DEFINITION AND NATURE OF HUMAN

RIGHTS
Human rights are fundamental rights and freedoms which humans are
entitled to by the fact of being human beings. These rights are neither
created nor abrogated by any person. All humans are entitled to claim
such rights. The United Nations defines human rights as universal legal
guarantees protecting individuals and groups against actions which
interfere with fundamental freedoms and human dignity. Another
definition for human rights is those basic standards without which people
cannot live in dignity.

Human rights were first defined by the Scottish philosopher John Locke
(1632-1704) as absolute moral claims or entitlements to life, liberty, and
property.

The best-known expression of human rights is in the Virginia Declaration

of Rights in 1776 whose article 1 proclaims that "All men are by nature
equally free and independent and have certain inherent rights, of which,
when they enter a state of society, they cannot, by any compact, deprive
or divest their posterity."

To violate someone’s human rights is to treat that person as though she

or he were not a human being. To advocate human rights is to demand
that the human dignity of all people be respected. These rights have also
been defined by philosophers and international instruments.

Nature of human rights

Article 5 of the Vienna Declaration and Programme of Action states that,

“All human rights are universal, indivisible and interdependent and
interrelated. The international community must treat human rights
globally in a fair and equal manner, on the same footing, and with the
same emphasis. While the significance of national and regional
particularities and various historical, cultural, and religious backgrounds
must be borne in mind, it is the duty of States, regardless of their political,

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economic, and cultural systems, to promote and protect all human rights
and fundamental freedoms.” These principles are briefly discussed as
follows:

Human rights are Universal (worldwide, common)

This means human rights apply to all persons regardless of their race, sex,
religion, e.t.c. in other words, whether a person is stateless or belongs to a
given state; they deserve to exercise their rights. Article one of the
universal declaration of human rights states that “all human beings are
born free and are equal in dignity and rights.” the universality of human
rights means one is entitled to the same rights as everyone else
regardless of custom, race, religion e.t.c.

Human Rights are Inalienable

Human rights cannot be taken away or abrogated except under specific

circumstances. In the event that human rights are taken away, it should
be with due process. For instance if an individual violates another person’s
rights then the law should take its course by having that person charged
or sued. Where the individual is found guilty then he will lose some if his
rights like the right to liberty through imprisonment if the punishment so
requires.

Human Rights are Inherent

Human rights are acquired naturally meaning that everyone acquires

human rights at birth. These rights are not conferred upon humans by the
government but each individual by having the nature of a human being
acquires them upon birth. Article one of the universal Declaration of
Human Rights States that: “All human beings are born free and equal in
dignity and rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.”

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 Human Rights are Indivisible

All rights are equal in status and cannot be positioned in a hierarchical

order. Denial of one right eventually impedes the full enjoyment of
another right. One right cannot be enjoyed at the expense of another
right. For instance denying one the right to liberty means all the other
rights will be affected.

Human Rights are Interdependent and Interrelated

The fulfilment of one right wholly or partially depends on the fulfilment of

another right. Each right plays a great part in the realisation of another
right. The right to life may for instance depend on the right to health.

ABSOLUTE, NON-ABSOLUTE, QUALIFIED RIGHTS

The Difference between Absolute, Limited and Qualified

Rights
Not all rights are written in the same way. The Bill of Rights
uses these terms in defining them.

 Absolute rights. These rights cannot be limited in any way at

any time for any reason. They cannot be reduced or amended.
Absolute rights cannot be limited for any reason. No
circumstance justifies a qualification or limitation of absolute
rights. Absolute rights cannot be suspended or restricted, even
during a declared state of emergency. These rights can be
found under the ICCPR and they include:

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 i. The right to be free from torture, and other cruel inhuman,
or degrading treatment or punishment (Article 7)
ii. The right to be free from slavery or servitude (Article 8(1)
and (2))
iii. Prohibition on genocide (Article 6(3))
iv. Prohibition on prolonged arbitrary detention (elements of
article 9(1) )
v. Prohibition on imprisonment for failure to fulfil contractual
obligation (Article 11)
vi. Prohibition of retrospective operation of criminal laws
(Article 15)
vii. The right of everyone to be recognised a person before
the law (Article 16)

 Limited Rights/Non-absolute rights. These rights come with

exceptions. An example is the right to liberty, which can be
lawfully restricted. Lawful arrest is an example of a limited
right.
 Qualified Rights. Government interference with these rights is
allowed in special circumstances, and only when necessary in a
democratic society. The interference must fulfill a pressing
social need; pursue a legitimate aim; and be proportionate to
the aims being pursued. An example is government restrictions
on the right to assembly and association, in order to calm a
riot.

Limitation of rights

• Any limitations/restrictions on human rights (where

allowed) must be justified by showing that:
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  The interference is prescribed by law;
 The interference has a legitimate aim (e.g. public
safety; prevention of crime, etc.;
 The interference is proportionate (i.e. nothing more
than necessary) to the aim pursued

Derogable Rights/ State of Emergency

• States sometimes face situations of crisis, otherwise called

“a state of emergency”
• Such times of crisis can be caused by civil war, natural
disasters, etc.
• Basicallyn, all major human rights instruments
(international or regional) allow states to “derogate” from
their obligations under the given treaty in times of crisis
• Derogation means that the state relieved from some of its
obligations under the given treaty for the duration of the
crisis – NB non-derogable vs derogable rights!

What is the distinction between absolute rights and

non-derogable rights?

Non-derogable rights may be either absolute or non-absolute.

While non-derogable rights cannot be suspended, some non-
derogable rights provide for limitations in their ordinary
application. For example, the right to freedom of religion in
article 18 of the ICCPR is non-derogable under article 4(2) but
may be subject to limitations in accordance with article 18(3).
Article 6 of the ICCPR, which protects the right to life, is another
example of a non-derogable right. This right, however, is

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expressed in part as freedom from 'arbitrary' deprivation of life.
The use of the term 'arbitrary' indicates that circumstances
may justify the taking of life, where necessary, reasonable and
proportionate.

The ICCPR and Derogation of Rights

• In order to be able to derogate from a treaty, states have

to follow the procedure laid down in the treaty in question.
E.g. in Article 4 of the ICCPR this includes:
• the official proclamation of “a state of emergency”
and its expected duration
• the emergency has to “threaten the life of the
nation”
• the derogatory measures cannot be more than those
“strictly required by the exigencies of the situation”
• the measure must not be inconsistent with the
state’s other obligations under international law and
must not involve discrimination solely on the ground
of sex, race, colour, language, religion or social origin
• the state must inform the treaty body of the
termination of the crisis
• Non-derogable rights are:

i. right to life (Article 6);

ii. freedom from torture (Article 7);
iii. freedom from slavery (Article 8, paras 1-2);
iv. imprisonment for mere failure to fulfil a
contractual obligation (Article 11);

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 v. prohibition of retrospectivity (Article 15);
vi. right to be recognised as a person before the
law (Article 16);
vii. freedom of thought, conscience and religion
(Article 18)

HISTORICAL DEVELOPMENT OF HUMAN

RIGHTS
The origin of human rights can be traced way back during the fall of man.
The fall of man as described in GENESIS CHAPTER THREE shows how
God prohibited man not to eat from the tree of knowledge that stood in
the Garden of Eden. When man did, they were judged by God. However
before man was judged and punished by God, the were given an
opportunity to defend themselves and explain what had happened. It was
thereafter that God banished man from the garden after giving them a fair
hearing. God also was not too harsh after finding that man was guilty. He
went on to cover the nakedness of man.

In 539 BC, the armies of King Cyrus of ancient Persia conquered Babylon.
What the king did after that made a great impart in the development of
human rights. The king freed slaves and declared that all individuals have
the right to follow a religion of their own choice. He also established the
fact that all people are equal despite their racial background. These
human rights values were later recorded and identified as the Cyrus
Cylinder. The Cyrus cylinder was to become the world’s first charter of
human rights. The first four charters of the Universal Declaration of
Human Rights are similar to the Cyrus Cylinder.

In 1215, documents such as the Magna Carta also played a big role in the
history of human rights. The Magna Carta has contributed to constitutional
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making throughout the world. The Magna Carted removed the absolute
powers of the Monarchs their powers were also subjected to the law. The
king’s powers were also limited to the same powers as the nobility. Any
action of the king could also be overruled by a council of 25 barons.
Nobles could be arrested but they had the right to defend themselves. The
church was granted the right to be free from governmental influence or
interference; all free citizens had the right to own and inherit property and
also the right to be protected from excessive taxation. Widow rights were
also established in that they had the right to choose not to remarry in
case they owned property. The right of equality was also established.
Bribery and official misconduct also became criminal offences.

In 1789, the people of France saw to the abolishment of absolute

monarchy which became the foundation of the birth of the first French
republic. Many countries throughout the world were inspired by this move
and revolutions spread throughout the world to end violations of human
rights. France drafted its constitution which established the right to
liberty, security, right to resistance from oppression among others.

In 1859, the Battle of Solferino also set the stage for the protection of
human rights. Henry Dunant while travelling through the battlefield in
Italy noticed that many wounded soldiers were not being cared for and
had been left to die. Henry asked the local people in the area to help
wounded soldiers. He later wrote a book advocating for medical
assistance for the wounded during wartime. The Ideas of Dunant were
later to be adopted in the Geneva conventions which advocated for the
protection of the wounded on sea and in the field. The conventions also
established the protection of civilians during war. Further, the conventions
established the protection of enemy soldiers captured during war.

World War II also contributed a lot in the history of human rights. First and
foremost, Africans who participated in the war were encouraged when
they saw Europeans fighting against violations of human rights. When the
African soldiers returned to Africa, they began to pressure the colonial
masters to grant them independence. The World War II also led to the

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formation of the United Nations whose main aim was to promote peace,
security and protect human rights. The United Nations till today has
mechanisms of protecting human rights through treaty bodies and
through its charter-based mechanism.

In 1948, the universal declaration of human rights was drafted and it

inspired most constitutions that were later to be drafted. It recognised the
fact that human beings have inherent human rights in its article one.

PHILOSOPHICAL DEVELOPMENT OF HUMAN RIGHTS

Renowned philosophers have contributed in one way or another to the

development of human rights.

Francisco Suarez (1548 – 1617)

Suarez (Doctor Eximius) was a Spanish philosopher who is also the

founder of international law.

Having refuted the divine-right theory of kingly rule, he declared that the
people themselves are the original holders of political authority; the state
is the result of a social contract to which the people consent. Arguing for
the natural rights of the human individual to life, liberty, and property, he
rejected the Aristotelian notion of slavery as the natural condition of
certain men. He criticized most of the practices of Spanish colonization in
the Indies in his De Bello et de Indis (“On War and the Indies”). The
islands of the Indies he viewed as sovereign states legally equal to Spain
as members of a worldwide community of nations.

The teachings of Suárez show a manifest and unusually modern interest in

the safeguarding and promotion of human rights. Freedom, justice,
development and peace lack a solid basis and are seriously jeopardized
unless the dignity and the equal and inalienable rights of the members of
the universal family are recognized. States must guarantee absolute
respect for fundamental rights and freedoms.

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Thomas Hobbes (1588 – 1679)

Hobbes ascribed to all human beings natural liberty as well as equality, on

the basis of which they are licensed to undertake whatever actions might
be necessary to preserve themselves from their fellow creatures. Such
self-preservation constituted the indispensable core of human rights.
Adopting an extreme position against the Aristotelian teaching of political
naturalism, Hobbes maintained that the exercise of one's natural liberty
leads directly to unceasing conflict and unremitting fear, inasmuch as
nature confers on each individual the right to possess everything and
imposes no limitation on one's freedom to enjoy this right.

John Locke (1632 – 1704)

He took up Hobbes' idea that the state must justify its exercise of power.

Going beyond Hobbes, however, he identified fundamental and

inalienable rights to life, liberty and property. Thus the state has the
function of guaranteeing and upholding these natural rights of
man. When it fails to do so, it loses its legitimization.

But in his first treatise, Locke explicitly refuted the idea that kings rule
according to divine right (from God), and argued that human beings have
natural rights upon which the government may not infringe.

He defended the claim that men are by nature free and equal against claims that God
had made all people naturally subject to a monarch. He argued that people have rights,
such as the right to life, liberty, and property that have a foundation independent of the
laws of any particular society.

GENERATIONS OF HUMAN RIGHTS

Human rights are divided into three generations. Each successive

"generation" of human rights has arisen historically as a set of normative
responses to policies, practices, and institutional systems which were felt

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to be oppressive by some group or other. One of the oldest of all human
rights, the right of habeus corpus arose in thirteenth century England
because a group of English noblemen felt oppressed by the practices of
the King in dealing with their fellows: basically, the King was
"disappearing" them. Most of the rights of enlightenment, such as
freedom of religion, arose because of the phenomenon of religious
persecution and wars resulting from it were felt to be oppressive by many
religious groups. The right against slavery, which, one must recall was
only legitimated in the mid to late eighteenth century, arose as a moral
rebellion against this oppressive institution. And so on for all of the later
rights in the "second" and "third" generations which are essentially
responses to the forms of economic and political oppression and
exploitation associated with the rise of industrial capitalism and
colonialism. Trade union rights, for instance, are human rights because
they provide some safeguards against the total domination of workers by
their employers and empower workers to protect their own interests
against these often much more powerful forces through collective
bargaining. The most important "third" generation right, the right to
national self-determination, is quite clearly a response to colonialism and
imperialism and is designed to ensure that such systems of political and
economic domination and exploitation of one people by another do not
recur. Even some of the newest human rights, like the right to
development, or the right to live in an unpolluted environment, are
attempts to establish ethical and legal norms which will protect people
against new threats to their well-being created by systems of power upon
whose actions their fates depend but which they cannot control.

First generation

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 The first Generation of human right s started around 17 th to 18th Century.
These rights basically include civil and political rights. The first generation
of human rights are based on principles of individualism and non-
interference. They protect the individual from violations of human rights
carried out by the government and its organs. These rights include

a. The right to life

b. The right to property
c. The right to be seen as equal before the law
d. The right to receive a fair hearing
e. Right to privacy
f. The right to marry and a found a family
g. The right to freedom of belief and religion
h. The right of freedom of speech and opinion
i. The right to peaceful assembly and association
j. The right to be free from torture

Second Generation of human rights

The second generation of human rights started around the middle of the
20th century. These rights were majorly recognised after the Second World
War. This class of human rights ensures that members of the society are
given the same treatment and opportunities. The rights are basically
based on social justice and public obligation. These rights require the
government to provide for the less privileged in the society. Therefore,
these rights include economic social and cultural rights. The rights are
listed below

a. The right to gender equality

b. The right to work
c. The right to social security
d. The right to education
e. The right to an adequate standard of living
f. The right to medical care

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g. The right to food
h. The right to just and favourable conditions of work

Third Generation of Human Rights

These rights became recognised 1970’s and 1980’s. These rights are
sometimes known as solidarity rights and require government action in
order for them to be realised. If the government does not have the
resources to implement these rights, the citizens cannot easily have them
enforced. These rights are group rights generally. They include

a. The right to self determination

b. The right to economic and social development
c. The right to a healthy environment
d. The right to natural resources
e. The right to communicate
f. The right to participate in cultural heritage
g. The right to intergeneration equity and sustainability

THE UNITED NATIONS SYSTEM OF HUMAN RIGHTS

Background

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In 1899 over 25 countries met to codify the laws of war. Instruments for
peaceful settlement of crisis and prevention of war were formulated. This
became the basis from the formulation of the League of Nations.

In 1919, the League of Nations was formed at the treaty of Versailles. The
League was formed to promote international peace and cooperation.
Member states agreed not to go to war without attempting to resolve their
differences on a friendly ground.

However, when the World War II broke out, the league was deemed to
have failed in securing peace and cooperation. In 1945, President
Roosevelt, Prime Minister Churchill, and Premier Stalin met and
announced their intention to form a general international organisation to
maintain peace and security. In April 1945, delegates met in San
Francisco where they negotiated and drew up the articles of the Charter of
the United Nations. The Charter was adopted on 25 April 1945.

The UN and Human Rights

The most important function of the UN is to protect, promote, and prevent

the violation of human rights all over the world. The UN charter indicates
that individuals have an inherent dignity and that all individuals have
equal and inalienable rights. The UN has bodies that protect human rights
and these include the General Assembly, the UN human rights Council,
charter based, and treaty-based bodies.

The Universal Declaration of Human Rights

The universal declaration of human rights was adopted by the general

assembly in 1948 to protect against oppression and discrimination. The
preamble of the declaration acknowledges the importance of human
rights and maintenance of peace and security. The declaration covers 30
articles dealing with human rights.

Article one of the declaration states that all human beings are equal.

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Article 2 recognises the universal dignity of a life free from discrimination.
It also states that everyone is entitled to human rights without
discrimination based on colour, sex, race, language, religion e.t.c

Articles 3-21 sets forth civil and political rights which all individuals are
entitled to. Some of the rights include the right to life, personal security,
liberty, and freedom from slavery, the right to a fair trial e.t.c.

Articles 22 – 27 set forth economic, social cultural rights. The centre of the
article is article 22 which acknowledges that everyone has the right to
social security. The rights include the right to work, fair remuneration, and
adequate standard of living e.t.c

Articles 28-30 establish the universality of human rights. Article 28

recognises the right to social and international order that enables the
realisation of human rights. Article 29 acknowledges that along with the
rights of hu man beings also have obligations to the community which
also enable them to develop their individual potential freely and fully.
Finally, article 30 protects against activities aimed at the destruction of
any rights or freedoms.

