INTRODUCTION TO

HUMAN RIGHTS
INTRODUCTION: WHAT ARE HUMAN RIGHTS?
• Basic rights and freedoms that every person has by virtue of being human.
• Based on shared values such as:
✔Dignity
✔Fairness
✔Equality
✔Respect
✔Independence
• They can never be taken away, although they can at times be restricted –
for instance if a person breaks the law, or where it is in the interests of
national security.
• These values are defined and protected by law.
What Are Human Rights?
• Basic rights and freedoms that every person has by virtue of being human.
• Based on shared values such as:
✔Dignity
✔Fairness
✔Equality
✔Respect
✔Independence
• They can never be taken away, although they can at times be restricted –
for instance if a person breaks the law, or where it is in the interests of
national security.
• These values are defined and protected by law.
Cont...
• Human rights are the rights a person has
simply because he or she is a human being.

• Human rights are held by all persons equally, universally, and forever.
• Human rights are inalienable: you cannot lose these rights any more than you can cease being a
human being.
• Human rights are indivisible: you cannot be denied a right because it is "less important" or "non-
essential." Human rights are interdependent: all human rights are part of a complementary
framework. For example, your ability to participate in your government is directly affected by your
right to express yourself, to get an education, and even to obtain the necessities of life.
• Another definition for human rights is those basic standards without which people cannot live in
dignity. 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.
• In claiming these human rights, everyone also accepts the responsibility not to infringe on the rights
of others and to support those whose rights are abused or denied.
TOPIC I: CONCEPTS AND ORIGINS OF HUMAN
RIGHTS
• Throughout much of history, people acquired rights and
responsibilities through their membership in a group – a family,
indigenous nation, religion, class, community, or state.
• Most societies have had traditions similar to the "golden rule" of
"Do unto others as you would have them do unto you." The
Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the
Quran (Koran), and the Analects of Confucius are five of the oldest
written sources which address questions of people’s duties, rights,
and responsibilities. In addition, the Inca and Aztec codes of conduct
and justice and an Iroquois Constitution were Native American
sources that existed well before the 18th century. In fact, all societies,
whether in oral or written tradition, have had systems of propriety and
justice as well as ways of tending to the health and welfare of their
members.
Precursors of 20th Century Human
Rights Documents
Documents asserting individual rights, such as the:
• Magna Carta (1215)
• The English Bill of Rights (1689)
• The French Declaration on the Rights of Man and Citizen
(1789)
• The US Constitution and Bill of Rights (1791)
are the written precursors to many of today’s human rights
documents.
 The Birth of the United Nations
• The idea of human rights emerged stronger after World War II.
The extermination by Nazi Germany of over six million Jews,
horrified the world. Trials were held in Nuremberg and Tokyo
after World War II, and officials from the defeated countries were
punished for committing war crimes, "crimes against peace," and
"crimes against humanity.“
• Governments then committed themselves to establishing the
United Nations, with the primary goal of bolstering international
peace and preventing conflict. People wanted to ensure that
never again would anyone be unjustly denied life, freedom, food,
shelter, and nationality.
The Universal Declaration of Human
Rights
• Member states of the United Nations pledged to promote
respect for the human rights of all. To advance this goal, the UN
established a Commission on Human Rights and charged it
with the task of drafting a document spelling out the meaning of
the fundamental rights and freedoms proclaimed in the Charter.
The Commission, guided by Eleanor Roosevelt’s forceful
leadership, captured the world’s attention.
• On December 10, 1948, the Universal Declaration of Human
Rights (UDHR) was adopted by the 56 members of the United
Nations. The vote was unanimous, although eight nations chose
to abstain.
UDHR….
• The UDHR, commonly referred to as the international Magna Carta,
extended the revolution in international law ushered in by the United
Nations Charter – namely, that how a government treats its own
citizens is now a matter of legitimate international concern, and not
simply a domestic issue. It claims that all rights
are interdependent and indivisible. Its Preamble eloquently asserts
that:
[R]ecognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the
foundation of freedom, justice, and peace in the world.
• The influence of the UDHR has been substantial. Its principles have
been incorporated into the constitutions of most of the more than 185
nations now in the UN. Although a declaration is not a legally binding
document, the Universal Declaration has achieved the status
of customary international law because people regard it "as a
common standard of achievement for all people and all nations."
The Human Rights Covenants
• With the goal of establishing mechanisms for enforcing the UDHR, the
UN Commission on Human Rights proceeded to draft two treaties:
1. The International Covenant on Civil and Political Rights (ICCPR) and
its optional Protocol - The ICCPR focuses on such issues as the
right to life, freedom of speech, religion, and voting.
2. The International Covenant on Economic, Social and Cultural Rights
(ICESCR) - The ICESCR focuses on such issues as food, education,
health, and shelter. Both covenants trumpet the extension of rights
to all persons and prohibit discrimination.
Together with the Universal Declaration, they are commonly referred to
as the International Bill of Human Rights.
As of 1997, over 130 nations have ratified these covenants.
Subsequent Human Rights Documents
• In addition to the covenants in the International Bill of Human
Rights, the United Nations has adopted more than 20 principal
treaties further elaborating human rights. These include
conventions to prevent and prohibit specific abuses like torture
and genocide and to protect especially vulnerable populations,
such as refugees (Convention Relating to the Status of
Refugees, 1951), women (Convention on the Elimination of
All Forms of Discrimination against Women, 1979), and
children (Convention on the Rights of the Child, 1989).
The Tanzanian Bill of Rights
• According to Bisimba and Maina in their article: “Mwalimu Nyerere and the
challenge of human rights”, when Mwalimu Nyerere the first president of
Tanganyika, negotiated for independence of Tanganyika he rejected the inclusion
of a Bill of Rights in the independence Constitution of 1961 The same position
was repeated during the Republican Constitution of 1962; the Interim Constitution
of 1965; and the Permanent Constitution of the United Republic of Tanzania of
1977.
• Before 1980’s the Bill of rights was only found in the preamble of the interim
constitution, later the Bill of rights found in the preamble was declared as mere
words on paper as itself did not provide any protection in situation of violation of
