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UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE EDUCATION

LPU 3975-HUMAN RIGHTS LAW MODULE

COMPILED BY

DR. O’BRIEN KAABA

MARCH 2018

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TABLE OF CONTENTS

Chapter one: Introduction……………………………………………………………….…3

Chapter two: Introduction to Human Rights Law………………………………….……9

Chapter three: The International Human Rights System……………………………….15

Chapter four: Other Major International Human Rights Instruments……………..….31

Chapter five: Monitoring and Enforcement of International Human Rights……..……51

Chapter six: Regional Human Rights Systems: An Overview…………………………..59

Chapter Seven: Vertical and Horizontal Dimensions of Human Rights……………….65

Chapter Eight: The National Human Rights System: The Zambia Bill of Rights….….77

Appendix: Course Outline……………………………………………………………...…125

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CHAPTER ONE

INTRODUCTION

Course aim

The aim of this course is to introduce students to the concepts and content of human

rights law.

Objectives

By the end of this course, students are expected to:

Discuss the concept of human rights;

Evaluate human rights jurisprudence applicable to Zambia

Critically discuss gender and other types of discrimination under general and

customary law;

Explain the justiciability of human rights;

Analyse the role of the judiciability of human rights;

Analyse the role of the judiciary and the legal profession in promoting the observance

of human rights;

Critically discuss contemporary issues in human rights law.

A suggested approach to study human rights law

This course, human rights, combines elements of both constitutional law and

international human rights law. It will take you through the concepts of human rights,

give you an overview of international human rights law and conclude with a discussion

of the National Bill of Rights. It involves extensive reading of international instruments,

national legislation (particularly the Bill of Rights) and a lot of case law. You must read

all the cases mentioned in ths module. Do not depend on the summaries contained in

here. an be seen as self-contained but is fundamental to your broader legal studies.

Reading cases in entirety will give you an understanding of the broad context and a better

appreciation of the reasoning of the court or body that made the decision.

In studying human rights, you should begin with this module. It is recommended that

you start at the beginning and work through the guide sequentially, reading the textbooks

and other materials mentioned in the modules.

This module takes you through the syllabus of human rights in a logical and systematic

way, with each chapter overcoming a particular topic or group of topics. Each chapter

makes a reference to the main chapters in either prescribed or recommended text books.

Cases

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A number of cases are mentioned in the module. Since developing the skills of reading

case law is a fundamental part of the skills needed for your study of human rights law,

studying these cases will help you in your other subjects too. It is hoped that you will

begin to appreciate the complexity of cases and read them in full. Do not rely on

summaries. Summaries can only convey a selection of the real detail found in the reports

themselves.

Guidelines for studying

1) Learn each topic as you study it and look for how topics and issues

connect to each other. Human rights law is not a subject that you can ‘cram

in’ at the last minute. Be aware of the interconnectedness of the module as it

is constructed so that certain fundamental issues are covered first, and you

should return to these frequently.

2) Read each chapter in your textbook at least twice. What is unclear at first

reading will often become clear on a second or subsequent reading.

3) Read all the important cases in full.

4) Read as much of the prescribed or recommended further reading as you

can. This will be important for your understanding of the topic.

5) Take notes of what you read- Chapters in textbooks, articles and cases. If

there are particular paragraphs or sentences that you like, note them. Keep

these notes in a loose-leaf file so that you can add new material to each section

as the need arises.

6) Take control of the material. You need to organize your summary notes in

a coherent and easy to follow manner.

7) Practice answering past examination questions. Begin by looking up as

much as you need to answer the question. Make any notes you think

necessary, including a framework for an answer. Then put your notes aside

and try to write your answer in 35-40 minutes. Later, choose another question

and try to answer it in the same period of time, but without any preliminary

reading. Make a plan for your answer as part of the ‘unseen’ exercise within

the 30-45 minute period.

8) Keep up-to-date. To some extent, every textbook is out-of-date as soon as it

appears in the bookshops because the law is constantly changing. The

textbooks recommended for this course are all more than eight years old and

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in some respects, therefore, overtaken by new developments. They may not

reflect new case law and statutes. It is your duty as your student to be familiar

with changes in the law as they come. You could be examined on a new case

or statute that is not mentioned in the module or the text books provided it

relates to a topic covered in the module.

9) See the law in action. What you read in books will often make more sense if

you can go to see proceedings in Court. As often as possible, visit courts and

observe what happens. See lawyers and judges in action can be enlightening.

Study time

You should set aside a specific amount of time each week to study this subject, increasing

the amount in the month leading to the examination. Remember, though, that individuals

vary greatly in their needs; the time to stop studying is when you know the topic

thoroughly, and not until then. It is very important to plan your time carefully. Do not

forget to leave time every week and month for revision in addition to the period before

the examination. Revision must be a continuous process.

General advice

Study of this course culminates into the final examination. If you have worked

consistently and well throughout the year, this should not be too daunting. All you are

being asked to do is to demonstrate to the examiners that you have mastered the subject

to the required standard; you will be able to do this if you have undertaken sufficient

study throughout the year. Many students go wrong because they think that they only

have to study and revise four, five or six topics from a course. That is a mistake. The

topic you were relying on may not appear on the examination paper, or it may appear,

but in a way which you have not expected (e.g., where it is combined with other topics

you did not study). You may therefore not have the confidence to attempt an answer. Or

one topic might be combined with another and you find that you have only revised half

the question. If you have worked conscientiously and covered the syllabus fully you will

not have any of these difficulties.

Examination preparation is a chance to consolidate your knowledge of context-the

interaction between context and topic. In revising, keep the context of the topic in mind.

The particular topic under consideration may only make sense when viewed in relation

to the large issues.

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The format of the examination

Important: Always read and follow instructions appearing in your examination question

paper. Disregarding instructions could have serious consequences, including failing the

exam.

The examination usually comprises seven questions of which you are required to answer

four. Many of these are essay questions, which require you to show knowledge of the

topic and a critical approach.

To cope with problem questions successfully, you must be able to see what issues arise

from the facts and advice on them accurately and succinctly, referring always to the

sources of law upon which you rely for your conclusions. The law may well be uncertain.

If so, you must explain why, and then choose what you believe to be the decision most

likely to be made by the court, giving reasons for your choice.

In general, you must be aware of major debates and proposals for reform of the law. You

must also show a capacity for independent thought. It follows that during your studies

you should:

Think for yourself about the persuasiveness of the arguments put forward in what

you read;

‘Read around’ the topic;

Discuss problems with your tutor or lecturer but always remember it is you that

is being examined, not your tutor or lecturer; and

Discuss problems with fellow students;

Ten golden rules for developing examination technique

1. Prepare thoroughly. In particular, practice doing the past examination

questions.

2. Read the examination paper carefully. Then choose the four questions that

you want to answer, and make a rough allocation of time.

3. Once you have chosen your four questions, make rough notes on the answers

to all four questions before you begin to remember at once all the information

that you have learned. If you adopt this plan, you give your memory the

maximum opportunity to remember what you need for all the questions. Pieces

of information can be recalled, apparently as the result of subconscious mental

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activity, while the mind is concentrating on something else. But you need to

have stimulated the memory by trying to plan all your questions first.

4. Answer the questions as set. This is particularly applicable to essay questions,

and it involves two prohibitions. First, do not just write all you know about

the topic. Very little, if any, credit will be given for that. Each question will

have a particular ‘slant’ or ‘angle,’ which requires careful thought and the

selection of relevant information and knowledge’. Second, do not write an

essay about a different topic. At the root of both these faults is a failure to

prepare properly.

5. Write tidily and legibly. If you practice writing questions under examination

conditions during your studies, you should find that you are able to write at

speed, but also tidily and legibly, in the examination.

6. Follow the instructions on the front page of the answer book. Do not write

in the space reserved for examiners. Remember that you are asked to fill in a

space that sets out the numbers of the questions you have attempted in the

order in which you attempted them-not in numerical order.

7. Do not write notes to the examiner. It is pointless to write, for example, ‘No

time for more’ at the end of the last question; the examiner can see that for

herself or himself.

8. Do not write much or too little. Good planning of your time at the start of the

examination should prevent you from writing too much. So should attention to

the question, which itself will impose limits on what has to be covered. Of

course, the careless or baldly-prepared student who settles down to write all she

or he knows about a particular subject is likely to end up writing far too much

and failing. As a rough guide, approximately three to four pages should enough

for a good answer to a problem question. Other types of questions usually need

shorter answers. This, of course, assumes that you write, as you should, on

every line, and that your handwriting is not overly large.

9. Refer approximately to sources to support your arguments. You are

expected to adopt a critical attitude and to express arguments that you are in

control of. However, that does not mean that you create everything anew every

time you write. When you write you build on the work of others in. You are

expected to show command of your sources, particularly statutes and cases and

appropriately reference them.

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10. The final piece of advice on the examination is a reminder to read the question

carefully. You must answer the question the examiner has asked, not some

variation on this. Irrelevant material will not earn you any marks.

(Adapted from the University of London Module for Common Law Reasoning and

Institutions [Legal Process] (2004)).

CHAPTER TWO

INTRODUCTION TO HUMAN RIGHTS LAW

Chapter aim

The chapter is intended to introduce students to basic concepts of human rights

law

Prescribed/recommended reading

Frans Viljoen, International Human Rights Law in Africa (Oxford,

Oxford University Press, 2007), chapter 1;

Manfred Nowak, Introduction to the International Human Rights Regime

(Leiden: Martinus Nijhoff Publishers, 2003), chapters 1 and 2

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Colson Anyangwe, Introduction to Human Rights (Lusaka: University of

Zambia Press, 2005), chapter 1

What Are Human Rights

The term “human rights” may be understood in either a philosophical sense or in positive law

sense. In a philosophical sense, human rights are considered as special moral claims that all

human beings may invoke. Thus, in this sense human rights are considered as inalienable

entitlements that each person has by virtue of being human. From the philosophical perspective,

human rights are fundamental because they go to the root of a person’s existence as a human

being endeared with dignity.

In a positivist sense, human rights relate to those human claims that have been enshrined in

national laws and international conventions. These laws serve as a basis for holding

accountable those who violate human rights. To avoid the confusion between philosophical

and positivist views of human rights, the former is often referred to as “human rights” while

the latter as “human rights law.”

WHAT ARE HUMAN RIGHTS

Descriptive, legal and philosophical approaches:

1. Those fundamental rights, which empowers human beings to shape their lives in

accordance with liberty, equity and respect for human dignity.

2. The sum of civil, political rights laid down in international and regional rights

instruments, and in the Constitutions of States.

3. The only universally recognized value system under present international law

comprising elements of liberalism, democracy, popular participation, social justice,

the rule of law and good governance.

Source: Manfred Nowak, Introduction to the International Human Rights Regime (Boston: Martinus Nijhoff

Publishers, 2003)

Human Rights Concepts

1. Universality and inalienability

All people anywhere, in the world are entitled to human rights. The universality of the human

rights is enshrined in Article 1 of the Universal Declaration of Human Rights which states that

“All human beings are born free and equal in dignity and rights”.

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The concept of the universality of human rights has been the subject of intense scholarly debate.

Some scholars view human rights as Eurocentric, that is, they emanate from the Western

political, cultural or religious values and therefore, not universally valid. In other words, human

rights simply position Western values as superior to values and norms in other cultures such as

in Africa. These arguments are usually countered by the formalist argument that human rights

are universal and bind all states because, at the international level, states have voluntarily

ratified the relevant human rights instruments. By doing that, States acknowledge the

ubiquitous nature of human rights. This argument has been strongly advanced by Jerome

Shestack who states:

Even as theorists have continued to quarrel with each other, fundamental human rights

principles have become universal by virtue of their entry into international law as jus

logens customary law, or by Convention. In other words, the relativist argument has

been overtaken by the fact that human rights have become hegemonic and therefore

universal by fact. [Jerome Shestack “The philosophical Foundations of Human

Rights” in Jansz Symonides, Human Rights: Concepts and Standards (Alders hit:

Ashgate Ltd UNESCO, 2000) 60.]

2. Indivisibility

This means human rights are indivisible. Whether they relate to civil, economic, political

or social issues, human rights are inherent to the dignity of every person. Thus, all human

rights have equal status, and cannot be compromised at the expense of other rights, such

as the right to health, or the right to education.

3. Interdependence and Interrelatedness

Human rights are said to be interrelated and interdependent because each one contributes

to the realization of a person’s human dignity through the satisfaction of his or her,

developmental, physical, psychological and spiritual needs. The fulfillment of one right

often depends, wholly or in part, upon the fulfillment of others. For example, fulfillment

of the right to health may depend, in certain circumstances, on fulfillment of the right to

development, to education or to information.

That human rights are universal, indivisible, interdependent, and interrelated was

succinctly stated in the 1993 Vienna Declaration and Programme of Action:

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5. All human rights are universal, indivisible, interdependent and interrelated. The

international community must treat human rights globally in a fair and equal

manner, or 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, economic and cultural systems, to promote and protect human rights and

fundamental freedoms.

International Human Rights Law Concepts

Introduction

International human rights law refers to human rights norms that have been enshrined

mainly in the provisions of international human rights treaties. International human rights

law was established as a minimum normative standard of behaviour to which States

internationally agreed upon and as a means of redress for individuals who are denied their

rights in the domestic sphere. The source of international human rights law and

enforcement of the same is discussed further below in this module.

Judiciability of International Human Rights Law

Judiciability means that an alleged violation of human rights can be submitted to a court

or quasi-judicial body in order for that body to determine the merits of the claim and if

satisfied about the violation, provide a remedy to address the violation. Although

judiciability of human rights at the domestic or national level is relatively straightforward,

the same cannot be said about justiciability of international human rights law. Part of the

challenge is that there is no international court with global or universal jurisdiction to

enforce international human rights norms. This, however, does not mean international

human rights law is not justiciable only that it is more nuanced. This shall become clearer

later in this module when discussing enforcement of international human rights law.

Referring to human rights claims as “justiciable” implies that something about the claim

(or case), about the setting in which it may be resolved, and about the consequences of

successfully invoking it. A justiciable claim is based on the alleged infringement of a

subjective (human) right (invoked) by an individual or collectively). This claim has to be

determined by a court or other Tribunal or judicial body, or quasi-judicial body sharing

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the main features of a court. If a violation of the subjective right is found, a court (quasi-

judicial body) must be able to find a remedy to redress the violation, and the finding should

set a form of precedent or at least embody an authoritative interpretation”(Frans Viljon,

International Human Rights Law in Africa (Oxford: Oxford University Press, 2007)

Categories of Human Rights

International human rights are often divided into three categories. These three categories

are sometimes called the three generations of human rights. The word generations relates

to the chronological order in which the three categories of rights were recognized. First

generation rights were recognized earlier followed by second generation rights and third

generation rights were recognized later. The categories are as follows:

1) Civil and political Rights (First generation rights)

Civil and political rights are considered the first generation rights. These rights are liberty-

oriented and include the rights to life, liberty and security of person, freedom from torture

and slavery, political participation, freedom of opinion, expression, thought, conscience

and religion, freedom of association and assembly.

Traditionally, it was thought that these rights were constraints on the state, that it, they did

not require any positive action on the part of the state. The state simply had to refrain from

interfering with the liberty of its nationals. Today, however, it is recognised that this

dichotomy is simplistic and incorrect. For example, the right to political participation

requires the state to use public resources to organize elections, to print ballots and other

related costs.

2) Economic and social rights (second generation rights)

Economic and social rights or second generation rights are considered to be social-security

oriented. Examples of these include the right to education, work and related rights, an

adequate standard of living, food, health care and shelter.

These rights are considered to require positive action on the part of the state in terms of

national policies and programmes in order to facilitate their enjoyment.

3) Solidarity or Group Rights (Third Generation Rights)

Solidarity group or third generation rights were relatively recently asserted. These include

the right of self-determination, clean and healthy environments, peace and development.

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State obligation

Because it is recognized that rights are interdependent and interrelated, states have,

depending on circumstances, the same obligations towards each category of human rights.

The duty of the state is four-fold: To “respect", “protect”, “fulfill”, and “promote” human

rights. These obligations apply equally to all human rights.

a) Respect: States must respect human rights by refraining from interfering with the

enjoyment of human rights, for example, by not evicting people who have nowhere

to go. This duty is “negative” in that it does not require government action or

allocation of resources.

b) Protect: The state must protect rights holders from violation of their rights by third

parties. This could be by way of passing appropriate laws or adopting other

protective measures such as prohibiting gender violence.

c) Fulfill: The duty to fulfill requires states to take positive measures to ensure the

actual enjoyment of human rights. For example, building hospitals and providing

medicines in order for people to enjoy the right to health.

d) Promote: The duty to promote requires states to create an enabling environment

for people to appreciate their rights in the long term, for example, by providing

education and awareness-raising about human rights.

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CHAPTER THREE

THE INTERNATIONAL HUMAN RIGHTS SYSTEM

Chapter aim

To introduce students to the international human rights system

Prescribed/recommended reading

Frans Viljoen, International Human Rights Law in Africa (Oxford,

Oxford University Press, 2007), chapters 2 and 3;

Colson Anyangwe, Introduction to Human Rights (Lusaka: University of

Zambia Press, 2005), chapter

The United Nations Charter 1945

The Universal Declaration of Human Rights 1948

The International Covenant on Civil and Political Rights 1966

The International Covenant on Economic, Social and Cultural Rights

1966

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Sources of International Human Rights Law

a) Treaties

A treaty is a written agreement to which a party may consent to be bound. Treaties may be

bilateral (between two states) or multilateral (between more than two states). The human

rights treaties discussed in this module are all multilateral.

Treaties are often called by various names such as “Covenant”, “Charter”, or

“Convention”. Some treaties are known as “Protocols”. Protocols are instruments adopted

to supplement or amend an aspect or aspects of existing treaties, often creating new rights

and obligations, thereby allowing treaties to evolve with time. Protocols have the same

legal force as the Treaties they supplement but do not usually bind states until they ratify

or accede to them.

b) Customary International Law

Customary International Law binds those states not party to a treaty provided that the

relevant norm has become a rule of customary international law. A norm attains that status

if it is a “general practice accepted by law” (Article 38 (1) (b) Statute of the International

Court of Justice). The existence of such a rule has to be proven by demonstrating two

elements: State Practice and Opinio Juris. There has to be widespread evidence of

consistent practice by States conforming to a certain norm.

Compared to treaties, customary rules are fluid, uncertain, and less readily accessible.

However, prohibition of the following has attained the status of customary international

law: genocide, slavery, racial discrimination, murder or forced disappearance, torture,

prolonged arbitrary detention, non-refoulement, and a consistent violation of

internationally recognized human rights.

Custom has been less important in the field of human rights because empirical proof of the

way that States behave in their dealings with individual citizens makes ascertaining custom

problematic.

c) Jus Cogens and Obligations Erga Omnes

Some rules or norms tower above other sources of International Law. They are norms that

cannot be set aside by treaty or acquiescence but only by the formation of a subsequent

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customary rule of contrary effect, and are referred to as rules of Jus Cogens, or

“peremptory norms”. A peremptory norm is a norm accepted and recognised by the

international community of States as a whole to be of that nature. As the “international

community” is a nebulous concept, the content of Jus Cogens is the subject of continuous

debate. However, there is general agreement that at least the prohibition of the use of force

by states against other states has become jus cogens.

With regard to human rights standards these are considered to have attained the jus cogens

status: prohibition against slavery, the right of people under colonial rule to self-

determination, prohibition of genocide, crimes against humanity, prevention of torture and

the principle of non-discrimination.

Peremptory norms largely overlap with “obligations erga omnes” and non-derogable

rights. Norms become peremptory when they have an erga omnes character, i.e. when they

impose an obligation owed to the International Community as a whole. That is, the breach

of peremptory norms gives rise to obligations erga omnes. The right to self-determination

and protection from slavery and racial discrimination, for example, constitute obligations

erga omnes.

d) Non-binding “soft law”

Soft law takes the form of declarations and resolutions of international organisations and

bodies such as the UN General Assembly. Declarations are usually statements of intent,

and are not as such legally binding, unless they evolve into customary international law.

Soft law standards may also be elaborated by non-governmental organisations.

The United Nations Human Rights System

The United Nations Charter 1945

The modern international human rights system is a post-World War II development. Its

development was in large parts a reaction to the grave violations of human rights during

the Second World War (WWII).

The basis of the post-WWII human rights system is the Charter of the United Nations. The

preamble of the UN Charter in part reads: “We the peoples of the United Nations,

determined to save succeeding generations from the scourge of war, which twice in our

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lifetime has brought untold sorrow to mankind… reaffirm faith in fundamental human

rights, in the dignity and worth of the human person, in the equal rights of men and women

and of nations large and small…”.

Other relevant provisions of the UN Charter are:

Article 1(3): “The purposes of the United Nations are: …

To achieve international Co-operation in solving international problems of an economic,

social, cultural or humanitarian character, and in promoting and encouraging respect for

human rights and for fundamental freedoms for all without distinction as to race, sex,

language, or religion.”

Article 55: “With a view to the creation of conditions of stability and well-being which are

necessary for peaceful and friendly relations among nations based on respect for the

principle of equal rights and self-determination of peoples, the United Nations shall…

a) Universal respect for, and observance of human rights and fundamental freedoms

for all without distinction as to race, sex, language, or religion.”

Article 56: “All Members pledge themselves to take joint and separate action in

cooperation with the Organisation for the achievement of the purposes set forth in Article

56”

Although the UN Charter did not define what constitutes human rights nor elaborate them,

there are at least two important points to note about it.

i. The United Nations internationalized human rights. By adhering to the Charter,

which is a Multilateral Treaty, the States parties recognized that human rights

referred to in it are a subject of international concern and, to that extent, no longer

within exclusive domestic jurisdiction.

ii. The obligation of the member states of the UN to co-operate with the Organisation

in the promotion of human rights and fundamental freedoms has vested the UN

with appropriate legal authority to undertake dedicated efforts to define and codify

these rights. This effort is manifest in the adoption of the International Covenant

on Economic, Social, and Cultural Rights 1966 and the International Covenant on

Civil and Political Rights 1966 and other subsequent treaties and the establishment

of treaty-based institutions designed to ensure compliance by member states.

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The UN Charter is also important for assigning various human rights mandates to some

NGOs created under it as follows.

a. The General Assembly

The General Assembly (GA) is assigned the responsibility of assisting in the “realization

of human rights and fundamental freedoms for all” (article 13 UN Charter). In furtherance

of its mandate, the GA has elaborated and adopted several resolutions, declarations and

binding treaties. (GA Resolutions are generally not binding but can be proof of evolving

customary law which is binding).

Some of the key human rights milestones of the General Assembly are:

I. The Universal Declaration of Human Rights 1948.

II. Establishment of the UN High Commissioner for Human Rights in 1993

III. The adoption of the Declaration of the Granting of Independence to Colonial

Countries and Peoples in 1960, which accentuated the right to self-determination

of peoples under colonial rule.

IV. Adoption of the Millennium Development Declaration in 2000 from which the

Millennium Development Goals (MDGS) were derived. The eight MDGs related

to poverty and hunger, primary education, gender equality, infant child mortality,

national health, HIV/AIDS, Malaria and other diseases, environmental

sustainability, and global partnership goals had measurable targets which were to

be relieved by 2015.

V. Adoption of sustainable development goals to replace the millennium development

goals which expired in 2015 through the adoption of the United Nations General

Assembly Resolution A/RES/70/1 of 2015

b) The Security Council

The UN Security Council (UNSC) does not have an explicit mandate over human rights.

However, it’s overarching mandate of maintaining “international peace and security”

(Article 24(1) of the UN Charter) is considered as extending to human rights related issues.

The UNSC consists of 15 members, five of which are permanent members (USA, Britain,

France, Russia and China). The ten non- permanent members are elected by the General

Assembly for two-year terms.

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The UNSC is empowered to take measures not involving use of force when a threat to

peace exists (Articles 39 and 41). This mandate has been used to enforce sanctions in

violation of human rights in members States. Its mandate has been used to impose

sanctions in violation of human rights in member states. Its mandate was used for the first

time in 1968 when sanctions were imposed against Southern Rhodesia, which was

followed by an arms embargo against the apartheid South African government in 1977

(See Resolution 232 (1966) SCR and Resolution 418 (1977) SCR, respectively).

The UNSC is also empowered to use force or any other means to maintain or restore peace

under Chapter VII of the UN Charter.

c) Economic and Social Council(ECOSOC)

The ECOSOC consists of representatives from 54 UN member states (Article 6 (6)) and

may make recommendations to the UN General Assembly on a wide range of topics,

including human rights matters (Article 62(2)).

ECOSOC was tasked with responsibility to set up commissions to further the promotion

of human rights (Article 68). One of the first commissions it set up is the UN Commission

on Human Rights (UNHCR)

One of the first actions undertaken by ECOSOC was setting up UNHCR as required by

Article 68 of the UN Charter in 1946. One of the major accomplishments of the UNHCR

was elaboration and consequent near-universal acceptance of the three major international

human rights instruments. These are the Universal Declaration of Human Rights 1948, the

International Covenant on Economic, Social and Cultural Rights 1966 and the

International Covenant on Civil and Political Rights 1966. These are discussed further

below.

One of the weaknesses of the UNCHR was that it did not consist of independent experts,

but was made up of 54 government representatives elected by ECOSOC irrespective of

the human rights records of the States concerned. As a result, States with the worst human

rights records, such as China, Saudi Arabia, Eritrea, Sudan and Zimbabwe served on the

commission.

In a 2005 report entitled “In Larger Freedom”, the UN Secretary General called for the

replacement of the UNCHR with a smaller human rights council that would ensure that

membership was not used to protect member states against criticism. The UNCHR was

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perceived as selective in the way it exercised its mandate as it allowed political

considerations to sometimes override or deflect its attention from grave human rights

violations.

The General Assembly in 2006 acted on the recommendations of the Security Council and

replaced the UNCHR with the Human Rights Council (UNHRC). The UNHRC is a

subsidiary organ of the General Assembly and, therefore, enjoys elevated status compared

to the UNCHR, which was a mere functional commission of ECOSOC.

UNHRC has a slightly smaller membership of 47, elected by an absolute majority of the

UN General Assembly and can only serve two consecutive tree-year terms.

One of the achievements of UNHRC was the adoption of the International Convention for

the Protection of All Persons from Enforced Disappearance (ICED) in 2006.

