famille et la société, envers l’Etat et les autres collectivités publiques.

Article 44.Chaque Burundais a le devoir de préserver et de renforcer l’Unité nationale con-formément à la Charte de l’unité nationale.

Article 45.Chacun est tenu de respecter les lois et les institutions de la République.

Article 46.Chaque Burundais a le devoir de préserver le développement harmonieux de la famille et d’oeuvrer en faveur de la cohésion et du respect de cette famille, de respecter à tout moment ses parents, de les nourrir et de les assister en cas de nécessité.

Article 47.Chaque individu a le devoir de respecter et de considérer son semblable sans discrimination aucune, et d’entretenir avec lui les relations qui permettent de pro-mouvoir, de sauvegarder et de renforcer le respect et la tolérance réciproques.

Article 48.Chaque Burundais doit veiller, dans ses relations avec la société, à la préserva-tion et au renforcement des valeurs culturelles burundaises et contribuer à l’établissement d’une société moralement saine.

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Article 49.Les biens publics sont sacrés et inviolables. Chacun est tenu de les respecter scrupuleusement et de les protéger. Chaque Burundais a le devoir de défendre le patrimoine de la nation. Tout acte de sabotage, de vandalisme, de corruption, de détournement, de dilapidation, ou tout autre acte qui porte atteinte au bien public est réprimé dans les conditions prévues par la loi.

Article 50.Tous les citoyens sont tenus de s’acquitter de leurs obligations civiques. Chacun a le devoir de travailler pour le bien commun et de remplir ses obligations profes-sionnelles. Tous sont égaux devant les charges publiques. Il ne peut être établi d’exonération que par la loi. L’Etat peut proclamer la solidarité de tous devant les charges qui résultent des calamités naturelles et nationales.

Article 51.Tout Burundais chargé d’une fonction publique ou élu à une fonction politique a le devoir de l’accomplir avec conscience, probité, dévouement et loyauté dans l’intérêt général.

Article 52.Chaque Burundais a le devoir de défendre l’indépendance nationale et l’intégrité du territoire. Tout citoyen a le devoir sacré de veiller et de participer à la défense de sa patrie. Tout Burundais, tout étranger qui se trouve sur le territoire de la République a le devoir de ne pas compromettre la sécurité de l’Etat.

Article 53.Tout individu a le devoir de contribuer à la sauvegarde de la paix, de la démocratie et de la justice sociale.

Article 54.Tout Burundais a le devoir de contribuer par son travail à la construction et à la prospérité du pays.

372

The Constitution of Kenya – 1963

CHAPTER V

Protection of Fundamental Rights and Freedoms of the Individual

70. Whereas every person in Kenya is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, tribe, place of origin or residence or other local connection, political opinions, col-our, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely-

(a) life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, of expression and of assembly and association; and

(c) protection for the privacy of his home and other property and from dep-rivation of property without compensation,

the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

71. (1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of criminal offence under the law of Kenya of which he has been convicted.

(2) Without prejudice to any liability for a contravention of any other law with respect to the use of force in those cases hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use of force to such an extent as is reasonably justifi able in the circumstances of the case-

(a) for the defence of any person from violence or for the defence of property;

Annextures 373

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) for the purpose of suppressing a riot, insurrection or mutiny; or

(d) in order to prevent the commission by that person of a criminal offence,

or if he dies as the result of a lawful act of war.

72. (1) No person shall be deprived of his personal liberty save as may be author-ized by law in any of the following cases-

(a) in execution of the sentence or order of a court, whether established for Kenya or some other country, in respect of a criminal offence of which he as been convicted;

(b) in execution of the order of the High Court or the Court of Appeal punishing him for contempt of that court or of another court or tribunal;

(c) in execution of the order of a court made to secure the fulfi lment of an obligation imposed on him by law;

(d) for the purpose of bringing him before a court in execution of the order of a court; (e) upon reasonable suspicion of his having com-mitted, or being about to commit, a criminal offence under the law of Kenya;

(f) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;

(g) for the purpose of preventing the spread of an infectious or conta-gious disease;

(h) in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his care or treatment or the protection of the commu-nity;

(i) for the purpose of preventing the unlawful entry of that person into Kenya, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Kenya or for the purpose


of restricting that person while he is being conveyed through Kenya in the course of his extradition or removal as a convicted prisoner from one country to another; or

(j) to such extent as may be necessary in the execution of a law-ful order requiring that person to remain within a specifi ed area within Kenya or prohibiting him from being within such an area, or to such extent as may be reasonably justifi able for the taking of proceedings against that person relating to the making of any such order, or to such extent as may be reasonably justifi able for re-straining that person during a visit that he is permitted to make to a part of Kenya in which, in consequence of the order, his presence would otherwise be unlawful.

(2) A person who is arrested or detained shall be informed as soon as reason ably practicable, in a language that he understands, of the reasons for his arrest or detention.

(3) A person who is arrested or detained-

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence,

and who is not released, shall be brought before a court as soon as is reason-ably practicable, and where he is not brought before a court within twenty-four hours of his arrest or from the commencement of his detention, or with-in fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of his having committed or about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court as soon as is reasonably practica-ble shall rest upon any person alleging that the provisions of this subsection have been complied with.

(4) Where a person is brought before a court in execution of the order of a court in execution of the order of a court in any proceedings or upon suspicion of his having committed or being about to commit an offence, he shall not be thereafter further held in custody in connection with those proceedings or that offence save upon the order of a court.

(5) If a person arrested or detained as mentioned in subsection (3) (b) is not tried within a reasonable time, then without prejudice to any further proceed-

Annextures 375

ings that may be brought against him, he shall, unless he is charged with an offence punishable by death, be released either unconditionally or upon rea-sonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

(6) A person who is unlawfully arrested or detained by another person shall be entitled to compensation therefor from that other person.

73. (1) No person shall be held in slavery or servitude.

(2) No person shall be required to perform forced labour.

(3) For the purposes of this section “forced labour” does not include-

(a) labour required in consequence of the sentence or order of a court;

(b) labour required of a person while he is lawfully detained that, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place at which he is detained; (c) labour required of a member of a disciplined force in pursuance of his duties as such, or, in the case of a person who has conscientious objections to service as a member of an armed force, labour that that person is required by law to perform in place of such service;

(d) labour required during a period when Kenya is at war or an order under section 85 is in force or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of the labour is reasonably justifi able, in the circumstances of a situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation; or

(e) labour reasonably required as part of reasonable and normal communal or other civic obligations.

74. (1) No person shall be subject to torture or to inhuman or degrading punish-ment or other treatment.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the ex-tent that the law in question authorized the infl iction of any description of punishment that was lawful in Kenya on 11th December, 1963.


75. (1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfi ed:-

(a) the taking of possession or acquisition is necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of property so as to promote the public benefi t; and

(b) the necessity therefor is such as to afford reasonable justifi cation for the causing of hardship that may result to any person having an interest in or right over the property; and

(c) provision is made by a law applicable to that taking of possession or acquisition for the prompt payment of full compensation.

(2) Every person having an interest or right in or over property which is compulsorily taken possession of or whose interest in or right over any property is compulsorily acquired shall have a right of direct access to the High Court for-

(a) the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled; and

(b) the purpose of obtaining prompt payment of that compensation:

Provided that it Parliament so provides in relation to a matter referred to in paragraph (a) the right of access shall be by way of appeal (exercisable as of right at the instance of the person having the right or interest in the property) from a tribunal or authority, other than the High Court, having jurisdiction under any law to determine that matter.

(3) The Chief Justice may make rules with respect to the practice and procedure of the High Court or any other tribunal or authority in relation to the jurisdiction conferred on the High Court by subsection (2) or exercisable by the other tribunal or authority for the purposes of that subsection (including rules with respect to the time within which applications or appeals to the High Court or applications to the other tribunal or authority may be brought).

(4) and (5) (Deleted by 13 of 1977, s. 3.)

(6) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) or (2)-

Annextures 377

(a) to the extent that the law in question makes provision for the taking of possession of property-

(i) in satisfaction of any tax, duty, rate, cess or other impost;

(ii) by way of penalty for breach of the law, whether under civil process or after conviction of criminal offence under the law of Kenya;

(iii) as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contract;

(iv) in the execution of judgments or orders of a court in proceed-ings for the determination of civil rights or obligations;

(v) in circumstances where is reasonably necessary so to do because the property is in a dangerous state or injurious to the health of human beings, animals or plants;

(vi) in consequence of any law with respect to the limitation of actions; or

(vii) for so long only as may be necessary for the purposes of an examination, investigation, trial or inquiry or, in the case of land, for the purposes of the carrying out thereon of work of soil conservation or the conservation of other natural resources or work relating to agricultural development or improvement (being work relating to the development or improvement that the owner or occupier of the land has been required, and has without reasonable excuse refused or failed, to carry out).

and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifi able in a democratic society; or

(b) to the extent that the law in question makes provision for the taking of possession or acquisition of-

(i) enemy property;

(ii) property of a deceased person, a person of unsound mind or a


person who has not attained the age of eighteen years, for the purpose of its administration for the benefi t of the persons entitled to the benefi cial interest therein;

(iii) property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefi t of the creditors of the bankrupt or body corporate and, subject thereto, for the benefi t of other persons entitled to the benefi cial interest in the property; or

(iv) property subject to a trust, for the purpose of vesting the prop-erty in persons appointed as trustees under the instrument creating the trust or by a court or, by order of a court, for the purpose of giving effect to the trust.

(7) Nothing contained in or done under the authority of an Act of Parlia-ment shall be held to be inconsistent with or in contravention of this section to the extent that the Act in question makes provision for the compulsory taking possession of property or the compulsory acquisi-tion of any interest in or right over property where that property, inter-est or right is vested in a body corporate, established by law for public purposes, in which no moneys have been invested other than moneys provided by Parliament.

76. (1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-

(a) that is reasonably required in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilization of mineral resources, or the development or utilization of any other property in such a manner as to promote the public benefi t;

(b) that is reasonably required for the purpose of promoting the rights or freedoms of other persons;

(c) that authorizes an offi cer or agent of the Government of Kenya, or of a local government authority, or of a body corporate established by law for public purposes, to enter on the premises of a person in order to inspect those premises or anything thereon for the purpose

Annextures 379

of a tax, rate or due or in order to carry out work connected with property that is lawfully on those premises and that belongs to that Government, authority or body corporate, as the case may be; or

(d) that authorizes, for the purpose of enforcing the judgment or order of a court in civil proceedings, the entry upon premises by order of a court,

and except so far as that provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably justifi able in a democratic society.

77. (1) If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

(2) Every person who is charged with a criminal offence-

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged;

(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be pertained to defend himself before the court in person or by a legal representative of his own choice;

(e) shall be afforded facilities to examine in person or by his legal repre-sentative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same con-ditions as those applying to witnesses called by the prosecution; and

(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge,

and except with his own consent the trial shall not take place in his ab-sence unless he so conducts himself as to render the continuance of the


proceedings in his presence impracticable and the court his ordered him to be removed and the trial to proceed in his absence.

(3) When a person is tried for a criminal offence, the accused person or a person authorized by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.

(4) No person shall be held to be guilty of a criminal offence on account of an act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.

(5) No person who shows that he been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

(6) No person shall be tried for a criminal offence if he shows that he has been pardoned for that offence.

