dieHuman Rights Notes:

Human Rights: Nature, Development and Core Principles

What is Our Understanding of Human Rights?

Our understanding of human rights is shaped by personal experiences and readings.

Human rights are defined as fundamental rights and freedoms every person is
entitled to simply because they are human. Key characteristics include:

• They are not privileges and are not earned.

• They are basic rights that we are born with.
• They are enjoyed universally, applying to "everybody".
• They encompass a wide range, from the right to life to rights essential for a
dignified existence, such as the right to food, education, work, health, and
liberty.
• Human dignity must not be violated.
• While they cannot generally be taken away, they can sometimes be limited.
• The State has a primary responsibility to protect these rights, with institutions
like the South African Human Rights Commission (SAHRC) established for
this purpose.
• It is acknowledged that not all rights are absolute.

This understanding is further framed by the views of specific international

institutions:

• United Nations (UN): States that "All human beings are born with equal and
inalienable rights and fundamental freedoms".

• Office of the United Nations High Commission for Human Rights (OHCHR):
Defines human rights as rights we have "simply because we exist as human beings -
they are not granted by any state" and are "universal rights inherent to us all,
regardless of nationality, sex, national or ethnic origin, color, religion, language, or
any other status".

• UNICEF: Views human rights as "standards that recognize and protect the dignity
of all human beings," governing how individuals live in society, interact with each
other, and defining the State's obligations towards them.
• South African Human Rights Commission (SAHRC): Explains human rights as
"the basic rights that everyone has, simply because they are human," emphasizing
that "They do not have to be earned, and they are not privileges which someone
gives to you. You have them the moment you are born".

Nature and Historical Development of Human Rights

We trace the evolution of human rights through various historical periods and
philosophical developments:

• Ancient Civilisations: The development of human rights can be traced back

to ancient Greece and Rome, where concepts like justice, equality, and
individual rights were established. For example, the Greek philosopher
Aristotle argued for the right to life and a duty to protect it. Similarly, the
Roman Law of the Twelve Tables recognized rights such as a fair trial and
property protection.
• Philosophical Basis: The philosophical foundation for human rights is found
in natural law, which suggests a higher set of norms influenced by laws of
nature and religion.
• Religion: The document notes that "human rights and religion are intertwined
but also in tension". Religious traditions have provided a basis for concepts
like justice, equality, respect, tolerance, dignity, and compassion.
• European Development: Key milestones include:

 ◦ The Magna Carta.

 ◦ John Locke (1632-1704): Argued that political power is justified
only if it safeguards subjects' natural rights (life, liberty, and
property). A failure to protect these rights would lead to the
dissolution of the social contract.
 ◦ Jean-Jacques Rousseau (1712-1778): Believed that rights are
not surrendered to any sovereign but that power is entrusted to
society as a whole, implying a collective responsibility to protect
individual rights.
  ◦ Thomas Hobbes and Immanuel Kant: Also supported natural
rights theories, positing that basic human rights derive from being
born equal.
 ◦ The French Revolution influenced the codification of law.

• Positivism: This legal theory, which holds that laws are valid solely based on their
enactment and enforcement by a state entity, is stated to have "impeded the further
development of human rights". It raises critical questions about the validity of laws
that, despite being procedurally correct, violate rights or discriminate.

• International Law Development: The evolution of human rights law is closely

linked to developments in international law, particularly the development of the State
and nationalism. Principles like state sovereignty and non-interference in domestic
affairs played a role.

• Events Restoring Prominence: Significant historical events that restored the

prominence of human rights and the responsibility to protect, promote, and fulfil them
include the League of Nations, World War II, the formation of the United Nations, and
Decolonisation.

• Modern Approach: The contemporary approach to human rights is characterized

by a focus on acknowledging diversity, encouraging dialogue, and promoting
inclusivity.

Principles Underpinning Human Rights Discourse

The conceptual foundation of human rights discourse rests on several main

principles:

• Universality:

◦ Meaning: Universality means that all human beings possess human rights,
regardless of their background or status, and have an equal claim to a dignified
existence.

◦ State Responsibility: States have the primary responsibility to ensure the

protection of human rights.

◦ Nuance: This principle does not imply uniformity in application, as states differ in
their historical, religious, and cultural contexts. Thus, dialogue is crucial for
integrating rights into local contexts. Rights should be treated "on the same footing,"
despite national and regional interests.

◦ Professor Megret's Insights: The document references Professor Megret's

insights, which prompt deeper reflection on the meaning and challenges of universal
rights:

▪ Human rights have developed very differently across continents and in

different countries.

▪ They are deeply "immersed in the thickness of each state’s constitutional life"
and increasingly become "part and parcel of local legal traditions which they help
reshape".

▪ There's a concern that the more abstract universal rights become, the less
accessible and intelligible they may be, potentially turning into "mere platitudes" that
people agree with in principle but disagree on their specific content.

▪ Megret suggests that local and national traditions "not only historically but
logically and normatively precede the commitment to universalism".

Interdependence and Indivisibility:

◦ Meaning: These principles signify that human rights are closely connected and
cannot be separated from one another. They are "interrelated, interconnected".

◦ Examples: The right to freedom of expression is closely linked to the right to

freedom of thought and the right to education.

◦ Dignity and Life: We highlight the profound connection between dignity and life,
referencing Justice O’Regan’s remarks in S v Makwanyane: "The right to life, thus
understood, incorporates the right to dignity. So, the right to human dignity and life
are entwined. The right to life is more than existence, it is a right to be treated as a
human being with dignity: without dignity, human life is substantially dismissed.
Without life there cannot be dignity."

These principles collectively provide a framework for the protection of human rights
and for ensuring that every person is treated with respect and dignity.
Introduction to International Law:

International law is defined as governing relations between states, or between states

and international organisations.

• Subjects of International Law:

◦ States are the primary subjects of international law.

◦ International organisations are secondary subjects and possess limited

international legal personality to act on the 'international plane'.

• Sources of International Law:

According to Article 38(1) of the Statute of the International Court of Justice, the
Court applies:

• International conventions, whether general or particular, that establish rules

expressly recognised by contesting states.
• International custom, evidenced by a general practice accepted as law.
• The general principles of law recognised by 'civilised nations'.
• Judicial decisions and the teachings of highly qualified publicists as subsidiary
means for determining rules of law.

• Fragmentation of International Law:

We note that international law is fragmented into various specialised areas, such as
international trade law, international humanitarian law, international environmental
law, and international criminal law.

International Human Rights Law (IHRL)

International human rights law sets out the obligations of governments to act in
certain ways or to refrain from certain acts to promote and protect the human rights
and fundamental freedoms of individuals or groups.

• Levels of Human Rights Systems:

  International/Universal: Operates between all nations, with human rights
systems created by and within the UN.
 Regional: Operates within specific regions or groups of states, examples
being the African System, the Inter-American System, and the European
System.
 National/Domestic/Municipal: Pertains to the operation and application of
human rights within a country's domestic legal system (e.g., South Africa).

Universal/International Human Rights System: The United Nations (UN)

The UN is highlighted as the main international organisation responsible for the

protection of human rights.