The Universal Declaration of Human Rights 1948

As already noted, the UN Charter did not define “human rights”. The first task of the

Human Rights Commission was therefore, to develop a universally valid definition. The

idea was to proceed in three successive steps: to elaborate a non-binding declaration which

would be the basis for a legally convention and then establish an implementation

mechanism.

Preamble: The Preamble outlines the philosophical foundation on which the UDHR is

based. It starts by recognizing that 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 (paragraph 1).

The Preamble recalls that the “Peoples of the United Nations have in the

Charter reaffirmed their faith in fundamental human rights, in the dignity and

worth of the human person and in the equal rights of men and women and have

determined to promote social progress and better standards of life in larger

freedom” (Paragraph. 5)

Notably, the Preamble puts the principles proclaimed by the UNDHR into a

universal context by stating that “a common understanding of these rights and

21

freedoms is of the greatest importance for the full realization of the pledge”

(Paragraph. 7)

The UDHR is then proclaimed “as a common standard of achievement for all

peoples and nations, to the end that every individual and every organ of

society…shall strive by teaching and education to promote respect for these

rights and freedoms…”

Operative Part (Articles 1-30):

Article 1: “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.”

Civil and Political Rights (Articles 3-4):

The right to life, liberty and security of person;

The prohibition of slavery, of torture and civil inhuman or degrading treatment;

The right not to be subjected to arbitrary arrest, detention or exile;

The right to a fair trial in both civil and criminal matters, the presumption of

innocence and the prohibition against the application of ex post facto laws and

penalties;

The right to privacy and the right to own property;

Freedom of speech, religion, assembly;

Freedom of movement, including the right to leave a country his/her own, and to

return into the country;

The right to seek and to enjoy in other counties asylum from persecution;

The right to nationality;

The right to take part in the government of his or her country, directly or indirectly

(through freely chosen representatives). The will of the people shall be the basis of

the authority of government and this requires periodic and genuine elections by

universal suffrage.

Economic, Social and Cultural Rights (Articles 22-27):

The right to social security, to work and to the protection against unemployment,

to equal pay for equal work and to just and favorable remuneration ensuring for

himself/herself and his/her family an existence worthy of human dignity;

22

The right to rest and leisure, including reasonable limitation of working hours and

periodic holidays with pay;

The right to a standard of living adequate for the health and well-being of

himself/herself and of his/her family;

The right to security in the event of unemployment, sickness, disability,

widowhood, old age or other lack of livelihood in circumstances beyond his/her

control;

The right to education;

The right to freely participate in the culture life of the community, to enjoy the arts

and to share in the scientific advancement and its benefits.

General Principles:

Equality and non-discrimination (Article 2);

Right of everyone to a social and international order in which the rights and

freedoms set forth in the declaration can be fully realized (Article 28);

Duties of everyone to the Community (Article 29);

Prohibition of activities by any state, group or person aimed at the destruction of

the rights and freedoms set forth in the Declaration (Article 30).

Significance of the UDHR:

I. The consistent reliance on the UDHR when applying the human rights provisions

of the UN Charter compels the conclusion that it has come to be accepted as an

authoritative interpretation of their provisions.

II. Repeated reliance on and resort to the UDHR by government and inter-

governmental organisations gives rise to the theory that the UDHR, or at least some

of its provisions, have become customary international law, e.g. genocide, slavery,

murder, or causing the disappearance of individuals, torture or other cruel,

inhuman or degrading treatment or punishment, prolonged arbitrary detention,

systematic valid discrimination, and consistent patterns of gross violations of

internationally recognized human rights.

The International Covenants (1966)

Originally the idea was to draft one treaty, which would elaborate on and give binding

force to the rights and freedoms proclaimed in the UDHR. Eventually, however, the

23

General Assembly resolved to draft two Treaties, one on civil and political rights and the

other on economic, social and cultural rights. The major reasons advanced for drafting two

distinct documents are:

a. That the two sets of rights are fundamentally different in that civil and political

rights are “immediately” in nature, while economic, social, and cultural rights are

“programmatic” or gradual, dependent on resources for their realization, that civil

and political rights were “free” in the sense that they did not cost much. Their main

contents were assumed to be obligations of states not to interfere with the integrity

and freedom of the individual. The implementation of economic, social and

cultural rights, in contrast, was held to be costly since they were understood as

obliging the state to provide welfare to its individual. (As noted above, the

dichotomy is now largely redundant).

b. Civil and political rights are justiciable and economic, social and cultural are not.

When the decision was finally made to adopt two covenants, it was resolved that as many

provisions as possible in the two covenants should be similar. In this regard, the Preamble

to each covenant is substantially the same, as are Articles 1, 3 (Mutatis Mutandis), 5, and

Articles 24-31 ICESCR and Articles 46-53 ICCPR. In addition, several of the same rights

are to be found in both covenants: the right to self-determination (Articles 8 ICESCR,

Article 22 ICCPR), and the right to the protection of the family (Article 10 ICESCR,

Article 23, ICCPR).

The International Covenant on Economic, Social and Cultural Rights (ICESCR)

1966

Preamble: The preamble, which provides a framework for the interpretation of the rights

in the Covenant, recalls the terms of the UDHR and declares the rights set forth in it as

being founded in the inherent dignity of the human person.

The Preamble also underlines the sensibility and interdependence of all human rights by

stating that “the ideal for free human beings enjoying freedom from fear and want can only

be achieved if conditions are created whereby everyone may enjoy his economic, social

and cultural rights as well as his civil and political rights.”

Substantial provisions

24

The Covenant constitutes the most important international treaty for the codification of

“second generation” rights.

Economic Rights

Right to work

Right to just and favorable conditions of work, including fair wages, equal pay for

equal work and holidays with pay.

Right to form and join trade unions, including the right to strike.

Social Rights

Right to security

Protection of the family, including special assistance for mothers and children

Right to an adequate standard of living, including adequate food, clothing and

housing and continuous improvement of living conditions.

Right to the highest attainable standard of physical and mental health.

Cultural Rights

Right to education, primary education being compulsory and free for all, and

secondary and higher education generally accessible to all.

Permits the progressive implementation of Article 13

Right to participate in cultural life and enjoy the benefits of scientific progress.

State Obligations

Part II of the Covenant, covering Articles 2 to 5 outlines the obligations of the States parties

in the implementation of the rights guaranteed. Most importantly, Article 2(1) states:

“Each State Party…undertakes to take steps individually and through international

assistance and cooperation, especially economic and technical, to maximum of its

available resources, with a view to achieving progressively the full realization of the rights

recognised in the present Covenant by all appropriate means, including particularly the

adoption of legislative measures”.

The Committee on Economic, Social and Cultural Rights, the body of Independent experts

which supervises the implementation of the Covenant, has made a clarification on the

nature of the obligations of States Parties under Article 2(1). In its General Comment No.

3 (1990), the Committee stated to this effect that:

25

Where it is open to states to implement the rights in a progressive manner, they

must take immediate steps to the maximum available resources. “It is not open to

States to delay indefinitely the implementation of the rights, or to use resources

constraints as an excuse for doing nothing.”

Another point is that States Parties have an immediate obligation to take active

steps to seek international assistance and cooperation to help in the fulfillment of

the treaty obligations. This means that any international resources that are made

available must be used for the realization of the rights in the covenant.

A number of rights in the Covenant are capable of immediate implementation. In

this regard, the committee cited Articles 3(equal rights of men and women),

7(a)(i)(equal pay for equal work, & (the right to form and to join trade unions of

one’s choice) 10(3) (non-discrimination on the ground of parentage), 13(3) (liberty

of parents and guardians to choose schools for their children), 13(4) (liberty to

establish educational institutions), and 15(3) (freedom of scientific research and

creative activity).

The principle of non-discrimination in Article 2(2) is also capable of immediate

implementation.

Supervision Mechanism:

The Covenant provides for only one procedure, through which the committee on

economic, social and cultural Rights (Article 16).

International Covenant on Civil and Political Rights (ICCPR) 1966

Preamble:

The Preamble of the ICCPR is worded in similar terms as that of the ICESCR.

Substantive Provisions:

The ICCPR is the most comprehensive international treaty on civil and political rights

(“first generation rights”)

The rights provided for includes:

Right to life;

Freedom from torture and inhuman treatment;

Freedom from slavery and forced labour;

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Right of detained persons to be treated with humanity;

Freedom from imprisonment for debt;

Freedom of movement and of choice of residence;

Freedom of aliens from arbitrary expulsion;

Right to recognition as a person before the law;

Right to fair trade;

Protection against retroactivity of criminal law;

Right to privacy;

Freedom of thought, conscience and religion;

Freedom of opinion and of expression;

Prohibition of propaganda for war and of incitement to national, racial or religious

hatred;

Right of assembly;

Right to marry and found a family;

Right of a child;

Political participation;

Equality before the law;

Rights of minorities.

The number of rights included in the ICCPR is more than in the UDHR. The ones not in

the UDHR but appear in the ICCPR are in Articles 10,11,20,24 and 27. On the other hand,

the right to property found under Article 17 of the UDHR is not included in the ICCPR.

State Obligations:

Part II of the Covenant (Articles 2-5) Provides for the obligations of the State Parties

regarding the implementation of the rights guaranteed therein. In particular, Article 2(1)

provides: “Each State Party to the present Covenant undertakes to respect and to ensure

to all individuals within the territory and subject to its jurisdiction the rights recognised in

the present Covenant, without distinction of any kind, such as race, colour, sex, language,

religion, political or other opinion, national or solid origin, property, birth, or other Status”.

Thus, the obligation immediately from the date of outcry into force of the Covenant for

the State Party, and ensure all rights, differs in significant ways from the corresponding

obligation in the ICESCR, where States Parties are merely required to take steps to the

27

maximum of available resources with a view to achieving progressively the full realization

of the rights in the ICESCR.

The obligation in Article 2(1) of the ICCPR is to respect and to ensure. The obligation to

respect indicates the negative characters of civil and political rights. States parties are

required to refrain from restricting the exercise of rights and freedoms. A duty of

forbearance is therefore imposed on States Parties and its extent depends on the

formulation of the particular right.

The obligation to ensure brings out the positive character of civil and political rights. It

means States Parties must make positive steps to give effect to the rights and freedoms in

the Covenant. It is a duty of performance and requires States Parties to adopt necessary

legislative and other measures and to provide an effective remedy to victims of human

rights violations. Another important aspect of the duty to perform is a safeguard certain

rights institutionally by way of procedural guarantees or the establishment of relevant legal

institutions.

Article 4 is another important provision in party II of the Covenant. The Article allows

States Parties to take measures derogating from their obligations under the Covenant in

times of public emergency which threatens the life of the nation. The public emergency

must be officially proclaimed and the measures taken should be to the effect strictly

required by the exigencies of the situation and must not be inconsistent with other

obligations under international law.

Article 4(2), however, stipulates that derogations are not allowed with respect to Articles

6(right to life), 7(prohibition of torture, cruel, inhuman or degrading treatment or

punishment), 8(1) and (2) (prohibition of slavery, slave trade and servitude),

11(prohibition of imprisonment on ground of inability to fulfill a contractual obligation),

15(retrospective application of the criminal law), 16 (recognition as a person before the

law) and 18(freedom of thought, conscience and religion).

Supervision Mechanisms:

The Covenant establishes the Human Rights Committee a body of independent experts,

for purposes of supervising the implementation of the Covenant. The committee, which

according to Article 39(2) adopts its own rules of procedure, supervises the

implementation of the Covenant by way of three Mechanisms:

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State Reporting Procedure (Article 40)

Inter-State Complaints Procedure (Articles 41 and 42)

Individual Complaints Procedure under the First Optional Protocol to the

Covenant.

First Optional Protocol (OP1)

The ICCPR has two Optional Protocols (that is, supplementary treaties) linked to it. The

First Optional Protocol (OP1) was adopted in 1966 and it also came into force in 1976. It

provides for an individual complaints mechanism for rights guaranteed in the ICCPR.

According to Article 1 of OP1, a State Party recognises the competence of the committee

to receive and consider communications from individuals subject to its jurisdiction who

claim to be victims of a violation by that State Party of the rights set forth in the Covenant.

A number of admissibility criteria are set out which the communication must fulfill.

Individuals who claim that any of their rights enumerated in the Covenant have been

violated must exhaust all available domestic remedies, unless the application of the

remedies is unreasonably prolonged.

Furthermore, the Committee will consider inadmissible any communication which is:

Anonymous (Article 3) and

Which is being examined under another procedure of international investigation or

settlement (Article 5(2) (a).

Under Article 12, a State Party may denounce the protocol at any time. Denunciation takes

effect three months after the date of receipt of notification by the Secretary General.

Denunciation is, however, without prejudice to the continued application of the provisions

of the Protocol to any Communication submitted before it became effective.

Zambia is a State Party to the Protocol.

Second Optional Protocol OP2)

The Second Optional Protocol (OP2) was, adopted by the UN General Assembly in 1989

and entered into force in 1990.

This Protocol aims at the abolishment of the death penalty in countries that ratify.

According to the Preamble, the State Parties note that Article 6 of the ICCPR (which

29

protects the right to life) refers to the abolition of the death penalty in terms that strongly

suggest that abolishing is desirable and that all measures of abolition of the death penalty

should be considered as progress in the enjoyment of the right to life.

According to Article 1 of the Second Protocol, no one within the jurisdiction of a State

Party shall be executed and each State Party must take all necessary measures to abolish

the death penalty within its jurisdiction.

No reservations are allowed under the Protocol “except for a reservation made at the time

of ratification or accession that provides for the application of the death penalty in time of

war pursuant to a conviction for a most serious crime of a military nature committed during

wartime”.

The Universal Declaration of Human Rights, the 1966 Covenants and the two Additional

Protocols are sometimes called the International Bill of Rights.

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CHAPTER FOUR

OTHER MAJOR INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

Chapter aim

To introduce students to other major international human rights instruments

Prescribed/recommended reading

Frans Viljoen, International Human Rights Law in Africa (Oxford,

Oxford University Press, 2007), chapters 2 and 3;

Colson Anyangwe, Introduction to Human Rights (Lusaka: University of

Zambia Press, 2005), chapter

International Covenant on the Elimination of All Forms of Racial

Discrimination 1965

The Convention on the Elimination of All Forms of Discrimination

Against Women 1979

Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment 1984

Convention on the Rights of the Child 1989

International Convention the Protection of the Rights of All Migrant

Workers and Members of their Families 1990

Convention on the Rights of Persons with Disabilities 2006

Apart from the International Bill of Human Rights as discussed above, the UN has adopted a

number of specialized human rights treaties. They are specialized in the sense that they focus

on a particular human rights issue or category of beneficiaries. These include the following:

31

THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS

OF RACIAL DISCRIMINATION (1965).

The International convention on the Elimination of All Forms of Racial Discrimination

(ICERD) was adopted in 1965 by the UN General Assembly. The Convention was preceded

by the Declaration on the Elimination of All Forms of Racial Discrimination in 1963.

The convention entered into force in 1969. Article 1(1) defines racial discrimination to mean:

…any distinction, exclusion, restriction, or performance based

on race, colour, descent, or national o ethnic origin which has the

purpose or effect of nullifying or impairing the recognition,

enjoyment or exercise, on an equal footing, of human rights and

fundamental freedoms in the political, economic, social, cultural

or any other field of public life.

Article 1(2) allows for certain distinctions to be made between citizens and non-citizens and

Article 1(4) gives further to indicate that a state can take special measures for the sole purpose

of securing adequate advancement of certain racial or ethnic groups or individuals requiring

such protection so that there is equal individuals requiring such protection so that there is equal

enjoyment of rights and freedoms guaranteed in the Convention. In doing so, a state must be

careful not to bring about the maintenance of separate rights for different racial groups. Once

the objective for which the special measures were taken is achieved, they should be

discontinued.

The obligations of State parties between Articles 2-7 could be summarized as:

Condemn racial discrimination, segregation and apartheid.

Prohibit the practice of racial discrimination by individuals or organisations.

Condemn all propaganda and organisations based on ideas or theories of superiority of

one race or group of persons of one color or ethnic origin and to declare such an offence

punishable by law.

To prohibit and eliminate racial discrimination and to promote equal treatment in the

enjoyment of civil and political rights as well as economic, culture, and social rights.

To assure to everyone within the jurisdiction effective protection and remedies.

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To undertake immediate and effective measures in teaching, education, culture, and

information, with a view to combating prejudices which lead to racial discrimination.

Supervisory Mechanisms

The ICERD provides for three supervisory procedures:

The state reporting procedure (Article 9)

The inter-state complaints procedure (Articles 11-13)

The individual complaints procedure (Article 14).

The Convention establishes the Committee on the Elimination of Racial Discrimination in

Article 8.

THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF

DISCRIMINSTION AGAINST WOMEN (1979)

It is a known fact that though the principle of non-discrimination, including on the grounds of

sex, is a cardinal principle of human rights law, women and girls still suffer some of the worst

discrimination the world over, especially in the social-economic sphere. Women like men, are

also entitled to the rights guaranteed in all the human rights documents articulated by the UN

and regional arrangements.

The UN recognised the necessity of a human rights regime that addresses women issues

directly and protects social-economic as well as civil and rights.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

was adopted in 1979. It was preceded by a declaration, the Declaration on the Elimination of

All forms of Discrimination against Women in 1967. The CEDAW is often described as the

international bill of rights for women.

Article 1 of the Women’s Convention defines discrimination against women as:

33

,,,any distinction, exclusion or restriction made on the basis of

sex which has no effect or purpose of impairing or nullifying the

recognition, enjoyment or exercise by women, irrespective of

their marital status on a basis of equality of men and women, of

human rights and fundamental freedoms in the political,

economic social, cultural, civil or any other field.

State Obligations

The main obligation of the States Parties under the Women’s Convention is, of course, to afford

equal treatment to women and men. In this regard, States Parties undertake, inter allia:

To embody the principle of equality of men and women in their domestic

legislation

To establish legal protection of the rights of women on an equal basis with men

To eliminate all discrimination against women

To modify or abolish exiting national legislation and practices which constitute

discrimination against women

To eliminate discrimination in the enjoyment of civil and political rights as well

as economic, social and cultural rights, so that women are ensured equal rights

with men

To accord women equality with men before the law, including affording women

a legal capacity identical to that of men

To eliminate discrimination against women in all matters relating to marriage

and property

Supervisory Mechanisms

For the purpose of considering the progress made in the implementation of the CEDAW

by states parties, the Committee on the Elimination of Discrimination against Women

is established in Article 17 of the Convention and is composed of independent experts

competent in women’s right’s issues.

OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF

ALL FORMS OF DISCRIMINATION AGAINST WOMEN (1999)

In 1999, the UN General Assembly adopted the Optional Protocol to the Convention

on the Elimination of Discrimination against Women. A State that ratifies or accedes

34

to the Optional Protocol recognizes the competence of the Committee to receive and

consider communications (Article 1) submitted by or on behalf of individuals or groups

of individuals, under its jurisdiction, claiming to be victims of a violation of any of the

rights set forth in the Convention (Article 2).

Admissibility

Article 3, requires the communication to be in writing and that it should not be

anonymous

Article 4(1) of the Protocol stipulates that all available remedies should be exhausted

unless the application of such remedies should be exhausted unless the application of

such remedies is unreasonably prolonged or unlikely to bring effective relief.

Article 4(2) gives the Committee power to declare a communication inadmissible if

a) The same matter must not already have been examined by the Committee or

has been or is being examined under another procedure of international

investigation or

b) It is incomplete with the provisions of the Convention;

c) It is manifestly ill-founded or not sufficiently substantiated;

d) It is an abuse of the right to submit a communication;

e) The facts that are the subject of the communication occurred prior to the

entry into force of the protocol for the State party concerned unless those

facts continued after that date.

Inquiry Procedure

Other than the individual communications procedure, the Protocol to CEDAW also establishes

a confidential inquiry procedure. Under Article 8, the Committee may institute an inquiry,

including a visit to the territory of the State party concerned, if it receives reliable information

indicating grave or systematic violations. The Committee transmits its findings to the State

party concerned, together with any comments and recommendations.

It is important to note that it is possible for a State to opt-out of this inquiry procedure by

making a declaration at the time of ratification or accession that it does not recognise the

competence of the Committee to invoke the procedure with respect to, (Article 10(1)). The

35

declaration can be withdrawn later at any time by notification to the Secretary General of the

UN.

Other notable provisions in the Protocol include the obligation imposed on states parties to:

“Take all appropriate steps to ensure that individuals under its jurisdiction are not

subjected to ill treatment or intimidation as a consequence of communicating with the

Committee pursuant to the present Protocol.”

Article 13 also obligates each State party to make widely known and to give publicity

to the Convention and the Protocol and to facilitate access to information about the

views and recommendations of the Committee on matters involving that State party.

Reservations are not permitted under the Protocol although, by written notification to the

Secretary General, any State party may denounce the Protocol but without prejudice to its

continued application with respect to communications submitted or any inquiry initiated before

denunciation takes effect.

THE CONVENTION AGAINST TORTURE AND OTHER CRUIEL INHUMAN

OR DEGRADING TREATMENT OF PUNISHMENT (1984)

The CAT was adopted on 10 December 1984. The convention was preceded and inspired by

the 1975 UN Declaration on the Protection of All Persons from Being Subjected to Torture and

Other Cruel, Inhuman or degrading treatment or Punishment.

The adoption of CAT took place despite the fact that torture, cruel, inhuman or degrading

treatment or punishment were already prohibited in absolute terms in both universal and

regional instruments due to “ a general feeling that a special instrument prohibiting torture and

inhuman or degrading treatment or punishment was needed, because the general human rights

instruments had proven incapable of completely eradicating human rights violations”.

The Convention, which came into force in 1987, defines torture in Article 1 as:

…any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person for such purposes as obtaining from him or a

36

third person information or a confession, punishing him for an act he or a third

person has committed, or is suspected of having committed or intimidating or

coercing him or a third person, or for any reason based on discrimination of any

kind, when such pain or suffering is inflicted by or at the instigation of or with

the consent or acquiescence of a public official or other person acting in an

official capacity.

State Obligations

Articles 4-16 describe the obligations of the State parties. These are:

To prohibit torture

Not to send persons to places where they risk being tortured

To punish torturers

To educate

To rehabilitate the tortured

To control the tortured

To control the system of interrogation and detention

To report to the committee

Implementation Mechanism

The Committee against Torture, established under Article 17, is the body of

independent experts charged with the responsibility of supervising States parties’

adherence to their obligations under the Convention.

The Convention provides for four (4) procedures:

1. Mandatory reporting procedure (Article 19);

2. Optional inquiry procedure (Article 20);

3. Optional inter-state complaints procedure (Article 21); and,

4. Optional individual complaints procedure (Article 22). (South Africa is the

only one on record as having accepted the individual complaints procedure

under Article 22 of the Convention).

OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TROTURE AND

OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR

PUNISHMENT (2002)

37

The OP-CAT was adopted in December 2002. In the Preamble the States parties, among

other things:

- Convinced that further measures are necessary to achieve the purposes of the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment and to strengthen the protection of persons deprived of their

liberty against torture and other cruel, inhuman or degrading treatment or

punishment

- Recalled States parties undertaking under the Convention against Torture to

take effective measures to prevent acts of torture under their jurisdiction

I. The Objective

To establish a system of regular visits undertaken by independent international and national

bodies to places where people are deprived of their liberty, in order to prevent torture and other

cruel inhuman or degrading treatment or punishment (Article 1)

II. The Subcommittee

Established in Article 2 to supervise implementation of protocol

The subcommittee has the following mandate under Article 11 of the Protocol:

- To visit places were persons deprived of their liberty are being held with a view to

strengthening the protection of these persons against torture and other cruel , inhuman

or degrading treatment or punishment;

- To advise State parties on the establishment of national preventive mechanisms;

- To maintain direct contact with the national preventive mechanisms and offer them

training and technical assistance with a view to strengthening their capacities;

- To advise and assist national preventive mechanisms in the evaluation of the needs and

the means necessary to strengthen the protection of persons deprived of their liberty;

- To make recommendations and observations to States parties with a view to

strengthening the capacity and mandate of national preventive mechanisms

- To cooperate with other United Nations organs and mechanisms and other

international, regional and national institutions working towards the strengthening of

the protection of persons against torture.

States Parties Obligations

38

Each State party must set up, designate or maintain at the domestic level one or several

visiting bodies for the prevention of torture (Article 3 and Part IV)

States parties shall allow visits to any place under their jurisdiction and control where

persons are or may be deprived of their liberty (Article 4)

Not to punish or tolerate the punishment of any person or organisation for having

communicated to the Subcommittee any information (Article 15)

III. Declaration under Article 24

Upon ratification a State Party may make a declaration postponing the implementation of its

obligations under either Part III or IV of the protocol.

THE CONVENTION ON THE RIGHTS OF THE CHILD

The convention on the Rights of the Child (CRC) was opened for signature on 20 November

1989, exactly 30 years after the adoption of the Declaration on the Rights of the Child (DRC).

It has a near-universal record of ratification/accession with 192 State Parties. Only USA and

Somalia are not Parties.

Why Children’s Rights?

The office of the UN High Commissioner for Human Rights puts down the following points:

1. Children are individuals- they have equal status with adults as members of the

human family. They are neither possessions of parents, products of the State, nor

people-in-the-making. Governments have a moral responsibility to recognise the

human rights of children as individual citizens at all levels of society.

2. The healthy and active participation of children are uniquely crucial to the

optimum development of any society.

3. Children grow towards independence only with the help of adults, parents and

families first. And children’s dependence and their developmental state make them

particularly vulnerable- they are more sensitive than adults to the conditions under

which they live: poverty, poor housing, environmental pollution, etc.

4. Children are more affected by the action of government than any other group.

Education policies dominate their working hours, public health policies target their

39

developing bodies and lifestyles. And almost every area of government policy

affects children to some degree, either directly or indirectly.

5. Children generally have no vote and no part in political process.

6. It is costly to fail children. Governments are fully aware from research findings

that what happens to children in the early years, within the family and within other

forms of care, significantly determine their positive or negative growth and

development. This in turn, determines their cost or contribution to society spread

over the rest of their lives.

Who is a child?