human rights in the case of Hatmali Adamji v East African Post and
Telecommunication corporation (1973) LRT 6.
• In this case, the plaintiff who was a Tanzanian of Asian origin was employed as a postal
superintendent by the East African and Telecommunication in 1970. He was compulsorily
retired to facilitate africanisation in cooperation. He appealed against the retirement
arguing that it violated the policy of ‘non -racialism’ and hence argued that his
retirement amounted to discrimination against him as a Tanzania of Asian origin.
Zanzibar…
• The case of Zanzibar is a bit different, the Bill of rights was once
entrenched In the laws of Zanzibar during independence in 1963.
• However, surprisingly within a short period of time everything turned
upside down particularly after the Zanzibar revolution and the Bill of
rights was no longer part of the laws in Zanzibar.
• In Zanzibar the debate was intense and the public vigorously demanded a
Bill of Rights in the Zanzibar Constitution. To the Zanzibaris a Bill of Rights in
the Constitution would end the prolonged historical oppression imposed by
the Arab land owners,467 and protect them from the tyranny they had
suffered under the revolutionary government 468 They felt that they would
lose their autonomy and be in a danger of being absorbed by mainland
Tanzania unless their Constitution was amended to incorporate a Bill of
Rights. Also experience had shown them that it was wrong to bank on the
assumption that the leader in whose hands people’s rights were placed
would always restrain himself from abuse of his powers.
• Shivji argues that, taking the Tanzanian tradition, the idea to have a
Bill of Rights in the Constitution might have been ignored had it not
been for the Zanzibaris insistence on including a Bill of Rights in their
Constitution regardless of whether or not one was included in the
Union Constitution. It would have been ridiculous to include a Bill of
Rights in the Zanzibar Constitution and leave the Union Constitution
without any such provisions.
• Although Tanzania is one of the countries which adopted the African
Charter on Human and Peoples’ Rights in 1981, the government had
not contemplated seriously the idea of incorporating a Bill of Rights in
the Constitution until it was caught unaware by the course the debate
had taken. Since the government had not prepared itself to hit back
with the same vigour against these demands it had to make some
sort of a ‘concession’ and include a Bill of Rights in the Constitution.
• Suspension of the justiciability of the Bill of Rights Since time was too short to amend all
potentially violative laws before the Bill of Rights was incorporated in the Constitution,
the government proposed that its justiciability be suspended.
• Thus the legislature enacted the Constitution (Consequential, Transitional and Temporary
Provisions) Act, 1984 to the effect that: “No existing law or any provision in any existing
law may, until after three years from the date of the commencement of the Act, be
construed by any court in the United Republic as being unconstitutional or otherwise
inconsistent with any provision of the Constitution.”
• The foregoing is a tacit admission by the government that there were many laws which
infringed fundamental rights and freedoms, and that the immediate application of the
Bill of Rights would lead to many laws being declared unconstitutional or inconsistent
with the Constitution. Initially no reasons were given to the people as to why the
justiciability of their constitutional rights was suspended. However, most of them got the
impression that the government needed sufficient time to put its house in order before
the Bill of Rights could be enforced.
Cont…
• Among the justifications given as to why Bill of rights couldn’t be part of our
laws by leaders such as the First Prime minister Late Rashid Kawawa who
openly categorized human rights as a luxury.
• Others said the movements of human rights will in turn be a thorn to new
government process of developing the country.
• Maina was quoted stating: “maybe the Bill of rights in the constitution right
from the time of independence would have acted as check from some of
the many undemocratic decisions made in the early period and cemented
the culture of non-respect of fundamental rights and freedom of people;
disregard of rule of law and constitution by the both the party and
government’.
• The Bill of Rights, however, was eventually incorporated in the Constitution
in 1984 – a year before Nyerere left office due to the pressure from the
people.
• ‘There is Mwalimu the individual – a God fearing and religious family
person who respects and champions rights of all people”. Yet on the
other there is “Mwalimu – the President of the United Republic –
signing a few death warrants, detaining people in custody without
trial” and “deporting citizens of Tanzania from one part of the country
to another”.
The massage from above quotation points out that Mwalimu cared
much the rights of the majority as whole community and not rights of
[Link] is what Bisimba and Maina emphasize ;
“Whatever Mwalimu did that could be interpreted as violating human
rights can always be explained in wider benefits to the community.
HUMAN RIGHTS PRINCIPLES
1. RULE OF LAW
The term rule of law refers to a principle of governance in which all
persons, institutions and entities, public and private, including the state
itself, are accountable to laws that are publicly promulgated, equally
enforced and independently adjudicated, and which are consistent with
international human rights norms and standards. It requires, as well,
measures to ensure adherence to the principles of supremacy of law,
equality before the law, accountability to the law, fairness in the
application of the law, separation of powers, participation in decision-
making, legal certainty, avoidance of arbitrariness and procedural and
legal transparency.
Observation of the following principles is undertaken in Rule of Law:
(i) nullumcrimen sine lege – Article 13(6)(c) of CURT
No crime unless it is prohibited by the law
(ii) nullapoena sine lege - Article 13(6)(c) of CURT
one cannot be punished for doing something that is not prohibited by law.
(iii) non bis in idem
no legal action can be instituted twice for the same cause of action.
(iv) presumption of innocence
Art 13(6)(b)
(v) equality before the law
Art 12 CURT
(vi) independence of the judiciary
Art 107A and 107B
(vii) separation of powers
• Equality and Non-Discrimination: This session reveals the importance of the principle of non-
discrimination. Attempt will be made to define non-discrimination and the criteria used to justify
preferential treatments are identified and analysed. Particular regard is paid on the issue of
Affirmative Action and other measures aimed at protecting vulnerable groups.
• Groups which are protected:
• > Women
• Children
• Disabled persons
• Minority rights
• …
TYPES OF HUMAN RIGHTS
Human Rights are indivisible and interdependent, and therefore
precisely there cannot be different kinds of human rights.
All Human Rights are equal in importance and are inherent in all
human beings. The UDHR did not categorize the different kinds of
human rights. It simply enumerated them in different articles.
However, the subsequent developments made in the human rights
field under the UN system make it clear that human rights are of
categorized as:

HRL Notes for Students 22

Types of HR
1. Civil (individual rights)
life, liberty, and security of the person; privacy and freedom of
movement; ownership of property; freedom of thought,
conscience, and religious belief and practice; prohibition of slavery,
torture, and cruel or degrading punishment are examples of civil
rights.
Civil rights or liberties are referred to as those rights, which are
related to the protection of the right to life and personal liberty.
They are essential for person so that he may live a dignified life.

HRL Notes for Students 23

Cont..
2. Political Rights
freedom of expression, assembly, and association; the right to take
part in government; and periodic and meaningful elections with
universal and equal suffrage are examples of political rights
Political rights may be referred to those rights, which allow a
person to participate in the Government of a State.

HRL Notes for Students 24

Cont..
3. Rights related to Rule of Law
equal recognition before the law and equal protection of the law;
effective legal remedy for violation of rights; impartial hearing and
trial; presumption of innocence; and prohibition of arbitrary arrest
are rights related to R.L. In effect they are civil rights. The nature of
civil and political rights may be different but they are interrelated
and inter-woven.

HRL Notes for Students 25

Cont…
4. Economic and Social Rights
an adequate standard of living; free choice of employment;
protection against unemployment; "just and favorable
remuneration"; the right to form and join trade unions;
"reasonable limitation of working hours"; free elementary
education; social security; and the "highest attainable standard of
physical and mental health“ are all economic and social rights

HRL Notes for Students 26

Cont…
Economic, Social and Cultural rights are related to the guarantee of
minimum necessities of life to human beings. In the absence of those
rights the existence of human being is likely to be endangered. Right
to adequate food, clothing, housing and adequate standard of living
and freedom from hunger, right to work, right to social security, right
to physical and mental health and right to education are included in
this category of rights.

HRL Notes for Students 27

Cont…
• Economic, social and cultural rights are based fundamentally on the
concept of social equality. Realization of these rights, which is
generally called the rights of second generation, has been somewhat
slow in coming. They are regarded only as general principles and not
legally binding specific rules. However, recently they have begun to
come of age and implemented.