• The Human Rights Council (UNHRC):

• Established in 2006 following recommendations from the General Assembly, it

replaced the former UN Commission on Human Rights, which was criticised
for political bias.
• It is an intergovernmental body within the UN system responsible for
strengthening the promotion and protection of human rights globally.
• The Council addresses situations of human rights violations, makes
recommendations, and serves as a forum for dialogue on pressing human
rights issues.
• It conducts the Universal Periodic Review (UPR), where UN Member States
undergo a review of their human rights processes and records every 4.5
years, reporting on actions taken and receiving recommendations.
• The UNHRC also works with UN Special Procedures, which include special
rapporteurs, representatives, independent experts, and working groups that
monitor, examine, advise, and publicly report on human rights issues or
country situations.

• The UN Charter:

 Signed in 1945 after World War II, it established the UN with a mission to
maintain international peace and security, promote economic and social
cooperation, and foster respect for human rights and fundamental freedoms.
  Although not a human rights instrument itself, it led to the internationalisation
of human rights by providing a common understanding and standard for
human rights and fundamental freedoms.
 Legal scholars argue it creates legal obligations for UN Member States to
cooperate in promoting human rights and formulating instruments.
 Criticisms: The Charter has been criticised for being vague, not clearly
indicating protected rights (apart from non-discrimination), and lacking
enforcement machinery unless violations disrupt international peace. It also
stated that the UN could not intervene in domestic matters, a principle that
was challenged when the UN chose to protect human rights over non-
interference (e.g., in the case of apartheid South Africa).

The 'International Bill of Rights'

This comprises three core global human rights instruments:

• A. Universal Declaration of Human Rights (UDHR) – 1948:

◦ Drafted by the Commission on Human Rights, established by the UN Economic

and Social Council (ECOSOC) in 1946.

◦ Adopted by the General Assembly in 1948, the UDHR is not a binding treaty; it is
a UN General Assembly resolution with no force of law on its own.

◦ It is the first comprehensive human rights instrument proclaimed by a universal

international organisation.

◦ The UDHR confirms that the authority of a state's organs flows from the will of
the people and embeds rights like equality before the law and the right to vote. Its
Preamble highlights that disregard for human rights led to "barbarous acts" and
proclaims freedom of speech, belief, and freedom from fear and want as the highest
aspirations.

◦ It inspired the creation of later human rights instruments.

• B. International Covenant on Civil and Political Rights (ICCPR) – 1966:

◦ A multilateral treaty that is binding on signatory states.

 ◦ It comprises first-generation rights, which are civil and political rights, such as the
right to vote, self-determination, and fair trial.

◦ Adopted in 1966, it came into force in 1976.

◦ Article 2(1) obliges each State Party to respect and ensure to all individuals
within its territory and subject to its jurisdiction the rights recognised in the Covenant,
without distinction.

◦ The ICCPR is more juridically specific and lists more rights than the UDHR. It is
divided into four parts:

▪ Part I: Focuses on the right to self-determination, including the right to vote,

reflecting the decolonisation period.

▪ Part II: Obliges signatory States to respect and ensure that all individuals in
their territories enjoy the Covenant's rights.

▪ Part III: Lists specific civil and political rights, such as the right to human
dignity, equality, and fair trial.

▪ Part IV: Establishes a Human Rights Committee tasked with international

supervision of States Parties' compliance and provides for inter-state complaints.

◦ Optional Protocols:

▪ First Optional Protocol: Allows the Human Rights Committee to receive and
consider complaints from individuals alleging human rights violations, provided they
have exhausted all available domestic remedies. The same matter must not be
examined under another international procedure.

▪ Second Optional Protocol: Aims to abolish the death penalty for State
parties.

• C. International Covenant on Economic, Social and Cultural Rights (ICESCR)

– 1966:

 Contains second-generation and third-generation rights.

 Adopted in 1966, it also came into force in 1976.
 Part I also recognises the right to self-determination.
  Part II states that signatory States only undertake to take steps, to the
maximum of their available resources, to achieve "progressively" the full
realisation of the recognised rights (Article 2(1)).
 Part III provides a comprehensive catalogue of economic, social, and cultural
rights, including the right to work, education, an adequate standard of living,
health, participation in cultural life, food, and organisational rights like trade
unions and freedom of association.
 Part IV obliges signatory States to submit reports to the UN Committee on
Economic, Social and Cultural Rights on the measures adopted and progress
made.
 The ICESCR makes no provisions for inter-state complaints.
 Optional Protocol: Allows individuals or groups claiming to be victims of
violations to submit communications, provided states are party to the Protocol.

Enforcement Mechanisms

• Charter-based Mechanisms:

◦ These include the Human Rights Council, which conducts the Universal Periodic
Review (UPR) of all UN Member States' human rights records, independent
investigations, and the work of Special Rapporteurs/Procedures and the UN High
Commissioner for Human Rights.

◦ The UPR provides states the opportunity to report on actions taken to improve
human rights and to receive recommendations.

• Treaty-based Mechanisms:

◦ Human rights treaties establish committees of experts (e.g., the ICCPR's Human
Rights Committee) to supervise the implementation of state obligations through:

▪ State Reports (periodic submissions).

▪ Individual Complaints (through Optional Protocols).

Typology (Classification of Human Rights)

We briefly discuss the classification of human rights into First Generation, Second
Generation, and Third Generation rights.
Introduction to Regional Human Rights Protection:

1. Introduction to Regional Human Rights Protection

Human rights are considered vital, and all human beings are expected to enjoy the
same protection globally, regardless of where they live. Achieving this equal
protection requires consensus among nearly 200 diverse States, differing in
geographical, historical, cultural, and social aspects. Reaching such a consensus is
a meticulous process that necessitates cooperation between global and regional
communities.

Regional mechanisms are often more successful than global protection systems due
to political and cultural homogeneity and shared judicial traditions and institutions
within a region, which foster confidence necessary for effective implementation.
However, regional systems have faced problems recently concerning the
enforcement of decisions and legitimacy, particularly with increasing resistance from
national governments regarding issues of sovereignty.

2. Regional Human Rights Systems

a. Asia

Asia is unique as it is the only region that has not adopted a regional human rights
convention. However, sub-regional systems exist, such as:

• The Arab Charter on Human Rights: Adopted by the League of Arab States, it
entered into force in 2008 and is governed by the Arab Human Rights Committee.

• ASEAN Intergovernmental Commission on Human Rights (AICHR):

Established in 2009 by the Association of Southeast Asian Nations (ASEAN) as a
consultative body overseeing the 2012 ASEAN Human Rights Declaration.

b. Europe
Europe developed the first regional system of human rights protection, established
by the Council of Europe, an intergovernmental organisation created in 1949. This
system is built on two primary treaties:

• The European Convention for the Protection of Human Rights and

Fundamental Freedoms (ECHR):

 Adopted in 1950 and effective from 1953.

 It guarantees basic civil and political rights.
 Inspired by the Universal Declaration of Human Rights (UDHR) and the
International Covenant on Civil and Political Rights (ICCPR).
 Signatory States (State Parties) must secure the Convention's rights for
everyone within their jurisdiction (Article 1) and ensure an effective remedy
(Article 13).
 The Convention itself does not protect the right to property, but its First
Protocol does.
 Unlike the South African Constitution, the ECHR lacks a specific limitation
clause.
 ECHR Mechanism: Initially comprised a three-tier machinery: the European
Commission of Human Rights, the European Court of Human Rights, and the
Committee of Ministers of the Council of Europe. In 1998, the Commission
and the Court were merged due to increasing workload and expanding
Council membership post-Cold War.

• The European Social Charter (ESC):

◦ Adopted in 1961 and effective from 1965.