For purposes of the Convention, a child means every human being below the age of 18 years

unless, under the law applicable to thee child, majority is attained earlier. Sharon Detrick notes

that:

…the need was felt for some flexibility, considering that the age of eighteen years is

not necessarily consonant with the age of majority in various countries, and that the

application of the rights recognised in the CRC to a person who is no longer a minor

could be incompatible with his or her legal status. It was therefore decided to qualify

the upper age limit of eighteen years by the earlier attainment of majority under the law

applicable to the child.(Sharon Detrick, A Commentary on the United Nations

Convention on the Rights of the Child, Martinus Nijhoff Publishers, at p. 52-53).

Compare similar provisions elsewhere:

Article 2 of the African Charter on the Rights and Welfare of the Child, adopted at

Addis Ababa on 11 July 1990, says for the purposes of the Charter, a child means

every human being below the age of 18 years.

Article 1(1) of the European Convention on the Exercise of Children’s Rights,

adopted at Strasbourg on 25 January 1996, provides that the Convention shall apply

to children who have not reached the age of 18 years.

In its General Comment on Article 24 of the International Covenant on Civil and Political

Rights, which obligates States Parties to adopt special measures of protection for children

because of their status as minors, the Human Rights Committee, noting that the Covenant does

not indicate the age at which a child attains majority, stated to the effect that the age of majority

is to be determined by each State Party in the light of the relevant social and cultural conditions.

40

State Parties should indicate in their reports and the age at which the child attains his majority

in civil matters and assumes criminal responsibility; at what age a child is legally entitled to

work and the age at which he is treated as an adult under labour law; and, the age at which a

child is considered an adult for purposes of Article 10, paragraphs 2 and 3. The committee,

however, restricted the discretion of the States Parties in this regard by further stating that:

“However, the committee notes that the age above purposes should not be

unreasonably low and that in any case a State party cannot absolve itself

from its obligations under the Covenant regarding persons under the age

of 18, notwithstanding that they have reached the age of majority under

domestic law.”

Rights Protected

The CRC economic, social, cultural, civil and political rights, thus highlighting the

indivisible and inter-dependent nature of human rights. These include:

Prohibition against discrimination;

The rights and duties of parents and guardians to provide appropriate

direction and guidance in the exercise by the child of the rights

recognised in the Convention;

The child’s right to life;

The right to be registered immediately after birth, to a name and

nationality;

The right of the child to preserve his/her identity, including nationality,

name and family relations;

The right of the child not to be separated from its parents against his/her

will, except when competent authorities subject to judicial review

determine that such separation is necessary for the best interests of the

child;

The prohibition n of illicit transfer and non-return of children abroad;

The duty of States to assure to the child who uis capable of forming his

or her own views the right to express those views freely in all matters

affecting the child, the views of the child being given due weight in

accordance with the age and maturity of the child;

Freedom of expression, thought, religion and conscience;

41

Freedom of assembly and association;

The right to privacy;

Freedom from physical or mental violence, injury or abuse, neglect or

negligent treatment, maltreatment or exploitation, including sexual

abuse, while in the care of parents, legal guardians or any other person

who has the care of the child;

The right of children with disabilities to be accorded special care and

attention and to enjoy a full and decent life, in conditions which ensure

dignity, promote self-reliance and facilitate the child’s active

participation in the community;

The right to enjoy the highest attainable standard of health;

The right to education;

The right to a fair trial and to the presumption of innocence.

Part II of the CRC provides for the establishment of a ten member Committee on the

Rights of the Child. The main task of the Committee is to examine reports from

States Parties to the CRC on the measures they have adopted which give effect to

the rights recognised in the Convention.

The Conventions General Principles

According to the General Guidelines regarding the Form and Contents of Periodic

Reports to be submitted by States Parties under Article 44 paragraph 1(b) of the

Convention, the CRC revolves around four general principles: non-discrimination,

the best interests of the child principle, the right to life, survival and development

and respect for the views of the child.

a) Non-discrimination

In terms of Article 2 of the CRC, all children should enjoy their rights without

discrimination based on any ground. The principle of non-discrimination is a basic

norm of human rights law and virtually every human rights instrument expressly

prohibits discrimination based on any ground.

b) The Best Interests Principle

42

Central to the implementation of the CRC is the best interests of the child’ principle.

Article 3(1) provides that:

In all actions concerning children, whether undertaken by public or

private social welfare institutions, courts of law, administrative

authorities or legislative bodies, the best interests of the child shall be a

primary consideration.

Within the CRC the phrase ‘the best interests of the child’ appears in relation to

separation of the child from the family setting (Art. 9); with reference to parental

responsibility for the upbringing and development of the child (Art. 18); in relation

to adoption (Art. 37 and 40),

Compare with other treaties:

Article 5(b) of the Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW) reads:

States Parties shall take all appropriate measures:

To ensure that family education includes a proper understanding of maternity as a

social function and the recognition of the common responsibility of men and women

in the upbringing and development of their children, it being understood that the best

interest of the child is the primordial consideration in all cases.

Article 16(1)(d) of CEDAW provides:

States Parties shall take all appropriate measures to eliminate discrimination against

women in all matters relating to marriage and family relations and in particular shall

ensure, on a basis of equality of men and women:

….

The same rights and responsibilities as parents, irrespective of their marital status,

in matters relating to their children; in all cases the interests of the children shall be

paramount.

The Declaration on Social and Legal Principles Relating to th Protection and

Welfare of Children, with Special Reference to Foster Placement and

43

adoption Nationally and Internationally of 3 December 1986, provides in

Art.5 that:

In all matters relating to the placement of a child outside the care of the child’s own

parents, the best interests of the child, particularly his or her need for affection and

right to security and continuing care, should be the paramount consideration.

The African Charter on the Rights and Welfare of the Child adopted by the

Organisation of African Unity at its Twenty- Sixth Session of the Assembly

of Heads of State and Government held in Addis Ababa on 11 July 1990,

also has a specific provision on the best interests of the child’. Article IV(1)

reads:

In all actions concerning the child undertaken by any person or authority the best interests of

the child shall be the primary consideration.

At the Second World Conference on Human Rights held in Vienna in 1993,

representatives of 171 states proclaimed:

…In all actions concerning children non-discrimination and the best interests of the child

should be primary considerations and the views of the child given due weight…

c) The Right to Life, Survival and Development

Article 6 of the CRC states:

1. States Parties recognise that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and

development of the child.

d) Respect for the views of the child

Article 12 of the CRC provides that:

1. … State Parties shall assure to the child who is capable of forming his or her own views

the right to express those views freely in all matters affecting the child, the views of the

child age and maturity of the child.

2. …For this purpose, the child shall in particular be provided the opportunity to be heard

in any administrative proceedings affecting the child, either directly, or through a

representative or an appropriate body, in a manner consistent with the procedural rules

of national law.

44

THE OPTIONAL PROTOCOLS TO THE CONVENTION ON THE RIGHTS OF THE

CHILD.

In May 2000, the UN General Assembly adopted the Optional Protocols to the CRC: the

Optional Protocols to the Convention on the Rights of the Child on the Sale of Children, Child

Prostitution and Child Pornography (hereafter the CPR-OP-SC) and the Optional Protocol to

the Convention on the Rights of the Child on the Involvement of Children in Armed conflicts

(hereafter the CRC-OP-AC).

The CRC-OP-SC, which came into force on 18 January, 2002, was the result of grave concern

by the international community “at the significant and increasing international traffic in

children for the purpose of the sale, of children, child prostitution and child pornography “and

deep concern” at the widespread and continuing practice of sex tourism, to which children are

especially vulnerable….” Article 1 of the Protocol obligates State Parties to prohibit the sale

of Children, child prostitution, and child pornography.

For purposes of the protocol, Article 2 defines the three concepts as:

a) Sale of children means any act or transaction whereby a child is transferred

by any person or group of persons to another for remuneration or any other

consideration;

b) Child prostitution means the use of a child in sexual activities for

remuneration or any other consideration;

c) Child pornography means any representation, by whatever means, of a child

engaged in real or stimulated explicit sexual activities or any representation

of the sexual parts of a child for primarily sexual purposes.

The basis of the CRC-OP-AC is a reaffirmation that the rights of children require special

protection and the international community being “distributed by the harmful and widespread

impart of armed conflict on children and the long-term consequences it has for durable peace,

security and development”.

According to Article 1, States parties must take all feasible measures to ensure that members

of their armed forces who have not attained the age of 18 years do not directly take part in the

hostilities.

Under Article 2, States parties shall ensure that persons who have not attained the age of 18 are

not compulsorily recruited into the armed forces.

45

INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF

ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES (1990)

The CMW was adopted in December 1990 and entered into force on 1 July 2003. As at 3 June

2005, there were 29 States Parties.

Preamble

Takes into account and recalls principles and standards set forth in basic instruments of the UN

concerning human rights, and also principles and standards set forth in the relevant instruments

elaborated within the frame work of the ILO.

Considered the vulnerability of migrant workers and their families owing, among other things,

to their absence from their state of origin and to the difficulties they may encounter arising

from their presence in the st6ate of employment.

Structure and content

CMW is divided into 9 parts with 93 provisions

Part I: Scope and Definitions

Part II: Non-discrimination with respect to rights

Parts III, IV, and V: Human Rights of Migrant Workers

-Re-states all the guaranteed rights and freedoms of every person

-Particular attention to Articles 8, 22, 23, 29 and 30 (children), 32, 33, 34, 41, 47, 50.

Implementation mechanisms

Establishes Committee of experts in Article 72 and has State reporting procedure (Article 73),

individual communications (Article 77, optional) and inter-state communications (Article 76,

optional)

CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES 2006

The Convention on the Rights of Persons with Disabilities was adopted in 2006 and entered

into force in 2008. It is the most comprehensive treaty dealing with rights of persons with

disabilities (PWDs) and spells out clearly and unconditionally that persons with disabilities

have equal access and a right to full and effective enjoyment of all human rights.

The purpose of the treaty is stated under Article 1: “The purpose of the present Convention is

to promote, protect and ensure the full and equal enjoyment of all human rights and

fundamental freedoms by all persons with disabilities, and to promote respect for their inherent

dignity.

46

Persons with disabilities include those who have long-term physical, mental, intellectual or

sensory impairments, which in interaction with various barriers may hinder their full and

effective participation in society on an equal basis with others.”

General Principles

The Convention contains key principles that permeate the whole treaty. These are found under

Article 3 and include:

Respect for inherent dignity, individual autonomy including the freedom to

make one’s own choices, and independence of persons;

Non-discrimination;

Full and effective participation and inclusion in society;

Respect for difference and acceptance of persons with disabilities as part of

human diversity and humanity;

Equality of opportunity;

Accessibility;

Equality between men and women;

Respect for the evolving capacities of children with disabilities and respect for

the right of children with disabilities to preserve their identities.

General Obligations

Article 4 lists the general obligations of states parties. These are:

1. States Parties undertake to ensure and promote the full realization of all human rights

and fundamental freedoms for all persons with disabilities without discrimination of

any kind on the basis of disability. To this end, States Parties undertake:

(a) To adopt all appropriate legislative, administrative and other measures for the

implementation of the rights recognized in the present Convention;

(b) To take all appropriate measures, including legislation, to modify or abolish existing

laws, regulations, customs and practices that constitute discrimination against persons

with disabilities;

(c) To take into account the protection and promotion of the human rights of persons

with disabilities in all policies and programmes;

(d) To refrain from engaging in any act or practice that is inconsistent with the present

Convention and to ensure that public authorities and institutions act in conformity with

the present Convention;

(e) To take all appropriate measures to eliminate discrimination on the basis of

disability by any person, organization or private enterprise;

(f) To undertake or promote research and development of universally designed goods,

services, equipment and facilities, as defined in article 2 of the present Convention,

which should require the minimum possible adaptation and the least cost to meet the

specific needs of a person with disabilities, to promote their availability and use, and to

promote universal design in the development of standards and guidelines;

(g) To undertake or promote research and development of, and to promote the

availability and use of new technologies, including information and communications

technologies, mobility aids, devices and assistive technologies, suitable for persons

with disabilities, giving priority to technologies at an affordable cost;

(h) To provide accessible information to persons with disabilities about mobility aids,

devices and assistive technologies, including new technologies, as well as other forms

of assistance, support services and facilities;

47

(i) To promote the training of professionals and staff working with persons with

disabilities in the rights recognized in this Convention so as to better provide the

assistance and services guaranteed by those rights.

2. With regard to economic, social and cultural rights, each State Party undertakes to

take measures to the maximum of its available resources and, where needed, within the

framework of international cooperation, with a view to achieving progressively the full

realization of these rights, without prejudice to those obligations contained in the

present Convention that are immediately applicable according to international law.

3. In the development and implementation of legislation and policies to implement the

present Convention, and in other decision-making processes concerning issues relating

to persons with disabilities, States Parties shall closely consult with and actively involve

persons with disabilities, including children with disabilities, through their

representative organizations.

Overview of Rights

The rights provided for include the following:

-Equality and non-discrimination (Article 5)

-special measures for women with disabilities (article 6)

-special measures for children with disabilities (article 7)

-duty of state to raise awareness about rights of PWDs (article 8)

-Rights of PWDs to access public places (article 9)

-Right to life (article 10)

-Protection of PWDs in risk situations (article 11)

-Equal recognition before the law (article 12)

-Access to justice (article 13)

-liberty and security of person (article 14)

-Freedom from torture or cruel, inhuman or degrading treatment or punishment (article

15)

-Freedom from exploitation, violence and abuse (article 16)

-Protecting the integrity of the person (article 17)

-Freedom of movement and nationality (article 18)

-Right to live independently and to be included in the community (article 19)

-Personal mobility (article 20)

-Freedom of expression and opinion, and access to information (article 21)

-Respect for privacy (article 22)

-Respect for home and family (article 23)

-Right to education (article 24)

-Right to health (article 25)

-Habilitation and rehabilitation (article 26)

-Right to work (article 27)

-Right to an adequate standard of living and social protection (article 28)

-Right to participate in political and public life (article 29)

-Right to participate in cultural life, recreation, leisure and sport (article 30)

48

Monitoring and Enforcement

Article 34 creates the Committee on the Rights of Persons with Disabilities, consisting of 12

experts serving in individual capacity. The Committee is responsible for monitoring treaty

implementation in member states.

49

CHAPTER FIVE

MONITORING AND ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS

Chapter aim

To introduce students to the supervisory and enforcement mechanisms for the

international human rights system

Prescribed/recommended reading

Frans Viljoen, International Human Rights Law in Africa (Oxford,

Oxford University Press, 2007), chapter 3;

Colson Anyangwe, Introduction to Human Rights (Lusaka: University of

Zambia Press, 2005), chapter

UN Manual on Human Rights Reporting 1997

NON-CONVENTIONAL/CHARTER-BASED MECHANISMS

a) The 1503 Procedure: ECOSOC Resolution 1503 (1970) authorized the sub-

Commission on Discrimination and Protection of Minorities to appoint a working

group (the Working Group on Communications) to consider all communications

receive by the UN “with a view to bringing to the attention of the Sub- Commission

those communications, together with replies of governments, if any, which appear to

reveal a consistent pattern of gross and reliably attested violations of human rights and

fundamental freedoms, “Under the 1503 Procedure, the deliberations of the WG which

makes recommendations to the Sub-Commission, the deliberations of the Sub-

Commission which makes recommendations to the CHR, and the deliberations of the

CHR, which makes recommendations to ECOSOC are all confidential. The

admissibility conditions are:

i. The aim of the communication must not be inconsistent with the principles of

the UN Charter, the UDHR or other applicable human treaties, Conventions,

etc.;

ii. Consideration of the communication must show reasonable grounds, taking

into account replies from concerned governments, that there is a consistent

50

pattern of gross and reliably attested violations of human rights and

fundamental freedoms;

iii. Communications may be admitted when they come from people or individuals

or groups who claim to be victims of human rights violations. They may also

be admitted when they come from any person or group that has direct, reliable

knowledge of violations. When NGO’s present communications on violations,

the conditions are that the NGO is acting in good faith in accordance with

recognised principles of human rights, and that it has direct, reliable evidence

of the situation it is describing;

iv. Each communication must describe the facts, the purpose of the petition and

the rights violated. A communication will not be considered if the language is

abusive or if it contains insulting remarks about the State against which the

complaint is directed;

v. Anonymous communications are admissible as are those based only on reports

in mass media;

vi. The communication must not show political motivations;

vii. The domestic remedies must have been exhausted before a communication is

considered, unless it can be shown convincingly that solutions at national level

would be ineffective or that they would extend over an unreasonable length o

time.

b) The 1235 Procedure: In 1967 the ECOSOC adopted Resolution 1235 in which it

approved the CHR’s decision to give annual consideration to an item entitled

“Questions of the violation of human rights and fundamental freedoms, including

policies of racial discrimination and segregation and of apartheid, in all countries, with

particular reference to colonial and other dependent countries and territories”. The 1235

Procedure is pubic and can be initiated by a member state, group of states or the Sub-

Commission. Through this procedure the CHR may investigate particular countries or

particular issues. Examples:

Country-based

Add Hoc Working Group Experts on the situation of human rights in Southern

Africa

Special Committee to investigate Israel practices in the Occupied Territories

Ad Hoc Working Group on the situation of human rights in Chile

Special Rapporteur on the situation of human rights in Equatorial Guinea

51

Thematic Studies

Enforced and Involuntary Disappearances

Mass Exoduses

Summary executions

Torture

Indigenous populations

Slavery

Religious intolerance and discrimination.

1. CONVENTIONAL/TREATY-BASED MECHANISMS

These are mechanisms established by treaties or conventions. They are implemented through

treaty bodies established in the respective treaties. Under the UN system there are currently six

treaty bodies:

Human Rights Committee (ICCPR)

Committee on Economic, Social, and Cultural Rights (ICESCR)

Committee Against Torture (CAT)

Committee on the Elimination of Discrimination Against Women (CEDAW)

Committee on the Rights of the Child

Committee on the Elimination of Racial Discrimination (ICERD)

Committee on the Protection of the Rights of All Migrant Workers and Members of

their Families (CMW)

a. State Reporting Procedure

In practically every major international human rights treaty, States Parties are required

to submit periodic reports on the legislative, judicial and other measures they have taken

to give effect to the rights recognised or guaranteed in the particular treaty’ The periods

vary and range from 3 to 5 years.

The procedure is now provided for under the following treaty provisions:

Article 9 ICERD (1965)

Article 16 ICESCR (1966)

Article 40 ICCPR (1966)

Article 18 CEDAW (1979)

Article 19 CAT (1984)

Article 44 CRC (1989)

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Article 73 CMW (1990)

The process is supposed to be conducted in the form of a constructive dialogue. The

UN MANUAL ON HUMAN RIGHTS REPORTING states:

Reporting in not something that is imposed upon an unwilling State, nor is it something

designed as an adversarial process. Rather it is premised on the assumptions first that every

State is an actual or potential violator of human rights (no matter how good its intentions

might be) and second, that a degree of routine international accountability is in the best

interests of the State itself, of its citizens, and of the international community ( see UN

MANUAL ON HUMAN RIGHTS REPORTING (1997))

Objectives of State Reporting

The process of State reporting is aimed at achieving a number of objectives. The UN Manual

on Human Rights Reporting states that the process should “be considered to be an integral part

of a continuing process designated to promote and enhance respect for human rights rather than

an isolated event absorbing precious bureaucratic resources solely to satisfy the requirements

of an international treaty”. For the State, reporting is an opportunity:

To reaffirm a government’s commitment to respect the human rights of its own

citizens and to reassert that commitment in the domestic political forum;

For domestic stock-taking and for the adoption of measures to remedy any

shortcomings which have been identified; and;

To proclaim to the international community that the government is serious about its

international commitments.

States are encouraged to consider reporting as an invest ment rather than an

unproductive expenditure and to integrate it into domestic policy-making arrangements.

The Functions Served by State Reporting

The functions of State reporting were detailed in General Comment 1 (1989) of the

Committee on Economic, Social and Cultural Rights which monitors the ICESCR. The

Committee cited the following seven functions of State reporting:

The Initial Review Function

53

To ensure that a comprehensive review is undertaken with respect to national

legislation, administrative rules and procedures, and practices in an effort to ensure that

the fullest possible conformity with the instrument;

“Either before, or immediately after, a State becomes a party to an international treaty

it is expected to review its domestic law and practice to ensure that it is in compliance

with the obligations contained in the treaty. Even where this has been done prior to

ratification, the obligation to submit an initial report to the relevant treaty body provides

the State Party with the occasion to undertake a comprehensive review of national

legislation, administrative rules and procedures, and practices in order to ensure the

fullest possible conformity with the provisions of the treaty”.

The Monitoring Function

To ensure that the state party monitors the actual situation with respect to each of the

rights on a regular basis and is thus aware of the extent to which the various rights are,

or are not, being enjoyed by all individuals within its territory or under its jurisdiction;

It is not enough to just state the legislative provisions relating to the issues raised in the

treaty obligations. Reports must strike a balance between the situation in theory and

that in practice. A detailed and soundly based review of current developments is

required. Accordingly, a pre-condition for effective reporting is the existence of an

adequate system for monitoring the situation with respect to each of the rights on a

regular basis. Monitoring is a first step towards identifying and subsequently remedying

any human rights problems that might exist.

The Policy Formulation Function

To provide the basis for the elaboration of clearly stated and carefully targeted policies,

including the establishment of priorities which reflect the provisions of the treaty and

to enable the Government demonstrate that such principled policy-making has in fact

been undertaken;

Some human rights problems require the formulation of a long term set of policies

designed to ensure full and lasting compliance with treaty obligations. The reporting

process can thus act as a catalyst to the formulation of carefully tailored policies

designed to respond to the problems that have been identified.

The Public Scrutiny Function

54

To facilitate public scrutiny of government policies with respect to human

rights and to encourage the involvement of the various sectors of society in

the formulation, implementation and review of the relevant policies;

It is important to remember that human rights treaties seek to promote and

enhance not only a government’s international accountability to its own

citizens. The preparation of a report, therefore, provides an important

occasion for consultation of the appropriate social, economic, cultural, and

other sectors of society. In this regard, the participation of such groups as

non-governmental organisations, community-based organisations, and civil

society in general provides an opportunity for the public to scrutinize the

performance of their government.

The Evaluation Function

To provide a basis on which the State party itself, as well as the treaty body, can

effectively evaluate the extent to which progress has been made towards the realization

of obligations contained in the treaty;

The obligation to prepare successive periodic reports at intervals provides an ideal

opportunity for evaluating progress achieved over time. Thus, States can use the process

assess progress between successive reports.

The Function of Acknowledging Problems

To enable the State party itself to develop a better understanding of the problems and

shortcomings encountered in efforts to realize progressively the full range of human

rights;

A look at the various provisions in the treaties on State reporting reveals the fact States

are also expected to outline in detail any “factors and difficulties” encountered in the

realization of the rights guaranteed under the treaties. A government must, therefore,

take its reporting obligations seriously and report in good faith, without hiding any

important details.

The Information Exchange Function

To enable the committee, and the State3s parties as a whole, to facilitate the exchange

of information among States and to develop a better understanding of the common

55

problems faced by States and fuller appreciation of the type of measures which might

be taken to promote effective realization of each of the rights contained in the treaty.

The reports the committees receive from the State parties serve to give them a better

feel for the types of issues that governments typically encounter and to distil the wisdom

of that collective experience into advice, which is made available to all interested

parties. Information exchange provides the essential foundation on the basis of which

General Comments are made and elaborated on by the treaty bodies.

b. Individual Petitions Procedure: This procedure allows individuals to bring

complaints to treaty bodies alleging violation of human rights.

It is provided for in:

Article 14 of ICERD

First Optional Protocol to the ICCPR

Article 22 of CAT

CEDAW-OP

Article 77 CMW.

The ICESCR and the CRC do not provide for this procedure. Generally, the

complainant must fulfil the following admissibility conditions;

The individual must first exhaust local or domestic remedies available in the

State concerned unless:

i. There is no legal process in that country to protect the rights alleged to have been

violated;

ii. Access to remedies through the local courts has been denied or prevented;

iii. There has been an unreasonable delay locally in hearing the complaint;

iv. A consistent pattern of gross violations of human rights makes any prospect of

remedies meaningless;

v. The remedies are unlikely to bring effective relief to the victim.

The communication must not be anonymous or abusive;

The communication must allege violations of rights stipulated in the treaty which the

committee oversees;

The communication must come from an individual who lives under the jurisdiction of

State which is party to the particular treaty;

The communication must not be under current or past investigation in another

international procedure;

56

The allegations set out in the communication must be substantiated

c) Inter-state Complaints Procedure

The inter-state procedure allows a state party to complain that another State party has

violated or is not fulfilling its obligations under a particular treaty.

It is provided for under:

Articles 11-13 of ICERD

Articles 41 and 42 of ICCPR

Article 21 of CAT

Article 76 of CMW

Both the complaining State and the State complained against must be parties to the

treaty concerned and (in the case of Arts. 41 ICCPR and 21 of CAT) both should have

declared acceptance of the competence of the Committee in charge of the

implementation of the treaty to receive and consider such complaints.

The procedure is provided for in various formulations. Generally, the procedure is as

follows:

The complaining State brings the matter to the attention of the receiving State (or

in the case of the ICERDD, to the attention of the Committee);

The receiving State is given some time (usually 6 months) within which to respond

and clarify the matter, including the remedies, if any, taken (in the case of Art. 11

of ICERD, the Committee Communicates to the receiving State requesting it to

clarify the matter);

If the matter is not adjusted to the satisfaction of both parties, either State has the

right to bring the matter to the Committee;

The Committee will not deal with the matter unless all available domestic remedies

have been exhausted, unless such remedies will be unreasonably prolonged;

The Committee may call upon the parties then appoints an ad hoc Conciliation

Commission. The parties have a say in the composition of the Commission;

After full consideration of the matter, the Commission prepares a report on the

findings on all questions of fact and recommendations and transmits the same to the

Committee which in turn, transmits it to the parties;

Each party is expected to communicate back to the Committee whether or not it

accepts the recommendations.

57

d) Inquiry Procedure

As discussed under CEDAW-OP and CAT Article 20 above.