HRL Notes for Students 28

Cont…
5. Collective Rights
In addition to the above rights there is another kind of rights which
may be enjoyed by individual collectively such as right to self-
determination or the physical protection of the group such as
through prohibition of genocide. Such rights are referred to as
collective rights which are sometimes called the third generation of
human rights. So, self-determination and protection of minority
cultures are examples of rights in this category.

HRL Notes for Students 29

WHO SHOULD UPHOLD HUMAN RIGHTS
 Traditionally,
“Human Rights are demanded basically against the State. However,
with time, it is becoming apparent that individuals are also involved
in violation of human rights. In fact research done in recent time
indicate that about 40% of all Human Rights violations are
committed by individuals and, therefore, demands against violations
can also legitimately be made against individuals.”
PETER, C.M., “The Human Rights System: An Overview,” op. cit, p. 1.
So, with modern development in the human rights discourse there is increasingly a
shift towards making private actors – such national and transnational
corporations and companies – liable for complicity in a number of violations of
human rights they commit in their work.
State Obligations
 In Social and Economic Rights Action Centre (SERAC) & Another v Nigeria
(2001) AHRLR 60 (ACHPR 2001) it was held that:
“Governments have a duty to protect their citizens, not only through
appropriate legislation and effective enforcement, but also by protecting
them from damaging acts that may be perpetrated by private parties.”
 This is because the “primary responsibility for the protection of human
rights in a country lies with the government of that country.’ Ibid, para 57.
- See also Commission Nationale des Detroit de l’Homme et des
Libertes v Chad (2000) AHRLR 66 (ACHPR 1995) & Zimbabwe
Human Rights NGO Forum v Zimbabwe Communication No.
245/2002 (21st Activity Report, 2006).
• 3 Types of States Obligations:
(i) to recognise,
(ii) to respect, and
(iii) to fulfil/protect the rights, duties and freedoms of their individual
citizens as enshrined in relevant international human rights treaties.
- Social and Economic Rights (SERAC) & Another v Nigeria (2001) AHRLR 60
(ACHPR 2001).
 It is a general rule of international human rights law that any human
right has a corresponding duty and a duty-holding party.
 Traditionally, the prime duty-holder is the state, which derives from
the fact that states are the signatories to international human rights
treaties.
 In terms of the provisions of Article 26 of the Vienna Convention on
the Law of Treaties (1960):
“Every treaty in force is binding upon the parties to the treaty and
must be performed in good faith.”
The Obligation to Recognise
• The State has an obligation to recognize an individual’s rights – i.e.
giving an individual space to enjoy his/her rights & freedoms.
• This is a negative obligation on the state and it does not need the
State to provide financial resources for the individual to be able to
enjoy his/her rights & freedoms.
The Obligation to Respect:
 The state has an obligation to respect human rights of individual
citizen – e.g. for the individual to utilize available resources alone or
in collaboration with others in order to take care of one’s needs.
 In SERAC it was held that the obligation to respect “entails that the
state should refrain from interfering in the enjoyment of all
fundamental rights; it should respect right-holders, their freedoms,
autonomy, resources, and liberty of their action.”
 This is basically a negative obligation imposed on states to refrain
from interfering with individual citizens’ enjoyment of their
respective human rights.
The Obligation to Fulfil/Protect:
 The State is obliged ‘to protect right-holders against other subjects by
legislation and provision of effective remedies.’ SERAC.
 The obligations to protect and to fulfil human rights are more clearly
defined as positive types of obligations.
 The obligation to protect requires that the state takes measures to protect
the individual from such interference from the state or other agents that
impede the implementation of the right by the individual (or household).
The Obligation to Fulfil/Protect:
 It entails enactment of legislation and undertaking administrative and
other measures to limit or impede interference by the state or other
agencies (e.g., landlords or other powerful economic interests) in the self-
provision of the right-holder.
 In principle, legislation and law enforcement are often the most
important mechanisms for the implementation of this type of
obligation. SERAC, para 46.
The Obligation to Fulfil/Protect:
 Where the individual or group of individuals are not able to provide
for its own needs (i.e. “safeguard its rights”), the state has an
obligation to assist and fulfil the right.
 The obligation to fulfil comes into function when no other
possibilities exist, such as in situations of unemployment, natural and
other types of crises and disasters.
 Requires the state ‘to fulfil the rights and freedoms it freely
undertook under the various human rights regimes.’ SERAC.
 It comprises of the direct provision of basic needs such as food and
resources that could be used for food, e.g. direct food aid or social
security.
Substantive Rights: International Bill of Rights
• The group rights listed in the International Bill of Human Rights
include two rights of peoples (self-determination and permanent
sovereignty over natural resources) and three rights of ethnic,
religious and linguistic minorities (namely, the rights to enjoy one’s
own culture, to practice one’s own religion, and to use one’s
language)
• Group Rights 1. Right to self-determination 2. Permanent sovereignty
over natural resources 3. Right to enjoy one’s culture 4. Right to
practice one’s religion 5. Right to speak one’s language
UDHR
• The civil and political rights include five relating to physical integrity (rights to life;
freedom from torture; freedom from slavery; freedom from arbitrary arrest or
detention; and the right to humane treatment under detention). Five other rights
relate to the individual’s autonomy of thought and action (namely, freedom of
movement and residence; prohibition of expulsion of aliens; freedom of thought,
conscience and religious belief; freedom of expression; and the right to privacy).
Another four rights concern the administration of justice (nonimprisonment for
debt; fair trial—for which 16 additional rights are enumerated—; the right to