◦ It recognises a series of economic and social rights.

◦ A revised Charter was adopted in 1996, intended to progressively replace its

predecessor.

c. The Americas

The Inter-American System for the protection of human rights was established by the
Organization of American States (OAS), founded in 1948. This system draws from
two main sources:
  The 1948 non-binding American Declaration of Human Rights and Duties of
Man (American Declaration).
 The binding American Convention on Human Rights (ACHR) of 1969. These
two instruments overlap and supplement each other. The protection of human
rights in the Americas, similar to Europe, rests on two legs: the OAS Charter
and the ACHR.
 OAS Charter: Adopted in 1948 and effective from 1951, it makes very few
references to human rights. The OAS comprises all 35 States in Latin
America, the Caribbean, the United States, and Canada. The lack of
institutional provision for human rights observance in the Charter was
remedied in 1960 with the establishment of the Inter-American Commission
on Human Rights as an autonomous OAS entity.
 American Convention on Human Rights (ACHR): It provides a three-tier
enforcement system consisting of the Inter-American Commission on Human
Rights, the Inter-American Court of Human Rights, and the General Assembly
of the OAS.

d. Africa

The protection of human rights in pre-colonial Africa is less documented. Africa had
limited input in drafting the UN Charter and UDHR. However, most African colonies
gained independence around 1960, allowing them to impact the drafting of the
ICCPR and ICESCR. This period saw new independent African states joining the UN
and establishing a continental organisation.

• Organization of African Unity (OAU):

◦ Established on 25 May 1963 with the adoption of the OAU Charter by 32 African
States in Addis Ababa, Ethiopia.

◦ By its replacement in 2002, it had 53 members, excluding Morocco. South Africa

was excluded during apartheid but acceded on 23 May 1994.

◦ The OAU was an intergovernmental organisation aimed at promoting unity and

solidarity among African states.

◦ Its Charter reflected the concerns of the late 1950s and 60s, including
decolonisation, self-determination, sovereign equality, and non-interference.
 ◦ Apartheid in South Africa was a priority for the OAU, which condemned it as a
threat to peace and international security.

• From OAU to African Union (AU):

◦ In 2000, the OAU transformed into the AU in response to internal and global
challenges.

◦ The AU was established by the Constitutive Act of the African Union, adopted on
11 July 2000 in Lomé, Togo, and formally inaugurated on 9 July 2002 in Durban,
South Africa.

◦ The Constitutive Act's objectives (Article 3) aim to enhance political cooperation

and economic integration among African States, including promoting sustainable
development.

• The African Charter on Human and Peoples' Rights (ACHPR):

◦ Also known as the Banjul Charter, it was approved by the OAU in 1981 and
came into force in 1986.

◦ South Africa ratified the Charter in 1996.

◦ It represents an implied recognition that non-interference cannot defend human

rights violations.

◦ Inspired by major global and regional human rights instruments, the ACHPR
differs from the ECHR and ACHR in several respects.

◦ It recognises a wide range of first, second, and third-generation rights, such as

the rights to equality, property, and self-determination.

◦ Its principal supervisory organ is the African Commission on Human and

Peoples' Rights.

• African Commission on Human and Peoples' Rights:

◦ The supervisory organ of the African Charter, situated in Banjul, The Gambia.

◦ Consists of 11 members serving in their personal capacity, meeting twice a year.

◦ Its functions include:

 ▪ To promote human rights.

▪ To ensure the protection of human and peoples' rights under the Charter's
conditions.

▪ To interpret Charter provisions at the request of a State Party, OAU institution,

or OAU-recognised African Organisation.

• African Court on Human and Peoples' Rights:

◦ The Protocol on the African Court on Human and Peoples' Rights was adopted in
June 1998 and entered into force on 25 January 2004, upon receiving 15
ratifications.

◦ The Court has competence to decide all cases and disputes concerning the
interpretation and application of the Charter, its Protocol, and any other relevant
Human Rights Instrument ratified by concerned States. It can also provide opinions
on legal matters related to the Charter or other human rights instruments.

◦ Access to the Court: Cases can be submitted by:

▪ The African Commission.

▪ A State Party which lodged a complaint with the Commission.

▪ A State Party against whom a complaint has been lodged.

▪ A State Party whose citizen is a victim of human rights violations.

▪ African Intergovernmental Organisations.

ADMISSABILITY

◦ Exceptional Access for Individuals and NGOs: The Court may allow individuals
or NGOs to bring cases directly before it, under Article 5(3) of the Protocol, provided
they have observer status with the African Commission (for NGOs) and, crucially, the
relevant State Party must have made a declaration under Article 34(6) accepting the
Court's competence to receive such cases. South Africa has not made this
declaration. Most communications heard by the African Commission have been filed
by NGOs and individuals.

Complaints Procedure and Jurisdiction of the African Court

The complaints procedure generally involves assessing:

1. Prima facie violation: Whether a human rights violation has occurred.

2. Attributability: Is the violation attributable to a state party to the African Charter?.

3. Complainant competence: Is the complainant (Inter-State or Individuals/NGOs

under Article 55) competent to bring the claim?.

4. Admissibility: The complaint must include the author's name, invoke relevant
Charter provisions, not use insulting language, and not be based exclusively on
news reports.

5. Exhaustion of domestic remedies: The complainant must have exhausted all

available domestic remedies.

6. Reasonable time: The complaint must be submitted within a reasonable time

from the date of exhaustion of domestic remedy.

Jurisdiction of the Court over non-ratifying States: The African Court can
potentially exercise jurisdiction over cases involving states that haven't ratified the
African Charter under specific circumstances:

• By declaration: If a state makes a declaration under Article 34(6) or Article

5(3) of the Protocol, individuals and NGOs from that State can bring cases
directly to the Court, regardless of whether the State has ratified the African
Charter. This declaration can cover prohibited forms of
exploitation/degradation (e.g., slavery, torture).
• Other Human Rights Instruments: The Court's jurisdiction also extends to
cases involving other human rights instruments ratified by the states
concerned. This means if a state has ratified other relevant human rights
treaties, the Court could potentially exercise jurisdiction over cases involving
those treaties, even if the State has not ratified the African Charter.

Enforcement of Decisions: While the African Court's decisions are binding on the
States concerned, their enforcement can be complex. States are expected to
comply, and non-compliance can lead to diplomatic and political pressures. The
effectiveness of the Court's decisions varies depending on states' willingness to
abide by them.
Case Examples

We highlight two class discussions on important cases:

• African Commission on Human and Peoples' Rights v Republic of Kenya: This

case involved a claim over the ownership of traditional land by the indigenous Ogiek
people in Kenya. The Commission argued that an eviction notice for the Ogiek
people from Mau Forest violated several articles of the African Charter, as it failed to
consider the forest's importance for their survival. The Court found that the
Respondent State had indeed violated the rights of the Ogiek people.

• Democratic Republic of Congo v Rwanda: This case was mentioned for students
to understand admissibility and jurisdiction, specifically ratione personae (personal
jurisdiction), ratione materiae (subject-matter jurisdiction), and ratione temporis
(temporal jurisdiction).
CASE SUMMARY:

African Commission on Human and Peoples Rights (ACHPR) v. Republic of

Kenya

1. Parties Involved and Background of the Dispute

• Applicant: The African Commission on Human and Peoples’ Rights

(ACHPR).
• Respondent State: The Republic of Kenya.
• Victims Represented: The Ogiek, an indigenous minority ethnic group in the
Republic of Kenya.