The UN Charter Based System of Human Rights DIP 1 2019

The Human Rights Council and its predecessor, the Commission on

Human Rights, are called "Charter-based" as they were established by

resolutions of principal organs of the UN whose authority flows from the

UN Charter.

The current Charter-based bodies are the Human Rights Council and its

subsidiaries, including the Universal Periodic Review Working, Group and

the Advisory Committee.

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Previously, the Charter-based bodies were the Commission on Human

Rights and its subsidiaries, including the Sub-commission on the

Promotion and Protection of Human Rights.

The Special Procedures, such as Special Rapporteurs, have carried on

their work since 1947, reporting first to the Commission, then to the

Council.

During its 60th session, the General Assembly adopted the World Summit

Outcome, resolution 60/1 of September 2005, which called, inter alia, for

strengthening of the UN's human rights mechanisms. This led to the

establishment, later in the session, of the Human Rights Council.

The charter-based bodies involved in protecting human rights include the:

a. Human Rights Council

b. The Universal Periodic review
c. The Special Procedures of the Human Rights Council
d. The Human Rights Council Complaint Procedure.
e. Human Rights Council Advisory Committee

The Human Rights Council (HRC)

The Human Rights Council is an Intergovernmental body within the UN

system comprising of 47 states responsible for the promotion and
protection of human rights. The Council was established by the UN
General Assembly on 15 March 2006 by resolution 60/251 consequently
replacing the Commission of Human Rights. The Council came into force
in 2007 to address gross human rights violations. Complaints are received
from NGOs, individuals or groups.

Special Proceedings of the Human Rights Council

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The Special Procedures of the Human Rights Council are independent
human rights experts with mandates to report and advise on human rights
from a thematic or country-specific perspective.

With the support of the Office of the United Nations High Commissioner for
Human Rights (OHCHR), Special Procedures undertake country visits; act
on individual cases of alleged violations and concerns of a broader,
structural nature by sending communications to States; conduct thematic
studies and convene expert consultations, contributing to the
development of international human rights standards ; engage in
advocacy and raise public awareness ; and provide advice for technical
cooperation. Special Procedures report annually to the Human Rights
Council and the majority of the mandates also report to the General
Assembly.

/ Functions Responsibilities of the Council

Among other functions of the Council, the following are its major
Functions:

a. Promoting universal respect for the protection of all human rights

and fundamental freedoms for all, without distinction of any kind
and in a fair and equal manner.
b. Addressing situations of violations of human rights including gross
and systematic violations, and make recommendations thereon.
c. Promote human rights education and learning; give technical
assistance and capacity building.
d. Giving recommendations to the General Assembly for the further
development of International Law in the Field of Human Rights.
e. Promoting the full implementation of human Rights obligations
undertaken by states and follow up to the goals and commitments
related to the promotion and protection of human rights.

The Universal Periodic Review

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The Universal Periodic Review is a process that involves the review of
human rights records of all member states. The Universal Periodic Review
Working Group holds three two-week sessions per year. During each
session 16 countries are reviewed, therefore 48 countries per year are
reviewed per year. The UPR provides an opportunity to each to declare
the actions they have taken to improve human rights situations in their
countries and fulfil their human rights obligations. The UPR ensures equal
treatment for every country when their human rights situations are being
assessed. The main aim of the UPR is to improve the human rights
situations in all countries and address human rights violations whenever
they occur. During the review session, questions on a state’s report are
posed, and comments and recommendations given. NGOs can also submit
reports on a country’s human rights situation that is reviewed together
with the respective country’s report. A state is supposed to report back on
the measures it has taken to implement the recommendations of the UPR.

The Special Procedures of the Human Rights Council

The special procedure of the human rights Council are independent

human rights experts with mandates to report and advice on human rights
matters. Special Procedures consist of either an individual called a
“special rapporteur” or “independent expert” or a working group
composed of five members. Each member of a working group is appointed
by the council and is selected from Africa, Asia, Europe, and Latin America
and the Caribbean.

Mandate holders carry out country visits and analyse the human rights
situations in the countries they visit. Before visiting they send letters
requesting the respective country to allow them to visit. The mandate
experts or independent experts may write letters to states requesting for
information and also follow up on how far a state has implemented
recommendations from the Council.

The Human Rights Council Complaint Procedure

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The complaint procedure addresses communications submitted by
individuals, groups, or NGOs that claim to be victims of human rights
violations or have direct and reliable information or knowledge of such
violations. Two distinct working groups – the Working Group on
Communications and the Working Group on Situations – are responsible,
respectively, for examining written communications and bringing
consistent patterns of gross and reliably attested violations of human
rights and fundamental freedoms to the attention of the Council. This
complaint procedure is the only universal complaint procedure covering
all human rights and all fundamental freedoms in all States Members of
the United Nations. This procedure is confidential, with a view to enhance
cooperation with the State concerned.

Communications are addressed to the complaint procedure unit at

Geneva. When communications are received the chairman of the working
group on communications and the secretariat go through communications
to check if they are admissible.

The following are considered before a communication is considered

admissible:

(a) It is not manifestly politically motivated and its object is consistent

with the Charter of the United Nations, the Universal Declaration of
Human Rights and other applicable instruments in the field of human
rights law;

(b) It gives a factual description of the alleged violations,

including the rights which are alleged to be violated;

(c) Its language is not abusive. However, such a communication

may be considered if it meets the other criteria for admissibility after
deletion of the abusive language;

(d) It is submitted by a person or a group of persons claiming to

be the victims of violations of human rights and fundamental freedoms, or
by any person or group of persons, including non-governmental

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 organizations, acting in good faith in accordance with the principles of
human rights, not resorting to politically motivated stands contrary to the
provisions of the Charter of the United Nations and claiming to have direct
and reliable knowledge of the violations concerned. Nonetheless, reliably
attested communications shall not be inadmissible solely because the
knowledge of the individual authors is second-hand, provided that they
are accompanied by clear evidence;

(e) It is not exclusively based on reports disseminated by mass

media;

(f) It does not refer to a case that appears to reveal a consistent

pattern of gross and reliably attested violations of human rights already
being dealt with by a special procedure, a treaty body or other United
Nations or similar regional complaints procedure in the field of human
rights;

(g) Domestic remedies have been exhausted, unless it appears

that such remedies would be ineffective or unreasonably prolonged.

 A complaint can be submitted against any country irrespective of whether

the country has ratified any particular treaty or made reservations under a

particular instrument.

 It is possible for a complaint to reach and be considered by the highest

level of the United Nations human rights machinery, the Human Rights

Council.

 The fact that the procedure is confidential enhances State cooperation.

Patterns of Human Rights Violations

 Resolutions or decisions of the General Assembly, the Human Rights

Council and the Economic and Social Council do not contain any clear

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 definition of the terms “pattern” or “gross violation”. However, from

the travaux préparatoires of the 1503 procedure, it appears that the term

“patterns of gross violations” were considered as those that were so

severe that they could “no longer [be] regarded as falling exclusively

within the domestic jurisdiction of States.1”

 Moreover, “gross violations”, refer to violations of civil and political and

economic, social and cultural rights, occurring in any part of the world and

under any circumstances, including in situations of armed conflict, and

breaches of international humanitarian law or threat to peace 2. For

example, the policy of Apartheid fits the definition of a consistent pattern

of gross violations of human rights and fundamental freedoms.

 From the travaux préparatoires, it also emerged that a “pattern of gross

and reliably attested violations of human rights” involves several victims,

and a certain number of breaches spread over a minimum period of time,

which are particularly inhuman or degrading in character. In its

deliberations, the Working Group on Communications takes into account

these elements when considering the admissibility and merits of the

allegations contained in a communication.

 Furthermore, a communication, alone or in combination with other

communications, may reveal a consistent pattern of gross and reliably

attested violations of human rights if it alleges severe violations of the

Universal Declaration of Human Rights repeated on a substantial number

of occasions3.

Examples of cases:

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 Alleged deteriorating situation of human rights of people belonging to a

minority, including forced evictions, racial segregation and substandard

living conditions.

 Alleged degrading situation of prison conditions for both detainees and

prison workers, resulting in violence and death of inmates.

The UN Treaty Based Mechanisms of Human Rights

Since the 1970’s the international, complaint mechanisms have strongly

advanced. Individuals or states can bring complaints before various
committees that deal with human rights or violations in general.

The UN treaty body committees include:

1. The Committee on Human Rights (reviews implementation of the

International Covenant on Civil and Political Rights)(1966) AND
Optional Protocol one and two
2. The Committee on Economic, Social and Cultural Rights
(reviews implementation of the International Covenant on Economic,
Social and Cultural Rights)(1966)
3. The Committee on the Elimination of Racial Discrimination (reviews
implementation of the International Convention on the Elimination
of Racial Discrimination(1966)
4. The Committee on the Elimination of All Forms of Discrimination
Against Women (reviews implementation of the International
Convention of the Elimination of All Forms of Discrimination Against
Women)(1979)
5. The Committee Against Torture (reviews implementation of the
International Convention Against Torture and other Cruel, Inhumane
or Degrading Treatment or Punishment)(1984)
6. The Committee on the Rights of the Child (reviews implementation
of the International Covenant on the Rights of the Child)(1989)
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 7. The Committee on Migrant Workers (reviews implementation of the
International Convention on the Elimination of Discrimination
Against Migrant Workers and All Members of their Families)(1990)
8. The Committee on the Rights of Persons with Disabilities (reviews
implementation of the International Convention on the Rights of
Persons with Disabilities)(2006)

The major human rights committees to discuss include:

a. The Human Rights Committee

b. The Committee against Torture
c. The Committee on the Elimination of racial discrimination
d. The Committee on elimination of all Forms of Discrimination against
Women

All these committees are quasi- judicial bodies. They receive complaints
from individuals or states and then they make recommendations
accordingly. The recommendations of the committees are not legally
binding and therefore the committees rely on the political will of the
states to implement the recommendations of the committees.

Against whom can a complaint be brought?

A complaint can be brought against the state. However, for the committee
to receive such a complaint, the state in question must have ratified the
relevant treaty or covenant. For instance, if the complaint is one of
torture, the state should have ratified the convention against torture and
other cruel, inhuman, and degrading treatment or punishment. Other
conventions to be looked at include the international covenant on civil and
political rights, the convention on the elimination of all forms of racial
discrimination, and the convention on the elimination of all forms of
discrimination against women.

Apart from ratifying the treaties, complaints brought to the human rights
committee (ICCPR) and CEDAW, the state must have first recognised the
competence of the committee to deal with individual complaints. This is

23
done by the state party ratifying the optional protocol of the two treaties.
For the case of the convention against torture, and the convention on the
elimination of all forms racial discrimination the state must declare the
competence of the committee to handle individual complaints this is
provided for by Article 22 and Article 24 of the two conventions
respectively. The articles provide that

“A state party to this convention may at any time declare under

this article that it recognises the competence of the committee to
receive and consider communications from or on behalf of
individuals subject to its jurisdiction who claim to be victims of a
violation by the state party of the provisions of the convention.
No communication shall be received by the committee if it
concerns a state which to the convention hasn’t made such a
declaration.”

Who can bring a Complaint?

Individual Complaint

Anyone can lodge a complaint with the committee against a state

claiming that his rights under a relevant treaty have been violated. The
individual can lodge the complaint on his own or the complaint can be
lodged on behalf of the victim with his/her consent. However, there are
times when the consent of the victim cannot be obtained especially where
the victim is too young to give a formal consent or where he is
“incommunicado” i.e. he is imprisoned has no access to the outside world.

State Complaint

A state may also lodge a complaint against another state that is failing to
fulfil its obligations under a relevant convention of treaty.

Admissibility

24
 Before the committee to which the complaint has been lodged can
consider the merits of the case, it must be satisfied that the claim or
communication meets the formal requirements of admissibility. When
considering whether a communication is admissible, the committees
consider the following issues generally.

1. The consent of the victim

If the complaint is being made on behalf of the victim, the committee

must first ascertain that consent has been obtained from the victim. If the
victim’s consent cannot be obtained because he cannot be contacted, or
formal consent cannot be obtained may be due to the physical incapacity
of the victim, the committee will overlook the requirement of consent.

2. Being a victim of the alleged violation

It must be shown the victim was personally directly affected by the

violation. The violation could be in form of law, policy, practice, act, or
omission. It is not sufficient for a victim to claim that a law or policy
enacted violates his/her rights the victim must show that the
implementation of that law led the violation of his/her human rights.

3. Compatibility with the provisions of the treaty

The alleged violation must relate to a right protected by the treaty. For
instance under the international covenant on civil and political the right to
property is not provided for and there a victim cannot make a claim in
that respect.

4. The substance of the complaint

The complaint must not have ill motives or be based on motives that are
not related to the violation of violation of a right. Sometimes the motive
for lodging a claim may be political that the individual just wants to poison

25
 the reputation of the government. The committee cannot admit
complaints based on such motives.

5. The timing of the violation

Complaints must relate to violations that took place after the complaint
mechanism came into operation. As a general rule, the committees do not
examine complaints dating from the period before the complaint system
came into force. However if the violation is continuous that is to say it
existed before the committee came into force and continued to exist after
the coming into force of the mechanism then the case can be admitted in
relation to the events that happened when the mechanism came into
force.

6. Exhaustion of local remedies

A cardinal principle governing the admissibility of a complaint is that all

local remedies should have been exhausted. Exhausting remedies include
the complaint having gone through all the domestic legal channels
including tribunals, courts of law, mediation, e.t.c. usually the complaint
should be lodged within six months after exhausting domestic remedies.

F. A. v. Norway Communication No 18/2000 CERD/C/58/D/18/2000

LLB II 2019

The complainant being a foreigner in Norway found it difficult to get

accommodation since most housing agencies did not want foreigners to
rent their houses. He complained to the police who carried out no
investigation for two years. The police later found the house owner guilty
and fined her. The house owner appealed against the decision and was
acquitted. The committee found that the communication was inadmissible
because the complainant lodged the complaint more than 6 months after
exhausting domestic remedies.

However, there are exceptions to this requirement. If the domestic

remedies will unreasonably take too long to be concluded then the
requirement can be dispensed with. Also, if the domestic remedies will

26
prove to be ineffective then the rule doesn’t apply. For instance if the laws
of state are quite clear on the claim meaning no remedies can be availed
then the committee will dispense with the requirement of the exhaustion
of local remedies. Also, where local remedies cannot be exhausted
because the judicial is dysfunctional then the requirement will be
dispensed with. The judiciary may be dysfunctional due to a civil war or
due to tyranny.

Alexander Pavlovich GERASIMOV and the Republic of Kazakhstan

(Communication No. 433/2010)
On 27 March 2007, Mr. Gerasimov was beaten and threatened with sexual
violence by police officers in Kostanay, then tied up and repeatedly
suffocated until he bled from his nose and ears and lost consciousness. As
a result of his injuries, he spent 13 days in hospital and suffers from Post-
Traumatic Stress Disorder (PTSD). Despite formal complaints, there has
never been a proper investigation into his torture. The government
claimed that the complainant never exhausted domestic remedies

The Committee’s findings: The communication is admissible and should

be considered on the merits. Mr. Gerasimov exhausted all available and
effective domestic remedies. The Government’s challenge to the
admissibility of the case, raised for the first time in its Further
Observations in May 2011, ignores domestic challenges filed by Mr.
Gerasimov between March and May 2008; fails to account for the
continuing nature of the violations against him; and actually confirms the
unduly delayed nature of the proceedings. Finally, as explained in our
previous submissions, the letters relied upon by the Government do not
represent a free and unequivocal withdrawal of the communication by Mr.
Gerasimov and should not prevent the Committee from considering the
merits of the case.

L.O.P V. Spain Communication No. 1802/2008

27
 The author is serving a prison sentence in connection with various drug
trafficking convictions and offences against public health. In 2003, while
being held in Alcalá Meco prison in the province of Madrid, he was moved
without explanation to Zuera prison (Zaragoza). He was subsequently
transferred to prisons in Valladolid and Daroca (Zaragoza). The author
claims that the transfers failed to take account of his right to family life, as
his daughters were living in Guadalajara, near Madrid. This he claims was
against article 17 of the UN International Covenant on Civil and Political
Rights which provides that “Article 17

1. No one shall be subjected to arbitrary or unlawful interference with

his privacy, family, home, or correspondence, nor to unlawful
attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such
interference or attacks.

The committee found that the communication was inadmissible because

the complainant hadn’t exhausted domestic remedies

7. The Claim must not be an abuse of the complaints process

A committee may consider a case to be vexatious, frivolous, or otherwise

an inappropriate use of the complaint procedure therefore dismissing the
complaint. For instance if the same case with the same facts is lodged
several times before the committee it will be considered an abuse of the
complaint mechanism. However, where the facts are the same and the
victims are different, the committee will consider the cases individually.

8. The complaint must not be before another mechanism of

international settlement

If the same case is being determined by another committee or by another

international mechanism e.g. the African commission on human and
people’s rights, the committee will not examine the case. The aim of this
is to avoid duplicity of communications or cases at the international level.