personhood under the law; and the right to equality before the law). Six other
civil & political rights relate to participation in civil society (freedom of assembly;
freedom of association; the right to marry and found a family; rights of children;
the right to practice a religion; and—as an exception to free speech—the
prohibition of war propaganda and hate speech constituting incitement). The
final sub-set of these rights is the four relating to political participation (namely,
the right to hold public office; to vote in free elections; to be elected to office;
and to equal access to public service).
UDHR….
• A declaration, however, is not a treaty and lacks any enforcement
provisions. Rather it is a statement of intent, a set of principles to which
United Nations member states commit themselves in an effort to provide
all people a life of human dignity.
• Over the past 50 years the Universal Declaration of Human Rights has
acquired the status of customary international law because most states
treat it as though it were law. However, governments have not applied this
customary law equally. Socialist and communist countries of Eastern
Europe, Latin America, and Asia have emphasized social welfare rights,
such as education, jobs, and health care, but often have limited the
political rights of their citizens. The United States has focused on political
and civil rights and has advocated strongly against regimes that torture,
deny religious freedom, or persecute minorities. On the other hand, the US
government rarely recognizes health care, homelessness, environmental
pollution, and other social and economic concerns as human rights issues,
especially within its own borders.
ICCPR
• Civil and Political Rights (CPR) 1. Right to life 2. Freedom from torture 3.
Freedom from slavery 4. Freedom from arbitrary arrest/detention 5. Right
to humane treatment in detention 6. Freedom of movement and residence
7. Prohibition of expulsion of aliens 8. Freedom of thought, conscience, and
religious belief 9. Freedom of expression 10. Right to privacy 11. Non-
imprisonment for debt 12. Fair trial (sub-divided into 16 enumerated
rights) 13. Right to personhood under the law 14. Equality before the law
15. Freedom of assembly 16. Freedom of association 17. Right to marry
and found a family 18. Rights of children 19. Right to practice a religion 20.
Prohibition of war propaganda and hate speech constituting incitement 21.
Right to hold office 22. Right to vote in free elections 23. Right to be
elected to office 24. Equal access to public service
• The economic, social and cultural rights reaffirmed in the International Bill
of Human Rights include four workers’ rights (the right to gain a living by
work freely chosen and accepted; the right to just and favorable conditions
of work; the right to form and join trade unions; and the right to strike).
Four others concern social protection (social security; assistance to the
family, mothers and children; adequate standard of living, including food,
clothing and housing; and the highest attainable level of physical and
mental health). The remaining rights are the six concerning education and
culture (the right to education directed towards the full development of
the human personality; free and compulsory primary education; availability
of other levels of education; participation in cultural life; protection of
moral and material rights of creators and transmitters of culture, and the
right to enjoy the benefits of scientific progress).
ICESCR
• Economic, Social, and Cultural Rights (ESCR) 1. Right to gain a living by
work freely chosen and accepted 2. Right to just and favorable work
conditions 3. Right to form and join trade unions 4. Right to strike 5.
Social security 6. Assistance to the family, mothers, and children 7.
Adequate standard of living (including food, clothing, and housing) 8.
Right to the highest attainable standard of physical and mental health
9. Right to education towards the full development of human
personality 10. Free and compulsory primary education 11.
Availability of other levels of education 12. Participation in cultural life
13. Protection of moral and material rights of creators and
transmitters of culture 14. Right to enjoy the benefits of scientific
progress
The Right to Life
• Article 6 ICCPR
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.
• Art 14 Constitution
• (b) Death Penalty
• Art 6 (2) In countries which have not abolished the death penalty, sentence of death may be imposed only
for the most serious crimes in accordance with the law in force at the time of the commission of the crime
and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement
rendered by a competent court.
• (b) Disappearances
• "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the law. (International Convention for the Protection of All
Persons from Enforced Disappearance – came into force 2010)
Cont. Right to Life
• (d) Positive Obligations arising from the right to life
• States not only have to refrain from intentional and unlawful deprivation of life,
but must also take appropriate steps to safeguard the lives of those within their
jurisdiction.
• The measures required are wide-ranging, from establishing legislative measures
aimed at controlling and limiting the circumstances in which firearms may be
used by state agents to, in some cases, the provision of some commodities to
keep one alive.
• (e) The unborn child
• In many Western countries abortion is now legal, but this is not the case in Tanzania – it is
still a prohibited act.
• (f) Euthanasia
• Assisted death to end suffering! Prohibited in most countries but is allowed in a few
countries as long as
Exceptions to the right to life
• A person’s right to life is not breached if they die when a public authority
(such as the police) uses necessary force to:
1. stop them carrying out unlawful violence
2. make a lawful arrest
3. stop them escaping lawful detainment, and
4. stop a riot or uprising.
• Of course, even in these circumstances, the force used must be essential
and strictly proportionate. Force is ‘proportionate’ when it is appropriate
and no more than necessary to address the problem concerned.
• The positive obligation on the state to protect a person’s life is not
absolute. Due to limited resources, the state might not always be able fulfil
this obligation. This could mean, for example, that the state does not have
to provide life-saving drugs to everyone in all circumstances.
Freedom from Torture
• The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in
1984, entered into force 26 June 1987