(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

(8) No person shall be convicted of a criminal offence unless that offence is defi ned, and the penalty therefor is prescribed, in a written law: Provided that nothing in this subsection shall prevent a court from punishing a person for contempt notwithstanding that the act or omission constituting the contempt is not defi ned in a written law and the penalty therefor is not so prescribed.

(9) A court or other adjudicating authority prescribed by law for the determination of the existence or extent of a civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by a person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.

(10) Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.

(11) Nothing in subsection (10) shall prevent the court or other adjudicating authority from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court or other authority-

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(a) may by law be empowered to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings or in the interests of public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings; or

(b) may by law be empowered or required to do in the interests of defense, public safety or public order.

(12) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of-

(a) subsection (2) (a) to the extent that the law in question imposes upon a person charged with a criminal offence the burden of proving particular facts;

(b) subsection (2) (e) to the extent that the law in question imposes conditions that must be satisfi ed if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds; or

(c) subsection (5) to the extent that the law in question authorizes a court to try a member of a disciplined force for a criminal offence notwithstanding a trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that a court so trying such a member and convicting him shall in sentencing him to any punishment take into account any punishment awarded him under that disciplinary law.

(13) In the case of any person who is held in lawful detention, subsection (1), paragraphs (d) and (e) of subsection (2) and subsection (3) shall not apply in relation to his trial for a criminal offence under the law regulating the discipline of persons held in lawful detention.

(14) Nothing contained in subsection (2) (d) shall be construed as entitling a person to legal representation at public expense.

(15) In this section “criminal offence” means a criminal offence under the law of Kenya.

78. (1) Except with his own consent, no person shall be hindered in the enjoy-ment of his freedom of conscience, and for the purposes of this section that freedom includes freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others. and both in public and in private. to manifest and propa-gate his religion or belief in worship, teaching, practice and observance.

(2) Every religious community shall be entitled, at its own expense, to establish and maintain places of education and to manage a place of education which it wholly maintains; and no such community shall be


prevented from providing religious instruction for persons of that com-munity in the course of any education provided at a place of education which it wholly maintains or in the course of any education which it otherwise provides.

(3) Except with his own consent (or, if he is a minor, the consent of his guardian), no person attending a place of education shall be required to receive religious instruction or to take part in or attend a religious cer-emony or observance if that instruction, ceremony or observance relates to a religion other than his own.

(4) No person shall be compelled to take an oath which is contrary to his religion or belief or to take an oath in a manner which is contrary to his religion or belief.

(5) Nothing contained in or done under the authority of any law shall be held to he inconsistent with or in contravention of this section to the extent that the law in question makes provision which is reasonably required-

(a) in the interests of defence, public safety, public order, public moral-ity or public health; or

(b) for the purpose of protecting the rights and freedoms of other per-sons, including the right to observe and practice a religion without the unsolicited intervention of members of another religion; and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifi -able in a democratic society.

(6) References in this section to a religion shall be construed as including references to a religious denomination, and cognate expressions shall be construed accordingly.

79. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication he to the public generally or to any person or class of persons) and freedom from interference with his correspondence.


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(a) that it is reasonably required in the interests of defense, public safety, public order, public morality or public health;

(b) that is reasonably required for the purpose of protecting the reputa-tions, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confi dence, maintaining the authority and independence of the courts or regulating the technical adminis-tration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television; or

(c) that imposes restrictions upon public or upon persons in the service of a local government authority, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifi able in a democratic society.

80. (1) Except with his own consent, no person shall be hindered in the enjoy-ment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.


(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health;

(b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons;

(c) that imposes restrictions upon public offi cers, members of a disci-plined force, or persons in the service of a local government author-ity; or

(d) for the registration of trade unions and associations of trade unions in a register established by or under any law, and for imposing reasonable conditions relating to the requirements for entry on such a register (including conditions as to the minimum number of persons necessary to constitute a trade union qualifi ed for registra-tion, or of members necessary to constitute an association of trade unions qualifi ed for registration, and conditions whereby regis-tration may be refused on the grounds that another trade union


already registered or association of trade unions already registered, as the case may be, is suffi ciently representative of the whole of a substantial proportion of the interests in respect of which registra-tion of a trade union or association of trade unions is sought),

and except so far as that provision or, as the can may be, the thing done under the authority thereof is shown not to be reasonably justifi able in a democratic society.

81. (1) No citizen of Kenya shall be deprived of his freedom of movement, that is to say, the right to move freely throughout Kenya, the right to reside in any part of Kenya, the right to enter Kenya, the right to leave Kenya and immunity from expulsion from Kenya.

(2) Any restriction on a person’s freedom of movement that is involved in his lawful detention shall not be held to be inconsistent with or in contra-vention of this section.


(a) for the imposition of restrictions on the movement or residence within Kenya of any person or on any person’s right to leave Kenya that are reasonably required in the interests of defence, public safety or public order;

(b) for the imposition of restrictions on the movement or residence within Kenya or on the right to leave Kenya of persons generally or any class of persons that are reasonably required in the interests of defence, public safety, public order, public morality, public health or the protection or control of nomadic peoples and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifi able in a democratic society;

(c) for the imposition of restrictions, by order of a court, on the move-ment or residence within Kenya of any person’s right to leave Kenya either in consequence of his having been found guilty of a criminal offence under the law of Kenya or for the purpose of ensuring that he appears before a court at a later date for trial at such a criminal offence or for proceedings preliminary to trial or for proceedings relating to his extradition or lawful removal from Kenya;

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(d) for the imposition of restrictions on the acquisition or use by any person of land or other property in Kenya;

(e) for the imposition of restrictions upon the movement or residence within Kenya or on the right to leave Kenya of public offi cers or of members of a disciplined force;

(f) for the removal of a person from Kenya to be tried or punished in some other country for a criminal offence under the law of that other country or to undergo imprisonment in some other country in execution of the sentence at a court in respect of a criminal of-fence under the law of Kenya of which he has been convicted; or

(g) for the imposition of restrictions on the right of any person to leave Kenya that are reasonably required in order to secure the fulfi lment of any obligations imposed on that person by law and except so far as that provision or, as the cam may be, the thing done under the authority thereof, is shown not to be reasonably justifi able in a democratic society.

(4) If a person whose freedom of movement has been restricted by virtue of a provision referred to in subsection (3) (a) so requests at any time during the period of that restriction not earlier than three months after the order was made or three months after he last made the request, as the case may be, his case shall be reviewed by independent and impartial tri-bunal presided over by a person appointed by the President from among persons qualifi ed to be appointed as a judge of the High Court.

(5) On a review by a tribunal in pursuance of subsection (4) of the case of a person whose freedom of movement has been restricted, the tribunal may make recommendations concerning the necessity or expediency of continuing that restriction to the authority by whom it was ordered and, unless it is otherwise provided by law, that authority shall be obliged to act in accordance with any such recommendations.

(6) Until it is otherwise provided by Act of Parliament nothing in this section shall affect the operation of the Outlying Districts Act or the Special Districts (Administration) Act or any law amending or replac-ing either of those Acts [The Outlying Districts Act – Cap. 104 and the Special Districts (Administration) Act – Cap. 105 were repealed by Act No. 10 of 1997]:

Provided that no law amending or replacing either of those Acts shall im-pose. or authorize the imposition of, restrictions on the rights guaranteed by


this section greater than the restrictions on those rights in force under that Act on 31st May, 1963, and no such restriction shall be imposed under either of those Acts, or by or under any such law, in or in respect of any area other than an area in or in respect of which a restriction was in force under that Act on 31st May, 1963.

82. (1) Subject to subsections (4), (5) and (8), no law shall make any provision that is discriminatory either of itself or in its effect.

(2) Subject to subsections (6), (8) and (9), no person shall be treated in a discriminatory manner by a person acting by virtue of any written law or in the performance of the functions of a public offi ce or a public authority.

(3) In this section the expression “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restric-tions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

(4) Subsection (1) shall not apply to any law so far as that law makes provi-sion-

(a) with respect to persons who are not citizens of Kenya;

(b) with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;

(c) for the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons; or

(d) whereby persons of a description mentioned in subsection (3) may be subjected to a disability or restriction or may be accorded a privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifi able in a democratic society.

Annextures 387

(5) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that it makes provision with respect to standards or qualifi cations (not being standards or quali-fi cations specifi cally relating to race, tribe, place of origin or residence or other local connection, political opinion, colour or creed) to be required of a person who is appointed to an offi ce in the public service, in a disci-plined force, in the service of a local government authority or in a body corporate established by any law for public purposes.

(6) Subsection (2) shall not apply to-

(a) anything which is expressly or by necessary implication authorized to be done by a provision of law referred to in subsection (4); or

(b) the giving or withholding of consent to a transaction in agricultural land by any body or authority established by or under any law for the purpose of controlling transactions in agricultural land.

(7) Subject to subsection (8), no person shall be treated in a discriminatory manner in respect of access to shops, hotels, lodging-houses, public res-taurants, eating houses, beer halls or places of public entertainment or in respect of access to places of public resort maintained wholly or partly out of public funds or dedicated to the use of the general public.

(8) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision whereby persons of a description mentioned in, subsection (3) may be subjected to a restric-tion on the rights and freedoms guaranteed by sections 76, 78, 79, 80 and 81, being a restriction authorized by section 76 (2), 78 (5), 79 (2), 80 (2), or paragraph (a) or (b) of section 81 (3).

(9) Nothing in subsection (2) shall affect any discretion relating to the institu-tion, conduct or discontinuance of civil or criminal proceedings in a court that is vested in a person by or under this Constitution or any other law.

83. (1) Nothing contained in or done under the authority of an Act of Parliament shall be held to be inconsistent with or in contravention of section 72, 76, 79, 80. 81 or 82 when Kenya is at war, and nothing contained in or done under the authority of any provision of Part III of the Preservation of Public Security Act shall be held to be inconsistent with or in contra-vention of those sections of this Constitution when and in so far as the provision is in operation by virtue of an order made under section 85.


(2) Where a person is detained by virtue of a law referred to in subsection (1) the following provisions shall apply-

(a) he shall, as soon as reasonably practicable and in any case not more than fi ve days after the commencement of his detention, be fur-nished with a statement in writing in a language that he under-stands specifying in detail the grounds upon which he is detained;

(b) not more than fourteen days after the commencement of his deten-tion, a notifi cation shall be published in the Kenya Gazette stating that he has been detained and giving particulars of the provision of law under which his detention is authorized;

(c) not more than one month after the commencement of his detention and thereafter during his detention at intervals of not more than six months, his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person appoint-ed by the President from among persons qualifi ed to be appointed as a judge of the High Court;

(d) he shall be afforded reasonable facilities to consult a legal representa-tive of his own choice who shall be permitted to make representa-tions to the tribunal appointed for the review of the case of the detained person; and

(e) at the hearing of his case by the tribunal appointed for the review of his case he shall be permitted to appear in person or by a legal representative of his own choice.

(3) On a review by a tribunal in pursuance of this section of the case of a detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the author-ity by which it was ordered but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendations.

(4) Nothing contained in subsection (2) (d) or (e) shall be construed as enti-tling a person to legal representation at public expense.

84. (1) Subject to subsection (6), if a person alleges that any of the provisions of sections 70 to 83 (inclusive) has been, is being or is likely to be contra-vened in relation to him (or, in the case of a person who is detained, if another person alleges a contravention in relation to the detained person), then, without prejudice to my other action with respect to

Annextures 389

the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.

(2) The High Court shall have original jurisdiction-

(a) to hear and determine an application made by a person in pursuance of subsection (1);

(b) to determine any question arising in the case of a person which is referred to it in pursuance of subsection (3), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforce-ment of any of the provisions of sections 70 to 83 (inclusive).