28
9. The state should have ratified the relevant convention and its
optional protocol where it is so required.

For cases lodged before the committee of human rights and the CEDAW
committee, the state should have ratified the optional protocol to the
convention against all forms of discrimination against women and the
optional protocol to the international covenant on civil and political rights.
For cases lodged before the committee against racial discrimination and
the committee against torture, the state should have declared the
competence of the committee to handle individual complaints. For
interstate complaints, the states in question should have declared the
competence of the committees to handle interstate complaints. It should
be noted that a state can ratify an optional protocol but make
reservations on the competence of the committee to handle certain cases.
If the committee considers the reservation impermissible it will still
consider the case admissible.

10. The sufficiency of the evidence

There must be sufficient or enough evidence that the violation claimed

actually did take place. Evidence based solely on media is considered
inadmissible by the committee. For one to rely on media evidence there
must be some other evidence baking it up.

H. E-M v. Canada
23 May 2011, UNCAT, 395/2009
Inadmissible under Article 22(5)(b) (exhaustion of domestic remedies)
Facts. The complainant, a Lebanese national facing deportation in
Canada, claimed that his return to Lebanon would violate Article 3 of the
Convention. He claimed he was a well-known member of the “Shia party”
and that, if deported to Lebanon, he would face torture for being a Shiite
Muslim and for his past role in politics. The Canadian Minister of
Citizenship, Immigration and Multiculturalism issued a Danger Opinion
finding that the complainant could lose his refugee status protection
under Article 33(2) of the Convention relating to the Status of Refugees

29
 because he posed a danger to the Canadian public. The complainant’s
application for leave and judicial review was denied by the Federal Court
on 7 July 2009 on the grounds of failure to submit his case file.
Decision. The Committee found that the complainant failed to submit
evidence or written comments explaining why he was personally at risk of
torture if he returned to Lebanon, and that he subsequently did not
pursue his application for leave and judicial review with due diligence,
omitting to submit to the Federal Court a case file in support of his
application. The Committee further found that errors made by a privately
retained lawyer, who in this case failed to pursue available remedies
diligently, cannot constitute justification for the complainant’s failure to
exhaust domestic remedies.

11. The complaint must not be anonymous

The committee will consider a case inadmissible if it does not state the
name of the complainant. However, if the complainant desires to remain
anonymous then he should state his/her name but request to remain
anonymous.

12. The Time limit for Lodging Complaints

The complaint must be brought within six months after the exhaustion of
local /domestic remedies. A case becomes inadmissible if it falls outside
this time limit.

13. Jurisdiction

It is a general requirement that when the violation took place, the victim
should have been within the jurisdiction or the territory of the state in
question. However, the victim can still be within the jurisdiction of the
state if rights are violated within another state but by the organs of the
state in question. For instance, where the Tanzanian embassy in Uganda
violates the rights of Tanzanian citizens in Uganda the violation is still
within jurisdiction.

30
PROCEDURE UNDERTAKEN BY THE COMPLAINT SYSTEMS

Individual Complaints

The procedure untaken for the complaint systems is quite similar with
only a few differences

The Human Rights Committee

The human rights committee has 18 experts who meet three times a year
to receive complaints from persons who fall within their jurisdiction and
claim their rights under the convention ICCPR have been violated.
Details of the procedure
When a communication is received, it is handed to the special rapporteur
who then decides whether the case should be registered. When the
communication is registered then the committee considers whether the
case has merits and whether it is admissible. The state party against
whom the case is lodged is then requested to submit submissions on the
merits of the case and admissibility. The complainant is thereafter given 2
months to comment on the submission of the state. In light of information
from the state and the complainant, the committee then decides the case
based on the evidence available. Where a state fails to give submissions,
it is given two reminders by the committee. If the state still doesn’t
comply then the committee will determine the case based on information
supplied by the complainant.
Under rule 86 of the procedures of the human rights committee, the
committee may order for interim measures where it is necessary to stop
any further violation of human rights. For instance, where the
communication concerns violations of the right to life due to the death
penalty, the committee will ask the state through interim measures not to
execute the complainant until the case has been determined.
After the case has been decided, the committee gives its
recommendations. If the committee finds that a violation indeed occurred
then the state is given three months within which to give information on

31
the steps taken to enforce the committee’s recommendations. The
response of the state is then transmitted to the complainant. If the state
doesn’t respond on this, a special rapporteur follows up on the case and
may request the state to comply with the request of the committee.

Committee against Torture

Article 22 of the convention against torture and other cruel, inhuman, or
degrading treating or punishment establishes the committee. The
committee has a panel of 10 independent experts. The experts meet twice
a year to consider violations under the convention.
Detail of the procedure
Upon registration of the communication, the state party is given six
months to comment on admissibility and the merits of the case. When a
state only comments only on admissibility the complainant is given four
weeks to comment on the submissions then the committee adopts a
decision on admissibility. If the case is considered inadmissible, it is
closed. If it is considered admissible, the state party has four months to
comment on the merits of the case. The complainant then has 6 weeks to
comment thereafter the committee will take a decision on the substance
of the case.

Where the state comments both on the admissibility and the merits of the
case then the complainant is given 6 weeks to comment and then the
committee takes a decision on the case.
When the committee reaches a decision, the decision is communicated to
the state and the state has 90 days to state which kind of action it has
undertaken in relation to the decision of the committee. The special
rapporteur may make follow up to make sure that the state is actually
enforcing the actions it promised to undertake.
At any point when the committee is, considering the case the committee
may order for interim measures to avoid irreparable damage.

32
The International Convention on the elimination of all forms of
racial discrimination (CERD)
Under article, 4 of the convention states may make a declaration
accepting the competence of the committee. The committee has a panel
of 18 independent experts who meet twice a year who consider
complaints.
Details of the procedure
The state is given three months to make submissions on admissibility and
merits of the case. If the state makes submission on admissibility first, the
complainant is given 6 weeks to comment on the states’ submission. If the
case becomes admissible, the complainant has 6 weeks to comment on
the submission of the state. If the state thereafter has three more months
to make submissions on the merits of the case, thereafter the committee
can take a final decision on the matter.
Alternatively, where the state has no objection to the admissibility of the
complaint and presents its submissions on the merits of the case, the
complainant is given 6 weeks to comment on the submission before the
committee takes a final decision.

Committee on the Elimination of all forms of Discrimination

against women

A complaint may be submitted by the victim or on behalf of the

complainant. After the registration of the complaint, the Committee will
send a copy to the State party concerned which will have six months to
comment on the admissibility and merits of the complaint. The Committee
will then send to the complainant a copy of the State party’s comments
and the complainant will be directed on when he is to submit his
counterarguments. Thereafter, the case will be ready for a decision of the
Committee. It is important to note that the Committee may vary the
procedure and accelerate it. In a departure from the general rule, the
Committee may seek documentation from the UN or other bodies that
may assist it in deciding the case. In this regard, both State party and

33
 complainant will be given an opportunity to comment on such
documentation within a fixed period. Also, the Committee may reject a
complaint if it is pending before, or has been decided by, another
international mechanism of investigation or settlement.

If you are concerned that the State party may take some action against
you that may harm you, or the victim who you are representing, you may
also include in your complaint a request to the Committee to issue interim
orders to prevent the State party from taking such action.

Where the Committee issues a decision and makes recommendations

against a State party, the State party will have six months within which to
submit a detailed report on the steps it has taken to implement the
Committee’s recommendation.

Interstate Complaints

Interstate complaints are provided for by articles 41-43 of the ICCPR,

articles 21 of the CAT, articles 11-13 of CERD and Articles 29 of CEDWA.

1. If a State Party to the present Covenant considers that another State Party
is not giving effect to the provisions of the present Covenant, it may, by
written communication, bring the matter to the attention of that State
Party. Within three months after the receipt of the communication, the
receiving State shall afford the State which sent the communication an
explanation or any other statement in writing clarifying the matter, which
should include, to the extent possible and pertinent, reference to
domestic procedures and remedies taken, pending, or available in the
matter.
2. If the matter in not adjusted to the satisfaction of both States Parties
concerned within six months after the receipt by the receiving State of the
initial communication, either State shall have the right to refer the matter
to the Committee, by notice given to the Committee and to the other
State.

34
3. The Committee shall deal with a matter referred to it only after it has
ascertained that all available domestic remedies have been invoked and
exhausted in the matter, in conformity with the generally recognized
principles of international law. This shall not be the rule where the
application of the remedies is unreasonably prolonged.
4. The Committee shall hold closed meetings when examining
communications under this article.
5. Subject to the provisions of subparagraph (c), the Committee shall make
available its good offices to the States Parties concerned with a view to a
friendly solution of the matter on the basis of respect for human rights
and fundamental freedoms as recognized in the present Covenant.
6. In any matter referred to it, the Committee may call upon the States
Parties concerned, referred to in subparagraph (b), to supply any relevant
information.
7. The States Parties concerned, referred to in subparagraph (b), and shall
have the right to be represented when the matter is being considered in
the Committee and to make submissions orally and/or in writing.
8. The Committee shall, within twelve months after the date of receipt of
notice under subparagraph (b), submit a report:
1. If a solution within the terms of subparagraph (e) is reached, the
Committee shall confine its report to a brief statement of the facts and of
the solution reached;
2. If a solution within the terms of subparagraph (e) is not reached, the
Committee shall confine its report to a brief statement of the facts the
written submissions and record of the oral submissions made by the
States Parties concerned shall be attached to the report.

Inquiries

The Committee against Torture and the Committee on the Elimination of

Discrimination against Women may, on their own initiative, initiate
inquiries if they have received reliable information containing well-

35
founded indications of serious or systematic violations of the conventions
in a State party.

Which States may be subject to inquiries?

Inquiries may only be undertaken with respect to States parties who have
recognized the competence of the relevant Committee in this regard.
States parties to CAT may opt out, at the time of ratification or accession,
by making a declaration under article 28; States parties to the CEDAW
Optional Protocol may similarly exclude the competence of the Committee
by making a declaration under article 10.

Inquiry Procedure

Article 20 of the Convention against Torture and articles 8 to 10 of the

Optional Protocol to CEDAW set out the following basic procedure for the
relevant Committee to undertake urgent inquiries:

1. The procedure may be initiated if the Committee receives reliable

information indicating that the rights contained in the Convention are
being systematically violated by the State party. In the case of CAT, the
information should contain well-founded indications that torture is being
systematically practised in the territory of the State party; in the case of
CEDAW, the information should indicate grave or systematic violations of
the rights set forth in the Convention by a State party.

2. The first step requires the Committee to invite the State party to co-
operate in the examination of the information by submitting observations.

36
 3. The Committee may, on the basis of the State party's observations and
other relevant information available to it, decide to designate one or more
of its members to make a confidential inquiry and report to the Committee
urgently. The CEDAW procedure specifically authorizes a visit to the
territory of the State concerned, where warranted and with the State's
consent.

4. The findings of the member(s) are then examined by the Committee

and transmitted to the State party together with any appropriate
comments or suggestions/recommendations.

5. The CEDAW procedure sets a six-month deadline for the State party to
respond with its own observations on the Committee's findings, comments
and recommendations and, where invited by the Committee, to inform it
of the measures taken in response to the inquiry.

6. The Committee may decide, in consultation with the State party, to

include a summary account of the results of the proceedings in its annual
report.

In both cases, the procedure is confidential and the cooperation of the

State party must be sought throughout.

Challenges Facing the Complaint systems

1. The fact that the recommendations of the committees are not legally
binding makes implementations difficult since the committees depend on
the political will of the states. Most times states have to be followed up
and reminded about their obligations to implement the recommendations.
Some states do not obey the interim measures undertaken by the
committees.
2. The committees also take such a long time to conclude cases which at
times discourages complainants from filing cases before the committees.

37
3. There is also a problem of overlapping. Sometimes when it comes to
reporting of human rights situations in states, the cases may concern
more than one committee making it burdensome for states to write the
same report and send it to more than one committee.
4. There is also a problem of manpower. The committee lacks enough
manpower to help fast track the cases filled before the committee.
5. The committee also is challenged by budgetary challenges in that the
amount of money allocated for the committee may not meet the budget
set down by the committee.

REGIONAL HUMAN RIGHTS SYSTEMS

THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS

The System protects human rights through its two organs under Article 33
of the American Convention of Human Rights:

1. Inter-American Court of Human Rights

2. Inter-American Commission of Human Rights

Both of the above organs decide individual complaints on alleged human

rights violations

Inter-American Commission of Human Rights

Under Article 34 and 37 of the American Convention the Commission is

composed of 7 members who are elected for a term of four years and can

38
be re-elected for one more term of office. This is also provided for under
Article 2 and 6 of the Statute of the Inter-American Commission of Human
Rights

Who May Lodge cases before the Commission?

Article 44 provides that the following may lodge cases:

a. Individuals or groups of individuals

b. Non-governmental entities recognised by member states of the OAS

Functions of the Commission

This is provided for under Article 18 of the Statute and Article 41 of the
American Convention. The Functions are as Follows:

a. to develop an awareness of human rights among the peoples

of the Americas;

b. to make recommendations to the governments of the states on

the adoption of progressive measures in favor of human rights in the

framework of their legislation, constitutional provisions and international

commitments, as well as appropriate measures to further observance of

those rights;

c. to prepare such studies or reports as it considers advisable for

the performance of its duties;

d. to request that the governments of the states provide it with

reports on measures they adopt in matters of human rights;

e. to respond to inquiries made by any member state through the

General Secretariat of the Organization on matters related to human

39
rights in the state and, within its possibilities, to provide those states

with the advisory services they request;

f. to submit an annual report to the General Assembly of the

Organization, in which due account shall be taken of the legal regime

applicable to those States Parties to the American Convention on Human

Rights and of that system applicable to those that are not Parties;

g. to conduct on-site observations in a state, with the consent or

at the invitation of the government in question; and

h. to submit the program-budget of the Commission to the

Secretary General, so that he may present it to the General Assembly.

Admissibility of Cases by the Commission’s Complaint Mechanism

Admissibility of Cases is provided for under Articles 46 and 47 of the

American Convention of Human Rights:

1. Exhaustion of Domestic Remedies under 46(1)(a) of the Convention.

For case to be admissible parties must have exhausted domestic
remedies within their states. Without fulfilling this requirement
cases will be considered inadmissible.

Exceptions to exhaustion of domestic remedies appear under Article

46(2)(a-c) and they include:

a. Where due process is not afforded under the national laws to

protect the right in question

40
 b. Where the state in question has denied the party from
accessing remedies or has prevented the party from
exhausting domestic remedies
c. Unwarranted delay in judicial proceedings

2. The petition must be lodged within 6 months after exhaustion of

Domestic remedies. Under Article 46(1)(b). In the case of Juan
Lome Rodriguez v. Mexico Petition No. 139 -07 the petition
was considered inadmissible because it was not lodged six months
after exhaustion of domestic remedies.
3. The petition should not be pending before another international
mechanism of settlement
4. The Communication or petition should not be anonymous
5. Article 47(b) where the petition does not state facts of the violation
6. Article 47© where the Petition is manifestly ill grounded or out of
order
7. Article 47(d) where the Commission had already previously
considered or determined the case.
8. Under Article 45 of the Convention, The Commission can only
determine cases from states that have recognised the competence
of the Commission to receive and examine communications from
the said states. This is done by the state making a declaration that
is deposited with the secretariat of the OAS

The Inter-American Court of Human Rights

Article 52 and 56 of the Convention states that the Court shall consist of 7
judges and they are elected for 6 years and can be re-elected into office
one more time.

Who may submit a case to the Court?

41
Only state parties and the commission may submit cases to the court
according to Article 61 of the Convention. Technically individuals or NGOs
cannot submit cases to the Court.

Functions of the Court

Under Article 62(3) the Court can interpret provisions of the

conventions and also receive complaints on violation of the
Convention.

Under Article 71 and 72 of the Rules of Procedure of the Court, the Court
on request can interpretation of treaties covering protection of
human rights in American States.

Provisional Measures

Article 27 of the Rules of Procedures of the Inter-American Court of Human

Rights states that the Court can order for provisional measures

EUROPEAN COURT OF HUMAN RIGHTS

Background

The European Court of Human Rights (ECtHR) is a regional human rights

judicial body based in Strasbourg, France. The Court began operating in

1959 and has delivered more than 10,000 judgments regarding alleged

violations of the European Convention on Human Rights.

In 1998, the European human rights system was reformed to eliminate the

European Commission of Human Rights, which previously decided the

admissibility of complaints, oversaw friendly settlements, and referred

some cases to the Court – in a manner similar to the current Inter-

42
American System. Now, individual victims may submit their complaints

directly to the European Court of Human Rights.

The European Court, or “Strasbourg Court” as it is often called, serves a

complementary role to that of the European Committee of Social Rights,

which oversees European States’ respect for social and economic rights.

Establishment of the Court

Article 19 of the European Convention establishes the European Court of

Human Rights as a permanent court.

Composition of the Court and Term of Office of Judges

Article 20 of the Convention states that the Court shall consist of a

number of Judges equivalent to the number of contracting parties.

It can be construed that since there are 47 member states of the Council

of Europe the Court has 47 judges.

Under Article 23, the judges are elected for a term of 9 years and can only

hold office for one term.

Structure of the Court

1. Single Judge: only rules on the admissibility of applications that

are clearly inadmissible based on the material submitted by the

applicant. This is provided for under Article 27 of the Convention.