• (a) Definition of torture and cruel, inhuman or degrading treatment

UN Convention against torture and other cruel, inhuman or degrading treatment or punishment, 1984, art. 1:
• [Link] pain or suffering, whether physical or mental
• [Link] inflicted.
• [Link] such purposes as: a) Obtaining info, confession; b) punishing; c) intimidating or coercing; d) for any
reason of discrimination of any kind. Non exhaustive list.
• [Link] official in the loop
• (b) The principle of non-refoulement in relation of the right to freedom from torture
• Art 3 - CAT
• (c) Conditions of imprisonment or detention
• (d) The right of prisoners and detained rights
The Right to Freedom of Movement
• (a) The right to move freely within a country
• (b) The right to choose residence/protection of residence
• (c) The right to leave a country/ not to be forced to leave a country
• (d) Right to enter one’s own country

• Art. 12 ICCPR Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence.
• 2. Everyone shall be free to leave any country, including his own.
• 3. The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order, public health or
morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
• 4. No one shall be arbitrarily deprived of the right to enter his own country.
• The listed limitations in Article 12 are exhaustive. As they represent exceptions to the general rule of liberty
and freedom of movement, they must be necessary in all the circumstances, importing an assessment of
proportionality, with the burden of proof resting on the state party to justify the restriction.
• They must also be the ‘least intrusive’ means to achieve the stated objective. Thus, restrictions on
movement are subject to a similar set of safeguards as other deprivations of liberty. If reporting conditions
could achieve the desired objectives rather than a designated residence, for example, then the least
intrusive measure must be adopted. If payment of a bond would satisfy the objectives of the order, and
this was considered the least intrusive on the individual, then this should be the order made.
Restrictions on freedom of movement:
1. provided by law
2. necessary to protect national security
3. necessary to protect public order
4. necessary to protect public health or morals or the rights and freedoms of others.
5. consistent with other rights
• Restrictions must be based on clear legal grounds and meet the test of necessity and requirements of
proportionality (See General Comment of the Human Rights Committee)
• All deprivations of liberty must have a legitimate aim, be proportionate to the aim pursued and a fair balance
shall be struck between the conflicting interests. See also Inter-American Court of Human Rights, Velez Loor v.
Panama, judgement 10 December 2010, Series C no. 218, para. 162.
States can restrict certain human rights
Requirements:
– only if certain
requirements are met • Is it lawful?
• Is it justified to achieve a
e.g., the right to work ─
States can limit access legitimate aim?
to certain sectors of the • Is it necessary?
labour market to their
citizens. • Is it proportionate to the
aim?
• Is it non-discriminatory?
The Right to Liberty and Personal Security
• Article 9 recognizes and protects both liberty of person and security of
person.
• In the Universal Declaration of Human Rights, article 3 proclaims that
everyone has the right to life, liberty and security of person.
• Liberty of person concerns freedom from confinement of the body, not a
general freedom of action. Security of person concerns freedom from
injury to the body and the mind, or bodily and mental integrity.
• Some of the provisions of article 9 (part of paragraph 2 and the whole of
paragraph 3) apply only in connection with criminal charges. But the rest,
in particular the important guarantee laid down in paragraph 4, i.e. the
right to review by a court of the legality of detention, applies to all persons
deprived of liberty.
• Examples of deprivation of liberty include police custody, remand
detention, imprisonment after conviction, house arrest, administrative
detention, involuntary hospitalization, institutional custody of children and
confinement to a restricted area of an airport, as well as being involuntarily
transported.
• They also include certain further restrictions on a person who is already
detained, for example, solitary confinement or the use of physical
restraining devices.
• Deprivation of personal liberty is without free consent. Individuals who go
voluntarily to a police station to participate in an investigation, and who
know that they are free to leave at any time, are not being deprived of
their liberty.
• States parties have the duty to take appropriate measures to protect the
right to liberty of person against deprivation by third parties.
• States parties must protect individuals against abduction or detention by
individual criminals or irregular groups, including armed or terrorist groups,
operating within their territory. They must also protect individuals against
wrongful deprivation of liberty by lawful organizations, such as employers,
schools and hospitals. States parties should do their utmost to take
appropriate measures to protect individuals against deprivation of liberty
by the action of other States within their territory.
• The right to security of person protects individuals against intentional
infliction of bodily or mental injury, regardless of whether the victim is
detained or non-detained. For example, officials of States parties violate
the right to personal security when they unjustifiably inflict bodily injury.14
The right to personal security also obliges States parties to take
appropriate measures in response to death threats against persons in the
public sphere, and more generally to protect individuals from foreseeable
threats to life or bodily integrity proceeding from any governmental or
private actors.
• The right to liberty of person is not absolute. Article 9 recognizes that sometimes
deprivation of liberty is justified, for example, in the enforcement of criminal
laws. Paragraph 1 requires that deprivation of liberty must not be arbitrary, and
must be carried out with respect for the rule of law.
• Arrest or detention that lacks any legal basis is also arbitrary. Unauthorized
confinement of prisoners beyond the length of their sentences is arbitrary as well
as unlawful; the same is true for unauthorized extension of other forms of
detention. Continued confinement of detainees in defiance of a judicial order for
their release is arbitrary as well as unlawful.
• An arrest or detention may be authorized by domestic law and nonetheless be
arbitrary. The notion of “arbitrariness” is not to be equated with “against the
law”, but must be interpreted more broadly to include elements of
inappropriateness, injustice, lack of predictability and due process of law, as well
as elements of reasonableness, necessity and proportionality. For example,
remand in custody on criminal charges must be reasonable and necessary in all
the circumstances. Aside from judicially imposed sentences for a fixed period of
time, the decision to keep a person in any form of detention is arbitrary if it is not
subject to periodic re-evaluation of the justification for continuing the detention.
Right to Freedom of Opinion and Expression
• Article 19 of the 1948 Universal Declaration of Human Rights:

• “Everyone has the right to freedom of opinion and expression; this

right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media
and regardless of frontiers.”
ICCPR:
• ARTICLE 19
• 1. Everyone shall have the right to hold opinions without interference.
• 2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.
• 3. The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are provided
by law and are necessary:
• (a) For respect of the rights or reputations of others;
• (b) For the protection of national security or of public order (ordre public),
or of public health or morals.
• Art 18 CURT
• The Supreme Court of Zimbabwe, Mark Giva Chavunduka and another v. The
Minister of Home Affairs and another, Supreme Court Civil Application No. 156
(1999).
• “Freedom of expression has four broad special objectives to serve:
• (i) It helps an individual to obtain self-fulfillment,
• (ii) It assists in the discovery of truth and in promoting political and social
participation,
• (iii) It strengthens the capacity of an individual to participate in decision making,
and
• (iv) It provides a mechanism by which it would be possible to establish a
reasonable balance between stability and change.”
National Security exception:
•The Johannesburg Principles on National Security, Freedom of Expression and Access to
Information, 1995 (ARTICLE 19)
•“… to protect a country's existence or its territorial integrity against the use or threat of force, or its
capacity to respond to the use or threat of force, whether from an external source, such as a
military threat, or an internal source, such as incitement to violent overthrow of the government.”

• Must be narrowly defined. There must be an actual threat of harm to a national security interest
before the freedom of expression can be restricted.
• Is not “to protect a government from embarrassment or exposure of wrongdoing, or to conceal
information about the functioning of its public institutions, or to entrench a particular ideology,
or to suppress industrial unrest.”
• US v New York Times: Pentagon Papers
• The US Supreme Court ruled that the government could not, through "prior restraint,"
block publication of any material unless it could prove that it would "surely" result in "direct,
immediate, and irreparable" harm to the nation.
Protection v Limitation
• “Because people (or a section thereof) may hold their government in contempt
does not mean that a situation exists which constitutes a danger to the security
of the state or to the maintenance of public order. In fact to stifle just criticism
could as likely lead to those undesirable situations.”
• South West Africa High Court, Free Press of Namibia v. The Cabinet for the
Interim Government of South Africa, SWA 614 (1987), p. 625.

• “The free flow of information and ideas informs political debate. It is a safety
valve: people are more ready to accept decisions that go against them if they can
in principle seek to influence them. It acts as a brake on the abuse of power by
public officials. It facilitates the exposure of errors in the governance and
administration of justice of the country.
• United Kingdom House of Lords, R v. Secretary of State for the Home
Department (2000)
Exception: Defamation
•Protections
•Article 17 of the ICCPR protects against “attacks” on a person’s “honour and reputation.”
•Legitimate Restrictions
•Article 19(3) of the ICCPR states that the “rights and reputations of others” is a ground for limiting the
freedom of expression (echoed by Art. 13 of ACHR and Art. 10 of ECHR).