58

CHAPTER SIX

REGIONAL HUMAN RIGHTS SYSTEMS: AN OVERVIEW

Chapter aim

To introduce students to three principal regional human rights systems (European,

Inter-American and Africa)

Prescribed/recommended reading

Frans Viljoen, International Human Rights Law in Africa (Oxford,

Oxford University Press, 2007), chapters 4-13

Colson Anyangwe, Introduction to Human Rights (Lusaka: University of

Zambia Press, 2005), chapter

European Convention for the Protection of Human and Fundamental

Freedoms 1950

American Convention on Human Rights 1969

African Charter on Human and Peoples’ Rights 1981

The European Convention System

The European Convention for the Protection of Human Rights and Fundamental Freedoms

(ECHR) was signed in 1950 and entered into force in 1953. The Convention was elaborated

under the Council of Europe. The Council of Europe was established in 1949 by a group of ten

states, primarily to promote democracy, the rule of law, and greater unity among the nations of

Western Europe. It represented both a principled commitment of its members to these values

and an ideological stance against Communism. Over the years its activities have included the

promotion of cooperation in relation to social, cultural, sporting, and a range of other matters.

The ECHR is of particular importance within the context of international human rights for

several reasons:

It was the first comprehensive enforceable treaty in the world in this field;

It established the first international complaints procedure and the first international

court for the determination of human rights;

It remains the most judicially developed of all the human rights systems; and

It has generated more extensive jurisprudence than any other part of the international

system.

The impetus for the adoption of a European Convention came from three factors. It was first a

regional response to the atrocities committed in Europe during the WWII and an affirmation of

the belief that governments respecting human rights are less likely to wage war on their

neighbors. Second, both the Council of Europe, which was set up in 1949 (and under whose

59

auspices the Convention was adopted) and the European Union (previously the European

Community or Communities, the first of which was established in 1952) were partly based on

the assumption that the best way to ensure that Germany would be a force for peace in

partnership with France, the United Kingdom, and other Western European states, was through

regional integration and the institutionalization of common values. Thus the preamble to the

European Convention refers to the “European countries which are likeminded and have a

common heritage of political traditions, ideals, freedom and the rule of law…”

The ECHR provides for both individual petitions(Article 34) and interstate complaints (Article

33). The latter are rare, but the opportunity continues to be significant. In contrast, the former,

which may be brought by individuals, legal persons (such as corporations), groups of

individuals, or nongovernmental organizations, have grown exponentially in numerical terms.

The Convention makes it clear that the primary responsibility for implementation rests with the

member states themselves. The implementation machinery of the Convention comes into play

only after domestic remedies are considered to have been exhausted.

The European system is headquartered in Strasbourg, France. With regard to the supervising

Mechanism, the ECHR originally established two bodies, the Commission and the Court. After

the entry into force of Protocol 11 on 1 November 1998 which restructured the control

machinery, the European system will now only have a Court.

The Inter-American System

The applicable standards in the Inter-American system consist of the originally non-binding

American Declaration on the Rights and Duties of Man (1948) and the American Convention

on Human Rights (1969). The relationship between the two is comparable in some way to that

between the UDHR and the two International Covenants.

In May 1948 the ninth Inter-American Conference held in Bogota, established the Organization

of American States (OAS). The 1948 Charter entered into force in December 1951 and has

since been amended by several subsequent protocols. The Bogota Conference of 1948 also

adopted the American Declaration of the Rights and Duties of Man. The Inter-American system

thus had a human rights declaration seven months before the UN adopted the Universal

Declaration and two-and-a-half years before the European Convention was adopted.

Nevertheless, the development of a regional treaty monitored by an effective supervisory

machinery was to take considerably longer. The Inter-American Commission on Human Rights

was created in 1959 and the American Convention on Human Rights was adopted in 1969. It

entered into force in 1978.

In terms of content, the American Declaration on the Rights and Duties of Man is similar in

content to the UDHR, including the economic and social rights therein. What distinguishes it

are ten articles setting out the duties of the citizen:

The duty so to conduct himself in relation to others that each and every one may fully

form and develop his personality;

To aid support, educate and protect his minor children;

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To acquire at least an elementary education;

To vote in popular elections;

To obey the law and other legitimate commands of authorities;

To render whatever civil and military service his country may require for its defence

and preservation;

To cooperate with the state with respect to social security and welfare; to pay taxes; and

To work.

The Convention contains 26 rights and freedoms, 21 of which are formulated in similar terms

to the provisions of the ICCPR.

In terms of implementation, the Inter-American system has both a Commission (The Inter-

American Commission, created in 1959) and a Court (created in 1979). The Commission

usually acts as the first instance for victims of human rights violations who wish to bring cases

before the system. Aside from its role in processing these individual petitions, the Commission

undertakes a range of monitoring and promotional activities. The Commission also carries out

site visits t evaluate the general human rights situation in member countries; publishes country

and thematic reports; organizes human rights seminars; and maintains rapporteurships on

various human rights issues. The Court, on the other hand, is an exclusively judicial body that

issues binding decisions in cases of human rights violations submitted to it by the Commission.

In addition, the Court issues advisory opinions and grants provisional measures for the

protection of individuals in imminent danger of rights violations.

The African System

In 1981 the Assembly of Head of State and Government of the OAU adopted the African

Charter on Human and Peoples’ Rights, which entered into force in 1986. The Charter itself

served as an important illustration of a human rights regime that was more duty-oriented than

the UN system or the two other regional systems discussed above.

The drafting and adoption of the African Charter was Africa’s response to the human rights

abuses of the 1970s, particularly in Amin’s Uganda, Nguema’s Equitorial Guinea, and

Bokassa’s Central African Empire. All the three dictators were overthrown in 1979.

The African Charter has four distinct features:

1) Indivisibility of “three generations” of rights: the Carter includes all three categories of

rights into one document. Examples of first generation rights include: equality before the law,

right to be heard and the right of association. Second generation rights include the right to work

under equitable and satisfactory conditions, the right to enjoy the best attainable state of

physical and mental health, and the right to education. Third generation rights include the right

to international peace, right to a generally satisfactory environment. Under the Charter socio-

economic rights are unequivocally justiciable as any other rights in the Charter.

2) The concept of “peoples’ Rights”: The African Charter recognizes not only individual

rights but also those of “peoples.” Peoples have the right to existence, to self-determination, to

freely dispose of their natural resources, to development, to international peace and security,

and to a generally satisfactory environment.

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3) Individual duties: The Charter places emphasis on individual “duties.” The individual has

duties towards other individuals, his or her family, towards the community, towards the state

shoe national he/she happens to be, and to the African and international community.

4) Derogation: The African Charter is silent on the effect of the suspension or derogation of

rights. Unlike other human rights treaties, the Charter does not contain a derogation clause, in

terms of which rights, or certain selected rights, may be suspended temporarily during times of

national emergency.

In terms of implementation, the African system has both a Commission and a Court. The first

African continental court to be established is the African Court on Human and Peoples’ Rights

(ACtHPR). The establishment of the Court sprung from a growing sense of “the inadequacy of

the protection and enforcement of human rights offered” by the African Commission on Human

and Peoples’ Rights (The Commission), the treaty body responsible for supervising the

implementation of the ACHPRs. The Commission has no power to make legally binding

decisions and its decisions amount to nothing more than recommendations. It thus lacks power

to award or order compensation to victims of human rights abuse.

The African Court on Human and Peoples’ Rights (ACtHPR) was established through adoption

by the African heads of state and government of the Protocol to the African Charter on Human

and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights

(ACHPR Protocol), which was adopted on 9 June 1998 in Ouagadougou, Burkina Faso. The

ACHPR Protocol entered into force in January 2004.

The ACtHPR was established to complement the protective mandate of the Commission.

In terms of personal jurisdiction, the Court is accessible to the following entities:

(a) The Commission;

(b) The state party which has lodged a complaint to the Commission;

(c) The state party against which the complaint has been lodged at the Commission;

(d) The state party whose citizen is a victim of human rights violation;

(e) African intergovernmental organisations.

As can be seen, this list excludes individuals from direct access to the Court. Individuals and

Non-Governmental Organisations (NGOs), however, may still access the Court, but only where

the concerned member state has made a declaration to this effect when ratifying the ACHPR

Protocol. In order for an NGO to access the Court, it must have observer status with the Court.

The second continental court established in Africa is the African Court of Justice (ACJ). The

Court was established by the Constitutive Act of the AU and in July 2003 the AU Assembly

adopted the Protocol on the Court of Justice of the African Union. The ACJ was established

as the principal judicial organ of the AU.

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However, before the ACJ was inaugurated, the AU in July 2004 decided to merge the ACtHPR

with the ACJ, in order to create one continental court, the African Court of Justice and Human

Rights (ACJHR). In 2008, the AU adopted the Protocol on the Statute of the African Court of

Justice and Human Rights, together with the Statute of the African Court of Justice and Human

Rights (annexed to the Protocol), which formally merged the two Courts.

The ACtHPR will continue to operate and its judges will continue in office until the judges of

the ACJHR are sworn in and take office. Cases pending before the ACtHPR that would not

have been concluded at the time of transitioning into the new merged Court will be transferred

to the Human Rights Section of the ACJHR.

The ACJHR has two sections. These are the General Affairs Section composed of eight judges

and the Human Rights Section composed of the remaining eight other judges. Although this is

the current status, the AU adopted another Protocol in 2014 that increases the sections of the

Court to three. The 2014 Protocol is however, not yet in force. The Human Rights Section is

competent to hear all cases relating to human and/or peoples’ rights while the General Affairs

Section hears all other cases the Court is competent to hear. The ACJHR has not yet become

operational as the required minimum number of 15 ratifications to trigger it into operation has

not been reached.

While this exposition represents the current status of the AU judicial framework in terms of

treaties in force, there was a major development in 2014, when the African leaders decided to

cloth the ACJHR with criminal jurisdiction. This was done through the adoption of the Protocol

on Amendments to the Protocol on the Statute of the African Court of Justice and Human

Rights (the 2014 Protocol) on 27 June 2014. The Protocol is yet to come into force. The

development is largely in response to the indictment and trial of African leaders at the

International Criminal Court (ICC).

The 2014 Protocol renames the ACJHR as the African Court of Justice and Human and

Peoples’ Rights (ACJHPR). The Protocol vests the court with jurisdiction over international

crimes. The international crimes over which the court shall have jurisdiction are:

Genocide;

Crimes against humanity;

War crimes;

The crime of unconstitutional change of government;

Piracy;

Terrorism;

Trafficking in persons;

Trafficking in drugs;

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Trafficking in hazardous wastes;

Illicit exploitation of natural resources; and

The crime of aggression.

Apart from the Charter, the African system has two other major human rights treaties: the

African Charter on the Rights and Welfare of the Child (1990), which is the main continental

human rights treaty relating to children’s rights, and the Protocol to the African Charter on the

Rights of Women in Africa (2003), the main continental treaty providing for women’s rights.

Read these treaties in full.

CHAPTER SEVEN

VERTICAL AND HORIZONTAL DIMENSIONS OF HUMAN RIGHTS

Chapter aim

To introduce students to the concepts of horizontal and vertical dimensions in the

enforcement of international human rights standards

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Prescribed reading

Frans Viljoen, International Human Rights Law in Africa (Oxford,

Oxford University Press, 2007), chapters 1 and 13

Colson Anyangwe, Introduction to Human Rights (Lusaka: University of

Zambia Press, 2005), chapter

Vertical Dimension

Effective protection of human rights must come from within the State. The international

human rights law system seeks to compel states to fulfill their obligations through either

observing national law (constitutional or statutory) that is consistent with the international

norms, or making the international norms themselves part of the national legal and political

order.

The vertical dimension of the application of international human rights law relates to how

states generally internalize or absorbs international human rights treaties and human rights

norms within their domestic legal systems so that those standards can be implemented,

enforced and are accessible to individuals. This also relates to the manner and

consequences of ratification of treaties by states and the practice of entering reservations

to opt out of particular obligations imposed by the treaty regime.

International law determines the validity of treaties in the international legal system, i.e.

when and how a treaty becomes binding upon a state as regards other State Parties. But it

is the national legal system which determines the status or force of law which will be given

to a treaty within that legal system, i.e., whether national judges and administrators apply

them, and individuals in the ratifying States may receive rights as a result of the treaty

provisions.

While the international legal system does not reach directly into the national systems to

enforce its norms it attempts to do so indirectly. States are required under international law

to bring their domestic laws into conformity with their validly contracted international

commitments. Failure to do so, however, results in an international delinquency or breach

of international law but does not change the situation within the national legal system

where judges and administrators may continue to apply national law rather than

international law in such cases.

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The status of treaties in national law is determined by two different constitutional

techniques referred to as “legislative incorporation” and “automatic incorporation”. In

some States the provisions of ratified treaties do not become national law unless they have

been enacted as legislation by the normal method. The legislative act creating the norms

as domestic law is an act entirely distinct from the act of ratification of the treaty. The

legislative bodies may refuse to enact legislation implementing the treaty. In this case the

provisions of the treaty do not become national law. Legislative incorporation is used in

Zambia, the UK and many commonwealth countries. In other States, which use the

automatic incorporation system, ratified treaties become domestic law by virtue of

ratification. This method is applied by France, Switzerland, the Netherlands, Angola and

Mozambique, among other countries.

International law does not dictate that one or the other of the methods of the legislative or

automatic incorporation must be used. The method by which treaties become national law

is a matter to be determined by the constitutional law of the ratifying State.

The doctrine of “legislative incorporation” and “automatic incorporation” mirror two

Theories of Low International Law and national law relate, i.e. “monism” and “dualism”.

Monist theories imagine a unitary world legal system in which national and international

law have comparable, equivalent or identical subjects, sources, and substantive contents.

Monists argue for the supremacy of international law in relation to national law. In its

classical formulation, monism asserts that all activity of States is regulated by the superior

international law. Therefore, the so called “domestic affairs” of a State are not affairs

unregulated by international law, but rather, affairs which a State has exclusive

competence to regulate pursuant to and under international law.

Dualist theories distinguish between the system or public order of international law and of

national law. Each has its own distinguishable subjects, distinguishable structures and

processes of authority, and distinguishable substantive content.

Ratification of Human Rights Treaties with Reservations

Article 2(1) (d) of the Vienna Convention on the Law of Treaties defines a reservation as

“a unilateral statement made by a State when ratifying a treaty” whereby it purports to

exclude or modify the legal effect of certain provisions of the treaty in their application to

that State. Article 19 of the same treaty provides that a State ratifying a treaty may make a

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reservation unless it is “prohibited by the treaty” or “is incompatible with the object and

purpose of the treaty”.

For example, Brazil entered the following reservation to CEDAW (which was later

withdrawn): “The Government of the Federal Republic of Brazil hereby expresses its

reservations to article 15, paragraph 4, and to article 16, paragraph 1 (a), (c), (g) and (f)…”

HUMAN RIGHTS COMMITTEE, GENERAL COMMENT NO. 24

CCPR/21/Rev.1/Add.6 (2 Nov.1994):

8. Reservations that offend peremptory norms would not be compatible with the

object and purpose of the Covenant. Although treaties that are mere exchanges

of obligations between States allow them to reserve inter se application of rules

of general international law, it is otherwise in human rights treaties, which are

for the benefit of persons within their jurisdiction. Accordingly, provisions in

the Covenant that represent customary international law (and a fortiori when

they have the character of peremptory norms) may not reserve the right to engage

in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment

or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest

and detain persons of their lives, to arbitrarily arrest and detain persons, to

presume a person guilty unless he proves his innocence, to execute pregnant

women or children, to permit the advocacy of national, racial or religious hatred,

to deny to minorities the right to enjoy their own culture, profess their own

religion, pr use their own language.

INTERNATIONAL LAW COMMISSION’S GUIDE TO PRACTICE ON

RESERVATIONS TO TREATIES: PERMISSIBLITY OF RESERVATIONS AND

AUTHORITY TO DECIDE (Adopted in 2011):

3.1.5 Incompatibility of a reservation with the object and purpose of the treaty.

A reservation is incompatible with the object and purpose of the treaty that is

necessary to its general tenor, in such a way that the reservation impairs the raison

d’etre of the treaty.

3.1.5.2 Vague or general reservations

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A reservation shall be worded in such a way as to allow its meaning to be understood,

in order to assess in particular its compatibility with the object and purpose of the

treaty.

3.1.5.3 Reservations to provisions concerning rights from which no derogation is

permissible under any circumstances.

A state or international organisation may not formulate a reservation to a treaty

provision concerning rights from which no derogation is permissible under any

circumstances, unless the reservation in question is compatible with the essential

rights and obligations arising under the treaty. In assessing that compatibility,

account shall be taken of the importance which the parties have conferred upon the

rights at issue by making them non-derogable.

Horizontal Dimension

Horizontal modes of implementing human rights relate to formal mechanisms provided by

nations for victims seeking redress for human rights violations committed in foreign

countries. This module focuses primarily on judicial means of norm enunciation and

enforcement.

Universal Jurisdiction

The starting point in understanding horizontal implementation of understanding human

rights is the understanding the concept of universal jurisdiction. International law permits

any State to apply its laws to punish certain offences although the State has no links of

territory with the offense, or of nationality with the offender (or even the victim). Universal

jurisdiction over the specified offences is a result of universal condemnation of those

activities and general interest in cooperating to suppress them, as reflected in widely

accepted international agreements and resolutions of international organisations. These

offences are subject to universal jurisdiction for additional offences is provided by

international agreements.

Case Examples on Universal Jurisdiction

a) The Attorney General of the Government of Israel v Eichmann District Court of

Jerusalem Judgement of 11 December, 1961.

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Adolf Eichmann was in charge of the mass murder of Jews in Germany and Germany-

occupied territories. He fled Germany after the war. He was captured and abducted from

Argentina by Israeli forces and brought to stand trial in Israel under the Nazi and Nazi

Collaborators (punishment) Law, enacted after Israel became a State. Eichmann argued

that the prosecution violated international law by inflicting punishment:

(1) upon persons who were not Israeli citizens;

(2) for acts done by them outside Israel and before its establishment;

(3) in the course of duty; and

(4) On behalf of a foreign country.

The court, however, held that in the event of a conflict between an Israeli statute and

principles of international law, it would be bound to apply the statute. However, it then

concluded that “the law in question confirms to the best traditions of the law of nations.

The power of the State of Israel to enact the law in question or Israel’s ‘right to punish’ is

based…from the point of view of international law, on a dual foundation: The Universal

characters of the crimes in question and their specific character as being designed to

exterminate the Jewish people”. The Court in part stated:

“[this foundation] of penal jurisdiction conforms, according to [the] acknowledged

terminology, to the protective principle… The “crime against the Jewish people,”

as defined in the Law, constitutes in effect an attempt to exterminate the Jewish

people… If there is an effective link (and not necessarily an identity) between the

State of Israel and the Jewish people, then a crime intended to exterminate the

Jewish people has a very striking connection with the State of Israel… The

connection between the State of Israel and the Jewish people needs no

explanation”.

b) R.V Bow Street Metropolitan Stipendiary Magistrate Ex.parte Pinochet Ugarte

(No.3) [2000] 1 A.C 147 [1999] 2 WLR.827, HL

General Augusto Pinochet resigned as the head of state of Chile in 1990 and became a

“Senator for life”. In 1998, he travelled to the UK for medical treatment. Judicial

authorities in Spain sought to extradite to stand criminal trial in Spain on Several charges,

including torture relating to his time in office as President. An international warrant for

his arrest was issued in Spain and a British magistrate issued a provisional warrant under

the UK Extradition Act 1989. None of the conduct alleged by the Spanish authorities was

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committed against UK citizens or in the UK, Pinochet initiated proceedings for habeas

corpus and for judicial review of the warrant. On appeal, the House of Lords (Now

Supreme Court) decided the case but this decision was set aside due to conflict of interest

involving one of the judges. A reconstituted Court of seven judges reheard the appeal.

Six of the seven judges upheld the extradition. With regard to universal jurisdiction, the

remarks of the following judges are pertinent:

Lord Browne-Wilkinson: “I have no doubt that long before the Torture Convention of

1984, State torture was an international crime in the highest sense.

But there was no tribunal or court to punish international crimes of torture. Local courts

could take jurisdiction: see… Attorney General of Israel v Eichmann. But the

objective was to ensure a general jurisdiction so that the torturer was not safe wherever

he went... The Torture Convention was agreed not in order to create an international

crime which had not previously existed but to provide an international system under

which the international criminal-the torturer- could find no safe haven…

Under article 5(2) a State Party has to take jurisdiction over any alleged offender who is

found within its territory…

In my judgement the Torture Convention did provide what was missing: a worldwide

universal jurisdiction”.

Lord Millet: “…crimes prohibited by international law attract universal jurisdiction

under customary international law if two criteria are satisfied. First, they must be contrary

to a peremptory norm of international law so as to infringe a jus cogens. Secondly, they

must be so serious and on such a scale that they can justly be regarded as an attack on

the international legal order. Isolated offences, even if committed by public officials,

would not satisfy these criteria…

In my opinion, the systematic use of torture on a large scale and as an instrument of State

policy had joined piracy, war crimes and crimes against peace as an international crime

of universal jurisdiction well before 1984… My part, therefore, would hold that the

courts of this country already possessed extra-territorial jurisdiction in respect of torture

and conspiracy to torture on the scale of the charges in the present case and did not require

the authority of statute to exercise it “.

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c) Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of

the Congo v Belgium) International Court of Justice (2002)

In mid-2000, the Belgian judge issued an arrest warrant in absentia against Mr. Abdulaye

Yerodia Ndombasi, who was then the DRC’s Foreign Affairs Minister at that time. The

warrant accused Ndombasi of committing war crimes and crimes against humanity

before serving in his ministerial post. The complaint alleged that he made public speeches

that incited the massacre of several hundred people, mainly of Tutsi origin in the DRC.

The government of the DRC initiated proceedings against the Government of Belgium

before the ICJ claiming that the issuance and international circulation of the arrest

warrant unlawfully infringed the foreign ministers immunity and violated international

rules on jurisdiction. A majority of the ICJ judges did not comment on universal

jurisdiction, holding instead that the promulgation and circulation of the arrest warrant

violated Ndombasi’s official immunity as a foreign minister. A separate opinion by

judges Rosalyn Higgins, Peter Kooijmans and Thomas Buergenthal addressed the issue

and came to the conclusion:

65. It would seem (without in any way pronouncing upon whether Mr.

Yerodia did or did not perform the acts with which he is charged in the

warrant) that the acts alleged do fall within the concept of “crimes against

humanity” and would be within that small category in respect of which an

exercise of universal jurisdiction is not precluded under international law.

Human Rights Civil Litigation

Some jurisdictions not only allow criminal prosecution for gross violations of human

rights under universal jurisdiction, but also provide for civil remedies within the realm

of judicial enforcement of human rights violations committed in foreign countries.

The USA, for example has the Alien Tort Statute (ATS), passed in 1789, which

clothes American courts with jurisdiction of any civil action by an alien for a tort only,

committed in violation of the law of nations or a treaty of the United States. In

Filartiga v Pena-Irala, the Court of Appeals for the second circuit permitted two

Paraguayan citizens, Joel Filartiga and his daughter, to file an ATS suit against a

Paraguayan official for allegedly torturing to death Filartiga’s teenage son.

The US Congress in 1991 passed the Torture Victim Protection Act 1991, expanding

scope available for human rights litigation available in that country.

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TORTURE VICTIM PROTECTION ACT (106 Stat. 76 (1992). 28 USCA 1350)

Section 2. Establishment of Civil Action

(a) LIABILITY- An individual who under actual or apparent authority, or color

of law, of any foreign nation-

(1) Subjects an individual to torture shall, in a civil action, be liable for damages

to that individual; or

(2) Subjects an individual to extrajudicial killing shall, in a civil action, be liable

for damages to the individual’s legal representative, or to any person who

may be a claimant in an action for wrongful death.

(b) EXAUSTION OF REMEDIES- A court shall decline to hear a claim under

this section if the claimant has not exhausted adequate and available

remedies in the place in which the conduct giving rise to the claim occurred.

(c) SATUTE OF LIMITATIONS- No action shall be maintained under this

section unless it is commenced within 10 years after the cause of action

arose.

Sovereign and official Immunity for Human Rights Violations

The following cases demonstrate when and when not sovereign and official immunity

can be a bar to human rights accountability.

(a) Al-Adsani v United Kingdom European Court of Human Rights (Grand

Chamber) 21 Nov. 2001 Application N0. 35763/97

Mr. Sulaiman Al-Adsani a dual British-Kuwait national, initiated civil proceedings in

the United Kingdom against the government of Kuwait and individual Kuwaitis for

his alleged torture in Kuwait. Mr. Al-Adsani’s specific allegations involved being

beaten over several days, having his head held underwater in a swimming pool

containing corpses and being severely burnt. The UK appellate court permitted Mr.

Al-Adsani to proceed against the individual Kuwaitis but held that UK law on State

immunity barred suit against the Government of Kuwait.

Mr. Al-Adsani appealed to the European Court of Human Rights, claiming in

significant part that the application of state immunity denied him access to a court in

violation of Article 6 of the European Convention for the Protection of Human Rights

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and Fundamental Freedoms. The Grand Chamber of the court heard the appeal and,

by a slim majority (9 votes to 8), rejected his claim.

(b) Germany v Italy International Court of Justice (2012)

In 2012, the International Court of Justice (ICJ) issued a judgment on the relationship

between jus cogens and state immunity that arose out of civil suits against the State

of Germany. The dispute principally involved the commission of war crimes by the

Germany military against Italian nationals during Germany’s occupation of parts of

Italy in the final years of the Second World War. In a series of decisions from 2004

to 2011, the Italian Court of Cassation held that Germany could be sued for

compensation in Italian Courts on the ground that immunity does not apply when the

alleged conduct constitutes an international crime such as deportation to slave labour

and massacres of civilians.

The ICJ held that the decision of the Court of Cassation was in violation of Italy’s

obligation to respect Germany’s immunity under customary international law. The

ICJ explained that sovereign immunity is firmly established in customary

international law and grounded upon “one of the fundamental principles of the

international legal order”-the sovereign equality of states.

(c) Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic

of the Congo v Belgium) International Court of Justice (2002)

Facts of the case have already been narrated above. With regard to immunity, the court

in parts stated:

51. The Court would observe at the outset that in international law it is firmly

established that, as also diplomatic and consular agents, certain holders of

high-ranking office in a State, such as the Head of State, Head of Government

and Minister of Foreign Affairs, enjoy immunities from jurisdiction in other

States, both civil and criminal jurisdiction and the inviolability of an

incumbent Minister for Foreign Affairs that fall for the Court to consider.