This is in cases where the petition does not need further

43
 examination. The decision of the single judge is final and cannot be

appealed against.

2. Committee: composed of 3 judges, committees rule on the

admissibility of cases as well as the merits when the case concerns

an issue covered by well-developed case law (the decision must be

unanimous). This is covered under Article 28 of the Convention.

3. Chamber: composed of 7 judges, chambers primarily rule on

admissibility and merits for cases that raise issues that have not

been ruled on repeatedly (a decision may be made by a majority).

Each chamber includes the Section President and the “national

judge” (the judge with the nationality of the State against which the

application is lodged).

Under Article 29 of the Convention, the Chamber can only Act on a

Matter where the Committee of three judges and the Single judge

have not acted on a matter in regard to admissibility and/or merits

of the case.

4. Grand Chamber: composed of 17 judges, the Grand Chamber

hears a small, select number of cases that have been either referred

to it (on appeal from a Chamber decision) or relinquished by a

Chamber, usually when the case involves an important or novel

question. Applications never go directly to the Grand Chamber.

Where an issue on interpretation of the Convention arises before the

Chamber, the matter is determined by the Grand Chamber (Article

30 of the Convention)

44
 advisory opinions on the legal questions concerning the

interpretation of the Convention

Jurisdiction of the Court

1. Interpretation and application of the Convention and

its Protocols.

Article 33- the Court has Jurisdiction to cover all matters

concerning the interpretation and application of the

Convention and its Protocols.

2. Advisory jurisdiction.

Article 47 also provides for advisory jurisdiction. When the

Committee of Ministers seeks and its protocols

Who May Lodge a Petition before the Court?

Under Article 33 and 34, the Court receives both inter-state petitions

and individual petitions. Individual complaints include (complaints from

individuals, Groups of Individuals, and NGOs).

Admissibility of Cases

Admissibility criteria is provided for under Article 35 of the Convention.

The matters to be considered are as follows:

45
1. The applicants must have exhausted domestic remedies and

submitted the petition within six months after exhausting domestic

remedies. (Article 35(1) of the Convention).

As far as exhaustion of domestic remedies is concerned, you must

use all remedies in your State which provide redress for the

situation you are complaining about. This usually consists of a claim

brought before a relevant civil, criminal or administrative court,

followed by an appeal where applicable, and even a further appeal

to a higher court such as a Supreme Court or Constitutional court, if

one exists. In addition, you must comply with the applicable rules

and procedures of national law. If your complaint could not have

been decided by the national courts because you failed to lodge it

within the time-limit prescribed by national law, then your complaint

before the Strasbourg Court may be declared inadmissible. And

finally, when complaining before national courts, you must raise at

least the substance of the Convention violation you are alleging .

2. The petition should not be anonymous -Article 35(2)(a)

If you do not wish to disclose your identity to the public, you may

make such a request either in the application form or as soon as

possible afterwards. You must state the reasons for your request

and explain how disclosure of your identity could affect you. Only

the Court may take this decision. If you are granted anonymity, you

should be referred to by your initials or simply by a letter. If not,

46
 your name will appear in all documents which the Court publishes

on-line on its HUDOC database.

In the case of Blondje v. The Netherlands, Application

no. 7245/09. The application did not include the identity of the

applicant apart from its reference to the applicant as BLONDJE. The

Court held that since the case file did not contain any information

enabling the Court to identify the applicant, the application is to be

regarded as anonymous Consequently, it is inadmissible

under Article 35 (2) (a) of the Convention and must be rejected

pursuant to Article 35 ( 4).

3. The matter should not have been previously determined by the

court or filed before another procedure of international

settlement/investigation – Article 35(2)(b)

Your application may be declared inadmissible if the Strasbourg

Court has already examined an application previously brought by

you relating to the same facts and the same complaints. The same

applies to an application which is essentially the same as a case

that you have brought before another international body, such as

the UN Human Rights Committee.

4. Where the application is ill founded under Article 35(3)

Your application may be declared manifestly ill-founded even where

all the formal admissibility criteria which have been mentioned so

far have been fulfilled. This is the case if your application discloses

no appearance of a violation or if there is settled or abundant case-

47
 law in similar or identical situations also finding no violation. Your

application may be manifestly ill-founded if you have failed to

provide sufficient evidence to support the facts and the legal

arguments which you raise. For example if you fail to explain why

the Convention article you rely on has been breached. Your

application may be declared inadmissible if it is so confused that it

is objectively impossible for the Court to make sense of the

complaints you make. The same applies to far-fetched complaints

and to those that have clearly been invented or that are manifestly

contrary to common sense. And finally, the Strasbourg Court is not a

court of “fourth instance”, it is not a court of appeal, or a court of

revision or of cassation. It cannot question the domestic courts’

establishment of the facts in your case, nor their assessment or

application of domestic law, nor your guilt or innocence in a criminal

case.

5. Where the application is an abuse of the right to individual

application.

Your application may be declared inadmissible for abuse of the right

of application. This is the case if you mislead the Court by

submitting an application under a false name or by falsifying certain

documents; or if you fail to inform the court of an important

development in your case which is essential for the examination of

your case, or of a new development which may have occurred

during the course of proceedings before the Strasbourg Court, such

as a judgment in your favour. Your application may be declared

48
 inadmissible if you use abusive language, such as insult, or if you

breach the duty of confidentiality in friendly settlement

negotiations.

6. Where the applicant has not suffered any significant violation as

described under the Convention or its protocols. Article 34 of the

Convention requires that the applicant must be a victim of violation.

You may be a direct victim. For example if you are a victim of ill-

treatment in prison which the domestic court hasn’t recognised or

condemned or for which you have not received sufficient redress.

You may be an indirect victim. This is the case, for example, if the

direct victim dies before lodging an application before the

Strasbourg Court and you have a legal interest as next of kin to

complain, for example, of the death or disappearance of your

relative. However, if your complaint is not closely enough linked to

death or disappearance, your victim status may be denied. You may

be a potential victim if you are an alien whose removal has been

ordered, but not yet enforced, and where enforcement could risk

inhuman or degrading treatment, or torture, in the receiving state.

And finally, where a victim dies during the course of the proceedings

before the Strasbourg Court, if you are an heir or a close relative,

you may pursue his or her application if you can show a legitimate

interest in doing so.

7. State Liability. If the state is not liable for the violation alleged then

the application will be considered inadmissible under Article 35(3) of

the Convention.

49
 The violation which you complain about must have been committed

by the Respondent State in question or in some way attributable to

it. Your application may be declared inadmissible because of the

respondent concerned: -

 if it is brought against an individual; -

 if it is brought against a state that has not ratified the

Convention or its Protocols; -

 if it is brought directly against an international organisation,

such as one of the European Union institutions, which has not

yet acceded to the Convention.

However, if your complaint is against an EU Member State in

relation to its implementation of EU law, your application may be

declared admissible.

8. Territorial Jurisdiction (Ratione Loci) Article 35(3)

The violation which you complain about must have occurred within

the territorial jurisdiction of the Member State concerned or in a

territory effectively controlled by it. So, for example, a respondent

State may be responsible for the acts of its diplomatic and consular

staff abroad in the context of a diplomatic mission, where they exert

authority and control over individuals outside the territory of the

State.

9. Temporal Jurisdiction (Ratione Temporis)

The acts or facts complained of must have occurred after the date

of entry into force of the Convention in the respondent State in

question. However, your application may be declared admissible if

50
 the State caused the continuous situation which began prior to

ratification and persisted after that date. For example, the Court has

held that it had jurisdiction to decide on disappearances which

occurred some thirteen years prior to the respondent State’s having

recognised the right of individual petition. Indeed, a disappearance

is not an “instantaneous” act or event. And therefore, the

procedural duty to investigate potentially continues as long as the

fate of the disappeared person has not been established, even if his

death may be presumed.

Friendly settlements Article (39 of the Convention)

1. At any stage of the proceedings, the Court may place itself at the

disposal of the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for human rights as

defined in the Convention and the Protocols thereto.

2. Proceedings conducted under paragraph 1 shall be confidential.

3. If a friendly settlement is effected, the Court shall strike the case out of

its list by means of a decision which shall be confined to a brief statement

of the facts and of the solution reached.

4. This decision shall be transmitted to the Committee of Ministers, which

shall supervise the execution of the terms of the friendly settlement as set

out in the decision.

Enforcement of the Courts Judgement

51
  Under Art 46(2) the Court’s judgement is enforced by a Committee

of Ministers who supervise the execution of the final judgement.

 If execution of the judgement is hindered by a problem of

interpretation of the judgement, the Committee of Ministers may

refer the judgement back to the Court for interpretation.(Art 46(3))

 If a state part fails or refuses to enforce the decision of the Court,

the Committee of Ministers will issue notices to the party first. If the

party continues to refuse to enforce judgement then the Committee

of Ministers will report the matter to the Court. Art 46(4)

 If the Court finds that state party has failed to fulfil its obligations

then the matter is referred to the Committee of Ministers who will

recommend the measures to be taken against the state. Art 46.5

THE AFRICAN SYSTEM OF HUMAN RIGHTS

Historical Background

In 1999, leaders of African states met to discuss the future of the

organisation of the African Union. Leaders agreed that the OAU could no
longer satisfy the needs of Africa and should therefore be replaced by a
more active organisation.

In 2002, the African Union succeeded the Organisation of African Union

which had failed in its mandate. One of the founding principles for the AU
is human rights and democratic values. However, it is also true that the
AU has inherited the OAU’S human rights actions. The preamble of the
constitutive Act of the AU states that the AU undertakes to “promote and
protect human and peoples’ rights, consolidate democratic institutions
and cultures and to ensure good governance and the rule of law”. States

52
 therefore have a binding obligation to promote and protect human rights
in their various states.

The African system of human rights is based on the African charter on

human and people’s rights. The charter has 68 articles 24 of which are
based on human and peoples’ rights, duties, procedure of the commission
and applicable principles. The uniqueness of the charter is that it includes
third generation rights which most charters lack. The major human rights
monitoring enforcement bodies include

 The African commission of human rights

 The African committee on the rights and welfare of the child.
 African court of Justice and human rights

THE COMMISSION OF HUMAN RIGHTS

According to Art. 30, of the African Charter on Human and Peoples’ Rights
(the Charter) which was adopted on 27 June 1981, an African Commission
on Human and Peoples’ Rights (the Commission) shall be established
“within the Organization of African Unity [now AU] to promote human and
peoples’ rights and ensure their protection in Africa.”
According to Art. 31 of the Charter, the Commission shall consist of 11
members who shall serve in their personal capacity. The Commissioners
shall be “chosen amongst African personalities of the highest reputation,
known for their morality, integrity, impartiality and competence in matters
of human and peoples’ rights; particular consideration being given to
persons having legal experience”.
The purpose and function of the Commission, as set out in Art. 45 of the
Charter, may be divided into three parts: a promotion mandate, a
protection mandate and an interpretation mandate.
Promotion
With respect to promotion, the tasks specified in Art. 45.1 include (i)
collecting documents, undertaking studies and research, organising
seminars, etc., disseminating information, encouraging national and local

53
human rights institutions, giving its views and recommendations to
governments; (ii) laying down principles and rules relating to human and
peoples’ rights to be used by African governments when preparing
legislation; and (iii) cooperating with other African and international
institutions concerned with promoting and protecting human and peoples’
rights.

Interpretation
With respect to interpretation, the Commission’s mandate according to
Art. 45.3 is to “interpret all the provisions of the present Charter at the
request of a state party, an institution of the Organization of African Unity
[now AU] or an African organisation recognised by the Organization of
African Unity [now AU]”. On no occasion has the Commission been
formally asked to provide interpretations of the Charter in accordance
with Art. 45.3.

Protection
With respect to the protection mandate, Art. 45.2 merely states that the
Commission shall “ensure the protection of human and peoples’ rights
under conditions laid down by the present Charter.” Among the steps
taken by the Commission to protect human and peoples’ rights is the
communications procedure, the procedure according to which the
Commission deals with individual communications (complaints). This is the
prime focus of the section on the Commission in this report. In addition,
the Commission has developed a system of Special Measures, consisting
of Special Rapporteurs and Working Groups. As part of these mechanisms,
requests for assistance in specific cases are also received. This part of the
Commission’s work will be dealt with in a particular sub-section of this
section on the Commission.

The Commission has a state reporting mechanism and a complaint

mechanism

State Reporting Mechanism of the Commission

54
Under Article 62 of the African Charter, states have an obligation to report
to the commission the extent to which the human rights and freedoms
enshrined in the charter are being implemented in that state. Each state
is therefore required to give a report after every two years from the date
on which the charter entered into force. The state can send a
representative who will attend one of the commissions meetings that is
always held in public. The commission poses a number of questions to the
state representatives concerning human rights issues in the state. The
commission thereafter makes comments on the report which comments
states are supposed to implement. States in their next report to the
commission are required to indicate what measures they undertook to
implement the recommendations of the committee. This was also seen in
the case of Lawyers for Human Rights V. Swaziland Communication
251/2002 where the commission recommended that the Swazi
Government should inform the commission within six months on the
measures it has taken to implement the remedies indicated.

Challenges facing the state reporting mechanism

The challenge facing the commission is that at times states do not send
the reports on time or even totally fail to send reports at all. Moreover,
some states fail to send representatives forcing the commission to at
times examine the reports in the absence of state representation. One of
the other challenges facing the state reporting mechanism is that at times
states send representatives who may not be very competent on human
rights issues facing the country consequently making it difficult for the
commission to have verification on some human rights issues affecting
that particular state.

Amicable Settlement

Although the African charter does not provide for amicable settlement,
commission’s rules of procedure provide for amicable settlements.

55
Rule 109 of the Rules of procedure provide that the Commission can use
its good office for amicable settlement between parties (R. 109 (1)).
Amicable settlement is carried out voluntarily and with consent of both
parties as provided under Rule 109 (2).

Parties are given six months within which to reach a settlement. If no

settlement is reached within this time, the period can be renewed. In case
no agreement is reached within six months, the attempt to settle the
matter amicably can be terminated on the request of either or both
parties (Rule 109 (4))

When a settlement is reached, the Commission has to satisfy itself that

the settlement conforms to human rights and fundamental freedoms laid
down in the Charter. The Commission also has to satisfy itself that the
victim(s) or their successors/dependants are satisfied with the settlement
and have consented to it. This is provided for under Rule 109 (5) (a, b, &
c). The Commission also has to satisfy itself that the parties are
committed to implement the terms of the settlement.

Where the terms of the amicable settlement have not been implemented
within 6 months, the Commission upon the request of the complainant
proceed to process the communication (Rule 109 (7)).

In the case of open society justice initiative (on behalf of Pius

Njawe) v. Cameroon Communication No. 290/2004 where a private
radio station was banned, the parties amicably resolved the matter where
after the commission ensured that the parties agreed on its terms, the
cases and terms were registered and the file closed.

The Complaint Mechanism of the AU

The commission handles individual and interstate complaints.

56
Who May Bring a Complaint?
According to Articles 47 – 54 of the African charter, complaints may be
lodged by a state, individual, or an NGO

Individual complaints
The conditions for considering such communications are set out in Art. 56
of the Charter.
Firstly, the name of the author of the communication must be indicated
(even if anonymity is requested- Art. 56.1. The name required is not the
name of the person(s) whose rights have allegedly been violated, but of
the persons submitting the complaint (which may be someone else).
According to the Commission’s Information Sheet no. 3 (on the
communications procedure), the name of the representative must be
indicated if the communication is submitted by an NGO.

Secondly, the communication shall be “compatible with the Charter of

the Organization of African Unity [now the Constitutive Act of the AU] or
with the present Charter”, Art. 56.2. According to the aforementioned
Information Sheet no. 3, this means that the communication shall invoke
the provisions of the Charter alleged to have been violated or the relevant
principles in the AU Charter (this must be a reference to the Constitutive
Act of the AU as there is no AU Charter), and that the communication shall
illustrate a prima facie violation of the Charter or some of the basic
principles of the Constitutive Act of the AU.46
Thirdly, the communication may not be “written in disparaging
(judgemental) or insulting language directed against the state concerned
and its institutions” or the AU, Art. 56.3. As stated in Information Sheet no.
3, “Insulting language will render a communication inadmissible,
irrespective of the seriousness of the complaint.” At least one case,
communication 65/92, Ligue Camerounaise des Droits de l’Homme
v. Cameroon, was declared inadmissible because of the wording, “Paul
Biya48 must respond to crimes against humanity … 30 years of the
criminal neo-colonial regime incarnated by the duo Ahidjo/Biya … regime

57
of torturers … government barbarisms”. This wording was considered
insulting. On the other hand, the wording “Far from guaranteeing the
independence of the Court in relation to my trial, the Government of
Ghana has shown an irrevocable determination to have me found guilty
by hook or crook and incarcerated” in communication 322/2006, Tsatsu
Tsikata v. Ghana, was not considered disparaging or insulting, but
merely “facts of allegations of Charter violations; and expressions of the
complainant’s fear in this regard”.