(3) If in proceedings in a subordinate court a question arises as to the con-travention of any of the provisions of sections 70 to 83 (inclusive), the person presiding in that court may, and shall if any party to the proceed-ings so requests, refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous and vexatious.

(4) Where a question is referred to the High Court in pursuance of subsec-tion (3), the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.

(5) Parliament-

(a) may confer upon the High Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for die purpose of enabling that Court, more effectively, to exercise the jurisdiction conferred upon it by this section; and

(b) shall make provision-

(i) for the rendering of fi nancial assistance to any indigent citizen of Kenya where his right under this Chapter has been infringed or with a view to enabling him engage the services of an advo-cate to prosecute his claim; and

(ii) for ensuring that allegations of infringement of such rights are substantial and the requirement or need for fi nancial or legal aid is real.


(6) The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by or under this section (including rules with respect to the time within which applications may be brought and references shall be made to the High Court).

(7) A person aggrieved by the determination of the Court under this section may appeal to the Court of Appeal as of right.

85. (1) Subject to this section, the President may at any time, by order published in the Kenya Gazette, bring into operation, generally or in any part of Kenya, Part III of the Preservation of Public Security Act or any of the provisions of that Part of that Act.

(2) An order made under this section shall cease to have effect on the expira-tion of the period of twenty-eight days commencing with the day on which the order is made, unless before the expiration of that period it has been approved by a resolution of the National Assembly, but in reckoning any period of twenty-eight days for the purposes of this sub-section no account shall be taken of any time during which Parliament is dissolved.

(3) An order made under this section may at any time be revoked by the President by an order published in the Kenya Gazette.

(4) An order made under this section and approved by a resolution of the National Assembly in accordance with subsection (2) may at any time be revoked by a resolution of the Assembly supported by a majority of all the members of the Assembly (excluding the ex offi cio members).

(5) Whenever the election of the President results in a change in the holder of that offi ce an order made under this section and in force immediately before the day on which the President assumes offi ce shall cease to have effect on the expiration of seven days commencing with that day.

(6) The expiry or revocation of an order made under this section shall be without prejudice to the validity of anything previously done under the order or to the making of a new order.

86. (1) In this Chapter, except where the context otherwise requires-

“contravention”, in relation to a requirement, includes a failure to com-ply with that requirement, and cognate expres-sions shall be construed accordingly;

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“court” means any court having jurisdiction in Kenya other than a court established by a disciplinary law, but includes, in sections 71 and 73, a court established by a discipli-nary law;

“disciplinary law” means a law regulating the discipline of a disciplined force;

“disciplined force” means-

(a) any of the armed forces;

(b) a police force;

(c) a prison service; or

(d) the National Youth Service;

“legal representative” means a person entitled to practice as an advocate in Kenya; and

“member”, in relation to a disciplined force, includes any person who, under the law regulating the discipline of that force, is subject to that discipline.

(2) In relation to a person who is a member of a disciplined force raised under any law in force in Kenya, nothing contained in or done under the au-thority of the disciplinary law of that force shall be held to be inconsist-ent with or in contravention of any of the provisions of this Chapter other than sections 71, 73 and 74.

(3) In relation to a person who is a member of a disciplined force raised otherwise than as aforesaid and lawfully present in Kenya, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter.

392

The Constitution of the Republic of Rwanda – 2003

CHAPTER II

Fundamental Principles

Article 9

The State of Rwanda commits itself to conform to the following fundamental principles and to promote and enforce the respect thereof:

1. fi ghting the ideology of genocide and all its manifestations;

2. eradication of ethnic, regional and other divisions and promotion of national unity;

3. equitable sharing of power;

4. building a state governed by the rule of law, a pluralistic democratic government, equality of all Rwandans and between women and men refl ected by ensuring that women are granted at least thirty per cent of posts in decision making organs;

5. building a State committed to promoting social welfare and establishing appropriate mechanisms for ensuring social justice;

6. the constant quest for solutions through dialogue and consensus.

TITLE II

FUNDAMENTAL HUMAN RIGHTS AND THE RIGHTS AND DUTIES OF THE CITIZEN

CHAPTER ONE: FUNDAMENTAL HUMAN RIGHTS

Article 10

The human person is sacred and inviolable.

The State and all public administration organs have the absolute obligation to respect, protect and defend him or her.

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Article 11All Rwandans are born and remain free and equal in rights and duties.

Discrimination of whatever kind based on, inter alia, ethnic origin, tribe, clan, colour, sex, region, social origin, religion or faith, opinion, economic status, culture, language, social status, physical or mental disability or any other form of discrimination is prohibited and punishable by law.

Article 12Every person has the right to life. No person shall be arbitrarily deprived of life.

Article 13The crime of genocide, crimes against humanity and war crimes do not have a period of limitation.

Revisionism, negationism and trivialisation of genocide are punishable by the law.

Article 14The State shall, within the limits of its capacity, take special measures for the welfare of the survivors of genocide who were rendered destitute by the genocide committed in Rwanda from October 1st, 1990 to December 31st, 1994, the disa-bled, the indigent and the elderly as well as other vulnerable groups.

Article 15Every person has the right to physical and mental integrity.

No person shall be subjected to torture, physical abuse or cruel, inhuman or degrading treatment.

No one shall be subjected to experimentation without his or her informed con-sent. The modalities of such consent and experiments are determined by law.

Article 16All human beings are equal before the law. They shall enjoy, without any dis-crimination, equal protection of the law.

Article 17Criminal liability is personal. Civil liability is determined by law.

No one shall be imprisoned on the ground of inability to fulfi l obligations arising from civil or commercial laws.

Article 18The person’s liberty is guaranteed by the State.

No one shall be subjected to prosecution, arrest, detention or punishment on account of any act or omission which did not constitute a crime under the law in force at the time it was committed.


The right to be informed of the nature and cause of charges and the right to defence are absolute at all levels and degrees of proceedings before administrative, judicial and all other decision making organs.

Article 19Every person accused of a crime shall be presumed innocent until his or her guilt has been conclusively proved in accordance with the law in a public and fair hear-ing in which all the necessary guarantees for defence have been made available.

Nobody shall be denied the right to appear before a judge competent by law to hear his or her case.

Article 20

Nobody shall be punished for acts or omissions that did not constitute an offence under national or international law at the time of commission or omission.

Neither shall any person be punished with a penalty which is heavier than the one that was applicable under the law at the time when the offence was committed.

Article 21

No person shall be subjected to security measures except as provided for by law, for reasons of public order and State security.

Article 22The private life, family, home or correspondence of a person shall not be sub-jected to arbitrary interference; his or her honour and good reputation shall be respected.

A person’s home is inviolable. No search of or entry into a home may be carried out without the consent of the owner, except in circumstances and in accordance with procedures determined by law.

Confi dentiality of correspondence and communication shall not be subject to waiver except in circumstances and in accordance with procedures determined by law.

Article 23Every Rwandan has the right to move and to circulate freely and to settle any-where in Rwanda.

Every Rwandan has the right to leave and to return to the country.

These rights shall be restricted only by the law for reasons of public order or State security, in order to deal with a public menace or to protect persons in danger.

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Article 24Every Rwandan has the right to his or her country.No Rwandan shall be banished from the country.

Article 25The right to asylum is recognized under conditions determined by the law.The extradition of foreigners shall be permitted only so far as it is consistent with the law or international conventions to which Rwanda is a party.However, no Rwandan shall be extradited.

Article 26

Only civil monogamous marriage between a man and a woman is recognized.No person may be married without his or her free consent.Parties to a marriage have equal rights and duties upon and during the subsistence of a marriage and at the time of divorce.The law determines conditions, forms and effect of marriage.

Article 27The family, which is the natural foundation of Rwandan society, is protected by the State.Both parents have the right and duty to bring up their children.The State shall put in place appropriate legislation and institutions for the protec-tion of the family and the mother and child in particular in order to ensure that the family fl ourishes.

Article 28Every child is entitled to special measures of protection by his or her family, so-ciety and the State that are necessary, depending on the status of the child, under national and international law.

Article 29Every person has a right to private property, whether personal or owned in as-sociation with others.Private property, whether individually or collectively owned, is inviolable.The right to property may not be interfered with except in public interest, in circumstances and procedures determined by law and subject to fair and prior compensation.

Article 30Private ownership of land and other rights related to land are granted by the State.The law specifi es the modalities of acquisition, transfer and use of land.

Article 31The property of the State comprises of public and private property of the central Government as well as the public and private property of decentralized local government organs.


The public property of the State is inalienable unless there has been prior transfer thereof to the private property of the State.

Article 32Every person shall respect public property.Any act intended to cause sabotage, vandalism, corruption, embezzlement, squandering or any tampering with public property shall be punishable by law.

Article 33Freedom of thought, opinion, conscience, religion, worship and the public manifestation thereof is guaranteed by the State in accordance with conditions determined by law.Propagation of ethnic, regional, racial or discrimination or any other form of divi-sion is punishable by law.

Article 34Freedom of the press and freedom of information are recognized and guaranteed by the State.Freedom of speech and freedom of information shall not prejudice public order and good morals, the right of every citizen to honour, good reputation and the privacy of personal and family life. It is also guaranteed so long as it does not prejudice the protection of the youth and minors.The conditions for exercising such freedoms are determined by law.There is hereby established an independent institution known as the “High Council of the Press ».The law shall determine its functions, organization and operation.

Article 35Freedom of association is guaranteed and shall not require prior authorization.Such freedom shall be exercised under conditions determined by law.

Article 36Freedom of peaceful assembly without arms is guaranteed if it is not inconsistent with the law.Prior authorization shall only be necessary if the law so requires and solely in the case of assembly in the open air, in a public place or on a public road, to the extent that such is necessary in the interests of public safety, public health or public order.

Article 37Every person has the right to free choice of employment.Persons with the same competence and ability have a right to equal pay for equal work without discrimination.

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Article 38The right to form trade unions for the defence and the promotion of legitimate professional interests, is recognized.Any worker may defend his or her rights through trade union action under condi-tions determined by law.Every employer has the right to join an employers’ organization.Trade unions and employers’ associations have the right to enter into general or specifi c agreements regulating their working relations. The modalities for making these agreements are determined by law.

Article 39The right of workers’ to strike is permitted and shall be exercised within the limits provided for by the law, but the exercising of this right should not interfere with the freedom to work which is guaranteed for every individual.

Article 40Every person has the right to education.Freedom of learning and teaching shall be guaranteed in accordance with condi-tions determined by law.Primary education is compulsory. It is free in public schools.The conditions for free primary education in schools subsidised by the Govern-ment are determined by an organic law.The State has the duty to take special measures to facilitate the education of disabled people.An organic law determines the organization of Education.

Article 41All citizens have the right and duties relating to health. The State has the duty of mobilizing the population for activities aimed at promoting good health and to assist in the implementation of these activities.

Article 42Every foreigner legally residing in the Republic of Rwanda shall enjoy all rights save those reserved for nationals as determined under this Constitution and other laws.

Article 43In the exercise of rights and enjoyment of freedoms, every person shall only be subjected to the limitations set by the law in order to ensure the recognition and respect of others’ rights and freedoms, good morals, public order and social wel-fare which characterize a democratic society.


Article 44The judiciary as the guardian of rights and freedoms of the public ensures respect thereof in accordance with procedures determined by law.