53. In customary international law, the immunities accorded to Ministers of

Foreign affairs are not granted for their personal benefit, but to ensure the

effective performance of their functions on behalf of their respective States. In

order to determine the extent of these immunities, the Court therefore consider

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the nature of the functions exercised by a Minister for Foreign Affairs. He or

she is in charge of his or her Government’s diplomatic activities and

generously acts as its representative in international negotiations and

intergovernmental meetings… In the performance of these functions, he or she

frequently require to travel internationally, and thus must be in a position

freely to do so whenever the need should arise. He or she must also be in

constant communication with the Government, and with its diplomatic

missions around the world, and be capable at any time of communicating with

representatives of other States. The Court further observes that a Minister for

Foreign Affairs, responsible for the conduct of his or her States relations with

all other States, occupies a position such that, like the Head of State or Head

of Government, he or she is recognised under international law as

representative of the State by virtue of his or her office…

54. The Court accordingly concludes that the functions of a Minister for

Foreign Affairs are such that, throughout the duration of his or her office, he

or she when abroad enjoys full immunity from criminal jurisdiction and

inviolability. That immunity and that inviolability project the individual

concerned against any action of authority of another State which would hinder

him or her in the performance of his or her duties.

(d) Prosecutor v Charles Taylor, Special Court for Sierra Leone (Decision on

Immunity from Jurisdiction) (31 May 2004)

In the 1990’s Sierra Leone was ravaged by a civil war that claimed over 75,000 lives

and displaced a third of the population. In June 2000, the President of Sierra Leone

formally requested the UN Secretary General to assist in prosecuting perpetrators of

atrocities committed during the civil war. In response, the Security Council authorized

the Secretary General to negotiate an agreement between the UN and the Government

of Sierra Leone to establish a criminal Tribunal. The subsequent agreement, which

was signed in January 2002, created the legal framework for the Special Court for

Sierra Leone, under which Taylor was indicted for war crimes and crimes against

humanity. Taylor sought to dismiss the arrest warrant on account that he was at that

time head of state. The Court held:

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52. Be that as it may, the principle seems now established that the sovereign

equality of states does not prevent a Head of State from being prosecuted

before an international criminal tribunal or court. We accept the view

expressed by Lord Slynn of Hadley that “there is… no doubt that states have

been moving towards the recognition of some crimes as those which should

not be covered by claims of the States or Head of State or other official or

diplomatic immunity when charges are brought before international tribunals.

(e) Decision on the Failure By The Republic of Malawi to Comply With the

Cooperation Request Issued By the Court With Respect to the Arrest and Surrender

of President Omar Al-Bashir, International Criminal Court, Pre-Trial Chamber (12

December, 2011)

In 2005, the Security Council passed a Resolution under Chapter VII of the UN Charter,

referring the situation of Darfur to the International Criminal Court. The Court subsequently

issued an international arrest warrant for the Sudanese President Omar Al-Bashir charging him

with war crimes, crimes against humanity and genocide. Along with the arrest warrant, Court

issued a request to all States Parties to the ICC for the arrest and surrender of Al-Bashir. At the

time Al-Bashir was the incumbent head of state of Sudan, which was not a party to the ICC.

Al-Bashir as head of state, visited Malawi but the Malawian officials did not arrest and

surrender him to the ICC. In considering whether Al-Bashir’s immunity as head of state

prevented Malawi from arresting Al-Bashir, the ICC held:

34. The ICJ in the “Arrest Warrant case” is concerned solely with immunity across

national jurisdictions… The ICJ majority discussion of customary international law

immunity is therefore distinct from the present circumstances, as have an international

court is seeking arrest for international crimes. This distinction is meaningful because,

as argued by Antonio Cassese, the rationale for foreign state officials being entitled to

raise personnel immunity before national Courts is that otherwise national authorities

might use prosecutions to unduly impede or limit a foreign State’s ability to engage in

international action. Cassese emphasized that this danger does not arise with

international Courts and tribunals, which are “totally independent of States and subject

to strict rules of impartiality”.

36. Therefore, the Chamber finds that the principle in international law is that immunity

of either former or sitting Heads of State cannot be invoked to oppose a prosecution by

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an international court. This is equally applicable to former or sitting heads of state not

parties to the statute whenever the Court may exercise jurisdiction. In this particular

case, the Chamber notes that it is exercising jurisdiction following a referral by the

United Nations Security Council made under Chapter VII of the United Nations

Charter, in accordance with article 13(b) of the [ICC] Statute.

42. The Chamber considers that the international community’s commitment to rejecting

immunity in circumstances where international courts seek arrest for international

crimes has reached a critical mass. If it ever was appropriate to say so, it is certainly no

longer appropriate customary international law immunity applies in the present context.

46. Indeed, it is the view of the Chamber that when cooperating with this Court and

therefore acting on its behalf, States Parties are instruments for the enforcement of the

jus peniendi of the international community whose exercise has been entrusted to this

Court when States have failed to prosecute these responsible for the crimes within its

jurisdiction.

CHAPTER EIGHT

THE NATIONAL HUMAN RIGHTS SYSTEM: THE ZAMBIAN BILL OF RIGHTS

Chapter aim

To introduce students to the national human rights system, particularly the protection

of human rights under the Bill of Rights in the national constitution.

Prescribed/recommended reading

Alfred Chanda, Human Rights Law in Zambia: Cases and Materials (Lusaka:

University of Zambia Press, 2011), chapters 1-8

Constitution of Zambia Chapter 1 of the Laws of Zambia

The Zambian Constitution, Chapter 1 of the Laws of Zambia, has provided constitutional

protection for civil and political rights. Economic, social and cultural rights were prior to the

2016 amendment to the Constitution provided for under the directive principles of state policy.

Rights under the directive principles of state policy were not justiciable. The 2016 amendment

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excluded that part. Instead, an attempt was made to expand the Bill of Rights, to include

enforceable economic, social and cultural rights. The draft Bill of Rights, which contained

these rights was put to referendum on 11 August 2016, but did not pass the threshold and,

therefore rejected.

Definition and Importance of Bill of Rights

A Bill of Rights is a list of fundamental rights guaranteed by the Constitution. Alfred Chanda

(2005) lists three advantages of having rights enshrined in the constitution:

a. By enshrining rights in the Constitution, which is the supreme law of the land (Article

1(1) of the Constitution), human rights are elevated as supreme law.

b. It is not easy to amend the Constitution, especially the Bill of Rights because of the

stringent requirements than for ordinary legislation. Article 79 of the Constitution

requires every Bill attempting to amend the Constitution to pass a referendum at which

at least 50% of all those entitled to be registered as voters vote in favour of the

amendment.

c. Thirdly, having rights enshrined in the Constitution makes the realization of human

rights predictable as the citizens are well informed of their rights and how to claim

them.

Short History of the Zambia Bill of Rights

A Bill of Rights was first introduced in Northern Rhodesia at the introduction of self-

government in 1963. Years preceding this introduction saw rampant and unwarranted abuse of

native human rights by white settlers who had, from the time of the BSA company rule through

to the colonial times and the creation of the Federation of Rhodesia and Nyasaland, dominated

the territory.

A number of rights were suppressed because a number of laws prohibited certain activities. At

the height of total dissatisfaction by Africans with the suffering which characterized the Federal

era, the British government set up the Monckton Commission in 1960 to look into means of

introducing self-government rule in North Rhodesia. The Commission went round the

territories to gather information from the general public. In its report, the Commission stated

that the findings showed that the Federation was most disliked by natives. The report stated in

part:

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The dislike of the Federation among Africans in the Northern territories is

widespread, sincere, and long standing. It is almost pathological.

The report identified racial discrimination as one of the reasons why Africans hated the

Federation. The report therefore called for a reform of the constitutions in order for them

to have wide support. The Commission called for legal and political safeguards to be

included in both the Federal and Territorial Constitutions. Legal safeguards were to

consent of a Bill of Rights while the political safeguards were to consist of representation

in the councils of the State. The Commission argued that a Bill of Rights, apart from

promoting “greater security” among all inhabitants of the Federation would:

a. Help allay fears of domination which disturbed the main section of the

population, and give them greater confidence in the future;

b. Provide a criterion or standard upon which institutions, whether political or

judicial, could base their protection of the people’s rights;

c. Guard the liberties of all persons whether they were Federal citizens, British

citizens, British Protected Persons or allies.

The Monckton Commission recommended that the provision relating to the Bill of Rights

and the Councils of State, be specifically entrenched, to prevent the Legislature from

abrogating them. The Commission further proposed a special procedure for the alteration

of the entrenched provisions. There was to be:

a. an affirmative vote of not less than three-quarters of all the members of the

legislature; and

b. a referendum in which a majority of electors in each of the main racial groups

approved the proposed amendment.

The Monckton Commission urged the British Government to take immediate political

steps to implement the transition to self-government under an African Government. As

such in February 1961, the British government convened a constitutional conference. The

colonial secretary Ian Macleod argued for the introduction of the Bill of Rights in the

Northern Rhodesia Constitution. This suggestion was supported by African chiefs and

the five political parties in existence at the time. The Monckton Commission Report, the

bulk of which was accepted by the British government, had an enormous impact in

shaping the future Constitutional development of Northern Rhodesia. The Northern

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Rhodesia Constitution of 1963, which incorporated a Bill of Rights, came into effect on

3rd January 1964.

Form of the Guarantee of Rights

The bill of Rights incorporated in the independence Constitution was modeled on the

Nigerian Constitution of 1963, which in turn was based on the European Convention for

the Protection of Human Rights and Fundamental Freedoms of 1950.

The current Bill of Rights is found in Part III of the Constitution and consists of articles

11 to 32. It begins with a general declaration of the rights every person in Zambia is

entitled to regardless of race, place, origin, political opinion, colour, creed, or sex. The

following rights are guaranteed: life; personal liberty; protection from slavery and forced

labour; protection from torture; or inhumane or degrading punishment, or other like

treatment; protection from deprivation of property; protection for privacy of home and

other property; protection of the law; freedom of conscience; freedom of expression,

assembly and association; freedom of movement; protection from discrimination on

grounds of race, tribe, sex, place of origin, marital status, political opinion, colour or

creed; and protection of young persons from exploitation.

Limitations

The enjoyment of the rights in the Bill of Rights is made subject to a number of

limitations such as respect for the rights and freedoms of others and public interests. In

addition to these two general limitations which apply to all the rights guaranteed, most

of the protected rights contain numerous derogation clauses. The format adopted is that

the right is first protected in broad terms. A succeeding article then qualifies it by

outlining circumstances in which that right may be derogated from. In many instances

the qualifications to the right are so numerous and wide-ranging as to negate the right or

render it meaningless.

Scope of Rights

Some of the guaranteed rights have wider scope than others. For example, Article 14(1)

of the Constitution provides that: “No person shall be held in slavery or servitude.” This

section is defined in language that admits of no exception. On the other hand, the right

to protection from deprivation of property contains not less than 26 permitted

derogations.

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Other rights that have wide derogation clauses include freedom of conscience, freedom

of expression, equal protection of the law, freedom of assembly and association, freedom

of movement and freedom from discrimination. The derogation clauses allow the

legislature to enact laws that may result in the taking away of the substance of the rights

granted. The only fetter placed on the legislature is that such laws must be “reasonably

required in the interests of defence, public safety, public order, public morality or public

health” and must be “reasonably required for the purpose of protecting the rights or

freedom of others”.

In five categories of rights a person challenging the validity of a law that violates a

guaranteed right must show that the law or the act done under it is not reasonably

justifiable in a democratic society. Examples of such rights include: protection of privacy

of the home and other property (Article 17); protection of freedom of conscience (Article

19); protection of freedom of expression (Article 20); protection of freedom of assembly

and association (Article 21); and protection of freedom of movement (Article 22). In such

cases the precise limit of the rights and freedoms is dependent on the construction the

Court places upon the phrase “reasonably justifiable in a democratic society”. Needless

to say that such an interpretation will inevitably be influenced by the social philosophy

and the scale of value placed on public interests by the Court.

Enforcement of Guaranteed Rights

The Bill of Rights is justiciable, that is, a person who feels aggrieved by an action that

hinges on the enjoyment of his/her human rights can petition the High Court for redress.

Article 28 of the Constitution provides…

An instructive case on this point is that of Harry Mwaanga Nkumbula v Attorney General

(1972) ZR in which the appellant sought to challenge the government’s intention to

introduce a One Party State even before the relevant legislation was drawn up and

introduced in Parliament. The Court held that the appellant could not validly challenge a

bill unless the same was already law.

Locus Standi

Under Article 28 of the Constitution, only a person whose rights have been, are being or

are likely to be contravened in relation to him can apply to the High Court for redress.

(Note that the Constitutional Court has no jurisdiction over the Bill of Rights. Appeals

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from the High Court relating to the Bill of Rights lie with the Supreme Court). This

restriction on locus standi has severely inhibited Constitutional litigation. One cannot,

for example, bring an action to challenge the constitutionality of a law or a governmental

action in the public interest. In contrast, under section 38 of the South African

Constitution, for example, any of the following may bring an action to enforce human

rights:

a. Anyone acting in their own interest;

b. Anyone acting on behalf of another person who cannot act in their own name;

c. Anyone acting as a member of, as in the interest of, a group or class of persons;

d. Anyone acting in the public interest; and

e. An association acting in the interest of its members.

Constitution Making and the Substance of the Bill of Rights

Zambia has had five constitutional cycles. At independence in 1964 it inherited a

constitution with a Bill of Rights modelled on the 1963 Nigerian Constitution. Although

the Bill of Rights was entrenched, the entrenchment provision was removed by an

amendment in 1969 achieved by the ‘referendum to end all referenda.’ This made it easy

for the government to make a further amendment in 1973 that abolished multiparty-ism

in favour of one-party rule. Then, in 1991, a new Constitution was passed (though the

substance of the constitution changed very little) which reinstate multiparty politics. The

1991 constitution brought back the entrenchment clause (Article 79) to lock the Bill of

Rights and, for the first time, expressly affirmed the principle of constitutional

supremacy. In January 2016, the Zambian Constitution, except for the Bill of Rights and

Article 79, was amended. The draft Bill of rights, which purported to integrate social and

economic rights, was subjected to a referendum on August 11, 2016 but did not pass.

The Bill of Rights was reproduced, with minor amendments, in the independence

Constitution of 1964, the One-Party Constitution of 1973, and the 1991 Constitution.

When the Constitution was amended in 1996 and 2016, the Bill of Rights left intact. The

form and content of most of the provisions have, therefore remained largely the same

despite the significant changes in the political systems that have taken place since

independence.

General constitutional principles

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The Constitution of Zambia is the supreme law of the nation and any other law inconsistent

with it is void to the extent of the inconsistency (Article 1(1)). Article 267(1) requires the entire

constitution to be interpreted in accordance with the Bill of Rights and in a manner that: a)

promotes its purpose, values and principles; b) permits the development of the law; and c)

contributes to good governance. Further, Articles 8 and 9 of the 2016 Constitution require

courts to have regard to human dignity, equality and non-discrimination and sustainable

development in the interpretation of the laws and policies. All the rights in the Constitution are

subject to the general limitation that “the enjoyment of the said rights and freedoms by any

individual does not prejudice the rights and freedoms of others or public interest”(Article 11).

Subject to these limitations, the underlying Constitutional values relating to the Bill of Rights

are non-discrimination and equality, whereby all individuals in the country are entitled to each

of the listed rights regardless of their ‘race, place of origin, political opinions, colour, creed,

sex, or marital status” (Article 11)

Special Tribunal to Report on Legislation

Members of Parliament can arrest a Bill which infringes the Bill of Rights under Article 27.

This article provides for the appointment by the Chief Justice of a special tribunal of two judges

(or persons qualified to be judges) to report on a Bill or a Statutory Instrument which may be

inconsistent with the Constitution. Such a tribunal can only be established if not less than thirty

members of the National Assembly make a request in writing for a report on a bill or statutory

Instrument. In the case of a bill such request must be delivered to the Speaker within three days

after the final reading of the bill in the Assembly. A request for a report on a statutory

instrument must be delivered to the authority having the power to make the instrument within

fourteen days of the publication of the instrument in the Gazette.

Overview of Substantive Rights

Right to Life

The right to life is provided under Article 12 of the Constitution. Read it.

The Constitution provides for the right to life but allows for it to be taken away ‘in execution

of sentence of Court in respect of a criminal offence under the law in force in Zambia’(Article

12(1)). This means that the death penalty can be imposed on crimes specified under any law in

force. It is mandatory on conviction for aggravated robbery using a firearm (section 294 Penal

Code Act Chapter 87 of the Laws of Zambia) treason (section 43 Penal Code Act Chapter 87

of the Laws of Zambia) and murder (except where there are extenuating

circumstances)(Section 201 Penal Code).

A case challenging the constitutionality of the death penalty for being inhuman and degrading

was dismissed by the Supreme Court on the ground that the Constitution expressly

contemplates the imposition of the death penalty under article 12(1) (as an exception to the

right to life)( See the case of Benjamin Banda and Cephas Kufa Miti v The Attorney General

(2007)(unreported)).

The legitimacy of the mandatory death penalty for some crimes in Zambia was challenged

before the UN Human Rights Committee (HRC), the treaty body responsible for monitoring

the implementation of human rights obligations under the International Covenant on Civil and

Political Rights 1966 (ICCPR). Zambia is a state party to the ICCPR. In the case of Lubuto

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v Zambia Commission No. 390/1990.UN. Doc. CCPR/C55/zd/390/Rev/1.(1995) the applicant

was convicted of aggravated robbery using a firearm, which under Zambian law automatically

earned him the death penalty; however, the Committee found the mandatory nature of the death

penalty in Zambia to be incompatible with the ICCPR.

Both the Zambia Police Act and the Prisons Act, which allow their officers to use firearms on

persons escaping from lawful custody, categorically state that the purpose is not to kill but to

disable ( section 29 of the Prisons Act Chapter 97 of the Laws of Zambia, and section 24 of the

Zambia Police Act Chapter 107 of the Laws of Zambia).

An issue that often arises in the context of the right to life is the issue of abortion. Abortion is

regulated by the Termination of Pregnancy Act1190, section three of which provides:

3. (1) Subject to the provisions of this section, a person shall not be guilty of an offence

under the law relating to abortion when a pregnancy is terminated by a registered

medical practitioner if he and two other registered medical practitioners, one of whom

has specialised in the branch of medicine in which the patient is specifically required

to be examined before a conclusion could be reached that the abortion should be

recommended, are of the opinion, formed in good faith-

(a) that the continuance of the pregnancy would involve-

(i) risk to the life of the pregnant woman; or

(ii) risk of injury to the physical or mental health of the

pregnant woman; or

(iii) risk of injury to the physical or mental health of any existing children of the

pregnant woman; greater than if the pregnancy were terminated; or

(b) that there is a substantial risk that if the child were born it would suffer from such

physical or mental abnormalities as to be seriously handicapped.

(2) In determining whether the continuance of a pregnancy would involve such risk as

is mentioned in paragraph (a) of subsection (1), account may be taken of the pregnant

woman's actual or reasonably foreseeable environment or of her age.

(3) Except as provided by subsection (4), any treatment for the termination of

pregnancy must be carried out in a hospital.

(4) Subsection (3) and so much of subsection (1) as relates to the opinion of two

registered medical practitioners, shall not apply to the termination of a pregnancy by a

registered medical practitioner in a case where he is of the opinion, formed in good

faith, that the termination of pregnancy is immediately necessary to save the life or to

prevent grave permanent injury to the physical or mental health of the pregnant woman.

Personal Liberty

Read Article 13 of the Constitution.

The Article requires that ‘any person who is arrested or detained shall be informed as soon as

reasonably practicable, in a language he understands, of the reasons for his arrest or

detention’(Article 13(2)). The provision does not indicate who is responsible for informing the

person arrested or detained, nor does it set strict timelines within which this is to be done.

Presumably the duty to inform lies with the police or person making the arrest. This provision

has not been incorporated in the CPC. However, as seen below, the CPC requires that a person

who has been arrested without warrant must be brought before court within 24 hours of the

arrest.

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Article 13 protects personal liberty and simply states that a person must be released if not tried

within a reasonable time. The Constitution has no other provisions relating to bail.

Subordinate legislation, however, allows for bail to be granted by police before the case moves

to trial. Section 33 of the CPC entitles a police officer in charge of a police station to release

an arrested person where, after due inquiry, there is insufficient evidence to proceed with the

charge. Under the same provision, if a person who has been arrested for offences which are not

serious and not punishable by death and cannot be brought to court within 24 hours of arrest,

such person must be released on bail. This bail granted at the police station is usually referred

to as police bond.

No fee is chargeable for bail granted by police (section 19 of the Zambia Police Act Chapter

107 of the Laws of Zambia,). However, the police may require that the person being admitted

to bail must have sureties undertake that he or she shall appear before court as required( sections

123 and 16 CPC). In The People v Benjamin Sinkwinti Chitungu and Others (1992), the High

Court held that the police have power to cancel the bail granted by them if it appears to them

that the accused is about to disappear, leave the country, interfere with witnesses or is likely to

commit a similar offence. It stated, however, that the bail granted by police does not cease

automatically when an accused appears before court.

Although there is no constitutional limitation to the right to bail, the law lists certain offences

as non-bailable. These include:

murder, treason or any other offence carrying a possible or mandatory capital penalty;

misprision of treason or treason felony;

aggravated robbery; theft of a motor vehicle as a repeat offender of the same offence;

(CPC, s 126 as read with CPC (Amendment ) Act 1993, s 2 and CPC (Amendment) Act

2005, s 2)

where a person is charged with an offence under the State Security Act and the Director

of Public Prosecutions (DPP) issues a certificate that the safety or interest of the state

would be prejudiced( s 123(4) CPC); and

anyone charged with some drug-related offences (s 43 Narcotic Drugs and Psychotropic

Substances Act 1993).

The Article further states that ‘any person who is unlawfully arrested or detained by any other

person shall be entitled to compensation thereof from that other person” (Article 13(4)). In the

case of Daniel Chizoka Mbandangoma v The Attorney General (1979) ZR 45 (HC), the plaintiff

was arrested by police and granted police bond. The police, however, required him to present

himself to them periodically, which he did several times before being told they had stopped

proceedings against him. In an action for compensation for false imprisonment, the High Court

held that police had no power to arrest or detain a person for the purpose of conducting

investigations, and awarded him compensation.

The Article sets no specific length of custody. It simply requires that an arrested or detained

person, if not released on bail, shall be ‘brought without undue delay before a court’(Article

13(3). Under Article 18(1) any person charged with a criminal offence is entitled to fair hearing

‘within a reasonable time’(Article 18(1)). Section 33 of the CPC requires that where a person

is arrested without warrant, that person shall be presented before court within 24 hours.

However, other statutes allow for longer periods of detention without any requirement to

produce the detained person before court. The Immigration and Deportation Act No. 18 of 2010

empowers an immigration officer to detain suspected prohibited immigrants for a period not

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exceeding 14 days while conducting inquiries of that person( s 38(1)). This is clearly arbitrary

power as it does not even require reasonable suspicion at a minimum. As held in the

Mbandangoma case, no one has power to arrest a person in order to help with investigation.

Protection from slavery and forced labour

Read Article 14.

The Article prohibits the holding of another person in slavery or servitude and equally prohibits

forced labour. Article 14(3) lists five exceptions to the prohibition against forced labour.

Protection from inhuman treatment

Article 15 states that “A person shall not be subjected to torture, or to inhuman or degrading

punishment or other like treatment.” The Article has no qualifications or exceptions.

In the past, several Zambian laws, including the CPC, provided for corporal punishment, but

its constitutionality was challenged in the High Court in John Banda v The People HPA/6/1998.

The appellant had been convicted of malicious damage to property and sentenced to one

month’s imprisonment, suspended for 12 months, and ten strokes of the cane. The Court held

that the sentence of corporal punishment and its underlying provisions breached article 15 of

the Constitution and were null and void.

Protection from deprivation of property

Read Article 16.

The right to property is not absolute as the provision has 27 exceptions or derogations. The

Article has more derogations than any other. Several statutes have a bearing on the enjoyment

of this right. these include: the Lands (compulsory) Acquisitions Act; the Town and Country

Planning Act, the Lands and Deeds Registry Act, the Income Tax Act, the Rates Act, the Public

Health Act, etc. The power of eminent domain, that is, the inherent power of the state to

compulsorily acquire private property in the public interest was exercised by the state in the

case of Zambia National Holdings Limited and United National Independence Party v the

Attorney-General. Other cases relevant to this right are summarized below (Do not depend on

these extracts. Read the cases in full):

Zambia National Holdings Limited and United National Independence Party v. The Attorney-

General (1993 - 1994) ZR 115 (SC)

The appellants petitioned the High Court challenging a decision by the respondent to

acquire compulsorily under the newly amended Lands Acquisition Act, the appellant's

land being stand No 10934 Lusaka, also known as the new UNIP Headquarters. The

issues raised challenged the Constitutionality and legality of the compulsory acquisition

and the refusal of the Court below to grant an interlocutory injunction restraining the

respondents from taking possession, occupation or entering upon the said land.

….

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Article 16(1) clearly states the general rule, that is, the acquisition must be under a law

which must provide for adequate compensation. Sub-article (2), on the other hand, goes

on to give exceptions to, and not categories of, the general rule. It deals with situations

were an involuntary loss of property could take place even without adequate or any

compensation. We see no need for a strained and exotic construction of this

straightforward article in the manner attempted, and properly rejected, at the trial.”

In our considered opinion, even assuming that Statutory Instrument 110 of 1992 had

not been passed, ss (1) of s 6 which we have quoted affords a complete answer to Mr.

Sakala's arguments. It obliges that existing laws be read so as to be conformable to the

Constitution so that the word 'adequate', to qualify the compensation and the reference

of disputes to the Court rather than to the National Assembly, would have had to be

imported into cap 296. This Act was not unconstitutional for any of the reasons

advanced by the appellants.”

Patel v. The Attorney-General (1968) ZR 99 (HC)

This is A reference to the High Court pursuant to 15 section 28 (3) of the Constitution

of Zambia….