Genesis of the Case: In October 2009, the Ogiek received a thirty-day eviction
notice from the Kenya Forestry Service to leave the Mau Forest.

Initial Filing: The Commission filed the Application after receiving a communication
on 14 November 2009, from the Centre for Minority Rights Development
(CEMIRIDE) and Minority Rights Group International (MRGI), acting on behalf of the
Ogiek of Mau Forest.

Allegations: The Commission argued that the eviction notice failed to consider the
Mau Forest's importance for the Ogiek's survival, leading to violations of Articles 1, 2,
4, 8, 14, 17(2) and (3), 21, and 22 of the African Charter on Human and Peoples’
Rights (the Charter). The Ogiek People’s Development Programme (OPDP) was
also involved in the proceedings.

2. Merits Judgment (Preceding the Reparations Judgment)

The Court delivered its judgment on the merits of the Application on 26 May 2017.

Violations Found: The Court found that the Republic of Kenya had violated the
rights of the Ogiek under Articles 1, 2, 8, 14, 17(2) and (3), 21 and 22 of the Charter.
Separate Reparations Ruling: The Court decided that it would rule on reparations
in a separate judgment and invited the parties to file submissions on reparations.

3. Objections Raised by the Respondent State during Reparations Proceedings

The Republic of Kenya raised three main objections, all of which were
dismissed by the Court:

• Temporal Jurisdiction:

◦ Kenya's Argument: There was no basis for compensation claims for violations
before 1992 (when Kenya became party to the Charter), and financial compensation
should only be computed from 26 October 2009.

◦ Court's Ruling: The Court recalled that this issue was already resolved in its
merits judgment, which confirmed its temporal jurisdiction. It also noted that the
established violations remained unaddressed. Therefore, comprehensive reparations
needed to account for events before 10 February 1992 if connected to the harm
suffered by the Ogiek.

• Amicable Settlement:

◦ Kenya's Argument: The Court should consider ordering an amicable settlement

under Article 9 of the Protocol to the African Charter.

◦ Court's Ruling: The Applicant (Commission) opposed this, citing doubts about a
genuine and efficient process. The Court held that a key prerequisite for amicable
settlement is the parties' willingness to engage, which was absent given the failure at
the merits stage and disagreement at the reparations stage.

• Representation of Ogiek Organisations:

◦ Kenya's Argument: CEMIRIDE, MRGI, and OPDP were not representative of

the Ogiek.

◦ Court's Ruling: The Applicant countered that these organisations were duly
authorised. The Court recalled that the question of representation was raised at the
merits stage and that the Applicant before it was the Commission, not the "original
complainants", thereby affirming proper parties were present.
4. Reparations Ordered by the Court The Court considered both pecuniary
(monetary) and non-pecuniary reparations.

• Pecuniary Reparations (Monetary Compensation):

◦ Material Prejudice:

▪ The Applicant sought compensation for material prejudice, including damage

from human rights violations, loss of property, and natural resources, submitting a
community survey report. Kenya argued the claim was "fanciful" and
disproportionate.

▪ The Court acknowledged compensation as important but noted the need to

prove damage. It found the community survey report had limitations and was not
binding.

▪ Order: In the exercise of its equitable jurisdiction, the Court ordered Kenya to
compensate the Ogiek with the sum of KES 57,850,000 (Fifty-seven million, eight
hundred and fifty thousand Kenya Shillings) for the material prejudice suffered.

◦ Moral Prejudice:

▪ The Applicant sought compensation for moral prejudice resulting from

violations of non-discrimination (Article 2), right to religion (Article 8), right to culture
(Article 17), and right to development (Article 22). This included discrimination, non-
recognition of identity, denial of religious practices connected to the Mau Forest,
inability to bury their dead traditionally, and lack of consultation on their shared
cultural, economic, and social life. Kenya disputed these claims.

▪ The Court defined moral prejudice to include suffering, distress, impairment of

values, and changes in living conditions, noting a causal link could be an automatic
consequence of a human rights violation. It affirmed that quantification should be
done equitably.

▪ Order: While acknowledging it was not possible to allocate a precise

monetary value, the Court ordered Kenya to compensate the Ogiek with the sum of
KES 100,000,000 (One hundred million Kenyan Shillings) for the moral prejudice
suffered.

• Non-Pecuniary Reparations:
 ◦ Restitution of Ogiek Ancestral Lands:

▪ The Applicant sought restitution via delimitation, demarcation, and titling within
one year. Kenya opposed this, arguing the Court's merits judgment did not
pronounce ownership but rather rights of access, use, and occupation, and that
titling would set a "dangerous precedent".

▪ Order: The Court held that mere access to land is inadequate to protect
indigenous rights; legal and secure recognition of collective title is required. It
stressed that indigenous land ownership is distinct from other State ownership forms.
The Court ordered Kenya to undertake an exercise of physical delineation,
demarcation, and titling to protect the Ogiek's right to property, revolving around their
occupation, use, and enjoyment of the Mau Forest and its resources.

▪ Additional Order: Where concessions or leases were granted over Ogiek

ancestral land to non-Ogiek parties, Kenya must commence dialogue and
consultations to reach an agreement on continued operations (e.g., lease, royalty,
benefit sharing). If compromise is impossible, Kenya must either compensate the
third parties and return the land to the Ogiek or agree on appropriate compensation
for the Ogiek.

◦ Recognition of the Ogiek as an Indigenous People:

▪ The Court had already recognised the Ogiek as an indigenous population

deserving special protection in its merits judgment.

▪ Order: The Court ordered Kenya to take all necessary legislative,

administrative, and other measures to guarantee the full recognition of the Ogiek as
an indigenous people of Kenya within twelve months, including according full
recognition and protection to the Ogiek language and their cultural and religious
practices.

◦ Public Apology and Public Monument:

▪ The Applicant sought both a public apology and the erection of a public
monument.

▪ Order: The Court reaffirmed that a judgment itself can constitute a sufficient
form of reparation and satisfaction. Therefore, it held that its judgments on both
merits and reparations were sufficient satisfaction and dismissed the prayers for a
public apology and a public monument.

◦ Effective Consultation and Dialogue:

▪ The Court recalled its merits judgment finding that the Ogiek had been
continuously evicted and adversely impacted without effective consultation.

▪ Order: The Court granted the Applicant’s prayer, ordering Kenya to take all
necessary legislative, administrative, or other measures to recognise, respect, and
protect the right of the Ogiek to be effectively consulted (in accordance with their
traditions/customs, and/or with the right to give or withhold their free, prior, and
informed consent) regarding development, conservation, or investment projects on
Ogiek ancestral land, and to implement measures to minimise damaging effects.

◦ Guarantees of Non-Repetition:

▪ Order: The Court ordered Kenya to adopt legislative, administrative, and/or

any other measures to avoid a recurrence of the established violations. This includes
the restitution of Ogiek ancestral lands, the recognition of the Ogiek as an
indigenous people, and the establishment of mechanisms/frameworks for
consultation and dialogue with the Ogiek on all matters affecting them.

5. Establishment of a Community Development Fund

• Rationale: Noting the Ogiek population of approximately 40,000 and the long
period of violations, the Court took the view that a fund could ensure all Ogiek benefit
from the litigation outcome.