CHAPTER II: THE RIGHTS AND DUTIES OF THE CITIZEN

Article 45All citizens have the right to participate in the government of the country, wheth-er directly or through freely chosen representatives in accordance with the law.All citizens have the right of equal access to public service in accordance with their competence and abilities.Article 46Every citizen has the duty to relate to other persons without discrimination and to maintain relations conducive to safeguarding, promoting and reinforcing mu-tual respect, solidarity and tolerance.

Article 47All citizens have the duty to participate, through work, in the development of the country; to safeguard peace, democracy, social justice and equality and to partici-pate in the defence of the motherland.The law shall organize national service, whether civil or military.

Article 48In all circumstances, every citizen, whether civilian or military, has the duty to respect the Constitution, other laws and regulations of the country.Every citizen has the right to defy orders received from his or her superior authority if the orders constitute a serious and manifest violation of human rights and public freedoms.

Article 49Every citizen is entitled to a healthy and satisfying environment.Every person has the duty to protect, safeguard and promote the environment. The State shall protect the environment.The law determines the modalities for protecting, safeguarding and promoting the environment.

Article 50Every citizen has the right to activities that promote national culture.There is hereby established the Rwanda Academy of Language and Culture.The law shall determine its functions, organization and operation.

Article 51The State has the duty to safeguard and to promote positive values based on cultural traditions and practices so long as they do not confl ict with human rights, public order and good morals. The State equally has the duty to preserve the national cultural heritage as well as genocide memorials and sites.

399

The Constitution of The United Republic of Tanzania – 1977

CHAPTER ONE

PART III

Basic Rights and Duties252

The Right to Equality

12. (1) All human beings are born free, and are all equal.

(2) Every person is entitled to recognition and respect for his dignity.

13. (1) All persons are equal before the law and are entitled, without any discrimi-nation, to protection and equality before the law.

(2) No law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself of in its effect.

(3) The civic rights, duties and interests of every person and community shall be protected and determined by the courts of law or other state agencies established by or under the law.

(4) No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any state offi ce.

For the purposes of this Article the expression “discriminate” means to sat-isfy the needs, rights or other requirements of different persons on the basis of their nationality, tribe, place of origin, political opinion, colour religion, sex or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or conditions whereas persons of other categories are treated differently or are accorded opportuni-

252 The Bill of Rights was added to the 1977 Constitution of the United Republic of Tanzania via the 5th Amendment to the Constitution of 1984 (Act No. 15 of 1984). It came into force three years later in 1988.


ties or advantage outside the specifi ed conditions or the prescribed necessary qualifi cations except that the word “discrimination” shall not be construed in a manner that will prohibit the Government from taking purposeful steps aimed at rectifying disabilities in the society.

(6) To ensure equality before the law, the state authority shall make proce-dures which are appropriate or which take into account the following principles, namely:

(a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned;

(b) no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence;

(c) no person shall be published for any act which at the time of its com-mission was not an offence under the law, and also no penalty shall be imposed which is heavier than the penalty in force at the time the offence was committed;

(d) for the purposes of preserving the right or equality of human beings, human dignity shall be protected in all activities pertaining to crimi-nal investigations and process, and in any other matters for which a person is restrained, or in the execution of a sentence;

(e) no person shall be subjected to torture or inhuman or degrading punishment or treatment.

The Right to Life

14. Every person has the right to live and to the protection of his life by the soci-ety in accordance with the law.

15. (1) Every person has the right to freedom and to live as a free person.

(2) For the purposes of preserving individual freedom and the right to live as a free person, no person shall be arrested, imprisoned, confi ned, detained, deported or otherwise be deprived of his freedom save only:-

(a) under circumstances and in accordance with procedures prescribed by law; or

(b) in the execution of a judgement, order or a sentence given or passed by the court following a decision in a legal proceeding or a convic-tion for a criminal offence.

16. (1) Every person is entitled to respect and protection of his person, the privacy of his own person, his family and of his matrimonial life, and respect

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and protection of his residence and private communications.

(2) For the purpose of preserving the person’s right in accordance with this Article, the state authority shall lay down legal procedures regarding the circumstances, manner and extent to which the right to privacy, security of his person, his property and residence may be encroached upon with-out prejudice to the provisions of this Article.

17. (1) Every citizen of the United Republic has the right to freedom of move-ment in the United Republic and the right to live in any part of the United Republic, to leave and enter the country, and the right not to be forced to leave or be expelled from the United Republic.

(2) Any lawful act or any law which is intended to:-

(a) curtail a person’s freedom of movement and to restrain or imprison him; or

(b) limit a person from exercising his freedom or movement so as to:-

(i) execute a judgement or court order; or

(ii) compel a person fi rst to comply with any obligations arising under another law; or

(iii) protect public interest in general or preserve certain special interest or interests of a certain such act or law shall not be or be held to be repugnant to or inconsistent with the provisions of this Article.

The Right to Freedom of Conscience

18. Every person:-

(a) has a freedom of opinion and expression of his ideas;

(b) has a right to seek, receive and impart or disseminate information regard-less of national frontiers;

(c) has a right of freedom to communicate and a right of freedom from inter-ference with his communication;

(d) has a right to be informed at all times of various important events of lives and activities of the people and also of issues of importance to the society.

19. (1) Every person has the right to the freedom of thought or conscience, belief or faith, and choice in matters of religion, including the freedom to change his religion or faith.

(2) The profession of religion, worship and propagation of religion shall be


free and a private affair of an individual, and the affairs and management of religious bodies shall be part of the activities of the state authority.

(3) Protection of rights referred to in this Article shall be in accordance with the provisions prescribed under the law which are of importance to a democratic society for security and peace in the society, integrity of the society and the national unit.

(4) In this Article reference to the word “religion” shall be construed as including reference to religious denominations, and cognate expressions shall be construed accordingly.

20. (1) Every person has a freedom, to freely and peaceably assemble, associate and cooperate with other persons, and for that purpose, express views pub-licly and to form and join with associations or organizations formed for purposes of preserving or furthering his beliefs or interests or any other interests.

(2) Notwithstanding the provisions of sub-articles (1) and (4), it shall not be lawful for any political entitle to be registered which according to its constitution or policy:-

(a) aims at promoting or furthering the interests of

(i) any religious faith or group;

(ii) any tribal group, place of origin, race or gender;

(iii) only a particular area within any part of the United Republic;

(b) advocates for the break-up of the United Republic;

(c) accepts or advocates for the use of the force or violent conferonta-tion as means of attaining its political goals;

(d) advocates or intends to carry on its political activities in only one part of the United Republic;

(e) does not permit periodic and democratic election of its leaders.

(3) Parliament may enact legislation which makes provisions for ensuring that political parties operate within the limits and adhere to the condi-tions set out in sub-article (2) concerning the freedom and the right of persons to associate and assemble.

(4) It shall be unlawful for any person to be compelled to join any associa-tion or organization, or for any association or any political party to be refused registration on grounds only of its ideology or philosophy of that political party.

21. (1) Subject to the provisions of Article 39,47 and 67 of this Constitution and of

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the laws of the land in connection with the conditions for electing and being elected or for appointing and being appointed to take part in mat-ters related to governance of the country, every citizen of th4e United Republic is entitled to take part in matters pertaining to the governance of the country, either directly or through representatives freely elected by the people, in conformity with the procedures laid down by, or in accordance with, the law.

(2) Every citizen has the right and the freedom to participate fully in the process leading to the decision on matters affecting him, his well-being or the nation.

The Right to Work

22. (1) Every person has the right to work.

(2) Every citizen is entitled to equal opportunity and right to equal terms to hold any offi ce or discharge any function under the state authority.

23. (1) Every person, without discrimination of any kind, is entitled to remunera-tion commensurate with his work, and all person working according to their ability shall be remunerated according to the measure and nature of the work done.

(2) Every person who works is entitled to just remuneration.

24. (1) Every person is entitled to own property, and has a right to the protection of his property held in accordance with the law.

(2) Subject to the provisions of subarticle (1), it shall be unlawful for any person to be deprived of property for the purposes of nationalization or any other purposes without the authority of law which makes provi-sions for fair and adequate compensation.

Duties to the Society

25. (1) Work alone creates the material wealth in society, and is the source of the well-being of the people and the measure of human dignity. Accord-ingly, every person has the duty to:-

(a) participate voluntarily and honestly in lawful and productive work; and

(b) observe work discipline and strive to attain the individual and group production targets desired or set by law.

(2) Notwithstanding the provisions of sub-article (1), there shall be no forced labour in the United Republic.

(3) For the purposes of this Article, and in this Constitution generally, it is hereby declared that no work shall be deemed to be forced, cruel or humiliating labour, if such work is according to law:-


(a) work which has to be done pursuant to a judgement or order of court;

(b) work which has to be done by members of any Force in the dis-charge of their responsibilities;

(c) work which has to be done by any person due to a state of emer-gency or any calamity which threatens the life or well-being of the society;

(d) any work or service which forms part of:-

(i) routine services for ensuring the well-being of society;

(ii) compulsory national service provided for by law;

(iii) the national endeavour at the mobilisation of human resources for the enhancement of the society and the national economy and to ensure development and national productivity.

26. (1) every person has the duty to observe and to abide by this Constitution and the laws of the United Republic.

(2) Every person has the right, in accordance with the procedure provided by law, to take legal action to ensure the protection of this Constitution and the laws of the land.

27. (1) Every person has the duty to protect the natural resources of the United Republic, the property of the state authority, all property collectively owned by the people, and also to respect another person’s property.

(2) All persons shall be required by law to safeguard the property of the state authority and all property collectively owned by the people, to combat all forms of waste and squander, and to manage the national economy assiduously with the attitude of people who are masters of the destiny of their nation.

28. (1) Every citizen has the duty to protect, preserve and maintain the independ-ence, sovereignty, territory and unity of the nation.

(2) Parliament may enact appropriate laws to enable the people to serve in the Forces and in the defence of the nation.

(3) No person shall have the right to sign an act of capitulation and surren-der of the nation to the victor, nor ratify or recognise an act of occupa-tion or division of the United Republic or of any area of the territory of the nation and, subject to this Constitution and any other laws enacted, no person shall have the right to prevent the citizens of the United Re-public from waging war against any enemy who attacks the nation.

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(4) Treason as defi ned by law shall be the most grave offence against the United Republic.

General Provisions

29. (1) Every person in the United Republic has the right to enjoy fundamental human rights and the benefi ts of the fulfi lment by every person of his duty to society, as provided in Articles 12 to 28 of this Part of this Chap-ter of the Constitution.

(2) Every person in the United Republic has the right to equal protection under the laws of the United Republic.

(3) No citizen of the United Republic shall have a right, status or special position on the basis of his lineage, tradition or descent.

(4) It is hereby prohibited for any law to confer any right, status, or special position upon any citizen of the United Republic on the basis of lineage, tradition or descent.

(5) In order for all persons to enjoy the rights and freedoms specifi ed by this Constitution, every person has the duty to so conduct himself and his affairs as not to infringe upon the rights and freedoms of others or the public interest.

30. (1) The human rights and freedoms, the principles of which are set out in this Constitution, shall not be exercised by a person in a manner that causes interference with or curtailment of the rights and freedoms of other persons or of the public interest.