The circumstances in which this reference was made are as follows. On the 11th May,

1968, the applicant, Mr. Jasbhai Umedthai Patel, was served with a summons charging

him with (1) doing an act preparatory to the making of a payment outside Zambia,

contrary to regulation 9 of the Exchange Control Regulations, 1965, and section 6 of

the Exchange Control Act (Cap. 276) and, in the alternative, (2) attempting to export

currency, contrary to regulation 17 (1) of the aforementioned Regulations and section

6 of the aforementioned Act and section 352 of the Penal Code (Cap. 6). The particulars

to both charges consisted of the allegation that, on diverse dates between 3rd and 10th

May, 1968, at Ndola, he placed or caused to be placed in the post sixty - five airmail

envelopes for transmission outside Zambia, addressed to 55 Oakfield Road, London

N.4, each containing eight ten - kwacha notes, making a total of K5,200, it being alleged

that, in relation to charge (1), this was an act preparatory to the making of a payment

outside Zambia, and, in relation to charge (2), that this was an attempt illegally to export

a total of K5,200 legal tender in Zambia. After a number of adjournments, the matter

was heard on 28th June, 1968, al the Ndola Magistrates Court, before Mr W. Bruce -

Lyle, the Senior Resident Magistrate. The question was, therefore, referred to the High

Court for determination. Accordingly a reference was signed on 8th August, 1968, by

Mr Cave, on behalf of the applicant, and Mr Heron, on behalf of the respondent, in the

following terms:

WHEREAS in proceedings in the Subordinate Court of the First Class for the

Ndola District holden at Ndola in the case of the above - mentioned criminal

prosecution, a question arose as to the contravention of one or more of the

provisions of Chapter 3 of the Constitution of Zambia

NOW THEREFORE William Bruce - Lyle the person presiding in the said

Court, not being of the opinion that the raising of the said question was merely

frivolous or vexatious did refer the following questions to the High Court:

1. Did 45 the opening, examination and seizure of the postal article constitute a

contravention of the applicant's right to privacy of property as guaranteed by

section 19 of the Constitution.

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2. Did the opening, examination and seizure of the postal article constitute a

contravention of the applicant's freedom of expression as guaranteed by section

22 of the Constitution. On the opening of the proceedings before me, Mr. Cave

submitted a third question, as follows:

3. Did the opening, examination and seizure of the postal articles constitute a

contravention of the applicant's right to protection from deprivation of property

as guaranteed by section 18

of the Constitution.

….

Although we have not yet reached the stage where any property of the applicant's has

been compulsorily acquired, I am satisfied on the evidence that property belonging to

the applicant has been taken possession of and that this was done without his consent.

It was therefore, taken possession of compulsorily. Unless, therefore, it can be shown,

and, as I have held, shown by the State, that this taking possession was done in the

excepted circumstance, prima facie there has been a breach of the applicant's right under

section 18

….

The nexus between this and exchange control is, to my mind, so clear that I do not think

one could reasonably argue to the contrary. I am satisfied, therefore, that the taking of

possession, so far as it affects section 18, was expedient for a scheme of exchange

control which was designed in order to secure the development of the nation's financial

resources for a purpose beneficial to the community.

….

I have already said that I consider that exchange control comes within the excepted

derogation in paragraph (a) (ii) of subsection (1) and that the exchange control

legislation under which the taking of possession was effected was expedient for that

purpose.

Protection for privacy of home and other property

Read Article 17.

Article 17 provides that no person, unless consenting thereto, “shall be subject to the search of

his person or his property or the entry of others on his premises” (Article 17(1)). The provision,

however, allows for several derogations or exceptions so broadly framed as to render it almost

meaningless. These include acts done in the interest of defence, public safety, public order,

public morality, public health, town and country planning, protection of the rights and freedoms

of others, inspection of premises by those entitled by law, and for purposes of enforcing a

judgment order of court (Article 17(2)(a)(b)(c)and(d)). As shall be seen below, the courts have

upheld arrests based on illegally obtained evidence in contravention of this constitutional

provision.

The Zambia Police Act(as amended by Act No. 14 of 1999) allows a police officer of at least

the rank of sub-inspector to carry out any search of premises for purposes of investigating a

crime, provided the suspicion is based on reasonable grounds (section 15). Such search

requires a warrant issued by a magistrate, except where an officer suspects a crime is being

committed in his proximity or the matter is urgent. In Liswaniso v The People (1976) ZR 272

however, the Supreme Court upheld the validity of an arrest and conviction that was based on

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an illegal police search. Section 11 of the state Security Act, relating to public security, gives

the president powers to order any person by warrant who owns or controls any apparatus within

the country used for the sending or receipt of telegrams to produce originals and transcripts of

all telegrams of any specified class or description (section 17(1)).

The Constitution does not have a specific provision on the suppression of evidence collected

in violation of constitutionally protected rights. However, arising from the provision on the

supremacy of the Constitution in terms of which any other law in violation of its provisions is

null and void, it should be obvious that any evidence collected in violation of the Constitution

should not stand. The courts have taken a self-contradictory position that effectively

undermines the supremacy of the Constitution. While they have readily suppressed evidence

obtained as a result of confession induced by torture, they have equally readily admitted

evidence produced as a result of illegal searches violating the right to privacy. In the view of

the courts, such evidence is admissible as long as it is relevant to the matters and that it is not

the duty of the court to be concerned with the methods by which evidence is obtained ( Read

these cases in full: Liswaniso v The People (1976) ZR 277 (SC); and Liswaniso Sitali and

Others v Mopani Copper Mines PLC (2004) ZR 176 (SC)).

Protection of law and fair trial

Read Article 18.

Trial be independent and impartial court: The Constitution entitles every defendant to trial by

“an independent and impartial court established by law” (Article 18(1)). In John Ezekial

Mumba v The People (2006) ZR 93 the Supreme Court quashed the conviction of the accused

because a military officer who took part in investigating the case also sat as a member of the

court-martial that convicted him, thus calling that court’s impartiality into question.

Presumption of innocence: Article 18(2)(a) of the Constitution indicates that every person who

has been charged with a criminal offence ‘shall be presumed innocent until he is proved or has

pleaded guilty’. The presumption of innocence entails that a defendant ‘shall not be subject to

unnecessary pre-trial deprivation of freedom’(Chanda, 211). This provision, read together with

article 13(3) which entitles a person to conditional or unconditional release, seems to suggest

that it overrides any statutory provisions prohibiting bail for certain offences. The Supreme

Court acknowledged in Chetankumar Shantkal Parekh 1995/SCZ/11/a that Article 13(3)

overrides any prohibitions on bail in lesser laws, but took the view that its application only

kicks in when trial is unreasonably delayed through no fault of the accused. It follows that there

is nothing unconstitutional about statutory prohibitions of bail going by this interpretation.

Trial in absentia: The Constitution entitles every accused person to be present at his or her own

trial. Except with one’s consent, “the trial shall not take place in his absence unless he so

conducts himself as to render the continuance of the proceedings in his presence impracticable

and the court has ordered him to be removed and the trial to proceed in his absence”(Article

18(2)). This is reflected in section 191 of the CPC, which requires that an inquiry or trial shall

be conducted in the presence of an accused, or if the accused’s presence has been dispensed

with, in the presence of his or her advocates, if any (CPC, s 191). The provision does not

indicate circumstances in which an accused person’s presence can be dispensed with. However,

sections 202 and 203 of the CPC authorise a court to continue a trial in the absence of an

accused (except if charged with a felony) following an adjournment, which may be

unconstitutional. The court, though, may set aside a conviction reached in absentia upon being

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satisfied that the cause of the absence was reasonable( s 203(2) CPC). The CPC also allows the

accused to choose not to be present at trial, which is in line with constitutional prescripts.

When it comes to the passing of judgment, the CPC requires that if the accused person is in

custody, he or she “shall be brought up, or if not in custody, be required by the court to attend,

to hear judgment delivered ...”( s168(2) CPC). However, no judgment shall be deemed to be

invalid simply because the accused was absent from court when it was delivered.

Time and Facilities for preparation of defence: The Constitution provides any person charged

with a criminal offence with the right to be given adequate time and facilities for the preparation

of a defence (Article 18(2)(c)). This right is applicable both to pre-trial detention and during

detention pending an appeal or during an appeal itself. Since it is a right intended to allow an

accused to prepare his or her defence, it falls off once a person has exhausted or waived his or

her right to appeal. The High Court has taken a very narrow interpretation of the provision. In

the Chiluba, Kabwe and Chungu v The People (2005) HPR/01/05 case (where the applicants

sought disclosure of adverse information in the possession of the prosecution), it took the view

that an opportunity to cross-examine witnesses in court, to look at documents produced in

court, to produce documents in defence and to summon witnesses satisfied the right to adequate

facilities to prepare one’s defence. This approach means a defendant tried by the Subordinate

Court (where trial is largely by ambush) cannot ask for disclosure of adverse evidence in the

possession of the prosecution.

Right to legal representation: The Constitution states that every person charged with a criminal

offence “shall unless legal aid is granted to him in accordance with the law enacted by

parliament for such purpose be permitted to defend himself before Court in person, or at his

own expense, by a legal representative of his choice”(Article 18(2)(d). The Constitution,

therefore, does not make the provision of legal aid mandatory but leaves its provision to be

regulated by an Act of parliament. Furthermore, the Constitution states that a detained person

(hence not every person on trial) must be given adequate facilities to consult with a legal

representative (Article 26(1)(d)) and has the right to be represented by a legal representative

before the courts (Article 26(1)(e)). What is clear is that people are entitled to defend

themselves at their own expense by hiring a legal representative of their choice.

The Legal Aid Act regulates the granting of legal aid to indigent litigants. It largely construes

legal aid as legal representation before a court. Defendants appearing before Subordinate

Courts may apply to the magistrate for legal aid. If the magistrate considers that the person has

insufficient means to hire a private practitioner and that it is desirable in the interests of justice,

he or she issues such a person with a legal aid certificate. The Legal Aid Board is then required

to provide the person with a legal representative (s 8 of the Legal Aid Act Chapter 34 of the

Laws of Zambia). The High Court, however, is mandated to grant legal aid to any accused

person appearing before it where the “court considers that there are insufficient reasons why

the accused should not be granted legal aid” ( s 9(2) of the Legal Aid Act Chapter 34 of the

Laws of Zambia).

The construction of who is considered as a legal representative was given by the Court in Patel

v Attorney General (1969) ZR 97. The Court stated that a legal representative needed to meet

two criteria: first, one must be a lawyer who is entitled to appear before the Court; and secondly,

he or she must be a person not disabled under any law in Zambia from appearing before and

actually exercising his or her right of audience. This means only lawyers admitted to the bar

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and not debarred for disciplinary reasons can represent another person as legal representatives.

Invariably this leaves out paralegals and all those who have academic legal training but have

not been called to the bar. Section 5 of the Legal Aid Act, however, allows legal assistants (ie,

persons who have law degrees but not yet admitted to the bar) who are under the Legal Aid

Board to appear for legally aided persons in Subordinate Courts and in chambers for superior

courts.

Right to an interpreter: Article 18(2)(f) of the Constitution entitles an accused person to be

permitted to have the assistance without payment of an interpreter if he or she cannot

understand the language used at trial. The CPC recognises the accused’s right to have evidence

interpreted if it is not in a language he or she understands (s 195 CPC. See also ss 223(4)(c)

and 245(5)(c) in relation to certain depositions given by co-accused in High Court

proceedings). Furthermore, an accused can request that the judgment be translated into his or

her own language, at no cost and without delay. However, the limitation is that this will be

done only “when practicable”( s 170 CPC)

Protection against retroactive criminal law: Under the Constitution, a person ‘shall not be held

to be guilty of a criminal offence on account of any act or omission that did not at the time it

took place, constitute such an offence’(Article 18(4). A person hence cannot be prosecuted for

an offence created retroactively.

Right to remain silent and privilege against self-incrimination: Article 18(7) of the Constitution

states that ‘a person who is tried for a criminal offence shall not be compelled to give evidence

at trial’. The effect is that the investigation and prosecution cannot have recourse to the accused

person and force him or her to answer questions. As such, the provision includes the right to

refuse to answer questions asked by police and prosecutors and also not to give evidence on

oath or to make an unsworn statement which should not be subjected to cross-examination.

In the case of Thomas Mumba v the People HNR/438/1984 the appellant was charged under

the Corrupt Practices Act, section 53(1) of which states: ‘An accused person charged with an

offence under part IV shall not, in his defence be allowed to make an unsworn statement, but

may give evidence on oath or affirmation from the witness box.’ The High Court found the

provision in breach of article 18(7) of the Constitution, since it had the effect of compelling the

accused to give evidence only on oath and thus be liable to cross-examination.

Compellability of Accused/Defendant: Article 18(7) of the Constitution enshrines the right of

an accused not to be compelled to give evidence at his or her own trial. Section 157 of the CPC

further states that an accused (and his wife) is a competent but not compellable witness.

Speedy trial: The Constitution recognises the right to be tried within a reasonable time(Article

18(9)). There are no prescribed timelines in subordinate laws within which cases should be

concluded. In practice many cases take several years to conclude, thus violating the rights of

concerned people to speedy trial. In Benard Lubuto v Zambia (2001) AHKR 37 (HRC 1995)

the Human Rights Committee held that the period of eight years it took to conclude the

applicant’s case was incompatible with the right to fair and speedy trial.

Public trial: The Constitution requires that both trial and “the announcement of the decision of

the court ... shall be held in public”(Article 18(10)). However, this is subject to several

exceptions, under which the court or any other authority may hold proceedings excluding the

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public. These include where public attendance would prejudice the interests of justice; in the

interest of defence; public safety; public morality; welfare of persons under the age of 18 years;

or the protection of the private lives of persons concerned(Article 18(11)).

Freedom of conscience, thought and religion

Read Article 19.

Article 19 allows individuals to embrace or not embrace any belief in divinity and to profess a

religion of their choice. It also allows the establishment of religious institutions including

churches and schools, where they can offer religious education. However, such institutions

must comply with the relevant laws such as the Societies Act (for the registration of societies

such as churches)and the Education Act (for Schools). In order for the High Court to grant

redress under Article 28 of the Constitution, the applicant must satisfy the court that he or she

has been, or is being, or is likely to be hindered in the enjoyment of his fundamental rights and

freedoms without his or her consent. There may be a breach of a person's right to freedom of

conscience if there is even a slight degree of hindrance in his or her enjoyment of freedom of

conscience or religious thought. Although a subjective test may be used in determining whether

one holds a religious opinion, an objective test must be used in determining whether a ceremony

or observance is religious in nature.

In the Kachasu case (excerpts below), an eleven year old girl challenged her suspension from

school for refusing to sing the National Anthem and to salute the National Flag, the High Court

observed that a person is hindered in the enjoyment of his freedom of conscience by being put

under coercion to sing the national anthem against her religious beliefs, and by being suspended

from any Government or aided school because of her refusal, on religious grounds, to sing the

national anthem or salute the national flag. However, the Court held that on the basis of an

objective test, the singing of the national anthem and the saluting of the national flag are not

religious ceremonies or observances. Read the case in full.

Kachasu v Attorney-General (1967) ZR 145 (HC)

To summarise my findings in relation to the relief claimed and the grounds therefor

submitted in the originating notice of motion, I find that:

(1) Regulations 25 and 31 (1) (d) of the Education (Primary and Secondary Schools)

Regulations, 1966, are valid and within the rule - making flowers conferred by section

12 of the Education 30 Act, 1966; further, that they do not conflict with any other

provision of the Education Act, 1966, nor are they in conflict with section 21 of the

Constitution.

(2) The applicant has suffered hindrance in the enjoyment of her freedom of conscience

in that she has been coerced to sing the national anthem at Buyantanshi School contrary

to her religious conscience; and that she has belly suspended from school and denied

readmission thereto in consequence of her refusing to sing the national anthem or salute

the national flag.

(3) Such hindrance, however, does not constitute a contravention of her right to the

enjoyment of freedom of conscience, secured to her by section 21 of the Constitution,

inasmuch as that hindrance is reasonably justifiable in a democratic society and was

authorised by laws which were both reasonably required in the interests of defence and

for the purpose of protecting the rights and freedoms of other persons, and themselves

reasonably justifiable in a democratic society. It follows that the applicant has not

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established that any of the provisions of sections 13 to 26 (inclusive) of the Constitution

have been, are being, or are likely to be, contravened in relation to her, and that she is

not entitled to any redress under section 28 of the Constitution. There must be judgment

for the Attorney-General with costs.

Read also the case of Kelvin Hang’andu in full. Do not rely on extracts given below.

Kelvin Hang’andu v Law Association of Zambia SCZ Judgment No. 36 of 2014:

This is an appeal from a judgment of the High Court delivered on 31st December, 2012

following a petition, for the protection of fundamental rights, filed by the Appellant on

7th September, 2010. The main facts of this matter are simple and substantially not in

dispute.

….

His case is that he is an Advocate of the High Court of Zambia, and a member of the

Law Association of Zambia, the Respondent in this Appeal. That he has been a member

of the Respondent since 15th November, 1996, when he was admitted to the Bar. That

on 24th May, 2003, he was baptized into the Christian faith of the Seventh Day

Adventists (SDA).That among the fundamental doctrinal beliefs of the SDA is the

immutable biblical command, enshrined in Exodus, Chapter 20, verse 8-11 of the Bible,

that the seventh day of the week is the Sabbath of the Lord, and must be sacredly

observed between Friday sunset, and Saturday sunset, through public worship and

complete abstention from any form of menial work and regular activity, such as

participation in the Annual General Meetings and other meetings (hereinafter

collectively referred to as “the meetings”) customarily conducted by the Respondent on

Saturdays.

….

The critical question for our decision, in our view, is whether or not the holding of the

Respondent’s meetings on the Sabbath hinders the Appellant’s enjoyment of freedom

of conscience enshrined in Article 19(1) of the Constitution.

…..

We hold the considered opinion, and entirely agree with the learned trial Judge, that the

term that needed to be defined, in order to arrive at a clear understanding of Article

19(1) of the Constitution, was ‘hindered’ and not ‘freedom of conscience’. The drafters

of our Constitution have already defined ‘freedom of conscience’ in Article 19(1) itself.

The Appellant has not advanced any solid grounds upon which we can be persuaded to

abandon the interpretation of ‘freedom of conscience’ contained in Article 19(1), in

preference to definitions derived by American Courts on the basis of their own

Constitutional provisions.

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…

Accordingly, we hold that the learned trial Judge properly directed himself when he

defined ‘hindered’ on the basis of definitions derived from English dictionaries.

Having ascertained the meaning of ‘hindered’, we must now consider whether or not

the learned trial Judge was on firm ground when he dismissed the Appellant’s claim

that the Respondent had breached his freedom of conscience. We hold that the trial

Court

was indeed on terra firma. Even accepting the Appellant’s very poignant argument that

freedom of religious conscience can still be indirectly – not necessarily purposely –

impeded or even effectually destroyed where the adherents of one religious faith are

confronted to abandon their religious convictions respecting a day of rest via a measure

whose natural or proximate or indirect result is to disadvantage members of a particular

faith alone, we still hold the view that, in this case, the Respondent has not infringed

the Appellant’s freedom of conscience.

The foregoing holding is resolutely founded on the fact that there is no evidence on the

record of appeal to establish that the Respondent has done anything to hinder the

Appellant in the enjoyment of his freedom of conscience. A careful scrutiny of the

record of appeal establishes that the Appellant does not dispute the fact that the

Respondent started holding its meetings on the Sabbath way before he became its

member. While the Respondent was constituted in 1973, pursuant to the Law

Association of Zambia Act, Cap 31, the Appellant only became, its member on 15th

November, 1996, following his admission to the Bar. According to the Appellant’s own

evidence, he participated in the Respondent’s meetings from 15th November, 1996 until

24th May, 2003, when he converted to Adventism. Following his conversion, he has

faithfully observed the Sabbath. The Appellant did not adduce any evidence whatsoever

to prove that the Respondent has in any way coerced him to choose attending its

meetings at the expense of observing the Sabbath. He also did not tender any evidence

to establish that the Respondent has imposed or threatened to impose any sanction

against him for having been missing its meetings since 24thMay, 2003. What is

effortlessly discernable from the Appellant’s evidence and submissions is that since he

voluntarily converted from Catholicism to Adventism, he has been devotedly observing

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the Sabbath. There is no evidence to establish that he has been forced by the

Respondent, even subtly, to abandon his observance of the Sabbath. So the conduct of

the Respondent cannot be said to have had the effect of impeding the Appellant in the

observance of the Sabbath. What the Appellant has been failing to do is to attend the

Respondent’s meetings which are held on the Sabbath. So in reality, in our view, since

his conversion from Catholicism to Adventism, the Appellant has enjoyed his freedom

of conscience without any hindrance from the Respondent.

….

In our view, what is manifest, from the evidence on the record of appeal, is that what

the Appellant has not been enjoying is his freedom to participate in the meetings of the

Respondent and vie for elective offices in the Respondent. Unfortunately for the

Appellant, these freedoms are not recognized and protected by our Constitution.

For the foregoing reasons, and on the authority of decisions in Sherbert v. Verner(5)

and the Kachasu(14) case, it is our considered opinion that the Appellant’s claim that the

Respondent has violated his freedom of conscience, is unsustainable.

Accordingly, we hold that the Respondent has neither directly nor indirectly hindered

the Appellant in the enjoyment of his freedom of conscience. Ground one must

accordingly fail.

Freedom of expression

Read Article 20 of the Constitution.

Article 20(1) largely mirrors Article 19 of the ICCPR as well as Article 10 of the European

Convention for the Protection Human Rights and Fundamental Freedoms, 1950. Freedom of

expression includes the right to hold opinions without interference, the right to receive ideas

and information without interference, freedom to impart and communicate ideas and

information without interference and freedom from interference with one's correspondence.

In providing for freedom of expression so broadly, the Constitution has recognised the

important role freedom of expression plays in the democratic process. Similarly, by prohibiting

the legislature from passing laws that may derogate from the freedom of the press, the

Constitution

underscores the indispensable role the press plays in the realisation of freedom of expression.

Alfred Chanda (2005) lists the following four broad functions of freedom of expression:

First, it helps an individual to attain self-fulfillment. The rational individual requires

information and an opportunity to express his/her own ideas if he/she is to grow.

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Second, it assists in the discovery of truth. In the American case of Abrams v. U.S.

Justice Holmes stated that “the best test of truth is the power of the thought to get itself

accepted in the competition of the market.” The government must not interfere with

dialogue no matter how unpleasant it is. Only when the social order is drastically

threatened is government allowed to punish a speaker.

Third, it enhances the capacity of an individual to participate in a democratic society.

Alexander Meiklejohn, a renowned jurist, argues that free expression is essential not

only to individual choice and development of a person’s rational faculties, but also to

effective government, the proclaimed ideal of democracy.

Lastly, freedom of expression provides a mechanism by which to establish a reasonable

balance between stability and social change. A good reason why government should

not suppress speech is that free speech is a safety valve. It goes without saying that just

as the ancient Romans eventually learned that executing Christians did not suppress

Christianity, modern governments should take cognizance of the fact that forbidding

people to discuss certain topics does not encourage public stability, as it only creates

martyrs. Moreover, far from discouraging the speech, punishing people for speech only

drives it underground and encourages conspiracy. It must be recognized that in the

battle for public order, free speech is the ally, not the enemy.

Restrictions on Freedom of Expression: Freedom of expression is not absolute. There are

legitimate restrictions to its exercise or enjoyment. Such strictions must, however, meet a

three-part test in order to be valid. First, any restriction must be provided by law. Second, any

restriction must serve one of the legitimate purposes expressly listed in the Article. Finally, any

restriction must be shown to be necessary.

According to Article 20(3), in order for a restriction on freedom of expression or the press to

be valid, it must meet the following criteria.

First, it must be provided for by law.

Second, it must reasonably be required in any of the interests enumerated in clauses (a)

to (c). These "interests", especially those in clause (a), are expressed in very broad and

vague terms. There is no definition of ̀ public safety', ̀ public order' or ̀ defence'. Almost

any restriction can be justified on any of these grounds. A timid judge will uphold all

restrictions imposed by the State by giving a broad interpretation to this clause. This

has happened in a number of cases in Zambia. Furthermore, the restriction need only

be "reasonably required" to protect the listed interests as opposed to being "necessary"

as under Article 10 of the European Human Rights Convention, Article 19 of the

International Covenant on Civil and Political Rights and the Universal Declaration of

Human Rights. The Zambian standard is less stringent than that in international

instruments as all that has to be shown is that the restriction is merely "reasonable" or

"desirable". It is not necessary to demonstrate a "pressing social need" or to give

relevant and sufficient reasons for the restriction. The Zambian Supreme Court in the

Christine Mulundika case stated the following gprinciples as relevant to limiting the

enjoyment of a right: that there must be adequate guidelines so that the exercise of a

discretion by the competent authorities should have the scope indicated and the manner

of its exercise set out in the affected law with sufficient clarity; there must be effective

controls on the exercise of the power to restrict the right in question and there must be

a procedure to allow the aggrieved person to challenge the decision. Such a procedure

must be reasonable, fair and just; fundamental constitutional rights should not be denied

to a citizen by any law which permits arbitrariness and is couched in wide and broad

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terms; and the principles of fairness are principles in their own right and ought to be

allowed to pervade all open and just societies.

Third, the restriction must be reasonably justifiable in a democratic society. What

constitutes a democratic society is not defined by the Constitution. This will depend on

the social philosophy of the judge hearing the case and the scale of value he places on

public interests.

The Supreme Court in the case of Christine Mulundika identified a number of features of a

democratic society, which it described as minimum attributes in any democracy: the

availability of a Government which reflects the will of the majority of the people expressed at

periodic

and genuine elections; the power of the state should reside in the people and where this is

exercised on their behalf, the mandatory is accountable; apart from the free and informed

consent and maximum participation of the governed, it is also common to expect that the people

have and actually enjoy basic rights and freedoms and these are available to the majority as

well as to any minority; the freedoms of expression and assembly are crucial. The Supreme

Court noted in this case that the requirement of prior permission to gather and to speak, which

permission can be denied sometimes for good and at other times for bad cause not contemplated

by the Constitutional derogation, directly affects the guaranteed freedoms of speech and

assembly. A derogation which is so broad as to cover restrictions both within and without the

limits of constitutionality cannot be upheld.

Statutory Restrictions on Freedom of Expression

Apart from restrictions contained in the Bill of Rights, Alfred Chanda (2005) lists the following

laws as placing several restrictions on the enjoyment of freedom of expression. Most of these

laws were passed by the colonial government to contain rising African nationalism. Such

repressive laws, however, were not repealed after independence but in some cases were even

enhanced. The return to multiparty democracy in 1991, the amendments to the constitution in

1996 and 2016 did not lead to any slight change.