• Order: The Court ordered Kenya to establish a community development fund for
the Ogiek to serve as a repository for all ordered reparations.

• Purpose: The fund should be used to support projects for the benefit of the Ogiek
in areas such as health, education, food security, natural resource management, and
other causes beneficial to their well-being, as determined by the managing
committee in consultation with the Ogiek.

• Timeline: Kenya was ordered to establish this Fund within twelve months of the
judgment notification.
• Administration: Kenya is to coordinate the process of constituting a committee to
oversee the fund's management, with adequate representation from the Ogiek,
chosen by the Ogiek themselves.

6. Implementation and Costs

• Reporting: Kenya was ordered to submit a report on the status of implementation

of all orders within twelve months from the date of judgment notification.

• Hearing: The Court also announced it would conduct a hearing to receive

submissions from the parties on the implementation status twelve months from the
judgment date.

• Costs: Each party was ordered to bear its own costs.

In summary, the African Court's judgment on reparations in the Ogiek case is a

landmark decision affirming and detailing the measures Kenya must undertake to
address human rights violations against the Ogiek, including significant monetary
compensation, land rights recognition, cultural protection, and institutional changes
for consultation and development.
CASE SUMMARY:

Democratic Republic of Congo v. Republic of Rwanda,

This case, Application No. 007/2023 - Democratic Republic of Congo v. Republic

of Rwanda, was heard by the African Court on Human and Peoples’ Rights (the
Court) in Arusha, Tanzania, with the judgment on jurisdiction and admissibility
delivered on 26 June 2025.

• Parties Involved:

◦ Applicant State: Democratic Republic of Congo (DRC).

◦ Respondent State: Republic of Rwanda.

• Application Filing Date: The DRC filed the application with the Court on 21 August
2023.

Allegations of Violations and Reparations Sought by the DRC: The Applicant

State alleged that the Respondent State violated numerous rights and obligations
guaranteed by various human rights instruments, including the African Charter on
Human and Peoples’ Rights (the Charter), the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women (Protocol on the Rights of
Women), the African Charter on the Rights and Welfare of the Child (ACRWC), the
International Covenant on Civil and Political Rights (ICCPR), and the International
Covenant on Economic, Social and Cultural Rights (ICESCR).

Specifically, the DRC alleged violations of:

 • The obligation to respect and protect human rights.
• The rights to life and physical integrity.
• The right to respect for dignity, and prohibitions against slavery, human
trafficking, torture, and cruel or degrading treatment or punishment.
• The right to liberty and security of persons.
• The right to a fair hearing.
• The right to education.
• The right to property.
• The right to the enjoyment of the highest attainable standard of physical and
mental health.
• The right to protection of the family.
• The right to housing.
• The right to food.
• The right to economic, social, and cultural development.
• The right to a satisfactory environment favourable to development.
• The right of peoples to peace.
• In terms of reparations, the DRC prayed the Court to order Rwanda to:
• Withdraw all its troops from Congolese territory and cease forthwith all
forms of support for the M23 to end human rights violations.
• Pay reparation for the harm resulting from the violations.
• Order any other appropriate reparation measure, reserving further
proceedings for this purpose.
• Reimburse the DRC for all costs incurred in bringing and supporting the
case.
• Rwanda's Initial Requests: Rwanda, the Respondent State, prayed the
Court to decline jurisdiction and, in the alternative, to declare the
Application inadmissible.

The Court's Rulings on Jurisdiction:

A. Objections to Material Jurisdiction: Rwanda raised three objections to the

Court's material jurisdiction:

1. Absence of a Dispute:
 ◦ Rwanda's Argument: Argued that the Court's jurisdiction depends on the
existence of a dispute (Article 3(1) of the Protocol), and the DRC did not prove a
prior dispute.

◦ DRC's Argument: Countered that proof of a dispute is not required in the African
human rights protection system; it's sufficient that alleged violations relate to rights
protected by the Charter or other human rights instruments.

◦ Court's Ruling: Dismissed the objection, affirming its jurisdiction is not subject
to formal proof of a prior dispute, provided the applicant alleges violations of human
rights protected by instruments to which the State is a party.

2. Instruments Invoked Not Human Rights Instruments:

◦ Rwanda's Argument: Contended that instruments like the Charter of the United
Nations, the Constitutive Act of the African Union, the Pact on Security, Stability and
Development in the Great Lakes Region (Great Lakes Pact), and the Framework
Agreement on Peace, Security and Cooperation for the DRC and the Region (PSC
Framework Agreement) are not human rights instruments but relate to peace and
security.

◦ DRC's Argument: Submitted that these are human rights protection instruments
that do not necessarily have to deal exclusively with human rights, but must
enunciate subjective rights or impose State obligations for enjoyment of those rights.

◦ Court's Ruling: Found that the rights alleged violated are protected by the
Charter, Protocol on Women’s Rights, ICCPR, and ICESCR, which are "manifestly
human rights protection instruments". The Court clarified its criteria for a human
rights instrument: its purpose must be defined by express enunciation of subjective
rights or imposition of State obligations. Based on this, it held that the Pact of the
Great Lakes Region is a human rights protection instrument, but declined to confer
the same status on the Charter of the United Nations, the Constitutive Act, and the
PSC Framework Agreement.

3. Instruments Not Ratified by Rwanda:

 ◦ Rwanda's Argument: Argued the Court only has jurisdiction over instruments
ratified by the State concerned (Article 3(1) of the Protocol), and that the Pretoria
Declaration and PSC Framework Agreement are not treaties and thus not ratified.

◦ DRC's Argument: Stated the Court's jurisdiction isn't always contingent on

ratification, citing the Universal Declaration of Human Rights (UDHR) as an example
of an unratified instrument the Court applies.

◦ Court's Ruling: Recalled its jurisprudence that the Pretoria Declaration and
Addis Ababa Framework Agreement are not human rights instruments. However, it
dismissed the objection, noting that it was not necessary to make such a
characterisation as the alleged violations are protected by human rights instruments
ratified by Rwanda. The Court assumed material jurisdiction.

B. Objection to Territorial Jurisdiction:

• Rwanda's Argument: Referenced the Court's jurisprudence, arguing jurisdiction

only applies if violations occur on the State concerned's territory, and in this case, the
events did not take place on its territory.

• DRC's Argument: Contended that the Court has territorial jurisdiction if violations
occur on the territory of any State Party to the Protocol, Charter, and relevant human
rights instruments, regardless of the respondent's status.

• Court's Ruling: Reaffirmed its consistent holding that it has territorial jurisdiction
where facts occur in the Respondent State's territory. Crucially, it emphasised that it
may assume territorial jurisdiction even when alleged violations occur outside the
Respondent State's territory. In line with its own jurisprudence, the ICJ, and
international human rights instruments, the Court's territorial jurisdiction follows the
jurisdiction of the States.

◦ The Court then examined reports of United Nations experts and found that there
is an armed conflict between the M23 and the FARDC (DRC armed forces), and that
Rwanda, through its armed forces (RDF), was involved in the conflict.
 ◦ Therefore, the Court held that Rwanda's exercise of extraterritorial jurisdiction
could not be challenged, without prejudging responsibility. The objection was
dismissed, and the Court assumed territorial jurisdiction.

C. Personal and Temporal Jurisdiction:

• The Court subsequently examined these aspects of its jurisdiction and declared
that it had jurisdiction over them.