(2) It is hereby declared that the provisions contained in this Part of this Constitution which set out the basic human rights, freedoms and duties, do not invalidate any existing legislation or prohibit the enactment of any legislation or the doing of any lawful act in accordance with such legislation for the purposes of:-

(a) ensuring that the rights and freedoms of other people or of the inter-ests of the public are not prejudiced by the wrongful exercise of the freedoms and rights of individuals;

(b) ensuring the defence, public safety, public order, public morality, public health, rural and urban development planning, the exploita-tion and utilisation of minerals or the increase and development of property of any other interests for the purposes of enhancing the public benefi t;

(c) ensuring the execution of a judgement or order of a court given or made in any civil or criminal matter;


(d) protecting the reputation, rights and freedoms of others or the pri-vacy of persons involved in any court proceedings, prohibiting the disclosure of confi dential information or safeguarding the dignity, authority and independence of the courts;

(f) imposing restrictions, supervising and controlling the formation, management and activities of private societies and organisations in the country; or

enabling any other thing to be done which promotes, or preserves the national interest in general.

(3) Any person alleging that any provision in this Part of this Chapter or in any law concerning his right or duty owned to him has been, is being or is likely to be violated by any person anywhere in the United Republic, may institute proceedings for redress in the High Court.

(4) Subject to the other provisions of this Constitution, the High Court shall have original jurisdiction to hear and determine any matter brought before it pursuant to this Article; and the state authority may enact legislation for the purposes of:-

(a) regulating procedure for instituting proceedings pursuant to this Article;

(b) specifying the powers of the High Court in relation to the hearing of proceedings instituted pursuant to this Article;

(c) ensuring the effective exercise of the powers of the High Court, the preservation and enforcement of the rights, freedoms and duties in accordance with this Constitution.

(5) Where in any proceedings it is alleged that any law enacted or any action taken by the Government or any other authority abrogates or abridges any of the basic rights, freedoms and duties set out in Articles 12 to 29 of this Constitution, and the High Court is satisfi ed that the law or ac-tion concerned, to the extent that it confl icts with this Constitution, is void, or is inconsistent with this Constitution, then the High Court, if it deems fi t, or if the circumstances or public interest so requires, instead of declaring that such law or action is void, shall have power to decide to afford the Government or other authority concerned an opportunity to rectify the defect found in the law or action concerned within such a period and in such manner as the High Court shall determine, and such law or action shall be deemed to be valid until such time the defect is rectifi ed or the period determined by the High Court lapses, whichever is the earlier.

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Extraordinary Powers of the State Authority

31. (1) Apart from the provisions of Article 30(2), any law enacted by Parliament shall not be void for the reason only that it enables measures to be taken during a state of emergency or in normal times in relation to persons who are believed to engage in activities which endanger or prejudice the security of the nation, which measures derogate from the provisions of Articles 14 and 15 of this Constitution.

(2) it is hereby prohibited to take any of the measures referred to in subarti-cle (1) of this Article in pursuance of any law during a state of emergen-cy or in normal times in relation to any person, save only to the extent that they are necessary and justifi able for dealing with the situation that exists during the state of emergency, or in normal times dealing with the situation created by the conduct of the person concerned.

(3) It is hereby declared that the provisions of this Article shall not authorise the deprivation of a person’s right to live save only for deaths resulting from acts of war.

(4) In this Article and the following Articles of this Part, “state of emergen-cy” means any period during which the Proclamation of State of Emer-gency made by the President in the exercise of the powers conferred on him by Article 32, is in force.

32. (1) Subject to this Constitution or to any law enacted by Parliament in that behalf, the President may proclaim a state of emergency in the United Republic or in any part thereof.

(2) The President may proclaim a state of emergency only if:-

(a) the United Republic is at war; or

(b) there is a real danger that the United Republic is about to be invaded and to be in a state of war; or

(c) there is actual situation of breakdown of public order or non-exist-ence of public security in the United Republic or in any part thereof such that it is necessary to take extraordinary measures to restore order and security; or

(d) there is a clear and grave danger such that the breakdown of public order and the cessation of public safety in the United Republic or any part thereof are inescapable except by invoking the extraordi-nary powers; or

(e) there is imminent occurrence of danger, disaster or environmental calamity which threatens the society or part thereof in the United Republic; or


(f) there is some kind of danger which clearly constitutes a threat to the state.

(3) In the event a state of emergency is proclaimed in relation to the whole of the United Republic, or to the whole of Mainland Tanzania or the whole of Tanzania Zanzibar, the President shall forthwith transmit a copy of the proclamation to the Speaker of the National Assembly who, after consultation with the Leader of Government Business in the Na-tional Assembly shall convene a meeting of the National Assembly with-in not more than fourteen days, to consider the situation and decide, whether to pass or not to pass a resolution, which has to be supported by the votes of not less than two thirds of all members, in support of the proclamation of a state of emergency issued by the President.

(4) Parliament may enact a legislation providing times and procedures which will enable certain persons in charge of Government functions in speci-fi ed areas of the United Republic to request the President to exercise the powers conferred on him by this Article in relation to any of those areas where there exists any of the situations specifi ed in paragraphs (c), (d) and (e) of subarticle (2) and such situation does not extend beyond the boundaries of such areas, and also for the purpose of specifying the exercise of executive powers during a state of emergency.

(5) A proclamation issued by the President pursuant to this Article shall cease to have effect:-

(a) if it is revoked by the President;

(b) if fourteen days lapse from the date of the proclamation without there being passed the resolution referred to in sub-article (3);

(c) after the lapse of a period of six months from the date of the procla-mation; save that a sitting of the National Assembly may, before the expiration of the period of six months, extend from time to time the period of the operation of the proclamation for further periods of six months by a resolution passed by votes of not less than two-thirds of all the members present;

(d) at any time when a meeting of the National Assembly revokes the proclamation by a resolution supported by votes of not less than two-thirds of all the members.

(6) For the avoidance of doubt in the interpretation of application of the provisions of this Article, the provisions of legislation enacted by Parlia-ment and of any other law, concerning the proclamation of a state of emergency as provided for in this Article shall apply only to the part of the United Republic in respect of which the state of emergency has been proclaimed.

409

The Constitution of The Republic of Uganda – 1995

CHAPTER FOUR

Protection and Promotion of Fundamental and other Human Rights and Freedoms

General

20. Fundamental and other Human Rights and Freedoms

(1) Fundamental rights and freedoms of the individual are inherent and not granted by the State.

(2) The rights and freedoms of the individual and groups enshrined in this Chap-ter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.

21. Equality and Freedom from Discrimination

(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.

(2) Without prejudice to clause (1) of this article, a person shall not be discriminat-ed against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.

(3) For the purposes of this article, “discriminate” means to give different treat-ment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.

(4) Nothing in this article shall prevent Parliament from enacting laws that are necessary for—

(a) implementing policies and programmes aimed at redressing social, eco-nomic, educational or other imbalance in society; or

(b) making such provision as is required or authorised to be made under this Constitution; or


(c) providing for any matter acceptable and demonstrably justifi ed in a free and democratic society.

(5) Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this Constitution.

22. Protection of Right to Life

(1) No person shall be deprived of life intentionally except in execution of a sen-tence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confi rmed by the highest appellate court.

(2) No person has the right to terminate the life of an unborn child except as may be authorised by law.

23. Protection of Personal Liberty

(1) No person shall be deprived of personal liberty except in any of the following cases—

(a) in execution of the sentence or order of a court, whether established for Uganda or another country or of an international court or tribunal in respect of a criminal offence of which that person has been convicted, or of an order of a court punishing the person for contempt of court;

(b) in execution of the order of a court made to secure the fulfi lment of any obligation imposed on that person by law;

(c) for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda;

(d) for the purpose of preventing the spread of an infectious or contagious disease;

(e) in the case of a person who has not attained the age of eighteen years, for the purpose of the education or welfare of that person;

(f) in the case of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol, for the purpose of the care or treatment of that person or the protection of the community;

(g) for the purpose of preventing the unlawful entry of that person into Uganda, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Uganda or for the purpose of restricting that person while being conveyed through Uganda in the course of the extradition or removal of that person as a convicted pris-oner from one country to another; or

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(h) as may be authorised by law, in any other circumstances similar to any of the cases specifi ed in paragraphs (a) to (g) of this clause.

(2) A person arrested, restricted or detained shall be kept in a place authorised by law.

(3) A person arrested, restricted or detained shall be informed immediately, in a language that the person understands, of the reasons for the arrest, restriction or detention and of his or her right to a lawyer of his or her choice.

(4) A person arrested or detained—

(a) for the purpose of bringing him or her before a court in execution of an order of a court; or

(b) upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, shall, if not earlier released, be brought to court as soon as possible but in any case not later than forty-eight hours from the time of his or her arrest.

(5) Where a person is restricted or detained—

(a) the next-of-kin of that person shall, at the request of that person, be informed as soon as practicable of the restriction or detention;

(b) the next-of-kin, lawyer and personal doctor of that person shall be al-lowed reasonable access to that person; and

(c) that person shall be allowed access to medical treatment including, at the request and at the cost of that person, access to private medical treat-ment.

(6) Where a person is arrested in respect of a criminal offence—

(a) the person is entitled to apply to the court to be released on bail, and the court may grant that person bail on such conditions as the court consid-ers reasonable;

(b) in the case of an offence which is triable by the High Court as well as by a subordinate court, the person shall be released on bail on such condi-tions as the court considers reasonable, if that person has been remanded in custody in respect of the offence before trial for one hundred and twenty days;

(c) in the case of an offence triable only by the High Court, the person shall be released on bail on such conditions as the court considers reasonable, if the person has been remanded in custody for three hundred and sixty days before the case is committed to the High Court.

(7) A person unlawfully arrested, restricted or detained by any other person or au-thority shall be entitled to compensation from that other person or authority whether it is the State or an agency of the State or other person or authority.


(8) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the of-fence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment.

(9) The right to an order of habeas corpus shall be inviolable and shall not be suspended.

24. Respect for Human Dignity and Protection from Inhuman Treatment

No person shall be subjected to any form of torture or cruel, inhuman or degrad-ing treatment or punishment.

25. Protection from Slavery, Servitude and Forced Labour

(1) No person shall be held in slavery or servitude.

(2) No person shall be required to perform forced labour.

(3) For the purposes of this article, “forced labour” does not include—

(a) any labour required in consequence of the sentence or order of a court;

(b) any labour required of any person while that person is lawfully detained which, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place at which the person is detained;

(c) any labour required of a member of a disciplined force as part of that member’s duties as such or, in the case of a person who has conscien-tious objections to service as a member of a naval, military or air force, any labour which that person is required by law to perform in place of that service;

(d) any labour required during any period when Uganda is at war or in case of any emergency or calamity which threatens the life and well-being of the community, to the extent that the requiring of the labour is reason-ably justifi able in the circumstances of any situation arising or existing during the period or as a result of the emergency or calamity, for the purpose of dealing with that situation; or

(e) any labour reasonably required as part of reasonable and normal commu-nal or other civic obligations.

26. Protection from Deprivation of Property

(1) Every person has a right to own property either individually or in association with others.

(2) No person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfi ed—

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(a) the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health; and

(b) the compulsory taking of possession or acquisition of property is made under a law which makes provision for—

(i) prompt payment of fair and adequate compensation, prior to the tak-ing of possession or acquisition of the property; and

(ii) a right of access to a court of law by any person who has an interest or right over the property.

27. Right to Privacy of Person, Home and other Property

(1) No person shall be subjected to—

(a) unlawful search of the person, home or other property of that person; or

(b) unlawful entry by others of the premises of that person.

(2) No person shall be subjected to interference with the privacy of that person’s home, correspondence, communication or other property.