1) Sedition

Section 57(1) of the Penal Code prohibits sedition. Any person who does any of the following

is guilty of an offence and is liable for a first offence to imprisonment for seven years -

(a) does or attempts to do, or makes any preparation to do, or conspires with any person

to do, any act with a seditious intention;

(b) utters any seditious words;

(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious

publication;

(d) imports any seditious publication, unless he has no reason to believe that it is

seditious.

Section 60(1) defines a seditious intention as an intention -

(a) to advocate the desirability of overthrowing the government by unlawful means...;

or

(b) to bring into hatred or contempt or to excite disaffection against the

government ...; or

(c) to excite the people of Zambia to attempt to procure the alteration, otherwise than

by lawful means, of any other matter in Zambia...; or

(d) to bring into hatred or contempt or to excite disaffection against the administration

of justice in Zambia; or

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(e) to raise discontent or disaffection among the people of Zambia; or

(f) to promote feelings of ill-will or hostility between different parts of the community;

or

(g) to promote feelings of ill-will or hostility between different classes of the population

in Zambia; or

(h) to advocate the desirability of any part of Zambia becoming an independent state or

otherwise seceding from the Republic; or

(i) to incite resistance, either active or passive, or disobedience to any law or the

administration thereof.

The proviso to this section says that an intention shall not be taken to be seditious if it is an

intention -

(i) to show that the government have been misled or mistaken in any of their measures;

or

(ii) to point out errors or defects in the government or constitution or in legislation or

in the administration of justice, with a view to the reformation of such errors or defects;

or

(iii) to persuade the people of Zambia to attempt to procure by lawful means the

alteration of any matter in Zambia; or

(iv) to point out, with a view to their removal, any matters which are producing or have

a tendency to produce feelings of ill-will or hostility between different classes of the

population of Zambia.

These sections are a serious impediment on press freedom and freedom of speech generally.

Many of the activities prohibited in this section (s 60(1)) are taken for granted in a democratic

society. It is usually the role of civil society organizations and opposition political parties to

raise matters of public importance the government may not be paying attention to and thereby

creating public disaffection. Not only does the section prohibit peaceful opposition but does

not make truth a defence to a charge brought under it.

2) Power to ban Publications

Section 53(1) of the Penal Code grants the President absolute discretion to prohibit any

publication or series of publications published within or outside Zambia, that he considers to

be contrary to the public interest. What constitutes the public interest is within his/her sole

discretion. Any person who imports, publishes, sells, offers for sale, distributes, or reproduces

any prohibited publication is liable to imprisonment for up to three years.

An attempt to challenge the President's power under this section failed in Edward Jack

Shamwana v. Attorney-General(see extracts below). In this case, two political detainees,

Edward Shamwana and Valentine Musakanya, sent a petition to the National Assembly,

requesting the Assembly to review the state of emergency, which had been in existence since

independence. In March 1981, President Kaunda banned the said petition. Shamwana sought

an order from the High Court declaring that the President's decision to ban the petition was

wrongful, unlawful and unconstitutional. He contended that a petition to the National Assembly

could not be prejudicial to the public interest and that by proscribing the document the President

was negating his oath of office to uphold the Constitution. Justice Florence Mumba held that

the President had acted within powers conferred on him by section 53 of the Penal Code and

that the President's opinion was not open to question and that his decision following upon such

an opinion could not be impugned. The Supreme Court dismissed the appeal on similar grounds

(reproduced below). The courts in this case took the easy way out. There is no such thing as

unchallengeable discretionary power. The courts have power to check abuse of discretionary

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power where the said power is exercised unreasonably, or in bad faith or where the person

concerned takes into account irrelevant considerations or fails to take into account relevant

considerations, or acts under dictation.

Section 53 is clearly incompatible with democracy, as the existence of a free press is entirely

dependent on the goodwill of the President. As long as we have timid judges who are reluctant

to review the President's actions this power will continue to be abused. For example, in 1996

the

President banned edition 401 of the Post Newspaper because it prematurely disclosed a plan

by the government to organize a referendum over the Constitution. It is submitted that section

53 is unconstitutional as the powers given to the President are overbroad and cannot be

reasonably justified in a democratic society.

3) Publication of False News

Section 67(1) of the Penal Code stipulates that any person who publishes, whether orally or in

writing or otherwise, any statement, rumour or report which is likely to cause fear and alarm

to the public or to disturb the public peace, knowing or having to believe that such statement,

rumour or report is false, is guilty of an offence and is liable to imprisonment for up to three

years. This provision has a chilling effect on the freedom of the press as journalists publish

stories at their own risk.

4) Defamation

Defamation is the publication of a statement that reflects on a person's reputation and tends to

lower him in the estimation of right thinking members of society generally or tends to make

them shun or avoid him. The defamatory meaning of the communication may be apparent on

its face or it may arise from extrinsic circumstances, which the plaintiff is then required to

prove. Defamation is made up of two torts, i.e., libel and slander.

Libel is a defamatory statement or representation in permanent form, e.g. a picture, statue,

waxwork effigy, or any writing, print, mark or sign expressed to view. Broadcasting, both radio

and TV, and theatrical performances are, by statute, treated as publications in permanent form.

On the other hand, slander is a defamatory statement or representation conveyed by spoken

words. It is important to distinguish libel from slander for two reasons. First, because libel is a

crime as well as a tort. Slander per se is not criminal albeit spoken words may be punishable

by common law or statute as being treasonable, seditious, blasphemous, tending to breaches of

the peace, etc. Second, libel is actionable per se, that is, without proof of special damage (actual

damage). This means that no damages are recoverable merely for loss of reputation by reason

of the slander and that the plaintiff must prove loss of money or of some temporal or material

advantage estimable in money. It is not enough for the plaintiff merely to lose the society of

his

friends.

The Law of defamation is important as it is aims at protecting the reputations of other persons.

Both the Constitution of Zambia, in Article 20(3)(b), and international and regional

instruments, recognise the need to protect reputations. Freedom of expression is not a license

for destroying the reputations of other persons.

However, a rigorous implementation of defamation law may have a chilling effect on freedom

of expression. It may also undermine good governance, transparency and accountability, as the

press, for example, may not publish certain information for fear of legal suits. Similarly,

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members of the public may be reluctant to provide information to the press or the authorities

for the same reason. Defamation law may thus hinder public debate of national issues.

The challenge in a democracy is, therefore, to strike an optimum balance between the legitimate

interests of individuals not to have their reputations besmirched and the interest of the public

to have access to relevant information and to have unhindered debate of public issues. This is

especially important with regard to public figures.

5) Criminal Defamation

The offence of criminal libel is created under Chapter XVIII of the Penal Code. Section 191

provides that any person who, by print, writing, painting, effigy, or by any means otherwise

than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory

matter

concerning another person, with intent to defame that other person, is guilty of “libel”.

Publication of defamatory matter is unlawful unless: the matter is true and it was for the public

benefit that it should be published; and it is privileged on one of the grounds mentioned in the

chapter.

Since the law on civil defamation is sufficient to protect the right to reputation, there is no

reason why the offence of criminal defamation should be maintained in a democratic country.

In practice, prosecutions for criminal libel have been instituted against those who have

allegedly defamed politicians of the ruling party as well as members of their families, the

President’s wife and children and senior government officials.

6) Defamation of the President

Section 69 of the Penal Code seeks to protect the President's reputation and the dignity of his

office by providing that any person who, with intent to bring the President into hatred, ridicule

or contempt, publishes any defamatory or insulting matter, whether by writing, print, word of

mouth or in any other manner, is guilty of an offence and is liable on conviction to

imprisonment for up to three years. In the cases of The People v. Bright Mwape & Fred

M’membe1087, Fred M’membe & Bright Mwape v. The People, and Fred M’membe, Masauso

Phiri & Goliath Munkonge v. The People (see extracts below) both the High Court and the

Supreme Court upheld the constitutionality of section 69 on the ground that it is reasonably

required in the interests of public order and is reasonably justified in a democratic state In the

view of courts, the Constitution elevates the President above everyone else and he can,

therefore, not be compared to an ordinary person. For example, the President is immunized

from both civil and criminal proceedings while in office. According to the court, given the fact

the President enjoys a special status, it is legitimate and justifiable to seek to protect his

reputation, as section 69 does. Moreover, allowing people to defame the President might lead

to a breakdown of law and order

as supporters of the President may physically attack those defaming the President.

These arguments are specious and speculative. They miss the point that the President is a

servant of the people and not their master and whether or not he has a good reputation depends

on his conduct while in office. A good reputation must be earned and not legislated.

Furthermore, no one is forced to run for the office of President. Those who choose to do so

must be thick-skinned and must be prepared to lose a large part of their privacy. Why should

the law give the President liberty to defame his opponents at will by immunizing him from

legal suits while making it criminal for his opponents to defame him? The civil law of

defamation is sufficient to protect the President’s reputation. If fact, almost all genuine

democracies do not have such discriminatory laws.

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7) Obscenity

The law on obscenity is meant to protect society’s morals. Section 177(1) of the Penal Code

provides that any person involved in any of the following activities is guilty of a misdemeanour

and is liable to imprisonment for five years or to a fine.

a. makes, produces or has in is possession any one or more obscene writings, drawings,

prints, paintings, printed matter, pictures, postages, emblems, photocopies,

cinematograph films or any other object tending to corrupt the morals; or

b. imports, conveys or exports or causes to be imported conveyed or exported, any such

matters or things or in any manner whatsoever puts any of them in circulation; or

c. carries or takes part in any business, whether public or private, concerned with any

such matters or things, or deals in any such matters or things in any manner whatsoever,

or distributes any of them, or exhibits any of them publicly or makes a business of

lending any of them; or

d. advertises or makes known by any means whatsoever with a view to assisting the

circulation of, or traffic in, any such matters or things that a person is engaged in any

of the acts referred to in this section, or advertises or makes known how, or from whom,

any such matters or things can be procured either directly or indirectly; or any show or

performance tending to corrupt morals.

On convicting any person of an offence against this section, a court may order the confiscation

of any matter or thing made, possessed or used for the purpose of such offence. A court is

empowered, on the application of a public prosecutor, to order the destruction of any obscene

matter or thing to which the section relates regardless of whether or not the defendant has been

convicted in respect of such obscene matter or thing.

Below are case summaries relating to freedom of speech:

Arthur Lubinda Wina, Frederick Titus Jacob Chiluba, Vernon Johnson Mwaanga,

Akashambatwa Mbikusita Lewanika, Levy Patrick Mwanawasa, Ephraim Chibwe and Andrew

Kashita v The Attorneygeneral (1990 - 1992) ZR 95 (HC)

The President of Zambia had, at a news conference, issued a directive that certain

Government owned newspapers were not to provide coverage to or accept

advertisements from the Movement for Multi-Party Democracy. The petitioners applied

for on order quashing and setting aside the directive as it violated their rights in terms

of articles 22 and 25 of the Constitution of Zambia.

The next question for determination is the status of what the papers were told not to be

doing. Was that a directive or not? The answer to this is that those who listened to that

press conference, and I was one of them, would no doubt say that was a directive, simple

and clear. I accordingly find and hold that it was a directive….

The next issue arising from this finding is: did the directive discriminate between the

petitioners and their members on the one hand and these who held views similar to

those held by the President on the other hand? The answer again is in the affirmative.

The nature of the directive is such that it cannot command any other interpretation even

from those really hostile to the petitioners. That discrimination was against the

petitioners and their followers and in favour of the UNIP leaders and their members.

100

Was that discrimination legal or, put in other words, was the directive within the

provisions of the Constitution: art 22 and 25? Before I answer this question I would like

to examine one or two aspects which arose in this case. The first one is whether or not

the office of the President is a constitutional creation. The answer is that it is such a

creation, by art 37 of the Constitution.

….

That directive was discriminatory of the petitioners and their cadres. The reasons for

the discrimination was that they had held different political views from those of the

President and his members. The newspapers which were given the directive are owned

by the Government. In the light of these findings, the directive would be

unconstitutional unless it falls within one of the E permitted derogations. The first such

derogation is consent of the victims of the discrimination. In this case none of the

petitioners consented to his being excluded from the enjoyment of the freedom of

expression. The directive in question was not a written law as it was not enacted by

Parliament in order to attract the considerations of art 22(2)(a), (b) and (c). But the

directive fell within the 'in the performance of the functions of any public office' part

of art 25(2) of the Constitution. Clause 6 of this art (25) provides that: 'Clause 2 shall

not apply to anything which is expressly or by necessary implication authorised to be

done by any such provision of law as is referred to in clause (4) or (5).'

….

The next question is: did this directive constitute a hindrance of the petitioners from

their enjoyment of their freedom of expression. My very considered answer is that it

did. It did because in order for them or indeed anybody else to fully enjoy this freedom

they must be able to receive and publish information. The receipt part is what I would

call an inlet of information to the person. The publication is the outlet of information

from that person to another person or other persons. If either of these, inlet or outlet, is

blocked without the consent of the individual in question and without any legal

justification for the blockade, then that is a denial of the constitutional freedom of

expression. This is especially so where the blockade is effected by means of a piece of

legislation or by any person in the performance of the functions of any public office or

public authority. Since the petitioners were not allowed to publish their views on

matters political through the Government newspapers, and by necessary implication

even through radio an try, they were denied the enjoyment of their freedom of

expression. Thus they were hindered from exercising their said right. I have found and

held that the directive in question, and thus the hindrance already explained, was

unconstitutional and therefore

illegal. As President of the Republic of Zambia, His Excellency the President whose

GRUND NORM is the Constitution of Zambia, is not allowed by the law to make

pronouncements which are contrary to any provision of the Constitution. Unless the

Constitution is amended, everybody from the President down to the commonest of the

common man is obliged to follow to its letter what it says. And this is so whether it is

in a one party or a multi-party political arrangement. Since the directive in question was

unconstitutional it is hereby quashed.

Edward Jack Shamwana v. The Attorney-General (1988 - 1989) ZR 44 (SC)

The appellant appealed against a judgment of the High Court dismissing his application

that the President's order proscribing his petition to the National Assembly was

unconstitutional. The President, when he decides to prohibit publication, should publish

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such order in the Gazette 'and in such local newspaper as he may consider necessary'.

The appellant argued that such choice of newspaper was left to the President but that

publication was mandatory and not directory. The appellant had presented a petition to

his Member of Parliament setting out grievances. After the Speaker and all members of

Parliament had received copies, the President declared the petition a prohibited

publication. The respondent argued that in terms of a petition being before Parliament

and therefore being part of the proceedings in Parliament that could not be prescribed,

the petition under Standing Orders must be signed by the member of Parliament in

charge of the petition and be deposited with the Clerk of the National Assembly for one

clear day and thereafter be endorsed by the Speaker. The appellant argued his petition

was properly before Parliament.

It must now be decided whether the President's failure to publish the banning order in

a local newspaper is fatal to the validity of the order. The appellant's viewpoint was that

such failure was fatal as the requirement was mandatory. But Mr. Goel argued in the

alternative that the requirement was directory and that, as such, non-compliance was

not fatal to the banning order.

….

In this case, the general object to be secured by the requirement is to communicate the

banning order to the general public. In our opinion, publication of the banning order to

the general public is mandatory. As the general object of the requirement was here

fulfilled through publication of the banning order in the Gazette, we do not think that

the omission to publish it in a local newspaper can be said to be fatal to its validity. In

other words, whilst the publication of the banning order to the general public is

mandatory, we would regard the requirement to publish in a local newspaper as

directory.

…

The nub of this ground hinges on the appellant's belief that the petition was before

Parliament and that, as such, freedom of debate could not be censured by a Presidential

opinion no matter how honestly held that opinion might be. As we have already held,

the petition was not before Parliament and so the banning order cannot be said to have

interfered with the freedom of debate in Parliament. It is Parliament that has conferred

(under section 53(1) of the Penal Code) an absolute discretion on the President to ban

a publication, which, in his opinion, is contrary to public interest.

M'membe and Mwape v. The People (1995 - 1997) ZR 118 (SC)

The appellants had been charged in a magistrate's court with contraventions of s 69 of the Penal

Code in that they had allegedly defamed the President. They requested the magistrate to refer

the matter to the High Court in order to determine the constitutionality of s 69 of cap 146. The

High Court heard argument on the issues whether s 69 contravened arts 20 and 23 of the

Constitution and ruled that they did not. On appeal it was submitted on behalf of the appellants

that the criminal provision offended against the right to freedom of expression in art 20 and

was discriminatory and thus in breach of s 23 of the Constitution.

Speaking for myself, the judge below was right to reject arguments which sought to

consign the President into the general rank and file of the citizenry. He was not in error

when he considered that s 69 was reasonably required, in effect to forestall a possible

unpeaceful reaction from the citizens and supporters and to protect the reputation of the

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first citizen. I do not consider that there can be any who would seriously dispute that

side by side with the freedom of speech is the equally very 'important public interest in

the maintenance of the public character of public men for the proper conduct of public

affairs which requires that they be protected from destructive attacks upon their honour

and character'. See my judgment in SATA v Post Newspapers Ltd and Another

(1992/HP/1395 and 1804 and 1993/HP/821 - unreported). When the public person is

also the Head of State, the public interest is even more self-evident. The truth of the

matter is that there is nothing in art 20 which immunises defamation. In my considered

opinion, a law meets the test of being reasonably required if it has as its aim at least one

of the interests or purposes listed in art 20(3). It is also reasonably required upon the

test of proportionality when, as the Court of Appeal of Tanzania put it, 'Secondly, the

limitation imposed by such law must be no more than reasonably necessary to achieve

the legitimate object. This is what is also known as the principle of proportionality.' -

See Pumbun v Attorney- General (1993) 2 LRC 317.

….

The election of any person to the office of President, I would have thought to be self-

evident, has legal and constitutional consequences, quite apart from any other result.

The Constitution itself ordains that he become Head of State and of Government; that

the executive power of the state vest in him and that he be endowed with the various

matters, powers and functions described in the Constitution. I do not see how it can be

argued that the President should stand before the law equally with the rest of us when,

for example art 43 grants him immunity from civil or criminal suit while he occupies

that high office. If the Constitution itself makes the President not equal to everyone

else, how can the accused's arguments be maintainable? The second ground of appeal

must fail of its own inanition.

Michael Chilufya Sata v Post Newspapers Limited and Printpak Zambia Limited

1993/HP/1395 and 1804 and 1993/HP/821 (High Court)

The plaintiff was at all material times a politician and public official holding a Ministerial

appointment. The defendants published in their newspaper "The Post" (and formerly "The

Weekly Post")various articles and a cartoon. The plaintiff sued for libel and the defendants

pleaded fair comment. Their rolled-up plea asserted that the allegation contained in the articles

complained of consisting of fact were true and those consisting of comments were fair

comments on matters of public interest. In respect of some of the matters complained of, there

was a denial that they could bear the defamatory imputations assigned to them by the plaintiff

in his pleadings. There were three separate actions which were consolidated into one.

….

Before analysing the issues raised in the pleadings and the evidence, it is necessary to

give precedence to a proposition put forward by Mr. Sikota and Mr. Lungu which was

to the following effect, as I summarise it: Because Article 20 of our Constitution of

1991 specifically recognises, among others, the principle of the freedom of the press, it

is now time, to modify the common law principles of the law of defamation in their

application to plaintiffs who are public officials as to their right of action, the burden

and standard of proof, and the latitude the press should be permitted to subject public

officials to criticism and scrutiny. It was argued that because of the similarity between

the provision in our Constitution and that of the USA, we should choose to follow the

line taken by the American courts rather than the one followed by the courts in England.

In this regard, it was submitted that I should apply the landmark case of New York Times

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v L.B. Sullivan and Ralph D. Abernathy, et. al., v L.B. Sullivan1146; in which the

Supreme Court of the United States laid down some principles grounded in the First

and Fourteenth Amendments to fetter libel actions by public officials to the benefit of

free speech and press freedom.

….

The question arises: Should the rationale and principles relating to impersonal criticism

be extended to public officials in the wholesale manner suggested by the submissions

in this case? In the opinion of the court in Sullivan which was delivered by Mr. Justice

Brennan, stress was laid on the fact that the alleged libelous publication caused injury

to official reputation. The court weighed the public interest of the public receiving

information against possible injury to official reputation of public figures and took the

view that the chances of injury to their private or personal character were usually very

small when the discussion was on official conduct. The judges were ever so careful to

draw the distinction between injury to official reputation arising from official conduct

and injury to the personal character of an official. The protection of the constitution was

not extended to injury to private character or the private conduct of a public official.

….

Our Constitution in Article 20 recognises both the freedom of the press and the right to

reputation. A balance has to be struck and I do not consider that a good old balance can

be struck by shifting the burden or standard of proof; nor by straining to discover a new

qualified privilege; nor by immunizing falsehoods to any greater extent than the

Defamation Act already provides.

Let me make it clear that I fully endorse the view that some recognition ought to be

given to the constitutional provisions in Article 20 and I accept that impersonal criticism

of public conduct leading to injury to official reputation should generally not attract

liability if there is no actual malice and even if, pursuant to S.7 of the Defamation Act,

CAP.70, the truth of all facts alleged is not established if the imputation complained of

is competent on the remainder of the facts actually proved. However, I would reject the

proposition in Sullivan to the extent that it sought to legalise character assassination of

public officials or to shift the burden of proof so that knowledge of falsity or

recklessness should be proved by the plaintiff and to a degree of convincing clarity.

….

In contrast, our own Constitution is less vague, though I agree with the general principle

of not simply allowing the existing law of defamation to operate without due regard to

the need to lend greater meaning and effect to the Article 20 provisions. The dilemma

is that our Constitution attaches equal importance to freedom of the press and the right

to reputation, without distinction whether such reputation belongs to a private or public

individual. I have agonised and given very careful consideration to the competing

propositions that it is for the interests of society that the public conduct of public men

should be criticised without any other limit than that the writer should have an honest

belief that what he writes is true; and the equally important public interest in the

maintenance of the public character of public men for the proper conduct of public

affairs which requires that they be protected from destructive attacks upon their honour

and character if made without any foundation. I have come to the conclusion that there

is no need to formulate a new set of principles to impose new fetters on the right of a

public official to recover damages. However, in order to counter the inhibiting or

chilling effect of litigation, I am prepared to draw a firm distinction between an attack

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on the official public conduct of a public official and imputations that go beyond this

and attack the private character of such official which attack would be universally un-

sanctioned. I am also prepared, when considering the defence of fair comment on a

matter of public interest arising from the conduct of a public official, to be more

generous and expansive in its application. Of course, it would be unwise for me to

attempt an exhaustive description of what would be a generous application of the

defence but it seems to me that where an allegation complained of can properly be

regarded as comment on the conduct of a public official in the performance of his

official duties or on conduct reflecting upon his fitness and suitability to hold such

office, freedom of speech and press can best be served in Zambia by the courts insisting

upon a higher breaking point, or a greater margin of tolerance than in the case of a

private attack before an obvious comment based on facts which are substantially true

can be regarded as unfair. Although considerably stretched at the seams, the existing

defence would remain intact and the public official still able to recover damages for

comment that is rendered unfair by any outrageous or aggravating features in the case.

….

In sum, it is my considered opinion that the constitutional protection of reputation and

free speech or press can best be balanced in Zambia, when the plaintiff is a public

official who has been attacked in that character, by a more generous application of the

existing defences. The chilling effect of litigation would thereby be mitigated to some

extent, just as it would be considerably eased by the courts constantly seeking to

promote free speech and press by keeping a careful eye on the size of awards which

perhaps are the true chilling factor especially if they involve any exemplary or punitive

element.

Shamwana v Mwanawasa (1993-1994) ZR 149 (HC)

The plaintiff issued a writ of summons claiming damages for malicious slander and an

injunction restraining the defendant from referring to the plaintiff as treason ex-convict or as

convict in the light of an absolute or presidential pardon. By an ex parte summons, the plaintiff

applied for an interim injunction.

At the end of the day, having weighed the mischief sought to be restrained and the

principles and authorities, and having considered the affidavits to the extent that they

were not objectionable for being argumentative and non-factual and also having taken

all the submissions into account, I am not satisfied that this is an appropriate case in

which I should exercise the discretionary jurisdiction of the Court to restrain the

defendant by interlocutory injunction pending trial. I have also not lost sight of the

principle that adequacy of monetary compensation is nearly always a ground for not

granting such interlocutory relief. Of course, I do not propose to dwell on the arguments

related to the plaintiff's right to seek election to political office nor the defendant's right

to campaign freely for or against any person. Such arguments were, in my considered

opinion, otiose and surplus to the requirements of this application since the issue was

simply whether it was necessary and appropriate to grant an interlocutory injunction to

prevent irreparable or serious mischief.

Ludwig Sondashi v Multi Media Zambia 1996/SCZ/88

105

In 1987 the appellant was a UNIP Provincial Central Committee member for

Northwestern Province. On 18th January 1987, the Sunday Times of Zambia published

an article headed "Tribal Wrangle Rocks Solwezi" in which it was reported that the

appellant said, at a Civil Servants Union of Zambia meeting that nurses in the province

who did not learn to speak local languages would not be recommended for promotion.

The allegations were investigated by Mr. Elijah Mudenda, then Chairman of the

Appointments and Disciplinary Subcommittee of the Central Committee of UNIP and

found to be false. In 1992, he was a Minister of Labour and Social Security and Zambia

National Provident Fund fell under him. On 20th March 1992, the Zambia Daily Mail

published an article "NPF Workers Strike. It's a Showdown - Sondashi."

The strike was about the appointment of Mrs. Dorothy Mulwila by the appellant as

Director of the Zambia National Provident Fund. In that article, the appellant is alleged

to have told Union members of the Zambia Union of Financial Institutions and Allied

Workers that if he did not appoint people from his province who would appoint them.

At the trial, the appellant testified that when he saw the article he telephoned the Editor

and told him that he never uttered the words attributed to him and demanded a

retraction. No retraction came and the matter ended there. Against this background, the

respondent in its weekly issue of the National Mirror for the week January 18th - 24th,

1993 invited the general public to make general comments and rate the Ministers.

....

Then in its weekly issue for the week 8th - 14th February 1993 the respondent published

the offending article in which appeared also comments affecting other Ministers. The

article stated: "Mr. Sondashi is also branded an established tribalist, typical dictator,

fairly nice minister, a Minister who welcomes new ideas but needs to work closely with

people and he has betrayed the entire labour force because of too much pruning,

retrenchments and sacking of people."