• Conclusion on Jurisdiction: The Court found that it had jurisdiction to hear the
Application.

The Court's Rulings on Admissibility:

A. Objections Based on Admissibility Requirements Not Provided for in the

Charter:

1. Failure to Comply with Prior Non-Judicial Procedures (Great Lakes Pact):

◦ Rwanda's Argument: The DRC failed to attempt settlement through negotiation,

third-party intervention, investigation, mediation, or conciliation as required by
Articles 28 and 29 of the Great Lakes Pact.

◦ DRC's Argument: Referral to the Court is not subject to prior negotiation or

mediation; these requirements would only apply if the application was within the
framework of the Great Lakes Region's "dispute settlement" mechanisms.

◦ Court's Ruling: Emphasised it applies the Charter, Protocol, Rules, and

generally accepted principles of procedure for procedural questions. The procedural
rules in the Great Lakes Pact could not "validly be invoked to defeat proceedings"
before it. Objection dismissed.

2. Failure to Comply with Prior Non-Judicial Procedures (Constitutive Act):

◦ Rwanda's Argument: The issues concern peace, security, sovereignty, and

territorial integrity (Articles 3(b) and (f) and 4(a), (e), (f), and (i) of the Constitutive Act
and PSC Protocol). Since the AU Court of Justice is not operational, the DRC should
have referred the matter to the Assembly of Heads of State and Government of the
African Union (Article 26 of the Constitutive Act).
 ◦ DRC's Argument: Exhausting non-judicial remedies referenced by Rwanda is
not a prerequisite for referral or an admissibility requirement.

◦ Court's Ruling: Recalled that for procedural issues and admissibility, it applies
only the Charter, Protocol, its Rules of Procedure, and generally accepted principles
of procedure. The rules of the Constitutive Act could not "validly be invoked to defeat
proceedings" before it. Objection dismissed.

3. Application Constitutes Abuse of Process:

◦ Rwanda's Argument: The DRC initiated parallel proceedings with the same
facts and sought the same measures (e.g., before the East African Court of Justice
(EACJ)) and failed to disclose relevant material facts, contrary to Rule 41(3)(c) of the
Rules.

◦ DRC's Argument: Multiple applications against the same State do not constitute
abuse of process if not manifestly frivolous or filed in bad faith. The mere fact of
several applications doesn't indicate lack of good faith.

◦ Court's Ruling: Recalled that an application is abusive if "manifestly frivolous"

or filed in bad faith. The mere fact of multiple applications against the same
respondent does not necessarily indicate a lack of good faith. Failing to disclose
information or file documents is also not sufficient to declare an application abusive,
as the Court can request documents and explanations later (Rule 51(1)). The Court
concluded that abuse of process was not established and dismissed the objection.

B. Objections Based on Admissibility Requirements Provided for by the

Charter:

1. Application Incompatible with the Constitutive Act and the Charter:

◦ Rwanda's Argument: The DRC disguised a political peace and security issue
as a human rights issue, thereby failing to fulfil its obligations under the Constitutive
Act and PSC Protocol and distorting their object, purpose, mandate, and function.

◦ DRC's Argument: An application is compatible if alleged violations can be

examined under these instruments and are not outside their scope, or if it achieves
their objectives (e.g., human rights protection).
 ◦ Court's Ruling: Recalled that compatibility with the Constitutive Act requires it to
relate to one of the Act's objectives. The Court noted that the Application is
compatible with Article 3(h) of the Constitutive Act, namely, the promotion and
protection of human and peoples’ rights. Objection dismissed.

2. Application Based Exclusively on News Disseminated Through Mass Media:

◦ Rwanda's Argument: Rule 50(2)(d) requires verifiable allegations, but the

Application was based exclusively on press articles and hearsay.

◦ DRC's Argument: It produced documents from multiple sources, not just mass
media.

◦ Court's Ruling: Considered that "means of mass communication" refers to

posters, cinema, written and audiovisual press, but does not include information from
governmental or intergovernmental sources. The Court found the Application was not
based exclusively on mass media and dismissed the objection.

3. Non-Exhaustion of Local Remedies:

◦ Rwanda's Argument: The DRC did not exhaust local remedies available under
diplomatic protection rules (Rwandan courts are accessible) nor existing international
and regional remedies (requiring prior dialogue per Article 47/48 of the Charter).

◦ DRC's Argument: Diplomatic protection is inapplicable in human rights cases

before regional courts, especially when facts occurred in Congolese territory. It
refuted the existence of regional/international remedies for exhaustion under Article
50 of the Charter, which refers to domestic remedies.

◦ Court's Ruling:

▪ First limb (local remedies/diplomatic protection): Without prejudging the

merits, the Court noted the alleged violations were systematic and massive, making
it "neither reasonable nor practical to require prior exhaustion of local remedies".
This limb was dismissed.

▪ Second limb (international/regional remedies): The Court emphasised that

the remedies to be exhausted are domestic remedies, which excludes regional or
international remedies. This ground was also dismissed.
 ▪ Consequently, the objection based on non-exhaustion of local remedies was
dismissed.

4. Case Had Been Resolved/Pending (Res Judicata/Lis Pendens):

◦ Rwanda's Argument: The same Application was pending before the EACJ, and
if the DRC did not discontinue that action, the current Application should be
inadmissible.

◦ DRC's Argument: Rwanda conflated res judicata (case already decided) with lis
pendens (case pending elsewhere). It argued the subject matter was different: one
for "flagrant, grave and massive violations of human rights" and the other for
"interpretation and application of the Treaty for the Establishment of the East African
Community". No prior judicial decision existed for the current alleged violations.

◦ Court's Ruling: Recalled that prior settlement requires three elements: similarity
of parties, similarity of claims, and a prior decision on the merits. The Court found
that while the parties are the same, the subject matter of the applications is different.
Furthermore, no decision had been handed down on the present application at the
time it was lodged. The objection was dismissed.

C. Other Admissibility Requirements:

• The Court also examined other requirements not in contention and found that the
author of the Application was identified, it did not contain disparaging or insulting
language, and it was filed within a reasonable time.

Overall Admissibility Ruling:

• The Court declared that the Application met the requirements under Article 56 of
the Charter (restated in Rule 50(2) of the Rules of Court) and declared the
Application admissible.

Next Steps and Further Information:

• The Court reserved its decision on the merits, reparations, and costs.

• Rwanda was ordered to file its Response on the merits within 90 days of
notification, and the DRC to file its Reply within 45 days of receiving Rwanda's
Response.
• Further information on this case, including the full text of the judgment, is available
on the African Court's website.

• The African Court on Human and Peoples' Rights is a continental court established
to ensure the protection of human and peoples’ rights in Africa, with jurisdiction over
cases concerning the interpretation and application of the African Charter and other
relevant human rights instruments ratified by States

Chapter 2: Application, Interpretation and the Limitation of the Bill of Rights:

Introduction:

The protection of human rights is a fundamental political decision, the extent of

which is influenced by factors such as the individuals benefiting from the right, the
duties assigned to others, the moral underpinnings of the right, the level of human
rights awareness, and the degree of political accountability. The 1996 Constitution,
particularly the Constitutional Principles entrenched in the 1993 Constitution, the
public-participation process, and the deliberations of the Constitutional Assembly,
significantly shaped the Bill of Rights. The Constitutional Court, especially, played a
key role in its development.