28. Right to a Fair Hearing

(1) In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an inde-pendent and impartial court or tribunal established by law.

(2) Nothing in clause (1) of this article shall prevent the court or tribunal from excluding the press or the public from all or any proceedings before it for reasons of morality, public order or national security, as may be necessary in a free and democratic society.

(3) Every person who is charged with a criminal offence shall—

(a) be presumed to be innocent until proved guilty or until that person has pleaded guilty;

(b) be informed immediately, in a language that the person understands, of the nature of the offence;

(c) be given adequate time and facilities for the preparation of his or her defence;

(d) be permitted to appear before the court in person or, at that person’s own expense, by a lawyer of his or her choice;

(e) in the case of any offence which carries a sentence of death or imprison-ment for life, be entitled to legal representation at the expense of the State;


(f) be afforded, without payment by that person, the assistance of an inter-preter if that person cannot understand the language used at the trial;

(g) be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court.

(4) Nothing done under the authority of any law shall be held to be inconsistent with—

(a) clause (3)(a) of this article, to the extent that the law in question imposes upon any person charged with a criminal offence, the burden of proving particular facts;

(b) clause (3)(g) of this article, to the extent that the law imposes conditions that must be satisfi ed if witnesses called to testify on behalf of an accused are to be paid their expenses out of public funds.

(5) Except with his or her consent, the trial of any person shall not take place in the absence of that person unless the person so conducts himself or herself as to render the continuance of the proceedings in the presence of that person impracticable and the court makes an order for the person to be removed and the trial to proceed in the absence of that person.

(6) A person tried for any criminal offence, or any person authorised by him or her, shall, after the judgment in respect of that offence, be entitled to a copy of the proceedings upon payment of a fee prescribed by law.

(7) No person shall be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place consti-tute a criminal offence.

(8) No penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time when it was committed.

(9) A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

(10) No person shall be tried for a criminal offence if the person shows that he or she has been pardoned in respect of that offence.

(11) Where a person is being tried for a criminal offence, neither that person nor the spouse of that person shall be compelled to give evidence against that person.

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(12) Except for contempt of court, no person shall be convicted of a criminal of-fence unless the offence is defi ned and the penalty for it prescribed by law.

29. Protection of Freedom of Conscience, Expression, Movement, Religion, Assembly and Association

(1) Every person shall have the right to—

(a) freedom of speech and expression which shall include freedom of the press and other media;

(b) freedom of thought, conscience and belief which shall include academic freedom in institutions of learning;

(c) freedom to practise any religion and manifest such practice which shall include the right to belong to and participate in the practices of any religious body or organisation in a manner consistent with this Consti-tution;

(d) freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition; and

(e) freedom of association which shall include the freedom to form and join associations or unions, including trade unions and political and other civic organisations.

(2) Every Ugandan shall have the right—

(a) to move freely throughout Uganda and to reside and settle in any part of Uganda;

(b) to enter, leave and return to, Uganda; and

(c) to a passport or other travel document.

30. Right to Education

All persons have a right to education.

31. Rights of the Family

(1) Men and women of the age of eighteen years and above have the right to marry and to found a family and are entitled to equal rights in marriage, dur-ing marriage and at its dissolution.

(2) Parliament shall make appropriate laws for the protection of the rights of widows and widowers to inherit the property of their deceased spouses and to enjoy parental rights over their children.

(3) Marriage shall be entered into with the free consent of the man and woman intending to marry.


(4) It is the right and duty of parents to care for and bring up their children.

(5) Children may not be separated from their families or the persons entitled to bring them up against the will of their families or of those persons, except in accordance with the law.

32. Affi rmative Action in Favour of Marginalised Groups

(1) Notwithstanding anything in this Constitution, the State shall take affi rmative action in favour of groups marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them.

(2) Parliament shall make relevant laws, including laws for the establishment of an equal opportunities commission, for the purpose of giving full effect to clause (1) of this article.

33. Rights of Women

(1) Women shall be accorded full and equal dignity of the person with men.

(2) The State shall provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement.

(3) The State shall protect women and their rights, taking into account their unique status and natural maternal functions in society.

(4) Women shall have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities.

(5) Without prejudice to article 32 of this Constitution, women shall have the right to affi rmative action for the purpose of redressing the imbalances cre-ated by history, tradition or custom.

(6) Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, are prohibited by this Constitution.

34. Rights of Children

(1) Subject to laws enacted in their best interests, children shall have the right to know and be cared for by their parents or those entitled by law to bring them up.

(2) A child is entitled to basic education which shall be the responsibility of the State and the parents of the child.

(3) No child shall be deprived by any person of medical treatment, education or any other social or economic benefi t by reason of religious or other beliefs.

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(4) Children are entitled to be protected from social or economic exploitation and shall not be employed in or required to perform work that is likely to be hazardous or to interfere with their education or to be harmful to their health or physical, mental, spiritual, moral or social development.

(5) For the purposes of clause (4) of this article, children shall be persons under the age of sixteen years.

(6) A child offender who is kept in lawful custody or detention shall be kept sepa-rately from adult offenders.

(7) The law shall accord special protection to orphans and other vulnerable chil-dren.

35. Rights of Persons with Disabilities

(1) Persons with disabilities have a right to respect and human dignity, and the State and society shall take appropriate measures to ensure that they realise their full mental and physical potential.

(2) Parliament shall enact laws appropriate for the protection of persons with disabilities.

36. Protection of Rights of Minorities

Minorities have a right to participate in decision-making processes, and their views and interests shall be taken into account in the making of national plans and programmes.

37. Right to Culture and Similar Rights

Every person has a right as applicable to belong to, enjoy, practise, profess, main-tain and promote any culture, cultural institution, language, tradition, creed or religion in community with others.

38. Civic Rights and Activities

(1) Every Uganda citizen has the right to participate in the affairs of government, individually or through his or her representatives in accordance with law.

(2) Every Ugandan has a right to participate in peaceful activities to infl uence the policies of government through civic organisations.

39. Right to a Clean and Healthy Environment

Every Ugandan has a right to a clean and healthy environment.

40. Economic Rights

(1) Parliament shall enact laws—

(a) to provide for the right of persons to work under satisfactory, safe and healthy conditions;


(b) to ensure equal payment for equal work without discrimination; and

(c) to ensure that every worker is accorded rest and reasonable working hours and periods of holidays with pay, as well as remuneration for public holidays.

(2) Every person in Uganda has the right to practise his or her profession and to carry on any lawful occupation, trade or business.

(3) Every worker has a right—

(a) to form or join a trade union of his or her choice for the promotion and protection of his or her economic and social interests;

(b) to collective bargaining and representation; and

(c) to withdraw his or her labour according to law.

(4) The employer of every woman worker shall accord her protection during pregnancy and after birth, in accordance with the law.

41. Right of Access to Information

(1) Every citizen has a right of access to information in the possession of the State or any other organ or agency of the State except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to the privacy of any other person.

(2) Parliament shall make laws prescribing the classes of information referred to in clause (1) of this article and the procedure for obtaining access to that information.

42. Right to Just and Fair Treatment in Administrative Decisions

Any person appearing before any administrative offi cial or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.

43. General Limitation on Fundamental and other Human Rights and Freedoms

(1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.

(2) Public interest under this article shall not permit—

(a) political persecution;

(b) detention without trial;

(c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifi able in a free and democratic society, or what is provided in this Constitution.

Annextures 419

44. Prohibition of Derogation from Particular Human Rights and Freedoms

Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms—

(a) freedom from torture and cruel, inhuman or degrading treatment or punish-ment;

(b) freedom from slavery or servitude;

(c) the right to fair hearing;

(d) the right to an order of habeas corpus.

45. Human Rights and Freedoms Additional to Other Rights

The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifi cally mentioned in this Chapter shall not be regarded as excluding others not specifi cally mentioned.

Human rights and freedoms during a state of emergency

46. Effect of Laws Enacted for a State of Emergency

(1) An Act of Parliament shall not be taken to contravene the rights and freedoms guaranteed in this Chapter, if that Act authorises the taking of measures that are reasonably justifi able for dealing with a state of emergency.

(2) The provisions of any enactment other than an Act of Parliament dealing with a state of emergency declared under this Constitution shall apply only to that part of Uganda where the emergency exists.

(3) Without prejudice to clause (1) of this article, an Act enacted in accordance with that clause may make provision for the detention of persons where necessary for the purposes of dealing with the emergency.

47. Detention under Emergency Laws

Where a person is restricted or detained under a law made for the purpose of a state of emergency, the following provisions shall apply—

(a) he or she shall, within twenty-four hours after the commencement of the restriction or detention, be furnished with a statement in writing specifying the grounds upon which he or she is restricted or detained;

(b) the spouse or next-of-kin of or other person named by the person restricted or detained shall be informed of the restriction or detention and allowed access to the person within seventy-two hours after the commencement of the restriction or detention;

(c) not more than thirty days after the commencement of his or her restriction or detention, a notifi cation shall be published in the Gazette and in the media


stating that he or she has been restricted or detained and giving particulars of the provisions of the law under which his or her restriction or detention is authorised and the grounds of his or her restriction or detention.

48. Review by the Uganda Human Rights Commission

(1) The Uganda Human Rights Commission shall review the case of a person who is restricted or detained and to whom article 47 of this Constitution applies, not later than twenty-one days after the commencement of the restriction or detention, and after that, at intervals of not more than thirty days.

(2) A person who is restricted or detained shall be permitted and afforded every possible facility—

(a) to consult a lawyer of his or her choice or any group of persons who shall be permitted to make representations to the Uganda Human Rights Commission for the review of his or her case;

(b) to appear in person or by a lawyer of his or her choice at the hearing or review of his or her case.

(3) On a review of the case, the Uganda Human Rights Commission may order the release of that person, or uphold the grounds of the restriction or deten-tion.

49. Report to Parliament

(1) In every month in which there is a sitting of Parliament, the Minister responsi-ble shall make a report to Parliament in respect of—

(a) the number of persons restricted or detained under the state of emer-gency; and

(b) the action taken in compliance with the fi ndings of the Uganda Human Rights Commission.

(2) The Minister responsible shall publish every month in the Gazette and in the media—

(a) the number and names and addresses of the persons restricted or detained;

(b) the number of cases reviewed by the Uganda Human Rights Commission; and

(c) the action taken in compliance with the fi ndings of the Uganda Human Rights Commission.

(3) For the avoidance of doubt, it is declared that at the end of the emergency declared under this Constitution, any person in or under restriction, deten-tion or custody as a result of the declaration of emergency shall be released immediately, unless charged with a criminal offence in a court of law.

Annextures 421

Enforcement of Rights and Freedoms by Courts

50. Enforcement of Rights and Freedoms by Courts

(1) Any person who claims that a fundamental or other right or freedom guaran-teed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation.

(2) Any person or organisation may bring an action against the violation of an-other person’s or group’s human rights.

(3) Any person aggrieved by any decision of the court may appeal to the appropri-ate court.

(4) Parliament shall make laws for the enforcement of the rights and freedoms under this Chapter.

Uganda Human Rights Commission

51. Uganda Human Rights Commission

(1) There shall be a commission called the Uganda Human Rights Commission.

(2) The commission shall be composed of a chairperson and not less than three other persons appointed by the President with the approval of Parliament.

(3) The chairperson of the commission shall be a judge of the High Court or a person qualifi ed to hold that offi ce.

(4) The chairperson and members of the commission shall be persons of high moral character and proven integrity and shall serve for a period of six years and be eligible for reappointment.