Fourthly, a communication must not be based exclusively on

information from the mass media, Art. 56.4. This was discussed in
communication 147/95 and 149/96, Sir Dawda K. Jawara v. The
Gambia, where the defendant state argued that the case was
inadmissible, being based exclusively on news from the mass media. The
Commission rejected this after emphasising the importance of the media
in revealing human rights violations and stating that a communication
does not become inadmissible because some aspects are based on news.
Since the claimant had provided some information that did not appear to
come from the media, the communication could not be said to be based
“exclusively” on information from the mass media.

Fifthly, a communication must not be submitted prior to “exhausting

local remedies, if any, unless it is obvious that this procedure is unduly
prolonged,” Art. 56. In the communication, the claimant should indicate
the steps taken to fulfil this condition or, if this is not possible, indicate
why this is the
case. According to the aforementioned communication 147/95 and
149/96, Sir Dawda K. Jawara ctr. The Gambia, a domestic remedy must be
available, effective, and sufficient if the complainant shall be obliged to
pursue it. If a state alleges that local remedies have not been exhausted,
“it has the burden of showing that the remedies that have not been
exhausted are available, effective and sufficient to cure the violation
alleged,” cf. communication 275/2003, Art. 19 ctr. Eritrea. A remedy is

58
considered available if the complainant can “pursue it without
impediment”. According to communication 299/05, Anuak Justice
Council v. Ethiopia, “The word “available” means “readily obtainable;
accessible”; or “attainable, reachable; on call, on hand, ready,
present; . . . convenient, at one’s service, at one’s command, at one’s
disposal, at one’s beck and call.” In other words, remedies, the availability
of which is not evident, cannot be invoked by the State to the detriment
of the complainant.” This would e.g. mean that a remedy is not available if
the complainant has reason to fear for his life or the like if he returns to
his country to pursue the remedy. The Commission’s practice is, however,
not entirely clear on this point since in communication 219/98, Legal
Defence Centre v. The Gambia, the communication was declared
inadmissible despite the alleged victim having been deported, was not
able to present himself in The Gambia, since “the victim does not need to
be physically in a country to avail himself of available domestic remedies,
such could be done through his counsel”.

A remedy is considered effective if “it offers a prospect of success.” In

the mentioned communication 147/95 and 149/96, Sir Dawda K. Jawara
v. The Gambia, the Commission found that as jurisdiction of the national
courts had been voided by decrees, there was no prospect of success. A
similar reasoning may be found in communication 245/2002, Zimbabwe
Human Rights NGO Forum v. Zimbabwe, where a “Clemency Order…
pardoning every person liable for any politically motivated crime” denied
the claimant the access to local remedies. Lack of a legal aid scheme can
also make a remedy ineffective: In communication 241/2001, Purohit
and Moore v. The Gambia, brought on behalf of patients at mental
institutions in The Gambia, there had been no possibility to obtain
legal aid to pursue the matter in the local courts. The Commission, while
acknowledging that a literal interpretation of Art. 56 could lead to another
result (since domestic remedies existed “if you can afford it”), concluded
that in the absence of legal aid services, the remedies were not realistic
for the complainants (“this particular category of persons”) and therefore

59
not effective; consequently, the case was admissible. In communication
249/2002, African Institute for Human Rights and Development (on
behalf of Sierra Leonean Refugees in Guinea) v. Guinea, one of the
reasons why the Commission found the domestic remedies not to be
effective was that the Guinean courts would be “severely overburdened if
even a slight majority of victims chose to pursue legal redress in Guinea.
Consequently, the requirement to exhaust domestic remedies is
impractical.”

A remedy is considered sufficient if “it is capable of redressing the

complaint”. Even though this is not specifically stated in the decision,
communication 231/99, Avocats sans Frontières v. Burundi, must be
an example of a case where the remedy, the possibility to ask for pardon,
would not be capable of redressing the complaint. As stated in
communication 299/05, Anuak Justice Council v. Ethiopia, a remedy is
insufficient if “its pursuit depended on extrajudicial considerations, such
as discretion or some extraordinary power vested in an executive state
official”. The Commission has also found that only remedies that are “of a
legal nature” and “not subordinate to the discretionary power of the
public Authorities” are relevant.
With respect to the further proviso in Art. 56.3 that the local procedure
not be “unduly prolonged”, the Information Sheet no. 3 refers to a case,
communication 59/91, where appeal had been pending 12 years in a
national court. This communication was considered admissible.
As can be seen from the above, the Commission has taken a pragmatic
and realistic view when it comes to admissibility. This does not mean that
all cases are considered admissible. Of the 75 cases decided between
October 1996 and November 2006, 23 were considered inadmissible. In
communication
322/2006, Tsatsu Tsikata v. Ghana, the communication was declared
inadmissible because the case was still pending in Ghana. The decision in
communication 299/05, Anuak Justice Council v. Ethiopia, contains a
lengthy description of the correct interpretation of the obligation to

60
exhaust domestic remedies and says, “It is not enough for the
complainant to cast aspersion on the ability of the domestic remedies of
the State due to isolated or past incidences… If a remedy has the
slightest likelihood to be effective, the applicant must pursue it. Arguing
that local remedies are not likely to be successful, without trying to avail
oneself of them, will simply not sway this Commission.” This
communication was declared inadmissible. Communications have also
been considered inadmissible simply because the complainants failed to
provide any information on steps taken before the local courts. If a case
has been considered inadmissible due to lack of exhaustion of domestic
remedies, the complainant may submit the communication again once
domestic remedies have been exhausted, cf. Communication 198/97,
S.O.S. Esclaves v. Mauritania.
It is clear that the requirement to exhaust domestic remedies is by far the
most important condition for admissibility set out in Art. 56. There are two
more conditions in addition to the five conditions set out above.
Sixly According to Art. 56.6, communications shall be submitted “within a
reasonable period from the time local remedies are exhausted.” In
communication 322/2006, Tsatsu Tsikata v. Ghana, the Commission
stated, “this is quite related to the principle of the exhaustion of local
remedies in accordance with article 56(5). This means that the
Commission estimates the timeliness of a Communication from the date
that the last available local remedy is exhausted by the Complainant. In
the case of unavailability or prolongation of local remedies, it will be from
the date of the Complainant’s notice thereof.” In practice, the question of
the timeliness of communications has not been a major issue.
The last and seventh condition is that a communication may not
“deal with cases which have been settled by the states involved in
accordance with the principles of the Charter of the United Nations, or the
Charter of the Organisation of African Unity [now the Constitutive Act of
the AU] or the provisions of the present Charter”, cf. Art. 56.7. In
Information Sheet no. 3, it is stated that a communication cannot be “one
that has already been, or is being settled through another international

61
body, like the UN Human Rights Committee, or even some organ of the
AU”. Like the condition in Art. 56.6 that communications be submitted
within a reasonable time, the question of competing jurisdiction has not
been a major issue. Even though the provision refers to cases having
“been settled”, it will presumably be interpreted as comprising also cases
that have simply been brought before the new African Court, the Child
Committee, the UN Human Rights Committee or any of the other UN
treaty bodies even if the case is still pending before such an organ; even
though it could be argued that bringing a case before one of these organs
(apart from the African Court which is capable of giving a final and binding
ruling) will not necessarily lead to the case being settled. As will be
discussed in detail below, at least one sub-regional court, the Community
Court of the Economic Community of West African States (ECOWAS), has
jurisdiction to adjudicate on human rights violations by states. It is not
clear from the wording of Art. 56.7 whether the fact that a case is pending
or has already been decided by such a sub-regional court will prevent the
Commission from dealing with such case. The wording of Information
Sheet no. 3 seems to indicate that this would indeed be the case. It could
well be argued that to the extent the procedure of the relevant sub-
regional court lives up to reasonable standards (as reflected in the Charter
and the relevant body of international human rights law) and the human
rights issue has been taken into account and tried by the sub-regional
court, there is no need for the Commission to look into such a case again
and it should, consequently, be possible for the Commission to refuse to
take on such a case, based on Art. 56.7. According to Art. 58 of the
Charter on communications from other than member states, the
Commission shall initially look into whether one or more communications
“reveal the existence of a series of serious or massive violations of human
and peoples’ rights.” If this is the case, the Commission shall inform the
AU Assembly, which can then request the Commission “to undertake an
in-depth study of these cases and make a factual report, accompanied by
its findings and recommendations”. In practice, however, “the practice of
the Commission has been to consider every communication even if it

62
refers to only a single violation of the Charter. The rationale behind this
practice is that a single violation still violates the dignity of the victim and
is an affront to international human rights norms”, cf. The Commission’s
Information Sheet no. 2 (Guidelines to the Submission of
Communications). A review of the cases decided by the Commission
shows that many cases concerning a single alleged violation

Procedure

INDIVIDUAL COMMUNICATION

When the Secretariat has received a communication, it registers it and

then acknowledges receipt in writing. A summary is made of the
communication and this summary is sent to the Commissioners as the
basis for the Commission’s decision on seizure of the communication, cf.
Art. 55. (Seizure meaning the communication meets the requirements of
admissibility under article 55 of the charter). A simple majority is sufficient
to decide on seizure. According to Information Sheet no. 2, the
Commissioners are requested to give their written response concerning
the matter of seizure; the communication can be considered seized once
seven Commissioners have responded;
Following seizure, the defendant state is informed of the communication
and both parties are requested to provide their comments on the matter
of admissibility within three months so that the matter of admissibility can
be considered at the coming session. It is the practice of the Commission
to send the parties several reminders before progressing to make a
decision. This means that much more than six months may pass between
decision on seizure and decision on admissibility. For obvious reasons, the
states are mostly late in responding. The decision of admissibility is
normally based on the parties’ written statements; in some cases, though,
the parties have provided oral submissions on admissibility.

63
A decision on admissibility is made during an ordinary session at a closed
meeting of the Commission after which time the parties are informed. If
the communication is declared inadmissible, the matter is over. If the
communication is considered admissible, the parties are invited to provide
their comments on the merits, in principle before three months, but also
with respect to the merits, the Commission will send several reminders,
etc. Once a case is ready to be decided on the merits, the parties will be
informed and invited to present their case at the session when the
communication is expected to be discussed and decided by the
Commissioners. It is possible to present witnesses at such a hearing and
to be represented by lawyers or other representatives. Thereafter the
commission reaches a decision with respect to a communication. The
decision is known as a recommendation. A recommendation will normally
contain the commission’s view as to whether or not a violation has taken
place (with an indication of the relevant articles of the charter) and a
recommendation of the actions that the defendant state should take if a
violation has taken place. Before the decision is made public, it must be
approved by the AU general assembly.

Interstate procedures
If a State party to the Charter has good reasons to believe that another
State party to the Charter has violated the provisions of the Charter, it
may draw, by written communication, the attention of that State to the
matter. This communication shall also be addressed to the Secretary
General of the AU and to the Chairman of the Commission.
Within three months of the receipt of the communication, the State to
which the communication is addressed shall give the enquiring State,
written explanation, or statement elucidating the matter. This should
include as much as possible relevant information relating to the laws and
rules of procedure applied and applicable, and the redress already given
or course of action available. If within three months from the date on
which the original communication is received by the State to which it is
addressed, the issue is not settled to the satisfaction of the two States

64
involved through bilateral negotiation or by any other peaceful procedure,
either State shall have the right to submit the matter to the Commission
through the Chairman and shall notify the other States involved.
Notwithstanding the provisions of 47, if a State party to the Charter
considers that another State party has violated the provisions of the
Charter, it may refer the matter directly to the Commission by addressing
a communication to the Chairman, to the Secretary General of the African
Unity and the State concerned.
Under article 50 of the charter, The Commission can only deal with a
matter submitted to it after making sure that all local remedies, if they
exist, have been exhausted, unless it is obvious to the Commission that
the procedure of achieving these remedies would be unduly prolonged.
The Commission may ask the States concerned to provide it with all
relevant Information. When the Commission is considering the matter,
States concerned may be represented before it and submit written or oral
representation.
Under Article 52, in light of the information before it and after having tried
all appropriate means to reach an amicable solution the commission
reaches a decision and gives recommendations. Within a reasonable
period of time, a report stating the facts and its findings is issued by the
commission. This report is sent to the States concerned and
communicated to the Assembly of Heads of State and Government.

Provisional Measures

The commission at any point of its proceedings may also order for interim
or provisional measures to avoid further violations of human rights. Rule
98(1) of the Rules of Procedure of the African Commission on Human and
Peoples Rights provides that at any time after the receipt of the
communication and before determination of the Merits the Commission
can order for provisional measures to prevent irreparable harm to the
victim or victims.

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In case the Commission is not in session and a request for provisional
measures is lodged, the Chairperson of the Commission can make a
decision on provisional measures on behalf of the Commission and if the
chairperson is absent the vice chairperson can take the decision and
inform members of the Commission of the decision. Under Rule 98 (4) the
state in question is required to report back to the Commission within 15
days on the measures the state has taken to enforce the request for
provisional measures.
In the case of Interights (on behalf of safia Yakubu Husaini and
others) v. Nigeria, Communication 269/2003, safia had been convicted
of adultery under Sharia and was to be executed, Interights submitted a
complaint to the commission alleging that the various provisions under
the sharia criminal system violated the African Charter. Request for
provisional measures were also submitted requesting for the complainant
not be executed. The complainant was never executed but the complaint
was thereafter withdrawn.
Provisional measures were also requested for in the case of African
Commission on human and Peoples’Rights v. The Great Socialist
People’s Libyan Arab Jamahiriya, Application No. 004/ 2011 the
commission issued an application requesting the African court for
Human and people’s rights to order for provisional measures due
to allegations of serious and widespread violations of human rights by the
government of the Great Socialist People’s Libyan Arab Jamahiriya. The
court unanimously ordered the following provisional measures:
1The Great Socialist People's Libyan Arab Jamahiriya must immediately
refrain from any action that would result in loss of life or violation of
physical integrity of persons, which could be a breach of the provisions of
the Charter or of other international human rights instruments to which it
is a party.
2 The Great Socialist People's Libyan Arab Jamahiriya must report to the
Court within a period of fifteen (15) days from the date of receipt of the
Order, on the measures taken to implement this Order.

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 THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS make
changes
In 2008, the assembly of the union met to adopt the protocol on the
statute of the African Court of Justice and Human Rights. The protocol
merged the former African Court on Human and Peoples’ Rights and the
court of Justice of the African Union and formed a single court known as
“The African Court of Justice and Human Rights” under article 2 of the
protocol. The court has two sections that is a General Affairs Section
composed of eight (8) Judges and a Human Rights Section composed of
eight (8) Judges. The General Affairs Section is competent to hear all
cases submitted under Article 28 of this Statute save those concerning
human and/or peoples’ rights issues. The Human Rights Section is
competent to hear all cases relating to Human and/or people’s rights.

Composition of the Court

Under Article 3 of the Statute of the African Court of Justice and Human
rights, the court has 16 judges who are nationals of the state party and no
state can have more than one judge in the court.
Under Article 4 of the statute, the judges are impartial, independent, and
elected from among persons of high moral character, who possess the
qualifications required in their respective countries for appointment to the
highest judicial offices, or are juristconsults of recognized competence and
experience in international law and /or, human rights law. Under article 8
of the statute, the judges are elected for a period of six (6) years and may
be re-elected only once.

Who may Petition

Under article 29 of the statute, the following can lodge a petition
a. State Parties to the present Protocol;
b. The Assembly, the Parliament and other organs of the Union authorized by
the Assembly;

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c. A staff member of the African Union on appeal, in a dispute and within the
limits and under the terms and conditions laid down in the Staff Rules and
Regulations of the Union;
d. State Parties to the present Protocol;
e. the African Commission on Human and Peoples’ Rights;
f. the African Committee of Experts on the Rights and Welfare of the Child;
g. African Intergovernmental Organizations accredited to the Union or its
organs;
h. African National Human Rights Institutions;
i. Individuals or relevant Non-Governmental Organizations accredited to the
African Union or to its organs, subject to the provisions of Article 8 of the
Protocol.

Jurisdiction of the Court

Under Article 28 of the statute, The Court has jurisdiction over all
cases and all legal disputes submitted to it in accordance with the Statute
which relate to:
a) The interpretation and application of the Constitutive Act;
b) The interpretation, application, or validity of other Union
Treaties and all subsidiary legal instruments adopted within
the framework of the Union or the Organization of African
Unity;
c) The interpretation and the application of the African Charter,
the
Charter on the Rights and Welfare of the Child, the Protocol to
the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa, or any other legal instrument
relating to human rights, ratified by the States Parties
concerned;
d) Any question of international law;
e) All acts, decisions, regulations and directives of the organs of
the
Union;

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 f) All matters specifically provided for in any other agreements
that
States Parties may conclude among themselves or with the
Union and which confer jurisdiction on the Court;
g) The existence of any fact which, if established, would constitute a breach
of an obligation owed to a State Party or to the Union;
h) The nature or extent of the reparation to be made for the breach of an
international obligation.

Procedure of the Court

i. Under Article 39 of the statute, the court session is help in public.
However, the court on its own motion or upon an application by the
parties may conduct a closed session of the court proceedings.
ii. Parties to the case can be legally represented.
iii. Under Article 33 of the Statute, Cases brought before the Court by
virtue of Article 29 of the present Statute are submitted by written
application addressed to the Registrar. The subject of the dispute,
the applicable law, and basis of jurisdiction should be indicated.
iv. The Registrar then gives notice of the application to the Parties
concerned. The Registrar also notifies, through the Chairperson of
the Commission, all Member States and, if necessary, the organs of
the Union whose decisions are in dispute.
v. Under article 34, Cases brought before the Court relating to an
alleged violation of a human or peoples’ right are submitted by a
written application to the Registrar. The application should indicate
the right (s) alleged to have been violated, and, insofar as it is
possible, the provision or provisions of the African Charter on
Human and Peoples’ Rights, the Charter on the Rights and Welfare
of the Child, Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa or any other relevant
human rights instrument, ratified by the State concerned, on which
it is based.

