L212 – Human Rights Law Test (Distance)

Wednesday, 31 May 2023

08:00 – 10:00 Hours (Room 10)

(Answer BOTH Questions)

Following a riot during a public meeting organised by Better Zambia (BZ), an opposition
political party, hundreds of people were arrested including Mwila Hamududu and Fred
Banda who are the President and Vice-President of BZ. Two police officers died during
the said riot. Hamududu and Banda were severely beaten during the first days of their
detention and were held for several days in leg irons and handcuffs. Banda was also
denied access to the medicine he needed for his diabetes. Hamududu and Banda were
held without a charge for over two months.

The State through the government spokesperson announced that it had reason to believe
that Banda and Hamududu had incited members of BZ to murder the deceased police
officers. There was however no solid evidence to support this assertion. The State further
stipulated that BZ shall cease to be a political party in Zambia and any gatherings by the
said party shall be deemed to be unlawful. Subsequently, Banda and Hamududu were
released. The state never gave them reasons for their arrest.

a) In light of the aforementioned facts, discuss the human rights that have been
violated and the international instrument protecting the said right(s).
The expectation is that you demonstrate how the right was violated.
 The right to be protected from torture, cruel and inhuman treatment was violated
when the duo were severely beaten and held in leg irons and handcuffs for days;
the ICCPR protects this right.
 The right to life was violated when Banda was denied access to his medicine (the
right to life not only involves taking away the right, threats to the right is a violation
as well. The ICCPR protects this right.
 The right to liberty was violated when the duo were detained without being given
a charge. The ICCPR protects this right.
 The right to association and freedom of expression was violated when the
state declared that BZ shall cease to be a political party in Zambia. The
ICCPR protects these right. (10 Marks)

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 b) Banda and Hamududu desire to submit their complaint to the African Commission.
Advise them on the admissibility criteria of cases to the African Commission and
whether the Commission will entertain their communication.
 Discuss Article 56 of the African Charter and explain that since Zambia is a
state party to the African Charter, individuals from Zambia can submit their
communications to the African Commission. However the African
Commission will only entertain such a communication after the
complainants exhaust all domestic remedies. (10 Marks)
c) Explain the mandate of the African Commission to Banda and Hamududu.
 Discuss Article 45 of the African Charter: Protect and promote human rights,
and interpret provisions of the African charter (individual and interstate
complaints, state reports; advocacy and advisory opinions). (5 Marks)
d) Highlight at least THREE unique features of the African Charter on Human and
Peoples’ Rights.
 Protects all three generations of human rights;
 Places duties on individuals;
 Does not contain a provision permitting derogations from the protected
rights; and
 Does not protect certain rights such as right to privacy/right to vote.
(5 Marks)
(TOTAL MARKS: 30)
QUESTION TWO
With reference to the relevant authority, write brief notes on the following.

a) Derogations.
 A temporary derogation from certain human rights obligations in situations of
national emergency. However certain rights are non derogable i.e. right to life,
freedom from torture or cruel, inhuman and degrading treatment or punishment.
See Article 4 of the ICCPR/Article 25 and 30 of the Constitution of Zambia.
(4 Marks)
b) Limitation clauses.
 A limitation clause is a constitutional provision which enables constitutionally
protected rights to be partially limited, to a specified extent and for certain
justifiable purposes such as protecting the rights of others, public health,
national security, public morals etc. For example, freedom of assembly may be
limited for purposes of maintaining law and order. (4 Marks)
c) Second generation rights.
 Second generation human rights are the social, economic and the cultural
rights such as the right to work, education and cultural participation. They are

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 positive rights because furtherance of these rights is made possible only
through the intervention of the state. Second generation rights are enshrined in
Articles 22-27 of the UDHR and the International Covenant on Economic,
Social and Cultural Rights (ICESCR). (4 Marks)
d) The First Optional Protocol to the ICCPR.
 The first Optional Protocol allows people to complain directly to the Human
Rights Committee if they believe their rights have been violated. It can only be
used when all domestic channels have been exhausted. (4 Marks)
e) The Human Rights Commission.
 This is a NHRI established under Article 230 of the Constitution. Its mandate is
to promote and protect human rights for all people in Zambia. (Please
distinguish this institution from the UN Human Rights Committee and UN
Human Rights Council. (4 Marks)
(TOTAL MARKS: 20)