52. Functions of the Human Rights Commission

(1) The commission shall have the following functions—

(a) to investigate, at its own initiative or on a complaint made by any person or group of persons against the violation of any human right;

(b) to visit jails, prisons, and places of detention or related facilities with a view to assessing and inspecting conditions of the inmates and make recommendations;

(c) to establish a continuing programme of research, education and informa-tion to enhance respect of human rights;

(d) to recommend to Parliament effective measures to promote human rights, including provision of compensation to victims of violations of human rights or their families;

(e) to create and sustain within society the awareness of the provisions of this Constitution as the fundamental law of the people of Uganda;


(f) to educate and encourage the public to defend this Constitution at all times against all forms of abuse and violation;

(g) to formulate, implement and oversee programmes intended to inculcate in the citizens of Uganda awareness of their civic responsibilities and an appreciation of their rights and obligations as free people;

(h) to monitor the Government’s compliance with international treaty and convention obligations on human rights; and

(i) to perform such other functions as may be provided by law.

(2) The Uganda Human Rights Commission shall publish periodic reports on its fi ndings and submit annual reports to Parliament on the state of human rights and freedoms in the country.

(3) In the performance of its functions, the Uganda Human Rights Commission shall—

(a) establish its operational guidelines and rules of procedure;

(b) request the assistance of any department, bureau, offi ce, agency or person in the performance of its functions; and

(c) observe the rules of natural justice.

53. Powers of the Commission

(1) In the performance of its functions, the commission shall have the powers of a court—

(a) to issue summons or other orders requiring the attendance of any person before the commission and the production of any document or record relevant to any investigation by the commission;

(b) to question any person in respect of any subject matter under investiga-tion before the commission;

(c) to require any person to disclose any information within his or her knowledge relevant to any investigation by the commission; and

(d) to commit persons for contempt of its orders.

(2) The commission may, if satisfi ed that there has been an infringement of a hu-man right or freedom, order—

(a) the release of a detained or restricted person;

(b) payment of compensation; or

(c) any other legal remedy or redress.

(3) A person or authority dissatisfi ed with an order made by the commission under clause (2) of this article has a right to appeal to the High Court.

Annextures 423

(4) The commission shall not investigate—

(a) any matter which is pending before a court or judicial tribunal;

(b) a matter involving the relations or dealings between the Government and the Government of any foreign State or international organisation; or

(c) a matter relating to the exercise of the prerogative of mercy.

54. Independence of the Commission

Subject to this Constitution, the commission shall be independent and shall not, in the performance of its duties, be subject to the direction or control of any person or authority.

55. Expenses of the Commission

(1) The commission shall be self-accounting and all the administrative expenses of the commission, including salaries, allowances and pensions payable to persons serving with the commission, shall be charged on the Consolidated Fund.

(2) The chairperson and other members of the commission shall be paid such salaries and allowances as Parliament may prescribe.

56. Removal of Commissioners

The provisions of this Constitution relating to the removal of a judge of the High Court from offi ce shall, with the necessary modifi cations, apply to the removal from offi ce of a member of the commission.

57. Staff of the Commission

The appointment of the offi cers and other employees of the commission shall be made by the commission in consultation with the Public Service Commission.

58. Parliament to Make Laws Regarding Functions of the Commission

Parliament may make laws to regulate and facilitate the performance of the func-tions of the Uganda Human Rights Commission.

424

The Constitution of Zanzibar – 1984

SURA YA TATU

Kinga ya Haki za Lazima na Uhuru wa Mtu Binafsi

11. (1) Binadamu wote huzaliwa huru, na wote ni sawa.

(2) Kila mtu anastahili heshima ya kutambuliwa na kuthaminiwa utu wake.

12. (1) Watu wote ni sawa mbele ya sheria, na wanayo haki, bila ya ubaguzi wow-ote, kulindwa na kupata haki sawa mbele ya sheria.

(2) Hakuna sheria itakayokuwa na kifungu chochote ambacho ni cha ubaguzi wa moja kwa moja au kwa taathira yake.

(3) Haki za raia, wajibu wa maslahi ya kila mtu yatalindwa na kuamuliwa na Mahakama pamoja na vyombo vya nchi na vinginevyo vilivyowekewa na sheria.

(4) Hakuna mtu atakayebaguliwa na mtu yeyote anayefanya kazi chini ya sheria yeyote au katika utekelezaji wa kazi ya ofi si yoyote ya Serikali au uongozi mwingine wa chama chochote na vyombo vyake.

(5) Katika kifungu hiki neno “kubagua” maana yake ni kutimiza haja kwa watu mbali mbali kwa kutegemea utaifa wao, kabila, ““jinsia” pahala walipotokea, muelekeo wao kisiasa, rangi au dini ambapo watu wa aina fulani wanaonekana kuwa ni dhaifu na duni au wawekewe vikwazo na pingamizi ambavyo wale watu wa aina nyingine hawawekeani au wana-pewa fursa au faida ambayo hawapewi watu wa aina nyingine.

Isipokuwa kwamba neno“kubagua” halitafafanuliwa kwa namna ambayo itazuea Serikali kuchukua hatua za makusudi zenye lengo la kurekebisha matatizo mahsusi katika jamii.

(6) Kwa madhumuni ya kuhakikisha usawa mbele ya sheria Serikali itweka taratibu zinazofaa na zitakazozingatia misingi kwamba:

(a) wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa Mahakama au chombo kinginecho kinachohusika basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa na pia haki ya kukata rufaaa au ya kupata kitulizo kinginecho cha kisheria kutokana na maamuzi ya Mahakama au chombo hicho kinginecho kinachohusika;

(b) mtu aliyeshtakiwa kwa kosa la jinai hatatendewa kama mtu mwenye kosa hilo mpaka itakapothibitika kuwa anayo hatia ya kutenda kosa hilo;

Annextures 425

(c) ni marufuku kwa mtu kuadhibiwa kwa sababu ya kitendo chochote ambacho alipokitenda hakikuwa ni kosa chini ya sheria, na pia itakuwa ni marufuku kwa adhabu kutolewa ambayo ndio kubwa kuliko adhabu iliyokuwepo wakati kosa linalohusika lilipotendwa;

(d) kwa ajili ya kuhifadhi haki ya usawa wa binadamu katika shughuli zote zinazohusu upelelezi na uendeshaji wa mambo ya jinai, katika shughuli nyinginezo ambapo mtu anakuwa chini ya ulinzi bila ya uhuru, ana katika kuhakikisha utekelezaji wa adhabu, heshima ya utu wa mtu itatunzwa;

(e) kesi za jinai zinasikilizwa na hukumu kusomwa haraka na

(f) mtuhumiwa katika kesi za jinai anapata fursa ya utetezi wa Wakili aliyemchagua yeye mwenyewe.

13. (1) Kila mtu anayo haki ya kuwa na hifadhi ya maisha yake.

(2) Kila mtu anayo haki ya kuishi na kupata kutoka kwa jamii hifadhi ya mai-sha yake kwa mujibu wa sheria.

(3) Ni marufuku kwa mtu kuteswa, kuadhibiwa kinyama au kupewa adhabu zinazomtweza au kumdhalilisha.

14. (1) Kila mtu anayo haki ya kuwa huru na kuishi kama mtu huru.

(2) Kwa madhumuni ya kuhifadhi haki ya mtu kuwa huru na kuishi kwa uhuru, itakuwa ni marufuku kwa mtu ye yote kukamatwa kufun-gwa, kufungiwa, kuwekwa kizuizini, kuhamishwa kwa nguvu au kunyang’anywa uhuru wake vinginevyo isipokuwa tu:

(a) katika hali na kwa kufuata utaratibu uliowekwa na sheria; au

(b) katika kutekeleza hukumu, amri au adhabu iliyotolewa na Mahaka-ma kutokana na shauri au kosa la jinai ambalo mtu amekutwa na hatia ya kulitenda.

15. (1) Kila mtu anastahili kuheshimiwa na kupata hifadhi kwa nafsi yake; maisha yake binafsi na ya nyumbani kwake, na pia heshima na hifadhi ya maskani yake na mawasiliano yake.

(2) Kwa madhumuni ya kuhifadhi haki ya mtu kwa mujibu wa kifungu hiki, Mamlaka ya nchi itaweka utaratibu wa sheria kuhusu hali, namna ya kiasi ambacho haki ya mtu na faragha na usalama wa nafsi yake, mali yake na maskani yake, yaweza kuingiliwa bila ya kuathiri kifungu hiki cha Katiba hii.

16. (1) Hakuna mtu atakayenyimwa uhuru wake wa kwenda, na kwa madhumuni ya kifungu hiki uhuru uliotajwa humu maana yake ni haki ya kwenda popote katika Zanzibar, haki ya kuish katika sehemu yoyote ya Zanzibar,


haki ya kuingia Zanzibar, haki ya kuondoka Zanzibar na kinga ya kutofukuzwa Zanzibar.

(2) Kizuizi cha kutokutembea kwa mtu yeyote kutokana na kuwekwa ndani kwake kisheria, haitochukuliwa kuwa inapingana au ni kinyume na kifungu hiki.

17. Hakuna mali ya mtu yeyote itayochokuliwa kwa nguvu na hakuna maslahi au haki yoyote inayotokana na mali hiyo itayochukuliwa kwa nguvu isipokuwa pale ambapo masharti yafuatayo yametimizwa, yaani:

(a) kumilikiwa au kuchukuliwa kwa mali hiyo ni muhimu sana kwa ajili ya ulinzi, usalama wa wananchi, mazingira ya afya, kuimarisha maendeleo ya upangaji wa mji pamoja na kuendeleza mambo ambayo yataleta faida kwa wananchi kwa ujumla;

(b) umuhimu wa kuchkuliwa kitu hicho ni mkubwa sana hata kwamba unahalalisha uchukuaji wake hata kama utampa ugumu na matatizo mwenye mali hiyo; na

(c) sheria imewekwa kuhusiana na umilikaji au uchukuaji huo kwa kutoa fi dia inayolingana.

18. (1) Bila ya kuathiri sheria za nchi, kila mtu yuko huru kuwa na maoni yoyote na kutoa nje mawazo yake, na kutafuta kupokea na kutoa habari na dhana kupitia chombo chochote, bila ya kujali mipaka ya nchi, na pia ana uhuru wa mawasiliano yake kutoingiliwa kati.

(2) Kila raia anayo haki ya kupewa taarifa wakati wote kuhusu matukio mbali mbali nchini na duniani kote ambayo ni muhimu kwa maisha na shughuli za wananchi, na pia juu ya masuala muhimu kwa jamii.

19. (1) Kila mtu anastahili kuwa na uhuru wa mawazo, wa imani na wa uchaguzi katika mambo ya dini, pamoja na uhuru wa kubadilisha dini au imani yake.

(2) Bila ya kuathiri sheria zinazohusika kazi ya kutangaza dini, kufanya ibada na kueneza dini itakuwa huru na jambo la hiari ya mtu binafsi; na shughuli na uendeshaji wa jumuiya za dini zitakuwa nje ya shughuli za Mamlaka ya nchi.

(3) Kila palipotajwa neno “dini” katika kifungu hiki ifahamike kwamba maana yake ni pamoja na madhehebu ya dini, na maneno mengineyo yanayofanana au kuambatana na neno hilo nayo yatatafsiriwa kwa maana hiyo.