This chapter addresses several crucial questions:

• Which persons are protected by a given right, and who bear the correlative
duties?
• How should the wording used to express the right be interpreted to ensure
effective protection?
 • When can the protection of a right be limited, and what events might lead
to protection being limited in specific cases, ordinarily, or during
emergencies?

Application of the Bill of Rights

The Bill of Rights is designed to protect human rights, acting as an instrument that
broadly extends to all human beings. Its historical development aims to protect the
weaker individual against the stronger State, but it also establishes duties for private
bodies where appropriate.

 To whom the Bill of Rights applies

Section 8(1) of the Constitution states that the Bill of Rights applies to "all
law" and binds the "legislature, the executive, the judiciary and all organs of
state".

Section 8(2) specifies that a provision of the Bill of Rights binds "natural and
juristic persons" if applicable, considering the nature of the right and the duty
imposed by it. This means the Bill of Rights can have both vertical (State vs.
individual) and horizontal (individual vs. individual) application.
The term "everyone" or "every person" in the Bill of Rights refers to both
natural and juristic persons. The 1996 Constitution clarified this, moving from
the 1993 Constitution's term "every person".

Juristic persons, such as companies, trade unions, or associations, are

entitled to human rights protection, but the extent of this protection depends
on the nature of the right and the juristic person's specific function. For
instance, while they enjoy rights like freedom of expression or access to
courts, they might not have the same level of protection for rights inherently
tied to human dignity, freedom, and security, which are more appropriate for
natural persons. There are cases where juristic persons receive less
protection than natural persons.

 Decision not to exercise a right

 Both natural and juristic persons can decide not to exercise a right. However,
the Constitutional Court has highlighted that such a decision must be
voluntary and informed, especially when it involves waiving fundamental
rights. Decisions made under duress or where one party is significantly
weaker may not be considered valid.
Factors that might influence the validity of a waiver include the passage of
time, the likelihood of a change for a better policy, and potential reliance on an
informal agreement. A waiver of a right is a special type of waiver that
permanently gives up the right to freedom of expression, occupation, and
profession in the discussion of the right to life.

 Actors who bear the duties

The Bill of Rights binds the State bodies and, in some cases, other persons or
bodies. State bodies include legislative, executive, and judicial branches at
national, provincial, and local levels. An "organ of state" includes departments,
administrations, and institutions exercising public power or performing a public
function. The State has a duty to respect, protect, promote, and fulfil the rights
in the Bill of Rights.

 Direct horizontal application

Section 8(2) of the Constitution allows a provision of the Bill of Rights to bind
natural and juristic persons. This is known as direct horizontal application,
where the Bill of Rights applies directly between private individuals. The
Constitutional Court has typically favoured indirect horizontal application,
where the Bill of Rights influences the development of common law or
customary law to align with constitutional values, rather than directly applying
to private disputes. However, in Barkhuizen, the Constitutional Court
confirmed that contractual provisions can be tested directly against the Bill of
Rights for fairness.

The nature of the right often determines the corresponding duties. For
example, the right to a passport binds the State, while the right to private
property generally does not bind other persons or entities for someone else's
private home.
  Territorial application of the Bill of Rights
The Bill of Rights applies primarily throughout the national territory of South
Africa. However, there have been instances, such as in the Mohamed case,
where it was argued that rights could apply extra-territorially to acts committed
by South African officials outside the country, especially concerning crimes
that resulted in South African individuals being sent to countries where they
faced the death penalty or torture.

Interpretation of the Bill of Rights

Interpreting the Bill of Rights involves determining the meaning of its

provisions, particularly when an alleged violation is bound by it, or when
balancing competing rights.

 Section 39(1) of the Constitution

Section 39(1) of the Constitution sets out the general rules for interpretation:
• Courts must promote the "spirit, purport and objects" of the Bill of Rights.
• They must consider international law.
• They may consider foreign law.
The interpretation should be contextual and purposive, aiming to achieve the
overarching values of human dignity, equality, and freedom, and promoting an
"open and democratic society" based on these values. This approach goes
beyond mere summary and offers insights into the purpose and impact of the
rights. The Constitution itself is a "political science" document, reflecting South
African society.

The Constitutional Court has clarified that international law includes both
binding international agreements (like treaties South Africa has ratified) and
non-binding sources like international customary law. Foreign law is only
considered as persuasive authority, not binding.

Section 39(2) of the Constitution

 Section 39(2) mandates courts to develop the common law and customary
law to promote the "spirit, purport and objects" of the Bill of Rights. This
ensures that existing legal frameworks align with constitutional values. The
common law should be developed incrementally and on a case-by-case basis.

Customary law
The Constitutional Court recognizes and promotes customary law as an
integral part of South African law, subject to the Constitution and the Bill of
Rights. It has identified several aspects of customary law that need to be
understood in this context, including its distinct values, its role in generating
and developing norms, and its contribution to the unity and stability of society.

Limitations of the Bill of Rights:

The Bill of Rights includes two main provisions for limiting rights:

 The general limitation clause (section 36)

 The emergency clause (section 37)

A provision that is inconsistent with the Bill of Rights is Invalid.

Section 36(1) of the Constitution (General Limitation Clause)

Section 36(1) states that rights can only be limited by a “law of general
application” if the limitation is “reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom.” This is a proportionality test
that involves balancing the importance of the right against the purpose and extent of
the limitation.

The factors to be considered in this analysis include:

• The nature of the right (S36(1)(a).

The nature of the right being limited and the importance of this right in an open and
democratic society. Some rights weigh more heavily than others, so, it is more
difficult to justify the infringement of heavier rights than other, less weighty rights.
Courts will assess what the importance of a particular right is in the overall
constitutional scheme.
This factor forms part of the proportionality enquiry

• The importance of the purpose of the limitation (s36(1)(b).

 There must be, at a minimum, a legitimate purpose to the limitation.

 Moreover, the purpose must: -
* specifically contribute to an open and democratic society, and
* be reasonable and justifiable.
 The limiting measure must serve a purpose that all reasonable citizens would
agree to be compellingly important.
 The importance of the purpose of the limitation will be weighed up against the
nature of the right being limited.

• The nature and extent of the limitation(S36)(1)(c).

• The court investigates the extent to which the right is infringed, i.e., is the
infringement relatively minor or serious?
• This factor forms a necessary part of the proportionality enquiry because the
infringement should not be more extensive than warranted by the purpose of the
limitation.

“A law that limits rights should not use a sledgehammer to crack a nut” S v
Manamela 2000 (3) SA 1 (CC) at para 34

• The relation between the limitation and its purpose(S36) (1)(D).

 The central enquiry is to ascertain if there is a nexus or link (i.e., a causal

connection) between the limitation and the purpose which the limitation seeks
to achieve.
 If there is a nexus, the court will consider if the infringing law serves the
purpose it was designed to achieve?
If it does not achieve the purpose it was designed for, then the
limitation cannot be justified.
  Even is the limitation only marginally contributes to achieving its purpose, it
cannot be adequate justification for a limitation.

• Less restrictive means to achieve the purpose(S36)(1)(E).