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 vi. The Registrar then gives notice of the application to all parties
concerned, as well as the Chairperson of the Commission.
vii. Under Article 35, the court can on its own motion or upon an
application by the parties order for provisional measures to avert
any further violations of human rights.
viii. The court hears the case from both parties and proceeds to give its
judgement. The decision of the Court is decided by a majority of the
Judges present. In the event of an equality of votes, the presiding
Judge has a casting vote.
ix. Under article 43 of the statute, The Court renders its judgment
within ninety (90) days of having completed its deliberations. The
Parties to the case are then notified of the judgment of the Court
and it is transmitted to the Member States and the Commission.
x. The Executive Council is also notified of the judgment. The Council
has the responsibility of monitoring the execution of the judgement
on behalf of the Assembly.

LUCIEN IKILI RASHIDI V. UNITED REPUBLIC OF TANZANIA,

APPLICATION NUMBER 009/2015
Mr. Lucien Ikili Rashidi, the Applicant in this case, is a national of the
Democratic Republic of Congo (DRC) who lived in Dar es Salaam,
United Republic of Tanzania. He currently lives in Bujumbura,
Republic of Burundi. The facts of the case date back from 2006
when the Applicant, his wife and children were arrested, detained
and deported for allegedly residing illegally in Tanzania. After
seeking remedies for his arrest and the treatment that ensued, the
Applicant filed an Application before the African Court alleging the
violation of his rights to residence and movement, to dignity and to
be tried within a reasonable time as provided for in Articles 12, 4, 5
and 7 of the Charter, respectively.
In dealing with those two issues relating to admissibility, the Court,
relying on its case-law, held that the requirement set out in Article
56(5) of the Charter is to exhaust remedies that exist and which are

70
available, that is, those that can be used by the Applicant without
impediment. The Court took the view that, in this case, the lack of
response from both the Minister of Home Affairs and the High Court
resulted in the Applicant being unable to return to Tanzania and to file
an appeal in the case on the legality of his stay. The Court
consequently dismissed the Respondent State’s objection relating to
exhaustion of local remedies. The Respondent State also raised an
objection on the failure of the Applicant to file the case within a
reasonable time from the exhaustion of local remedies. It argued that
the time of over one year that it took the Applicant to file the
Application is beyond the standard of six (6) months which is applicable
in international human rights case-law. In response, the Applicant
submitted that having filed requests with the above mentioned
authorities, he obviously awaited responses before considering his next
step. The Applicant averred that the delay alleged by the Respondent
State was as a result of that wait. In making a determination on this
point, the Court again referred to its consistent case-law that the
standard of six (6) months expressly provided for in some other
international adjudicatory forums does not apply before the Court
given that Article 56(6) of the Charter prescribes only for a “reasonable
time”. The Court then restated its jurisprudence that assessment of
such time must be made on a case-by-case basis, which in the
circumstances of the case, led to the conclusion that the considered
time was reasonable. The Court proceeded to declare the Application
admissible.
The Court found that, in the case of the Applicant who was merely
accused of not holding proper documents and did not pose any security
threat, the anal search was a breach not only to his dignity but also to
his integrity. The Court thus found the Respondent State in violation of
Articles 4 and 5 of the Charter. Lastly, with respect to the alleged
violation of the right to be tried within a reasonable time, the Court
held that the time of six (6) years and four (4) months that it took the
High Court to complete the case concerning the legality of the

71
 Applicant’s stay in Tanzania cannot be considered a reasonable time to
deliver justice.

Extension of Jurisdiction of the Court to Deal with Criminal

Matters

In February 2009, the Assembly of Heads of State and Government of the

African Union requested the AU Commission, in consultation with the
African Commission on Human and Peoples’ Rights and the African Court
on Human and Peoples’ Rights, to assess the implications of extending the
jurisdiction of the Court to try international crimes, such as genocide,
crimes against humanity and war crimes and to submit a report there on
to the Assembly in 2010.

To implement this decision of the Assembly, the African Union

Commission engaged a consultant to undertake a study on the
implications of extending the jurisdiction of the African Court of Justice
and Human Rights (yet to become operational), including considering
whether unconstitutional change or prolongation of government, could be
considered a new crime.

On 27 June 2014, the AU Assembly adopted a Protocol on Amendments to

the Protocol on the Statute of the African Court of Justice and Human
Rights (hereafter the amendment protocol) at Malabo, Equatorial Guinea.
The main purpose of the protocol is to add a criminal chamber to the
African Court of Justice and Human Rights (hereafter the African Court).

Under Article 28A of the Protocol on Amendments to the Protocol on the

Statute of African Court of Justice and Human Rights, the following crimes
are reflected:

a. Genocide
b. war crimes
c. crimes against humanity
d. the crime of aggression

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 e. crime of unconstitutional change of government
f. piracy
g. terrorism
h. mercenarism
i. corruption
j. money laundering
k. illicit exploitation of natural resources
l. Trafficking in persons, drugs and hazardous wastes.

INTERNATIONAL CRIMINAL LAW AND HUMAN RIGHTS

Background

International criminal law is important to human rights because it is a

means through which human rights can be protected. International
criminal law has slowly been developed through the establishment of
international criminal courts. In 1919, the Versailles Peace treaty made an
attempt to establish criminal responsibility under international law. It was
in 1945 that an International Military tribunal Charter was adopted to try
major war criminals. The tribunal commonly known as the Nuremberg
tribunal prosecuted members of the Nazi for the murders and
persecutions committed against over 6 million Jews. In 1993, the
international Criminal Tribunal for former Yugoslavia was formed to try

73
crimes committed in the territories of former Yugoslavia since 1991. In
1994, the criminal tribunal for Rwanda was formed to try crimes
committed in Rwanda in 1994. Following this in 1998, the Rome statute
was adopted purpose to try international crimes committed from 2002.

THE INTERNATIONAL CRIMINAL COURT

The Genesis of the Court
The establishment of the ICTY and the ICTR laid a foundation for the
formation of the International criminal court. The tribunals were not
tailored to be permanent and therefore it was necessary for a permanent
criminal court to be established. From 1996- 1998, preparatory committee
for the Rome Statute was formed and the committee held various
discussions on the provisions of the Rome Statute. On 1 st July 2002, the
International Criminal Court came into force.
Universal Jurisdiction and the International Criminal Court
Universal jurisdiction means the capacity of a state to punish conduct
irrespective of where the crime or violation occurred and irrespective of
the nationality of both the perpetrator and the victim. During the
discussion of the Rome Statute, members suggested that the ICC should
have universal jurisdiction but many states like the US rejected the idea
and matter was abandoned.
The Jurisdiction of the Court
3. Temporal Jurisdiction
Under article 24 of the statute, the crime to be prosecuted should also
have happened after the establishment of the court i.e. after 1 st July 2002.
The ICC does not have Jurisdiction over cases or crimes committed before
the establishment of the Court (i.e before the 1 July 2002).
4. Subject Matter Jurisdiction
Under article 5 of the statute, the court has jurisdiction over the following
categories of crime

(a) The crime of genocide;

(b) Crimes against humanity;

74
 (c) War crimes;

(d) The crime of aggression.

5. Personal jurisdiction

The ICC has jurisdiction over individuals/natural persons who commit

crimes falling under the jurisdiction of the court under article 25 of the
Rome statute. The ICC cannot prosecute governments, corporations,
political parties or rebel movements but can investigate and prosecute
individuals who are members of the groups. The individuals may include
those acting on their own and those acting on behalf of the state. Under
Article 28 of the Rome statute, military superiors are also responsible for
the crimes committed by their superiors if they do not take measures to
prevent such crimes when they become aware of them. Under article 26,
individuals under 18 years cannot be prosecuted by the court.

It is worth noting that the ICC can only have jurisdiction over nationals of a
state party, non-state party that has consented to the jurisdiction of the
ICC or referrals by the ICC.

6. Territorial Jurisdiction

The court also has territorial jurisdiction over states that have consented
to the jurisdiction of the court. For the ICC to prosecute a person that
person must be a national of that particular state. More still where an
individual from a non-state party has committed a crime within the
territory of a state party, the court will have jurisdiction over that
individual.

More the court may have jurisdiction over a state that is not a member
state where such a state makes a declaration to consent to the jurisdiction
of the court. In such circumstances, the state is required to cooperate with
the court in relation to investigation and prosecution of gross violations of
human rights.

75
 Some States where the ICC has initiated investigations:

1. Burundi 25 October 2017 (Prosecutor)

2. Georgia 27 January 2016 (Prosecutor)
3. Gabon 09 20 2016 (Gabon)
4. Central African Republic II 2014 (CAR)
5. Comoros 2013 (Comoros)
6. Mali July 2012 (Mali)
7. Côte D’Ivoire 3 October 2011
(Prosecutor)
8. Libya 2011 UNSC
9. Kenya 2010 (Prosecutor)
10. Darfur, Sudan UNSC
11. Uganda 2004 (Uganda)
12. Central African Republic I 2004 (CAR)
13. DRC 2004 (DRC)

The principle of complementarity

Article 1 of the Rome statute states that the ICC complements the
national courts meaning the ICC can only investigate and prosecute
violations where the national courts have failed or are unable to
investigate and prosecute. Under article 17(2) (a-c) a national is unwilling
to prosecute where:

1. Where proceedings or a decision has been made to shield the accused

from prosecution. This can be seen in the case of Uganda where an
amnesty Act was enacted pardoning all the crimes committed by the
former rebels apart from the top officials.
2. Where there has been unjustifiable delay in judicial proceedings in the
prosecution of the accused.
3. Where the proceedings are not independent or are not impartial which
eventually would not lead to justice. This was seen in the case of Sudan

76
where prisoners of war were prosecuted for war crimes committed without
following proper legal procedures.

Under article 17(3) of the Rome statute inability occurs where the state
has failed to capture the accused person. This has been seen in the case
of Uganda where Uganda has failed to capture Joseph Kony. Secondly,
Inability may be in terms of the fact that the judicial system of the country
in question is unavailable or has collapsed sometimes due to an ongoing
civil or international war. Thirdly, inability may be in relation to the fact
that the state in question lacks the sufficient evidence and testimony to
prosecute the perpetrators.

There are three ways in which complaints may be lodged before the court.
These are through the prosecutor, through a state and through the UNSC.

Prosecutor

Under article 53(1) (a-c) the prosecutor upon information availed to him
may initiate investigations if he believes that a crime falling under the
jurisdiction of the court is being committed. Before this happens, the
prosecutor should have proved to the pre-trial chamber that the gravity of
the crimes calls for prosecution.

The prosecutor can initiate investigations of crimes committed on the

territory or by a national of a State Party. The Prosecutor can also initiate
investigations on the territory or by a national of a non-state party that
has consented to the jurisdiction of the ICC.

The prosecutor in relation to this has initiated investigations and

prosecution of individuals who committed gross violations of human rights
during the post-election violence in Kenya

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Member states/ State Party Referral

Under article 14(1) of the Rome statute, state party may refer a situation
of gross violation falling under the jurisdiction of the court to the
prosecutor. The prosecutor can thereafter commence investigations.

The atrocities in question must have been committed on the territory of

the state party or on the territory of another state party. The crimes in
question could also be committed by the nationals from the state party or
another state party.

One of the very first referrals was made by Uganda in 2003/2004 in

relation to violations committed under the rebel leader Joseph Kony for
over 20 years. The DRC also referred a case to ICC, followed by the
Central African Republic.

Referrals by the UNSC

Under article, 13(b) of the Rome statute the UNSC can refer cases to the
court where that particular state has not ratified the Rome Statute but is a
state party to the UN. The referral is made by the UNSC by way of a
resolution authorised by the UN Charter.

If a permanent member of the UNSC (China, France, Russia, USA, and UK)
vetoes a decision to refer a case, the UNSC cannot refer the case to the
ICC. In May 2014 Russia and China vetoed the referral of Syria to the ICC.

One of the first countries that the Security Council referred to the ICC was
Sudan. It was after this the ICC issued a warrant of arrest for President
Omar Al Bashir of Sudan. Very recently, the UNSC also referred Libya to
the ICC.

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Issues Considered for Admissibility of Cases by the Court

1. The state should have ratified the Rome Statute. Under article 4(2),
it is provided that The Court may exercise its functions and powers,
as provided in this Statute, on the territory of any State Party and,
by special agreement, on the territory of any other State. Also under
article, 12(2) A State which becomes a Party to this Statute thereby
accepts the jurisdiction of the Court with respect to the crimes
referred to in article 5.
2. The court also has jurisdiction under article 5 to try the following
crimes:
a. The crime of genocide;
b. Crimes against humanity;
c. War crimes;
d. The crime of aggression.
3. Under Article 17, the state must be unwilling or unable to prosecute
before a case can become admissible before the ICC.
4. The case will not become admissible before the ICC if it involves an
accused below the age of 18 years. Article 26 of the statute states
that the Court shall have no jurisdiction over any person who was
under the age of 18 at the time of the alleged commission of a
crime.
5. The Case only becomes admissible before the ICC if the crime in
question was committed after the establishment of the court that is
after 1st July 2002.
6. The Court must determine the gravity of the crimes before the case
can be considered admissible. In considering gravity, the court must
consider the scale, nature, manner and the impact of the crimes.
For instance, Sudanese rebels Abdallah Banda, Anakaer Nourain and
Saleh Mohammed Jerbo Jamus were charged by the ICC for killing 12
African Union peace keepers in 2007. Although this was a small
number of peace keepers killed, the court found that the crime was
an attack on millions of civilians the peacekeepers were sent to

79
 protect and therefore met the test of gravity of the crime. The
intention of the criminal is important in determining the gravity of
the crime.

Sentences imposed by the ICC

Under article 77 of the Rome statute, the court may impose the following
sentences:

( a ) Imprisonment for a specified number of years, which may not

exceed a maximum of 30 years; or

( b ) A term of life imprisonment when justified by the extreme

gravity of the crime and the individual circumstances of the
convicted person.

2. In addition to imprisonment, the Court may order:

(a) A fine under the criteria provided for in the Rules of

Procedure and Evidence;

(b) A forfeiture of proceeds, property and assets derived directly

or indirectly from that crime, without prejudice to the rights of
bona fide third parties.

Much has the Court is at liberty to award the above punishments, the
prosecutor or the accused person may appeal under Article 81.

Article 81

Appeal against decision of acquittal or conviction or against sentence

1. A decision under article 74 may be appealed in accordance with the

Rules of Procedure and Evidence as follows:

( a ) The Prosecutor may make an appeal on any of the following

grounds:

(i) Procedural error,

(ii) Error of fact, or

(iii) Error of law;

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( b ) The convicted person, or the Prosecutor on that person's behalf,
may make an appeal on any of the following grounds:

(i) Procedural error,

(ii) Error of fact,

(iii) Error of law, or

(iv) Any other ground that affects the fairness or reliability of the
proceedings or decision.

HUMAN RIGHTS IN TANZANIA

History of the Tanzanian Bill of Rights

When negotiating for the independence of Tanzania in London and in Dar

es Salaam, former President Nyerere of Tanganyika rejected the inclusion
of the bill of rights in the independence constitution of 1961. The same
decision was taken for the republican constitution of 1962, the interim
constitution of 1965, and the permanent constitution of 1977. For all these
constitutions, the opinion of the people was never sought.

The reason for the exclusion of the Bill of Rights into the Constitution was
that it would slow down the fast tracking of development in the country.
The late Prime Minister Rashid Kawawa was quoted to say that “the bill of
rights was a luxury that Tanzania could not afford.” The non-inclusion of
the bill of rights into the constitution led to violation of various human
rights. For instance, the president was given too much power. The
president could order for the arrest and detention of anyone at any time
under the Preventive Detention Act of 1962. The president was quoted to
have said that “the detention issue was very serious because it meant
detaining a man without any justifiable cause yet it has to be used so that
the country is not put in jeopardy by a handful of individuals.”

There was a lot of pressure from people demanding for the incorporation
of the bill of rights into the constitution.

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The Tanzanian Law Society became very instrumental in 1983 In the
constitutional debate on the bill of rights. Seminars were organised to
debate more on the need to amend the constitution and the public also
gave various comments on the constitution. One of the issues tabled at
the seminar was the need for the bill of rights in the constitution, the need
for a multiparty government, and freedom of an individual to form or
choose a political party of his choice. The government rejected the idea of
a multiparty system of democracy, and in fact arrested, and detained one
of the supporters of this idea, a lawyer by the names of Wolfgang
Dourado, under the preventive Detention Act of 1962.

With all this kind of pressure, the bill of rights was to be incorporated in
the constitution a year before the late president Nyerere left office in
1984. Another pressure for the incorporation of the bill of rights into the
constitution also came from Zanzibar. The fact that Zanzibar had already
incorporated the bill of rights into its constitution also added more
pressure on the government to incorporate a bill of rights into the
constitution.