20. (1) Isipokuwa kwa hiari yake, hakuna mtu atakayezuiwa kufurahia uhuru wake wa kuchanganyika au kujiunga yaani haki yake ya kuchanganyika na kujihusisha atakavyo na watu wengine na hasa kuunda au kuwa mwa-

Annextures 427

nachama wa vyama vya wafanyakazi, vyama vya haki za binadamu au vyama vingine kwa faida yake na ambavyo vimekubaliwa kisheria.

(2) Hakuna chochote kilichomo dnani ya au kufanywa chini ya sheria yoyote kitakachohesabiwa kuwa hakilingani au ni kinyume na kunfungu hiki (katika kiwango ambacho sheria mama inaeleza):

(a) mambo yanayotakiwa kwa faida ya ulinzi, usalama wa raia, mazin-gira ya afya ya jamii;

(b) mambo yanayotakiwa kwa madhumuni ya kulinda haki na uhuru wa watu wengine;

(c) mambo yanayotakiwa kuweka makatazo fulani kwa maofi sa wa Serikali, Wanajeshi au watu wanaofanya kazi waliochaguliwa kwa hiari.

21. (1) Kila Mzanzibari anayo haki ya kushiriki katika shughuli za utawala wa nchi, ama moja kwa moja au kwa kupitia Wawakilish waliochaguliwa kwa hiari.

(2) Kila Mzanzibari anayo haki na uhuru wa kushiriki kwa ukamilifu katika kufi kia uamuzi juu ya mambo yanayomhusu yeye; maisha yake au yanayolihusu Taifa.

(3) Kila Mzanzibari anayo haki ya kufanya kazi na anastahili fursa na haki sawa, kwa masharti ya usawa, ya kushika nafasi yoyote ya kazi na shu-ghuli yoyote iliyoko chini ya Mamlaka ya Zanzibar.

(4) Kila mtu, bila ya kuwapo ubaguzi wa aina yoyote, anayo haki ya kupata ujira unaolingana na kazi yake na watu wote wafanyao kazi kulingana na uwezo wao watapata malipo kulingana na kiasi ya sifa za kazi wanay-oifanya.

22. (1) Kazi pekee ndiyo huzaa utajir wa mali katika jamii, ndio chimbuko la ustawi wa wananchi na kipimo cha utu, kila mtu anao wajibu wa:

(a) kushiriki kwa kujituma na kwa uaminifu katika kazi halali na ya uzalishaji mali; na

(b) kutimiza nidhamu ya kazi na kujitahidi kufi kia malengo ya uzalishaji ya binafsi na ya pamoja yanayotakiwa au yaliyowekwa na sheria.

(2) Bila ya kujali masharti ya kijifungu cha (1) hakutakuwepo na kazi ya shurti katika Zanzibar.

23. (1) Kila mtu ana wajibu wa kufuata na kutii Katiba hii na Sheria za Zanzibar, kuchukua hatua za kisheria kama zilivyowekwa, kuhakikisha hifadhi ya Katiba na Sheria za nchi.


(2) Kila mtu ana wajibu wa kulinda maliasili ya Zanzibar, mali ya nchi na mali yote inayomilikiwa kwa pamoja na wananchi, na pia kuiheshimu mali ya mtu mwingine.

(3) Watu wote watatakiwa na sheria kulinda vizuri mali ya Zanzibar na kwa pamoja kupiga vita aina zote za uharibifu na ubadhirifu na kuendesha uchumi wa Zanzibar kwa makini kama watu ambao ndio waamuzi wa hali ya baadae ya Taifa lao.

(4) Kila Mzanzibari ana wajibu wa kulinda, kuhifadhi kudumisha uhuru, mamlaka, ardhi na umoja wa Zanzibar.

(5) Baraza la Wawakilishi laweza kutunga sheria zinazofaa kwa ajili ya kuwawezesha wananchi kutumikia katika majeshi na katika ulinzi wa Taifa.

24. (1) Haki na Uhuru wa binadamu ambayo misingi yake imeorodheshwa na Katiba hii haitatumiwa na mtu mmoja kwa namna ambayo itasababisha kuingiliwa kati au kukatizwa kwa haki na uhuru wa watu wengine au masilahi ya umma na unawza kubanwa na sheria iliyotungwa na Baraza la Wawakilishi iwapo tu kibano hicho ni lazima na kinakubalika katika mfumo wa kidemokrasia. Kwa vyo-vyote vile kibano hicho:

(a) hakitaingilia haki ya kutokuteswa, kutoadhibiwa kinyama na kuto-kudhalilishwa; au

(b) hakitaingilia misingi ya haki yenyewe; au

(c) hakitailetea jamii athari zaidi ya iliyopo kutokana na jambo ambalo kibano hicho kinalenga.

(2) Mtu yeyote anayedai kuwa sharti lolote katika sehemu hii ya Sura hii au katika sheria yoyote inayohusu haki yake au wajibu wake limevunjwa, linavunjwa au inaelekea litavunjwa na mtu yeyote Zanzibar, anaweza kufungua shauri katika Mahakama Kuu. Mahakama Kuu itakuwa na uwezo wa kutoa tamko na kuamuru nafuu au fi dia kwa mtu yeyote anayehusika.

(3) Maombi dhidi ya uamuzi wa Mahakama Kuu katika shauri lililofunguliwa dhidi ya masharti ya Sura hii ya Katiba yatasikilizwa na Mahakama Kuu mbele ya Majaji watatu bila ya kumjumuiksha Jaji aliyeamua shauri hilo mara ya kwanza. Majaji hao watatu watateuliwa na Jaji Mkuu.

(4) Bila ya kuathiri masharti mengineyo yaliyomo katika Katiba hii, Mahaka-ma Kuu itakuwa na mamlaka ya kusikiliza kwa mara ya kwanza shauri lolote lililoletwa mbale yake kwa kufuata kifungu hiki; na mamlaka ya nchi yaweza kuweka sheria kwa ajili ya:

(a) kusimamia utaratibu wa kufungua mashauri kwa mujibu wa kifungu hiki;

Annextures 429

(b) kufafanua uwezo wa Mahakama Kuu katika kusikiliza mashauri yaliyofunguliwa chini ya kifungu hiki;

(c) kuhakikisha utekelezaji bora wa madaraka ya Mahakama Kuu, hifa-dhi na kutilia nguvu, haki uhuru na wajibu kwa mujibu wa Katiba hii.

25. (1) Ilivyokuwa kila mtu wa Zanzibar anawajibika kupata haki zake na lazima na uhuru wa binafsi bila ya kujali kabila, pahali alipotoka au maskani au mahusiano mengine yoyote yale, mtazamo wa kisiasa alionao, rangi, dini au jinsia, lakini mradi iwe uhuru wake unaheshimiwa hakie na uhuru wa wengine na iwe kwa faida ya jamii, basi atakuwa na haki kupata kwa kila kimoja kwa vyote vya hivi vifuatavyo:

(a) maisha yake, uhuru wake, usalama wake na kulindwa na sheria;

(b) uhuru wa kufi kiri, wa kujieleza, wa mkusanyiko na mchanganyiko; na

(c) haki ya kuweza kukaa faragha katika nyumba yake na kulindwa kwa mali yake pamoja na kutokuchukuliwa mali hiyo bila kupewa fi dia ipasavyo.

Maelezo ya Sura hii yatakuwa na madhumuni ya kuwezesha kulinda haki hizo na uhuru kulingana na mipaka maalumu ya haki hizo na uhuru kama ilivyoelezwa katika vifungu vinavyohusika kwa mipaka iliyowekwa ili kuhakikisha kwamba kutumika kwa haki hizo na uhuru huo wa mtu binafsi hakuathiri haki na uhuru wa wengine au maslahi ya Taifa kwa ujumla.

25A. (1) Mtu yeyote anaweza kufungua shauri katika Mahakama Kuu iwapo ataona kuwa Katiba hii imevunjwa au inavunjwa au inaelekea kuvun-jwa. Mahakama Kuu itakuwa na uwezo wa:

(a) kumtaka Afi sa yeyote au chombo cha Serikali kutoa Taarifa inayo-hitajika na Mahakama Kuu yaweza kufanya hivyo kwa kuom-bwa au kwa uamuzi wake yenyewe;

(b) kutamka na kutoa amri kuwa Katiba hii imevunjwa, inavunjwa au inaelekea kuvunjwa, na Mahakama Kuu inaweza kutoa maagizo kwa Afi sa anayehusika au chombo cha Serikali kinachohusika.

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ANNEXTURE IV

Key Contact Information on East African Human Rights Institutions

KENYA

Kenya National Commission for Human Rights (KNCHR)Chairperson

Hon. Maina KiaiCommissioners

Hon. Florence Simbiri Jaoko (Vice Chairperson)Hon. Wambui Wamucii Kimathi (Member)Hon. Lawrence Murugu Mute (Member)Hon. Hassan Omar Hassan (Member)Hon. Winfred Osimbo Lichuma (Member)Secretary

Mr. Mburu GituContactsPostal Address: P.O. Box 74359 – 00200 Nairobi, KenyaPhysical Address: CVS Plaza, Lenana Road, Nairobi, KenyaTelephone: +254 20 2717908 or 2717928 or 2717256 or 2712664Fax: +254 20 2716160Website: http://www.knchr.org

RWANDA

National Commission for Human Rights (NCHR)Chairperson

Hon. KAYITESI Zaïnabo SylvieCommissioners

Hon. KAYUMBA Déogratias (Vice Chairperson)Hon. NIYONZIMA Etienne (Member)Hon. KAREMERA Pierre (Member)Hon. NKONGOLI Laurent (Member)Hon. KANYANGE Anne Marie (Member)Hon. TUMUKUNDE Hope (Member)

Annextures 431

ContactsPostal Address: P.O. Box 269, Kigali, RwandaPhysical Address: Districk Kacyiru, Mairie de la Ville de KigaliTelephone: +250 504 273/4Fax: +250 504 270E-Mail: [email protected]: http://www.rhrc-rw.org

TANZANIA

Commission for Human Rights and Good Governance (CHRGG)Chairperson

Hon. Mr. Justice (Retired) Robert Habesh KisangaCommissioners

Hon. Ambassador Mohamed Ramia Abdiwawa (Vice Chairperson)Hon. Catherine Harieth Mbelwa Kivanda (Member)Hon. Stephen Zacharia Mwaduma (Member)Hon. Jecha Salim Jecha (Member)Hon. Safi a Masoud Khamis (Member)Hon. George Francis Mlawa (Member)Secretary

Ms. Upendo MsuyaContactsPostal Address: P.O. Box 2643, Dar es Salaam, TanzaniaPhysical Address: Haki House, 8 Luthuli Street, Dar es SalaamTelephone: +255 22 2110607/9 or 2135219 or 2135222 or 2135747/8Fax: +255 22 2111533 or +255 22 2111281E-Mail: [email protected]: http://www.chragg.org

UGANDA

Uganda Human Rights Commission (UHRC)Chairperson

Hon. Sekagya MargaretCommissioners

Hon. Omara Aliro (Member)Hon. C.K Karusoke (Member)


Hon. Dr. John Mary Waliggo (Member)Hon. Mariam Wagadya (Member)Hon. Veronica Bichetero (Member)Hon. Adrian Sibo (Member)Secretary

Mr. Gordon MwesigyeContactsPostal Address: P.O. Box 4929, Kampala, UgandaPhysical Address: Plot 20/22/24 Buganda Road, Kampala, Uganda.Telephone: +256-414-345063 or +256- 414-237543E-Mail: [email protected]: http://www.uhrc.org