 To be legitimate, a limitation of a fundamental right must achieve benefits that

are in proportion to the cost of the limitation.
 If other means can be employed to achieve the desired results, then limitation
will not be proportionate.
 If a less restrictive (but equally effective) alternative method exists to achieve
the purpose of the limitation, then that less restrictive method must be
preferred.
“In sum, therefore, the Court places the purpose, effects and importance of
the infringing legislation on one side of the scales and the nature and effect of
the infringement caused by the legislation on the other. The more substantial
the inroad into fundamental rights, the more persuasive the grounds for
justification must be. S v Bhulwana 1996 (1) SA 288 (CC) at para 180

The State must demonstrate that the limitation is reasonable and justifiable. This
involves a context-sensitive balancing process, considering the specific facts and the
competing values. The Constitutional Court has used this clause to rule on issues
such as the death penalty (Makwanyane) and juvenile whipping (Williams), declaring
them unconstitutional as they were not justifiable limitations. The court looks for
empirical evidence to support the claims made for the limitation.
Chapter 3

Introduction to Equality

Equality is presented as a fundamental value, a right, and a guiding principle that

informs the interpretation of all other rights. The constitutional protection of equality
aims to empower individuals with legal entitlements. Humanity is recognised as
diverse, with individuals possessing different talents, abilities, and backgrounds. The
Constitution's goal is to liberate people from unfair discrimination and to define the
true meaning of equality.

Section 9 of the Constitution: The Equality Clause

Section 9 is the cornerstone of equality in the South African Constitution, and its
provisions are detailed as follows:
1. Everyone is equal before the law and has the right to equal protection and benefit
of the law.

2. Equality includes the full and equal enjoyment of all rights and freedoms. This
subsection also permits legislative and other measures designed to protect or
advance persons, or categories of persons, disadvantaged by unfair discrimination
(often referred to as affirmative action) to promote the achievement of equality.

3. The state may not unfairly discriminate directly or indirectly against anyone on one
or more specified grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience,
belief, culture, language, and birth.

4. No person (including private individuals and entities) may unfairly discriminate

directly or indirectly against anyone on one or more grounds listed in subsection (3).
National legislation is mandated to prevent or prohibit such unfair discrimination.

5. Discrimination on one or more of the grounds listed in subsection (3) is presumed

to be unfair unless it is established that the discrimination is fair.

Defining and Unpacking Equality

The document highlights a crucial distinction between different notions of equality:

• Formal Equality: This implies treating everyone the same, or "similarly situated
people similarly". However, the document questions what "similarly situated" truly
means and whether identical treatment always achieves actual equality, especially
when addressing issues like special educational needs or parental leave.

• Substantive Equality: The Constitutional Court has confirmed that the South
African Constitution embraces a substantive notion of equality. This approach
recognises that treating everyone the same (formal equality) can perpetuate existing
disadvantages. It requires considering the specific context, the impact of differential
treatment, and the needs of individuals or groups to achieve true equality. In the
South African context, substantive equality is vital for addressing the legacy of
colonialism and apartheid.

The principle of equality ensures that differentiating treatment or law that adversely
impacts a person's inherent equal dignity is unconstitutional.
Determining Unfair Discrimination: The Harksen Test

The Constitutional Court, notably in the Harksen decision, established a two-stage

test to determine whether the equality right has been breached:

STAGE 1: Section 9(1) Analysis – Differentiation

• Does the law or conduct differentiate between people or categories of people?

• If so, does this differentiation have a rational connection to a legitimate government

purpose? If there is no such rational connection, it constitutes a violation of Section
9(1).

STAGE 2: Section 9(3) Enquiry – Unfair Discrimination This stage involves a

further two-part analysis if differentiation exists:

• (a) Does the differentiation amount to 'discrimination'? The court interprets

'discrimination' in a pejorative sense, meaning it's more than just mere differentiation.

◦ Listed Grounds: If the differentiation is based on a ground listed in Section 9(3)

(e.g., race, gender), it is automatically considered discrimination. Section 9(5) then
places the burden of proof on the respondent (e.g., the state) to show that the
discrimination is fair.

◦ Unlisted Grounds: If the differentiation is based on an unlisted ground, the

complainant must prove that the discrimination is based on attributes or
characteristics that cause harm to their human dignity. Examples include HIV status
or citizenship.

• (b) Is the discrimination unfair?

◦ If discrimination is on a listed ground, it is presumed unfair unless proven fair.

◦ If discrimination is on an unlisted ground, the complainant must establish its

unfairness. Unfairness is determined with reference to the total impact on the
complainant's dignity.

◦ Factors to determine unfairness (Goldstone J's non-exhaustive list):

▪ The position of the complainants in society and whether they have suffered
from patterns of disadvantage.
 ▪ The nature of the provision or power discriminating against them.

▪ The extent to which the discrimination has affected the complainants' rights or
interests, and whether it has led to an impairment of their fundamental dignity or
constitutes an impairment of a comparably serious nature.

• (c) Justification: If the discrimination is found to be unfair, a determination must be

made on whether it can be justified under the limitations clause of the Constitution.

Case Example: Mrs Jeanette Harksen The document references the case of Mrs
Jeanette Harksen, whose property was claimed as part of her insolvent husband's
estate due to their marriage in community of property. Mrs Harksen argued that the
Insolvency Act's provisions unfairly burdened solvent spouses, especially women,
and discriminated based on marital status. The court, however, found no unfair
discrimination, stating the Act's purpose was to protect creditors and its measures
were justifiable.

Legislation Giving Effect to Section 9

Section 9(4) of the Constitution mandates the enactment of national legislation to

prohibit unfair discrimination. This led to the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 (PEPUDA), also known as the Equality Act.

• PEPUDA extends the prohibition of unfair discrimination to both the state and
private actors.

• Its purpose is to promote equality, prevent unfair discrimination, and provide

remedies for those affected.

• Equality Courts established under PEPUDA provide remedies that can be both
forward-looking (e.g., interdicts, declarations) and backward-looking (e.g., damages,
apologies) to provide relief to individuals and address broader societal issues.

Addressing Past Disadvantage: Affirmative Action

Section 9(2) explicitly allows for measures designed to protect or advance persons
or categories of persons disadvantaged by unfair discrimination. This is commonly
referred to as affirmative action or restitutionary measures.
• The South African context, marked by apartheid, requires such measures to break
cycles of poverty and ensure equal protection for historically disadvantaged groups,
particularly black Africans.

• Employment Equity Act: This legislation binds designated employers to implement

employment equity plans to achieve representativity. It addresses the interpretation
of "suitably qualified" individuals, where, given South Africa's history, employment
equity considerations might require preference for candidates from designated
groups even if other candidates are also suitably qualified.

• Measures to advance previously disadvantaged individuals are not limited to

employment equity, as highlighted in the Minister of Finance and Another v Van
Heerden case concerning parliamentary pension schemes.

• Testing Section 9(2) Measures: When a measure is challenged under Section

9(2), the unfair discrimination analysis of Section 9(3) is not used. Instead, Justice
Moseneke outlined specific questions to determine its validity:

1. Does the measure target persons or categories of persons who have been
disadvantaged by unfair discrimination?

2. Is the measure designed to protect or advance such persons or categories of

persons?

3. Is the measure reasonably capable of attaining its desired outcome?

• While these measures promote equality, they should not constitute an abuse of
power or impose substantial or undue harm on those excluded.

• Broad-based black economic empowerment is another example of an

intervention aimed at addressing past inequality, and such measures must also
meet the requirements of Section 9(2).

The document concludes by emphasising the constitutional commitment to

eradicating inequality and fostering a better life for all through broad societal support.
The long-term goal is a non-racial, non-sexist society that recognises the equal worth
and dignity of every individual, while celebrating diversity.