Much as the Bill of Rights was incorporated into the constitution in 1984, it
was not enforceable or justiciable until 1988. The government requested
for time to organise itself or so to say “put its house in Order.”

Because the Bill of rights was not enforceable by then, rights continued to
be violated. This was seen In the case of Chumchua S/o Marwa v.
Officer in Charge of Musoma Prison and Another, High Court of
Tanzania at Mwanza, Miscellaneous Cause No. 21 of 1988. In 1987, the
then president of Tanzania, Ali Mwinyi Hassan, ordered for the deportation
of one Marwa Wambura and 155 others on grounds that the continued
residence of the deportees in the region of Mara region was dangerous to
peace and good order. On filling a writ of habeas corpus, the court raised
the issue of the constitutionality of the deportation ordinance of 1921. It
was held that the deportation ordinance was unconstitutional because it
offended the bill of rights.

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 THE BILL OF RIGHTS OF TANZANIA

A bill of rights (B.O.R) is a summary of fundamental rights and privileges

guaranteed to a people against violation by the state. The Constitution of
the United Republic of Tanzania as amended from time to time provides
for basic rights and duties from article 12 – article 29. The rights provided
under the B.O.R are as follows;

a. The right to equality

Article 12 of the constitution provides for the right to equality. This right
provides that all human beings are born free and are equal before the law
and therefore should not be discriminated against. This right is supposed
to be even when conducting observed legal proceedings in that one must
be given a fair trial and in criminal cases one is presumed innocent until
the contrary is proved. The right to equality also means that no one shall
be subjected to cruel, inhumane, and degrading treatment or punishment.

b. The right to life

Article 14 provides that an individual has the right to life. This right can
only be taken away by following the due process of the law.

c. The right to personal freedom

Article 15 provides that everyone has the right to personal freedom and
live as a free person. Where this freedom is lost due to an arrest,
detention, deportation, imprisonment, confinement e.t.c, it should be in
accordance with the procedures of the law.

d. The right to privacy

Article 16 provides for the right to privacy. This right means the right to be
left alone and to be protected from unnecessary publicity. The
constitution protects the privacy of a person, family, matrimonial life,

83
 respect, and protection of a person’s residence and private
communications.

e. The right to freedom of movement

Citizens have the right to leave and enter the country and the right to live
in any part of the country according to article 17. No one has the right to
be forced to leave or to be expelled from the United Republic. However,
the constitution also allows for any lawful act or laws enacted to limit this
right for the sake of imprisonment, execution of a court order or
judgement, public interest, or to compel an individual to comply with an
obligation arising under another law.

f. The right to freedom of conscience

Article 18 provides that every person has the right to freedom of opinion
and expression of ideas. Under the article, an individual has the right to
seek, receive, and publish information.

g. The Right to Freedom of Religion

Article 19 provides for the right to freedom of conscience, faith, and

choice of religion. This also means that a person has the right to change
his religion or faith.

h. Freedom of association

Article 20 provides for the right to freely and peacefully assemble,

associate, and cooperate with others. The purpose of the assembly may
be for preserving or furthering a person’s beliefs and interests or the
interests of others.

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i. Freedom to participate in public affairs

Article 21 gives an individual the right to be elected and appointed in

order to take part in the governance of the country. This right is subject to
the laws of the country.

j. The right to work and just remuneration

Under article 22, it is provided that every person has the right to work.
This right also means that an individual has an equal opportunity to hold
office and discharge any function when called upon by the state authority.

Under article 23 it is provided that an individual has the right to be

remunerated fairly according to measure of work and qualification for the
work.

k. The right to property

Article 24 provides for the right to the protection of property which is held
according with the law. The article also provides that a person can only be
deprived of property for the sake of nationalisation if the person will be
fairly and adequately compensated.

Some human rights issues in Tanzania

The Right to education

Article 17 of the African Charter provides for the right to education. The
right to education is only recognised under the article 11 of the
constitution but is not an enforceable right. This right is known as the
“right to self education.” Many other rights cannot be realised if people
cannot read and write. For instance for the right to adequate health to be
realised, there is need for skilled and qualified medical personnel and all
this calls for education. Much as public primary school education is
compulsory under s.3 of the Tanzanian education Act (Subsidiary
Legislation- the public Primary Schools (Compulsory Enrolment and

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Attendance Rules cap 353 R.E 2002) the exercise of this right is
complicated. This is because public schools have the worst records of poor
performance. There is lack of teachers and teaching materials are
insufficient. Compulsory public primary school education is not sufficient
to provide the basic skills for self-reliance to an individual. Similarly,
because of various reasons not all pupils attend school. However, under
s.4 (1) of the same act parents must make sure pupils attend school and
complete primary education. There are certain circumstances where a
parent refuses a child to attend school. This is an offence under the law
but the punishment is too minimal 1.e a fine of 30,000 Tshs or
imprisonment for not more than one month or both.

Child Marriage

Section 13 of the law of marriage act also provides that the minimum age
for marriage for a female is 15 years. Child marriage has been criticized
because it promotes the violation of the rights of the child and is generally
not in the best interest of the child. First of all child marriage violates the
right to education of a child.

In 2016 the Education Act, CAP 353 was amended thus:

According to the bill supplement published by the government of the

United Republic of Tanzania on 20th May 2016, the government has
amended the Education Act (CAP.353) as follows:

20. This Part shall be read as one with the Education Act, hereinafter
referred to as the “principal Act”.
21. The principal Act is amended in section 60(1) by deleting paragraph
(k).
22. The principal Act is amended by adding immediately after section 60
the following new section:
60A. (1) It shall be unlawful under any circumstance for:
(a) any person to marry a primary or secondary school girl or a school

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boy; or
(b) a primary or secondary school boy to marry any person.
(2) Any person who contravenes any provision of subsection (1) commits
an offence and shall, on conviction, be liable to imprisonment for a term of
thirty years.
(3) Any person who impregnates a primary school or a secondary school
girl commits an offence and shall, on conviction, be liable to imprisonment
for a term of thirty years.
(4) Any person who aids, abates or solicits a primary or secondary school
girl or a school boy to marry while pursuing primary or secondary
education commits an offence and shall, on conviction, be liable to a fine
of not less than five million shillings or to imprisonment for a term of five
years or to both.
(5) Every Head of School shall keep record and submit to the
Commissioner or his representative a detailed quarterly report of cases of
marriages and pregnancies under subsection (1), (3) or (4) and legal
actions taken against the offenders.
(6) Notwithstanding anything in this section, the provisions of the Penal
Code relating to sexual offences against girls or children under eighteen
shall, where appropriate, apply mutatis mutandis in relation to primary
and secondary school girls and boys under the age of eighteen.

THIS LAW DOES NOT PROTECT CHILDREN NOT IN SCHOOL.

Also, child marriage is responsible for affecting the physical and mental
health of a child as the child is not fully developed to for instance give
birth and she might not be mentally prepared for the responsibilities in
marriage.

Corporal Punishment

Under article 13(6) (e) of the constitution, it is provided that no person

shall be subjected to torture or inhumane or degrading punishment or
treatment. However, corporal punishment in Tanzania is practiced in

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schools and in the implementation of court orders or judgement. Corporal
punishment is provided for under s.3-8 of the subsidiary legislation of
education Act (corporal punishment regulations) section 5 and 6 of the
Corporal Punishment Act Cap 17 R.E 2002 also provides for corporal
punishment.

Similarly, under s.13 the law of the child Act No.21 of 2009, torture, and
cruel, inhuman, and degrading treatment is prohibited. However, under
the same section, justifiable correction of a child is allowed but justifiable
correction is not defined. This means that in correcting a child a parent or
head teacher may end up torturing the child in the name of justifiable
correction.

In the case of Thomas Mjengi v. Republic [1992] T.L.R 157, the

appellants appealed against the mandatory sentence of 30 years and
corporal punishment alleging that the sentence is unconstitutional. Justice
Mwalusanya held that the mandatory minimum sentence of 122 strokes of
corporal punishment is unconstitutional and void as it is an inhuman and
degrading punishment prohibited by article 13 (b) (e) of the
Constitutional.

Much as this was, the court’s holding corporal punishment still remains as
a form of punishment in the Tanzanian laws.

The death Penalty

Much as the constitution provides for the right to life, section 25(a) of the
penal code act cap 16 R.E provides for death as one of the punishments
that can be inflicted upon a convicted person. The death penalty has been
highly criticised for violating human rights. In the case of Republic v.
Mbushuu alias Dominic Mnyaroje and Kalai Sangula [1994] T.L.R
146, the accused persons were convicted of murder contrary to s.196 of
the penal code act. Before the sentence was pronounced, a point was
raised that the death penalty is unconstitutional and should not be
imposed on the accused persons. It was held that:

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1. The death penalty offends the right to the dignity of a person in the way
the sentence is executed and therefore it offends article 13(6) (d) of the
constitution.
2. Death penalty is inherently cruel, inhuman and degrading punishment and
the process of execution by hanging is particularly gruesome, generally
sordid, debasing and generally brutalising, and it offends article 13 (6) (e)
of the constitution.

Despite this holding, the government appealed against this judgement the
following year in the case of Mbushuu alias Dominic Mnyaroje and
Another V. Republic, [1995] T.L.R 97, Judge Ramadhani declared that
the death penalty was constitutional where upon the convicted persons
lodged a case before the African Commission for Human rights in
Southern Africa Human Rights NGO Network and Others v.
Tanzania Communication Number 333/2006. On the issue whether the
case was admissible, the state submitted that the case had been decided
15 years ago and therefore doesn’t meet the requirements of article 56(6)
of the African charter.
The commission found the case not to be admissible because it had failed
to meet the requirements of article 56(6) which states that
communications should be submitted within a reasonable time after the
exhaustion of local remedies.

There are also other arguments against the death penalty to the effect
that the death penalty does not deter crime. Since the death penalty was
introduced as a penalty, murders are still being committed. The death
penalty has not stopped criminals from committing crimes whose
punishment is death.

The death penalty has also been criticised because sometimes the people
convicted and sentenced to death are innocent of the crime. Sometimes
where evidence is falsified, an innocent person might be found guilty and
sentenced to death yet the person claimed to be deceased might even be
alive.

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Female Genital Mutilation

Female Genital Mutilation (FGM) is the cutting or removal of external

female genitalia. FGM is mostly performed in unhygienic conditions with
razor blades, knives, or broken glass.
The most affected areas facing female genital mutilations in Tanzania are
Arusha, Kilimanjaro, Dodoma, Singida, Mara and Morogoro regions, other
regions include Iringa, Mbeya, and Zanzibar.

FGM violates the right to life, the right to be free from torture, cruel
inhuman and degrading treatment and the right to human dignity. The
consequences of FGM include haemorrhaging; blood poisoning, tetanus
and gangrene. Long-term consequences include persistent pain,
psychological distress, and chronic infection from shared cutting
instruments. Others are genital scarring which can obstruct childbirth,
causing permanent injury even death to women in labour.

FGM also increases the risk of contracting HIV/ Aids because of shared
sharp instruments during the process.

FGM is criminalised under section 169A (I) of the PENAL CODE ACT R.E
2002. The punishment of a person who procures FGM is a fine of not
exceeding 300,000 Tshs or imprisonment for a term not less than15 years
and not more than 15 years. Much as FGM is illegal in Tanzania, it is still
being practiced sometimes secretly carried out on newly born baby girls.
It is questionable whether a fine of 300,000 can deter the crime.

Domestic Violence

In 2010, Tanzania was recorded to be among the 50 countries with the

highest rates of domestic violence. Domestic violence whether to men or
women has been highly disapproved by most laws. Article 1 of UN
Declaration on Elimination of all Forms of Violence against women defines
violence against women to mean:

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Any kind of gender based violence result in, or is likely to result
in, physical, sexual, or psychological harm or suffering to women,
including threats of such acts, coercion, or arbitrary deprivation
of liberty, whether occurring in public or in private life.

Much as Tanzania has ratified most international conventions that prohibit

domestic violence, there is no law in Tanzania that specifically deals with
domestic violence. However, section 66 of the Law of Marriage Act
prohibits the use of corporal punishment by one spouse on another. This
law protects only married couples and therefore those cohabiting or those
whose relationship doesn’t quality to fall under the presumption of
marriage are not protected. One can only bring an action against another
under the penal code for the crime of common assault, assault
occasioning actual bodily harm or battery,

Sexual violence is also a form of domestic violence but the laws in

Tanzania only protect against sexual violence that affects individuals who
are not married. Under section 130(a) of the penal code Act, wives are
protected from rape by their husbands if they are separated and the man
has sex with her without consent.

There is no law that protects against marital rape which has been highly
condemned in most countries. Yet in Tanzania, the idea of criminalising
marital rape has received very little support because it is argued that a
husband cannot rape his wife since consent to sex is permanently given at
the time of marriage.

Sometimes the courts of law have also been very relaxed on domestic
violence that occurs between husband and wife and mostly referring to
such violence as “normal”

In the case of Charles Aoko v. Dorina Gibonga, 1988 [T.L.R] 44, a wife
was frequently beaten by her husband and the wife petitioned for divorce
with the evidence of cruelty which she claimed had rendered the marriage
irreparably broken. Court held that the incidence was the usual wear and

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tear of married life and did not amount to cruelty. The marriage was
declared not to be irreparably broken and therefore divorce wasn’t
granted.

The Right to a clean and Healthy Environment

Although the Constitution does not provide for the right to a clean and
healthy environment, the Environmental Management Act provides for
this right.

The Tanzania courts of law have also laboured to interpret the right to life
to also include the right to a clean and health environment. In 1998, the
court of appeal exhaustively interpreted the right to life in the case of
Joseph. D. Kessy and others v. Dar es Salaam City Council Civil
Case No. 29 of 1998. In that case, an application was made by residents in
the High Court to stop the dumping of waste in a residence area in
Tabata. The dumping of waste had caused foul smells and air pollution
had exposed the residents to various health hazards. The court
interpreted the right to life to include the right to a clean and healthy
environment and the city council was prohibited from dumping waste in
the area.
This same holding was taken in the case of Festo Balegele and 794
others v. Dar es Salaam City Council Miscellaneous Civil Case No 90 /
1991.

The other problem facing the right to a clean and healthy environment is
that usually the government allows in foreign investors into the country
and numerous investments carried out by the investors violate the right to
a clean and health environment. Most times the projects of foreign
investors are not subject to an environmental impact assessment and it is
not surprising that rights are violated later.

A case in point is the situation of Barrick Gold. In May 2009, the Barrick
Gold Mine in the Mara Region was accused of pouring toxic water into the
Tigite River. This has devastated the lives of villagers in the district of

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Tarime, who depend on the river for their survival. According to village
reports, a few cows died after drinking the water. Vegetation such as
millet, maize, and sorghum had dried up and trees along the riverbank
had disintegrated. Some villagers reported skin irritations after coming
into contact with the water and some even claimed dead fish was found.

No civil action has been brought against the company.

Access to justice

The issue of access to justice in Tanzania is a pressing one given the fact
that cases in court usually take a very long time to be concluded. There is
a common saying that justice delayed is justice denied. Various reasons
have been given for delay of cases including corruption.

However, there are also laws enacted in Tanzania which denies access to
justice. One of these laws is Electoral Laws (Miscellaneous Amendments)
Act, 2001. The act has a provision to the effect that “The Registrar shall
not fix a date for the hearing of any election petition unless the petitioner
has paid into the court, as security for costs, a sum of five million shillings
in respect of the proposed election petition.” This provision of the law was
challenged in the case of Julius Ishengoma Fransis Ndyanabo v.
Attorney General, Civil Appeal No. 64 of 2001. The facts of the case
were that the appellant Ndyanabo entered a parliament election
competition and lost. He made a petition before the high court challenging
the validity of the election results. The registrar of the court refused to fix
a hearing date because the election act requires that he deposits a sum of
5,000,000 Tshs as security for costs. Upon an appeal, Justice Samatta held
that, the election act was unconstitutional and in particular, that

“The judges erred in holding, as they did, that section 111(2) of the act
is not unconstitutional. In our view, the statutory provision is class
legislation. It is also arbitrary and the limitation it purports to impose
on the fundamental right of access to justice is more than is reasonably
necessary to achieve the objective of preventing abuse of the judicial

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process. Plainly, Parliament exceeded its powers by enacting the
unconstitutional provision.”

Apart from the election Act, the Basic Rights and Duties enforcement act
also limits access to justice. Section 10 0f the act provides that cases
should be heard by a panel of three judges. In determination whether the
case is fit for hearing, the determination is made by one judge. First and
foremost, there is no provision in relation to any remedies provided for the
applicant if the petition is dismissed at the preliminary stage of
determining the fitness of the case to be heard. There is no room for
appeal against the single judge’s decision. Secondly, it has been proved
that convening a panel of three judges is very difficult and eventually
hinders access to justice.

The Right to Freedom of opinion and expression

The Newspaper Act of 1976 has been used to curtail freedom of

expression in a number of ways. This act gives the President Powers
to prohibit any publication to be imported or printed if he/she finds that it
jeopardises national interest. Furthermore, the minister responsible for
information has the power to prohibit publication of a newspaper and that
it will be an offence if any person sells, prints, distributes after such
prohibition. The provisions have been said to be arbitrary because what
jeopardises national security is not defined and therefore the power to
prohibit publication can be used arbitrarily.