Statements which are not defamatory:

• Statements that are true
• Statements that are privileged (spoken in parliament or in a court, or is a report of those proceedings)
• Statements that are satirical
• Statements of Opinion
• Statements of Others (i.e. a journalist reporting on what another person said)
• Reasonable Publication, reasonable steps taken to assure accuracy on issue of public interest
Who are what can be defamed?
• “[c]riminal defamation laws may not be used to protect abstract or
subjective notions or concepts, such as the State, national symbols,
national identity, cultures, schools of thought, religions, ideologies or
political doctrines …. international human rights law protects
individuals and groups of people, not abstract notions or institutions
that are subject to scrutiny, comment or criticism.”
• Frank La Rue, Report of the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression,
HRC/14/23
Freedom of Conscience and Religion
• Article 18 of the ICCPR provides:
• 1. Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of his
choice, and freedom, either individually or in community with others and in
public or private, to manifest his religion or belief in worship, observance,
practice and teaching.
• 2. No one shall be subject to coercion which would impair his freedom to have or
to adopt a religion or belief of his choice.
• 3. Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public safety,
order, health, or morals or the fundamental rights and freedoms of others.
• 4. The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the religious
and moral education of their children in conformity with their own convictions.
• Art 19 of CURT
• The Freedom of Religion includes the right to change your
religion or beliefs at any time.
• You also have the right to put your thoughts and beliefs into
action. This could include your right to wear religious clothing,
the right to talk about your beliefs or take part in religious
worship. Public authorities cannot stop you practising your
religion, without very good reason – see the section on
restrictions below.
Limitations
• Public authorities cannot interfere with your right to hold or
change your beliefs, but there are some situations in which
public authorities can interfere with your right to manifest or
show your thoughts, belief and religion. This is only allowed
where the authority can show that its action is lawful,
necessary and proportionate in order to protect:
• public safety
• public order
• health or morals, and
• the rights and freedoms of other people.
The Right to Participate in Society
Article 25 of the ICCPR codifies the right to participate in public affairs. The right to
participate in public affairs includes the right of citizens to participate:
• Directly by voting in referenda, by being elected, or presumably by participating
in other means of direct democracy.
• Through freely chosen representatives that are elected according to international
election obligations and standards;
• Through consultative processes;
• Through debate and dialogue;
• Individually and with others; and
• By establishing and joining organizations, including civil society organizations,
unions and political parties; and through equal access to public service positions,
including employment in public positions.
• Art 21 CURT -
Limitations
• The right to participate in public affairs is limited to citizens!
• The right to participate in public affairs, like other rights enshrined in
the ICCPR, will be best protected in contexts where the rule of law
prevails and there is a clear legislative framework. Any restrictions on
the right to participate and the exercise of political rights should be
based on objective, reasonable and non-discriminatory criteria.
Further, such restrictions should only be applied in exceptional
circumstances.
Right to Freedom of Association
• According to the Universal Declaration of Human Rights, everyone has the right to freedom of
peaceful assembly and association. The International Covenant on Civil and Political Rights
(ICCPR) further establishes that the right to assemble and associate peacefully entitles everyone
to join or form associations, including trade unions (art 22). This includes the right to meet for
protests, and any other form of reunion for a common purpose.
• Art 20 of CURT
• In 2013, the Human Rights Council reminded States that the universal recognition of freedom of
assembly and association entails:
• States have an “obligation to respect and fully protect the rights of all individuals to assemble
peacefully and associate freely, online as well as offline, including in the context of elections, and
including persons espousing minority or dissenting views or beliefs, human rights defenders, trade
unionists and others, including migrants, seeking to exercise or to promote these rights, and to
take all necessary measures to ensure that any restrictions on the free exercise of the rights to
freedom of peaceful assembly and of association are in accordance with their obligations under
international human rights law.’
Limitations
• According to article 22 of the International Covenant on Civil and Political Rights, the
right to freedom of assembly and association can only be restricted in cases specified by
domestic law and as long as it is necessary and proportionate to protect national
security or public safety; prevent disorder or crime; protect health or good morals, or
protect the rights and freedoms of others. On any other case, the right to freedom of
assembly and association should be fully protected and even promoted.
• Special Rapporteur on extrajudicial, summary, or arbitrary executions, on the proper
management of assemblies,
• ‘Assemblies are also an instrument through which other social, economic, political, civil
and cultural rights can be expressed, meaning they play a critical role in protecting and
promoting a broad range of human rights. They can be instrumental in amplifying the
voices of people who are marginalized or who present an alternative narrative to
established political and economic interests. Assemblies present ways to engage not only
with the State, but also with others who wield power in society, including corporations,
religious, educational and cultural institutions, and with public opinion in general.’