During the October 2010 election campaign, it is reported that the

Permanent Secretary of the Ministry of Information, Sethi Kamuhanda,
visited print media houses to warn them that the government would ban
any media that portrayed the government negatively. During the same
period, the country’s security forces issued a press statement warning the
media against reporting on matters perceived sensitive to national
security.

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Early in 2008, The Act used by the Minister of Information, Culture and
Sports to ban publication of Mwanahalisi Newspaper from 13 October
2008 to 12 January 2009 for publishing stories allegedly aimed to incite
public hatred against the President and provoking disorder within the
President’s family. The article said former Prime Minister Edward Lowasa
and one of the President's own sons, Ridhwani, were involved in the plot
to ensure Kikwete becomes the first Tanzanian president to serve only
one term in office.

The attack on mwanahalisi newspaper is not new, In January 2008,

Kubenea (managing director) and his colleague Ndimara Tegambwage
were attacked and beaten by three assailants wielding machetes in the
paper's offices. The two were disfigured when the perpetrators poured
acid on their faces. The attacks were followed by incidences of
harassment in which the police searched the offices of the newspaper and
home of Kubenea in July 2008.

In 2012, a journalist by the names of David Mwongosi was also killed in

the district of Mfindi as he was covering a political rally. The journalist was
brutally killed by security forces as he covered a political rally that was
being conducted by members of the opposition. Journalists staged a
peaceful demonstration to speak out against the violation of their right to
freedom of expression.

The Tanzanian government introduced between 2015 and 2016 four laws
resulting in increasing restrictions to the freedom of the press and the
freedom of expression : the Cybercrimes Act (2015), the Statistics Act
(2015), the Media Services Act (2016), and the Access to Information Act
(2016). In the run-up to the 2015 elections, CCM pushed for the adoption
of the Cybercrimes Act and the Statistics Act, in a context where the
ruling party had been confronting in the past few years a growing political
opposition and a stronger press and civil society. The Media Services Act
and the Access to Information Act, were adopted following President
Magufuli's election.

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The adoption of these laws has led to an increased control of journalists,
in print and online publications, any data published, and online posts of
private citizens. The Tanzanian government justified the adoption of these
laws by a need to regulate the media sector, partly in order to facilitate
the access to information and to improve journalism standards. The
Statistics Acts and the Access to Information Act criminalize the
publication of any statistical information without prior authorization from
the National Bureau of Statistics, and allows the government to withhold
information for “the public interest”.

The Cybercrimes Act and the Media services Act contain the provisions
most susceptible to be used to repress dissent voices. The Cybercrimes
Act criminalises the publication of “false, deceptive, misleading or
inaccurate information”, and has already been used to repress journalists
or citizens who had been too critical to the government (see below section
II).

The Media Services Act creates a de facto licensing of journalists and

newspapers and a regulation body controlled by the government, in
violation of international norms. Although not used yet, this act has the
potential to impose a total control over media houses and journalists by
putting a disproportionate pressure on them, threatening them with bans,
fines and even prison terms if the government disagrees with their
publications. More concerning even, the government has been using the
Cybercrimes Act to legally harass private citizens who criticized it on
private online platforms such as What’sapp or Facebook. In one case, a
citizen calling President Magufuli an “idiot” on his Facebook page was
condemned to a fine of 7 million shillings (US$ 3,200) or three years or
imprisonment. He was released after agreeing to pay the fine

The Right to participate in Public Affairs

Independent candidates have been excluded from the taking part in

presidential and parliamentary elections in Tanzania following an appeal
court ruling upholding the constitutional obligation for all contestants to

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be members of fully registered political parties. The decision of the court
of appeal has been highly criticised by many scholars.

This case has a long history. In 1995 a case was brought against the state
by Rev. Mtikila in the case of Rev. Mtikila v. Attorney General, 1995
[T.L.R] 31. In this case, Rev. Mtikila invited the court to consider whether
the constitutional amendment Act of 1992 which appeared to infringe the
right to participate in national public affairs and freedom of association
were validly made. Justice Lugakingira held that:

The amendments made in Articles 39, 67 and 77 of the

Constitution, restricting the right to contest in elections to
political party candidates only, are capable of being abused to
confine the right of governing to a few and to render illusory the
emergence of a truly democratic society. Notwithstanding those
restrictions, it shall be lawful for private candidates to contest
elections along with political party candidates.
The attorney general being aggrieved by the decision of the court showed
his intention to appeal against the decision by lodging a notice of appeal.
However, the appeal was abandoned and instead the national assembly
passed a bill known as the Eleventh Constitutional Amendment Act, 1994.
The bill denied citizens the right to contest an election as independent
candidates. Rev. Mtikila was aggrieved by this amendment and
considered them to be invalid. Mtikila then challenged the
constitutionality of the amendments before the high court. A Bench
consisting of Manento, J.K, Massati and Mihayo, held that:

“… we wish to make it very plain that in our view Act No. 34 of

1994 which amended article 21(1) so as to cross refer it to Article
5, 39 and 67 which introduced into the Constitution restrictions
on participation of public affairs and the running of the
government to party members only was an infringement on the
fundamental rights and that the restriction was unnecessary and
unreasonable, and did not meet the test of proportionality.

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We thus proceed to declare that the said amendments to Article

21(1), 39(1) (c) and 67(1) (b) are unconstitutional.

The Attorney General was aggrieved by the learned Judges’ decision and
appealed against it. The court of appeal in 2010 disagreed with the
decision of the high court and held that:
“[T]he issue of independent candidates has to be settled by
Parliament which has the jurisdiction to amend the Constitution
and not the Courts which, as we have found, no not have that
jurisdiction. The decision on whether or not to introduce
independent candidates depends on the social needs of each
state based on its historical reality. Thus the issue of
independent candidates is political and not legal.”
The court of appeal also advised the government and the parliament as
follows:
“However we give a word of advice to both the Attorney General
and our Parliament: The United Nations Human rights committee,
in paragraph 21 of its General Comment No. 25 of July 12, 1996,
said as follows on Article 25 of the International Covenant on Civil
and Political rights, very similarly worded as Article 23 of the
American Convention and our Article 21: ‘The right of persons to
stand for election should not be limited unreasonably by
requiring candidates to be members of parties or of specific
parties.’ Tanzania is known for our good record of human rights
and particularly our militancy for the right to self-determination
and hence our involvement in the liberation struggle. We should
serious ponder [over] that comment from a Committee of the
United Nations, that is, the whole world.”

The Right to freedom of assembly

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Early in 2012, some 16 human rights activists were arrested for holding an
illegal assembly in relation to the doctor’s strike in Dar es Salaam. This
has been criticised for violating article 20 of the constitution.
Much as the Constitution provides for freedom of assembly, the
Government limits this right in practice. Security forces interfere with
citizens' rights to assemble peacefully on some occasions. To hold rallies,
organizers are required to obtain police permission in advance. Police
have the authority to deny permission on public safety or security grounds
or if the permit seeker belonged to an unregistered organization or
political party. Authorities arrest citizens for assembling without the
appropriate permit.

The Government at times prevents opposition parties from holding rallies.

In July, a permit request to hold a rally for the Tanzanian Labour Party was
denied. Unlike in previous years, CUF meetings were not banned.

The Constitution provides for freedom of association; however, the

Government limits this right in practice. The Registrar of Political Parties
has sole authority to approve or deny the registration of any political party
and is responsible for enforcing strict regulations on registered parties.
The Tanzanian People's Party (TPP) and the Popular National Party (PONA),
which were deregistered in 2002 for a lack of compliance with their
respective constitutions, remained unregistered at year's end.

Under the law, citizens may not form new political parties independently,
but must comply with certain requirements to register them with the
Office of the Registrar. The Electoral Law prohibits independent
candidates and in the same line article 39(1) (c) of the constitution sets
the qualification for the election as president to the effect that “a person
shall not be entitled to be elected to hold office of the president
of the United Republic save only if he is a member of, and a
candidate nominated by, a political party”

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Article 67(1) (b) requires that parliamentary candidates should also be
sponsored by a political party. The electoral law also requires all standing
M.P.s to resign if they join another party; requires all political parties to
support the union with Zanzibar; and forbids parties based on ethnic,
regional, or religious affiliation.

IMPLEMENTATION OF HUMAN RIGHTS IN

TANZANIA

The protection of human rights in Tanzania is done by the High court and
the Commission of Human Rights and Good Governance.

The Commission of Human Rights and Good Governance

(CHRAGG)

This is an independent organ of the government whose function is to

protect and promote human rights in Tanzania. The Commission is
established under article 129 of the Constitution. The Commission became
operational in 2001.

Background of the Commission

In 1996, the Tanzanian government spearheaded a legal task force under

the leadership of Mr. Mark Bomani. Upon completing its task, the report
known as the Bomani Report recommended that the government should
establish a Commission that would deal with human rights and the
administrative justice. Following this report, the government issued a
white paper whose recommendations on the establishment of a human
rights commission were not different from the Bomani Report
recommendations.

Basing on the report of the legal task force, the government again formed
another commission called the Kisanga commission under the leadership

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of justice kisanga. The mandate of the commission was to collect views
from the public relating to what was contained in the issued government
white paper. In 1999, the commission concluded its task and issued a
report to the effect that the view of the public was that a national human
rights institution should be established.

In view of this, the government tabled a 13 th amendment to the

constitution before parliament. This amendment among other things
included the establishment of a human rights commission. In 2001, the
commission became operational.

Composition of the Commission

Under section 7 of the Act, The commission is composed of a chairman

who has the qualification for the appointment of a judge of the high court
or a judge of the court of appeal.

Under S.7 (b) of the Act, where the chairman comes from one part of the
United Republic, then the Vice-Chairperson should come from the other
part of the Union.

Apart from the chairperson and the vice chairperson, five other
commissioners are appointed. These persons should have knowledge and
experience in matters related to human rights, law, government, politics,
or social affairs.

Under S.7 (2), the commissioners and assistant commissioners are

appointed by the president upon the recommendation of the
appointments committee.

Generally, members of the commission must have the highest reputation

and known to have high levels of morality, integrity, impartiality, and
competent in matters of human rights and good governance.

Tenure of office

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 The commissioners hold office for a period of three years and can be re-
elected for only a second term that also runs for three years.

The salary of the commissioners is determined by the president and this

salary comes from the consolidated fund.

Who may bring a complaint?

Under s. 22 of the CHRAGG act, the following may bring a complaint

1. An Individual
2. Body of Persons whether corporate or not

Admissibility issues Considered

1. The complainant shouldn’t have had knowledge of the complaint relating

to a decision, recommendation, Act, or omission for more than 24 months.
2. Legal procedure available and provided by law should be exhausted by
the complainant.
3. If the complaint is frivolous, vexatious or made in bad faith it becomes
inadmissible.
4. The complaint should be within the jurisdiction of the commission.

Procedure Undertaken by the Commission

1. Under s.24, after receiving a complaint, the commission notifies the

person against whom the complaint is lodged. Also at the discretion of the
court, any person interested in the matter may also be notified by the
commission.
2. The commission may the make an investigation on the matter or summon
the person(s) to adduce evidence or relevant documents related to the
complaint.
3. Where the commission finds that there was a violation of human rights. It
reports the decision and makes recommendations to the relevant
authority. The commission also gives reasons for making such
recommendations or decision.

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4. Upon receiving a report from the commission, the authority in question
should within three months make a report to the commission on what
steps have been taken to redress the damage.
5. Where no report on steps taken to redress the matter is given within the
three months, the commission can bring an action before any court. The
commission may also recommend any competent authority to bring an
action and seek appropriate remedies.
6. Under section 28 of the Act, the commission may also resolve the
complaint through mediation, conciliation, or negotiation.

Challenges Facing the Commission

1. The commission can only make recommendations and these

recommendations are not legally binding. Usually stakeholders may not
act upon these recommendations.

This can be seen in the case of Nyamuma (Ibrahim Karosso and 134
others and Legal Human Rights Centre v. The DC and OCD Case No.
HBUB/S/1032/2001) where villagers were told to vacate the land so that it
could be developed. The villagers were also not given an alternative place
to go to. When they refused to leave their village, the village was burnt
down and the residents were beaten and tortured. The Legal Human
Rights Centre brought the case to the commission and the commission
order for compensation to the victims to a tune of 900,000,000 Tshs. The
government refused to compensate the victims arguing that the
government is not legally bound by the recommendations of the
commission. The LHRC then brought the case before the high court (In
Ibrahim Karosso and 134 others and Legal Human Rights Centre
v. AG and Others 2005 High Court Unreported). The high court
agreed with the state and found that the case had no merits. The LHRC
then appealed against the decision of the court. The Court of Appeal found
that the case had merits and ordered that the high court should hear the
case again.

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2. One of the other challenges facing the commission is that the president
can order the commission not to investigate the case in the interest of
national interest peace and security. The act does not explain under what
circumstances an investigation can infringe national interest and security.
Moreover this section is arbitrary as it gives the too president powers to
the president.
3. The commission also has just a few centres in that it makes the
commission inaccessible to many complainants. This inaccessibility also
denies complainants to have access to justice.
4. It has also been argued that since the president is involved in the
appointment and remuneration of the chairman of the commission, there
is a possibility of the commission being influenced by the president or
government to the effect that it has to side with the government or they
lose their tenure of office. It has been also seen that the commission once
went to the village of Zanumba to convince the residents to vacate the
area since the government wanted to use the area to further
development.
5. The other challenge facing the commission is that the operation of the
commission in Zanzibar is complicated. It has been argued that human
rights and good governments are not union matters and therefore the
commission has no jurisdiction Zanzibar. However, this argument has
been criticised in line with the fact that the constitution is a union matter
and therefore since the Bill of Rights is incorporated within the
Constitution, it should affect Zanzibar as well.
6. Under s.16 of the Act, the commission cannot institute proceedings
against the president of Tanzania mainland or Zanzibar. It has been
argued that for the rule of law to be respected, all persons including the
president should be subjected to the same law that other citizens are
subjected to in case of violations of human rights. Moreover, the
commission is also not permitted to carry out investigations in matters
related to the prerogative of mercy which is only within the powers of the
president.

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7. The commission cannot also commence investigations on matters related
to relationships or dealings the government of Tanzania and the
government of a foreign state or an international organisation. It has been
argued that this restriction limits transparency between the government
and the people because some of the dealings directly affect the citizens of
Tanzania.

The High Court

Article 30(3) of the Constitution provides that:

“Any person claiming that any provision in this part of the chapter or in
any law concerning his right or duty owed 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”

The high court under article 30(4) has the original jurisdiction to hear and
determine cases in relation to preservation and enforcement of the rights.
Under section 4 of the Basic rights and duties Enforcement Act Cap 3, R.E
2002, it is stated that:

“If any person alleges that any of the provisions of section 12 to

29 of the Constitution has been, is being, or is likely to be
contravened in relation to him, he may, without prejudice to any
other action with respect to the same matter that is lawfully
available, apply to the High Court for redress”

Petition to the High Court

The basic right and duties enforcement act is the act used in the
enforcement of the Bill of Rights. Under section 5 of the Act states that an
application to the high court in relation to any infringement of the basic
rights and duties should be by petition which is filled in the Registry of the
High Court by Originating Summons. The High court cannot exercise its

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 jurisdiction over a case if the same case under another law has already
received adequate redress.

The Contents of the Petition

Under s.6 of the BRDEA,

1. The petition should not be anonymous it should bear the names and
address of the petitioner.
2. The petition should also mention against whom the petition is being
brought
3. The grounds upon which the petition seeks a redress should also be
shown.
4. The petition should indicate specifically which rights provided for under
the bill of Rights has been violated. If the petition is only based on the
likelihood of a right being violated the petition will be dismissed under
section 8(3). This particular possibility of violation should be in relation to
provisions of a bill that has not yet become law.
5. The petition should also state the particular of the facts of the case.
6. The petition should also indicate the nature of the redress sought.

Procedure of the Court

1. Under s. 10 of the BRDEA, first and foremost the application is determined

by one judge to find out whether the case is fit for determination.
2. The case upon being determined to be fit for hearing is then heard and
determined by a panel of three judges under section 10 of the BRDEA.
3. The court under section 11 then sets a hearing date and the parties to the
case are notified of the date.
4. At the hearing, the petitioner may be represented by an advocate and
may adduce evidence accordingly.
5. Evidence before the court can be presented orally or may be a written
affidavit or both under s.12 of the BRDEA.

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6. Under s.13, where the court comes to a conclusion that a right was
violated, the court makes orders so that the petitioner can continue to
enjoy the rights.

Challenges Facing the Implementation of Human rights in

Tanzania

1. The requirement that there should be three high court judges in

human rights cases has proved to be a challenge as far as
implementation of human rights is concerned. It has been stated
that convening a panel of three judges is very difficult. In any case,
before the case comes before the judges it must go through one
judge who is supposed to scrutinise the case and make sure that
before it comes before the panel of three judges it is neither
frivolous nor vexatious. This results into a delay of cases.
2. Secondly, the courts sometimes might pass a judgement declaring a
provision of the law to be unconstitutional but the parliament may
never be quick enough to change the said law. Therefore, rights
continue to be violated.
3. Thirdly, it has been reported that at times the corruption in the
courts makes it difficult for human rights to be implemented. This
denies justice to a number of victims seeking it.

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