The appellant then commenced an action against Multi-Media Zambia, the proprietors

of the National Mirror, for damages for libel. The learned trial judge considered the

defence of fair comment put up by the respondent and upheld it and dismissed the claim.

…

The appellant appealed to the Supreme Court.

….

We have carefully considered the evidence on record and the arguments on both sides

and the authorities cited in support of these arguments. We are satisfied that the words

complained of were a publication of the opinion poll expressed by the general public.

We are also satisfied that the public opinion was based on the newspaper articles which

were produced in court. We are further satisfied that at the time of the opinion poll the

general public were not aware that the allegations against the appellant had been proved

false or that the appellant had denied them. We are also satisfied that the respondent

did not verify the opinions expressed by the public. The obvious question is were the

comments not honest and was the publication of those comments inspired by malice.

The answer to the first part of the question is obviously no because the general public

believed that the facts upon which they expressed their opinions were true as they were

not aware that the appellant had either denied those allegations or had been cleared.

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As regards the second part of the question the fact that the respondent did not verify

the opinions is not per se evidence of malice. And as Lord Bramwell said in Abrath1162

"a man may be the publisher of libel without a particle of malice or improper motive".

The court must therefore consider the offending article in its entirety and the occasion

on which it is made to construe malice. The article in this case is a reproduction of the

public opinion about the appellant and it has two facets, the positive and negative things

about the appellant. In resolving this issue this is what the learned trial judge said, at

page 12 of the record: "To the extent that the article complained of also contained

positive comment about the plaintiff from some other readers, I find that the article was

well balanced and there was no malice. More so that the article was not confined to the

plaintiff alone but all the Ministers serving at the time."

We would agree with the learned trial judge that the way the article was published

negatives any improper motive or malice on the part of the respondent. Had the

respondent only published the negative aspect of the public opinion then the position

would have been otherwise. We would therefore, for the foregoing reasons, refuse the

appeal with costs to be taxed in default of agreement.

The Queen v. Chona (High Court, 1962)

The accused was the National Secretary of the United National Independence Party, and in that

capacity issued, in November 1961, a document describing the evils of Colonial rule, which

was addressed to all district secretaries, constituency secretaries and international

representatives of the party for “distribution and publication.” The document was signed by the

accused. He was charged with publishing a seditious publication contrary to s.53D(1)(c) of the

Penal Code.

In my view, looking at the words themselves, the only meaning which any reasonable

person can have intended to convey when he wrote the press statement is that

colonialism is a bad thing and must be destroyed; that the mock justice administered by

the courts and the manner in which the courts rubber-stamped oppression is but an

example of the evils of colonialism….

….

Reading the article as a whole, I do not believe the accused when he said that this

statement, addressed to “Freedom Fighters” was a publication which intended to point

out errors or defects in the administration of justice with a view to remedying such

errors or defects. The statement was written for the purpose of ensuring an enthusiastic

and widespread reaction by members of the party so that they would take action to bring

pressure upon the Government of the United Kingdom and thus achieve their ends….

I therefore find that when this article was written and when on or about November 20th,

1961, it was published to divisional secretaries, the constituency secretaries and to the

international representatives of UNIP and to the press, it was a seditious publication

because it intended to bring into hatred or contempt and to excite disaffection against

the administration of justice in the Territory, and it did not fall within the exemptions

set out in the latter part of s. 53G(1) of the Penal Code. The intention of the publication

was not to put right errors and defects, but to excite hatred and contempt and

disaffection against the administration of justice for the purpose of propagating the

policy of UNIP.

107

….

As I read the Penal Code, the offence is not “with a seditious intention publishing

written or printed matter”, it is “publishing written or printed matter, which matter has

a seditious intention.” In other words if a person publishes a document which is a

seditious publication because it has a seditious intention, then he does so at his peril.

….

There the legislature specifically adopted, as a criterion, the intention with which the

libel was published. The criterion which the legislature adopted in the sections dealing

with the publication of a seditious document, was not the intention of the publisher but

the intention contained in the document, which can only be estimated by the effect

which it must have upon the reasonable reader in the circumstances of its publication.

Freedom of assembly and association

Read Article 21.

Freedom ao assembly and association is an essential element in a democratic government.

Justice C. Chitoshi aptly stated this in the case of William Steven Banda v. The Attorney-

General :

The very idea of a government, republican in form implies a right on the part of citizens

to meet peaceably for consultation in respect of public affairs. The purpose of public

meetings is the education of the public and formation of opinion on religious, political,

economic and social problems. Hence the right of assembly is intimately connected

with the right of freedom of speech and expression guaranteed by Article 20.

Derogations from Freedom of Assembly and Association: The constitution in Article 21(3)

permits the State to pass legislation which may restrict the guaranteed rights on various grounds

similar to those applicable to freedom of expression. The standards such restrictive laws must

conform to have already been explained above in the section on freedom of expression. Several

pieces of legislation place limitations on the exercise of freedom of assembly and association.

Alfred Chanda (2005) lists the following:

1) The Public Order Act

Public assemblies are regulated by the Public Order Act which has been on the statute books

since 1955. The Public order Act has been used principally to stifle protests against the

government. The Act underwent a major Amendment in 1996 in response in the Supreme

Courts’s decision in Christine Mulundika and 7 Others v. The People. In this case the applicant

and seven others, including the former Republican President, Dr. Kenneth Kaunda, were

charged in a Magistrate’s court with unlawful Assembly contrary to section 5 of the Public

Order Act.

Section 5 required anyone who wished to hold a public meeting, procession or demonstration

to apply to the police for a permit. The police were entitled to reject the application, or if they

decided to allow the said event, they could impose conditions. Among these conditions were:

the persons who may or may not be permitted to address such assembly or public meeting; the

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matters which may not be discussed at such assembly or public meeting, etc. Section 7 made it

an offence to contravene section 5, which was punishable by imprisonment of up to six months

or a fine not exceeding one thousand five hundred penalty units, or to both. The applicants

argued that sections 5 and 7 of the Public Order Act were unconstitutional as they infringed

the guarantees of freedom of expression and assembly in the Constitution. The Magistrate’s

Court stayed the criminal proceedings until the constitutional issue was dealt with by the High

Court. The High Court, fearing that it might create a vacuum, declined to declare the two

sections unconstitutional. The Supreme Court struck down sections 5 and 7 of the Public Order

Act for

being unconstitutional as they infringed upon the freedoms of expression and assembly

guaranteed by Articles 20 and 21 of the Constitution, respectively.

The Court held that section 5(4) was not reasonably justifiable in a democratic society for a

number of reasons: the uncontrolled nature of the discretionary power vested in the regulating

authority; the fact that the regulating authority was not obliged, when imposing a ban, to take

into account whether disorder or breach of the peace could be averted by attaching conditions

upon the conduct of the procession or meeting such as relating to time, duration and route;

although the rights to freedom of expression and assembly are primary and the limitations

thereon secondary, section 5(4) reversed the order, in effect denying such rights unless the

public meeting or procession was unlikely to cause or lead to a breach of the peace or public

disorder;

the criminalization of a procession or meeting held without a permit irrespective of the

likelihood of occurrence of any threat to public safety or public order; and the lack of adequate

safeguards against arbitrary decisions.

2) The Societies Act

The formation and operation of societies and associations is regulated by the Societies

Act.1100 The Act requires every society, unless specifically exempted from registration, to be

registered.1101 The Registrar of Societies may under section 8 of the Act refuse to register:

“..any society where it appears to him that such society has among its objects, or is likely to

pursue or to be used for, any unlawful purpose or for any purpose prejudicial to or incompatible

with the peace, welfare or good order in Zambia, or that the interests of the peace, welfare or

good order in Zambia would otherwise be likely to suffer prejudice by reason of the registration

of such a society.”

This provision gives a wide discretion to the Registrar to deny registration to any society that

the government does not like. But in doing so he must act fairly. In Labson Zimba v. The

Attorney-General the applicant applied for the registration as a society of the Mutendere

Branch of Jerusalem Church . The Registrar refused the application on the ground that the

interest of peace, welfare or good order in Zambia would be likely to suffer prejudice. On

appeal the Minister upheld the said refusal. The applicant applied for an order of certiorari to

remove into the High Court for the purpose of quashing the decision of the Registrar, and the

Minister on two grounds. First, that he was not afforded an opportunity to be heard when the

application and appeal were

considered; nor was he notified of any information available to the Registrar and Minister that

would have had a bearing on the application so that he would have had an opportunity of

meeting it. And secondly that the reason for the refusal was without merit, as there was no

evidence to show that any of the grounds set out in section 8 applied. Justice Hadden held that

provided the Registrar properly refused the application on grounds contained in section 8, such

refusal would not be a violation of the applicant's constitutional rights. He held further that the

Registrar was under a statutory duty to have regard to certain criteria; he had to determine

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whether the interest of peace, welfare or good order in Zambia would be likely to suffer

prejudice. There was a duty on the Registrar to act fairly and this required him, in considering

the statutory grounds upon which he could refuse registration, to give the applicant a sufficient

indication of any relevant objection raised against him to enable him to meet such objection

without necessarily disclosing his source of information. As the applicant was not provided

with this information or opportunity Justice Hadden quashed both the decision of the Registrar

to refuse registration and the subsequent decision of the Minister to sustain the refusal.

Section 13 of the Act provides that:

13. (1) The Minister may, in his discretion, cancel at any time the registration of any

society effected under the provisions of section seven if he is satisfied that it is

expedient so to do on the ground that-

(a) the society concerned has, in his opinion, among its objects, or is, in his opinion,

likely to pursue, or to be used for, any unlawful purpose or any purpose prejudicial to

or

incompatible with the peace, welfare or good order in Zambia; or

(b) the interests of peace, welfare or good order in Zambia would, in his opinion, be

likely to suffer prejudice by reason of the continued registration of such society.

(2) The Registrar may, in his discretion, cancel at any time the registration of any

society effected under the provisions of section seven if he is satisfied that it is

expedient so to do on the ground that-

(a) the terms of the constitution or rules of such society are, in his opinion, in any respect

repugnant to or inconsistent with the provisions of any law for the

time being in force in Zambia; or

(b) the society concerned has, in contravention of the provisions of section seventeen,

altered its objects or pursues objects other than its declared objects; or

(c) the society concerned has failed to comply with an order made under the provisions

of section nineteen or twenty within the time stated in such order; or

(d) he has reason to believe that any such society has ceased to exist as a society; or

(e) the society has changed its name and the new name it

has adopted-

(i) is identical with that of any other existing society; or

(ii) so nearly resembles the name of such other society as, in the opinion of the

Registrar, is likely to deceive the public or the members of either society; or

(iii) is, in the opinion of the Registrar, repugnant to or inconsistent with the provisions

of any law for the time being in force in Zambia or is otherwise undesirable.

(3) Prior to cancelling any registration under the provisions of this section, the Registrar

shall notify his intention to the society concerned and shall give such society an

opportunity to submit reasons why the registration should not be cancelled.

(4) A society which has had its registration cancelled under the provisions of paragraph

(c) of subsection (2) shall not be entitled to apply for re-registration until the order

concerned has been complied with.

It may be noted that while the Registrar is required to give the affected society a hearing before

cancelling its registration the Minister is not obliged to do so. The Minister is given unfettered

power, which may be abused. This is exemplified by the case of SACCORD. In this case the

Minister of Home Affairs in 2004 deregistered an NGO, the Southern African Centre for

Constructive Resolution of Disputes (SACCORD), and refused to give reasons for his action.

He also had not given the applicant a hearing before taking his decision. This ban was nullified

by

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the High Court in the case of Lee Habasonda (suing on behalf of SACCORD) v. The Minister

of Home Affairs and the Attorney General. The Court held that section 13(1)(a) of the Societies

Act was unconstitutional because it gave the Minister unfettered and uncontrolled subjective

discretion. It contravened Articles 20 and 21 of the Constitution as it reduced the freedoms of

expression and association to the level of a mere licence which could be granted or denied on

the

subjective satisfaction of the Minister.

Another problematic provision of the Societies Act is section 23(1) which provides that the

Minister may, “..in his absolute discretion, where he considers it to be essential in the public

interest, by order, declare to be unlawful any statutory society which, in his opinion-

(a) is being used for any purpose prejudicial to or incompatible with, the maintenance of peace,

order and good government; or

(b) is being used for any purpose at variance with its declared objects.”

The effect of such an order is to immediately cancel the registration or rescind the exemption

of the society in question. The wording of this provision makes it hard to challenge the

Minister's action in court. The Kaunda regime availed itself of this provision to ban opposition

political

parties during the first Republic. For example, the United Party led by the late Nalumino

Mundia, was banned in 1968; the United Progressive Party (UPP) led by the late Simon

Kapwepwe was banned in February 1972. A successor to the UPP, the United Peoples Party,

led by Alfred Musonda Chambeshi, was banned within weeks of its formation in 1972. Another

opposition party, the African National Congress (ANC) led by the late Harry Nkumbula, had

its branches in Mumbwa and Livingstone banned. The prohibition of these parties was

accompanied by mass arrests and detentions without trial of the leaders. President Kaunda

justified the prohibitions on the ground that the parties were a threat to peace and stability. The

government also used the Societies Act to ban religious sects such as the Lumpa Church of

Alice Lenshina and the Sacred Heart of Makumbi.

Below is a summary of cases relevant to the freedom of assembly and association:

Christine Mulundika and 7 Others v The People (1996) 2 ZR 175

The appellants, who included former Republican President, Dr. Kenneth Kaunda, were arrested

and charged with unlawful assembly for attending a meeting without a police permit, contrary

to the Public Order Act. In the Magistrate’s court they challenged the constitutionality of

sections 5

and 7 of the Public Order Act. The Magistrate stayed the criminal proceedings and referred the

the constitutional question to the High Court. The High Court declined to hold the said sections

unconstitutional for fear of creating a vacuum. The appellants appealed to the Supreme Court.

The requirement of prior permission is an obvious hindrance to two very important

freedoms under the constitution since the right to organise and participate in a public

gathering is inherent in the freedom to express and to receive ideas and information

without interference and to communicate ideas and information without inference. The

fact or possibility that permission to assemble and to speak may be refused - so that the

constitutional freedoms are denied altogether - on improper or arbitrary grounds or even

on unknown grounds, renders the subsection objectionable for a variety of reasons.

………

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Quite apart from the possibility of unconstitutionally denying the fundamental rights,

the absence of adequate and objective guidelines in subsection 4 leaves it seriously

flawed.

……….

The implication is that the permit must be refused unless the regulating officer is able

to satisfy himself or herself to the contrary. It is difficult to imagine a clearer recipe for

possible arbitrariness and abuse. The constitutional arrangements for democracy can

hardly survive if the free flow of ideas and information can be torpedoed by a misguided

regulating officer.

The other aspect is whether there are any effective controls on the exercise of the power

to grant or refuse a permit under the subsection being discussed. There are in fact none

so that the regulating officer is not required to give reasons for refusal and there is no

procedure provided to act as a safeguard for an aggrieved unsuccessful applicant which

is reasonable, fair and just. Fundamental constitutional rights should not be denied to a

citizen by any law which permits arbitrariness and is couched in wide and broad terms.

….

Unfortunately, experience teaches and it is sadly not hypthetical that in this country, the

requirement for a permit to gather and speak has been used since 1953 to muzzle critics

and opponents as well as alleged troublemakers. It has also been used to deny

permission on grounds that had nothing to do with securing public order and safety. For

example, there was much litigation in our courts during the recent transition to plural

politics engendered by denials of permits on spurious grounds.

….

Though therefore the police can no longer deny a permit because the requirement for

one is about to be pronounced against, they will be entitled -- indeed they are under a

duty in terms of the remainder of the Public Order Act -- to regulate public meetings,

assemblies and processions strictly for the purpose of preserving public peace and

order. The police and any other regulating authority can only perform this other very

necessary function of giving directions and imposing conditions if they are notified, in

advance, of any gathering proposed to be held. Such notification would necessarily

differ in form and content from an application for permission under the subsection

challenged in these proceedings. While, therefore, we would urge that the whole Public

Order Act should be reviewed and modernize in its entirety to enable the police to carry

out their duties effectively without contravening any provision in our constitution, we

are satisfied that, meanwhile, it would not be unlawful for the Inspector-General of

Police, as the appropriate authority under the Act, to devise some simple and practical

method of receiving notifications. Quite clearly, all those organising meetings and

processions have a corresponding obligation to enable the police to carry out the

regulatory function by giving notice. We repeat our convictions that, contrary to the

submission by learned the citizens of this country their freedom to assemble and speak.

The requirement of a prior permit is a left over from the days of Her Majesty's

Governors and the British themselves do not require permission to assemble and speak.

…

In sum and for the reasons which we have given, we hold that subsection 4 of section

5 of the Public Order Act, CAP 104, contravenes Articles 20 and 21 of the constitution

and is null and void, and therefore invalid for unconstitutionality. It follows also that

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the invalidity and the constitutional guarantee of the rights of assembly and expression

preclude the prosecution of persons and the criminalization of gatherings in

contravention of the subsection pronounced against. Accordingly, a prosecution based

on paragraph (a) of Section 7 which depends on subsection 4 of section 5 would itself

be inconsistent with the constitutional guarantees and equally invalid. The appeal is

allowed.

Resident Doctors Association of Zambia and 51 others v. The Attorney-General ,Appeal no.

39/2002, SCZ No. 12/2003

On 20th April, 2000, the 2nd Petitioner gave a written notification to the Commanding

Officer of Lusaka, that the Petitioners would hold a public procession on 27th April,

2000, in order to raise public awareness on the pathetic situation prevailing in public

hospitals and the poor conditions of service for doctors. The commanding officer, one

Mr. Mayonda, informed them on 26th April, 2000 that he would not grant them

permission to demonstrate because he had information that there was a group of people

who did not agree with the Petitioners’ demonstration and was ready to disrupt it. He

also indicated that the police did not have enough manpower to police the situation. He

then endorsed on the application the words: “the application is rejected on grounds that

the demonstration will cause a breach of peace”. He did not suggest any alternative date

on which the demonstration could be conducted. When the Petitioners asked for an

alternative date on which to conduct their match, Mr. Mayonda told them that the matter

was closed. Notwithstanding this refusal, the Petitioners sourced 50 Marshals and

conducted the Match on 27th April, 2000. Clad in their doctors’ gowns, they started off

from Kabwe round about through Cairo Road, using the outer lane. They observed the

procedures required during processions, and there was uninterrupted flow of traffic.

The Petitioners carried placards which conveyed various messages. No member of the

public attacked them during the procession but instead others joined the match. They

were intercepted by the Police between Freedom House and Findeco House and told to

disperse. The Petitioners refused to do so and told the Police that they were a peaceful

group, conducting a peaceful demonstration and requested the Police Officers to escort

them up to Ndeke House where the procession was to end. The Police refused to escort

them and insisted that the Petitioners should disperse. The Petitioners continued with

their procession and joined Independence Avenue where again they were intercepted

by the Police. The Police confronted the 2nd Petitionser, Dr. Jonathan Tembo, and told

him that he would personally be held responsible since he was a signatory to the

application for permission to match. The Petitioners again ignored the Police Order to

abandon the match and they continued until they reached the Freedom Statute at about

11:00 hours. The Police then arrested the 2nd Petitioner and took him to Lusaka Police

Station where he was detained. Despite the arrest of the 2nd Petitioner, the rest of the

Petitioners continued with the procession and before they reached the first traffic lights,

the 7th Petitioner, Dr. Mary Shapi, was bundled into a Police car and whisked away to

Lusaka Central Police station where she was detained in the cells.

….

While it cannot be denied that all manner of speech and assembly are acceptable, there

is need for the Court, when interpreting provisions conferring fundamental rights, to

adopt an interpretation which does not negate the rights. Most jurisdictions have

adopted a generous and purposive construction of human rights instruments, so as to

confer on a person the full measure in the enjoyment of the rights.

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…

We agree entirely, with these decisions. The Police, in this case, flagrantly violated the

Public Order Act and consequently infringed the Petitioners’ rights as enshrined in

Articles 20 and 21 of the Constitution.

The Petitioners complied with the law and duly notified the Police within the time

allowed by law. The regulating officer had a duty to inform the Petitioners in writing at

least five days before the event, if they were unable to police the march and propose

alternative days. The Petitioners’ right to assemble and march therefore accrued at this

stage. The regulating officer’s endorsement of a purported rejection of the march, a day

before the event for reasons that the demonstration would cause a breach of the peace,

was not a valid exercise of power under the

Act. Section 5(7), which prohibits the holding of the event after the have indicated in

writing their inability to police the event can only be invoked when there has been a

valid notification to that effect. The learned trial Judge therefore fell into error to have

invoked this clause and find that the Petitioners were in breach of the law. In our view,

the learned trial Judge completely negated the Petitioner’s rights of expression and

assembly when he held that the Petitioners had breached the Provisions of the Act.

As we stated in the case of Mulundika and 7 Others vs The People1113 “… invalidity

and constitutional guarantee of the rights of assembly and expression preclude the

prosecution of persons and the criminalisation of gathering in contravention of the

subsection pronounced against”. We therefore allow the first ground of appeal and find

the learned trial Judge misdirected himself in law and fact to have held that the

Petitioners ere in breach of the Public Order Act when they proceeded with march on

27th April, 2000.

Law Association of Zambia, Zambia Episcopal Conference, Christian Council of Zambia,

Evangelical fellowship of Zambia and Nongovernmental Organisations Co-coordinating

Committee v. The Attorney-General, The Inspector General of Police and the Commanding

Officer at Lusaka Central Police 2001/HP0 382

This was an application for an interim mandatory injunction by the applicants for an

order that the second and third respondents “either by themselves, their agents or

otherwise howsoever be restrained from preventing, stopping and or/hindering the

applicants from going ahead with their planned procession or march from Freedom

Statue to Kafue Roundabout and from holding their planned public rally at the said

Kafue Roundabout, both events which commence at 10:00 hours and at 17:00 hours.”

….

The State has failed to appear and defend the allegations in the affidavit sworn by Mr.

Mundia that in fact the 3rd Respondent has threatened to crush the participants of the

intended event. This is most unfortunate. I find that the Police have acted in bad faith

and contrary to the spirit of the Public Order Act, which if adhered to by both

themselves and conveners will not bring any unnecessary litigation like in the instant

case. The applicants have a good arguable case and indeed they will suffer irreparable

injury since this matter touches on fundamental rights enshrined in the Constitution.

The Police in this case have not followed the very Act which guides their role in these

matters. If indeed they have information that the situation is volatile this is the more

reason that they should police the meeting and ensure that there is law and order during

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the intended meeting. Because the Police have clearly acted in bad faith they are

estopped from refusing to police the meeting. Their action is mala fide and the way they

have acted shows that they intended to frustrate the applicants in the exercise of their

constitutional rights.

I therefore grant the application as prayed in order that the intended meeting by the

applicants take place as planned and the Police must police the meeting to ensure law

and order.

Labson Zimba v. The Attorney-General (1979) Z.R. 83

The applicant applied for the registration as a society of the Mutendele Branch of Jerusalem

Church. The registrar refused the application on the ground that the interest of the peace,

welfare or good order in Zambia would be likely to suffer prejudice. The said refusal was

upheld on

appeal to the minister. The applicant applied for an order of certiorari to remove into the High

Court for the purpose of quashing the decision of the Registrar. He submitted that he was not

afforded an opportunity to be heard when the application and appeal were considered and

secondly that the reason for the refusal was without merit.

As in the case of R v Gaming Board for Great Britain, ex parte Benaim, the registrar

was under a statutory duty to have regard to certain criteria; he had to determine whether

the interests of peace, welfare or good order in Zambia would be likely to suffer

prejudice. There was a duty on the registrar to act fairly and this required him, in

considering the statutory grounds upon which he could refuse registration, to give the

applicant a sufficient indication of any relevant objection raised against him to enable

him to meet such objection without, of, course, necessarily disclosing his source of

information. As the applicant was not provided with this information or opportunity,

the refusal to register by the registrar and the subsequent decision on appeal must be set

aside.

The order of the court is that the procedures regarding the application to the registrar

and those on appeal be removed into the High Court for Zambia to be quashed

forthwith. Application granted.

The Attorney-General and the Labour Commissioner v. Zulu, C. Kamukwamba, Mundia,

Muyangwa and Others (1995-1997) ZR 33(Supreme Court)

Respondents applied for registration of a union. The Labour Commissioner rejected the

application on grounds that the Zambia National Union of Teachers existed and represented

secondary school teachers. Respondents applied to the High Court for a declaration that their

constitutional rights had been infringed. The Commissioner ruled in favour of the Respondents.

The Attorney-General appealed, advancing four grounds of appeal.

Mr Kinariwala argued grounds one and two together. He submitted on grounds one and

two that s 9(8)(c) of I the Industrial and Labour Relations Act provides: 'Nobody

registering as a trade union shall be registered if it purports to represent a class or classes

of employees already registered by an existing trade union or are eligible for

membership of an existing trade union unless the union intended to be registered

represents a specific trade or profession or category or eligible employees who are

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qualified to form a trade union.' He submitted that the intention of Legislature behind s

9(8)(c) of the Act is not to allow more than one trade union in an industry unless the

second trade union is intended to represent a specific trade or profession or category of

employees who are qualified to form a trade union.

….

This law has in my view made a provision for registration of trade unions. Section

9(8)(c) of the Industrial and Labour Relations Act of 1993 is not in any way in conflict

with art 21(2)(c) of the Constitution. The section is not ultra vires art 21 of the

Constitution. The learned trial commissioner erred in construing s I 9(8)(c) of the

Industrial and Labour Relations Act of 1993 as being in conflict with art 21 of the

Constitution. I fully agree with the argument by the appellant that the section is not in

conflict with the provisions of the Constitution.

….

In this case in order to avoid absurdity and an unjust situation, the Court read in some

missing words. In the instant case there is no question of implying any meaning or

adding any words. The strict and literal interpretation simply means nobody can register

as a union if there is one in existence unless the union intended represents a different

class or category of employees. The intention of the Legislature is generally to restrict

mushrooming of unions. I do not see any unreasonable situation arising in applying

strict interpretation of the section. The section permits to register another union if they

satisfy conditions laid down by the section. In the present case, there is a union in

existence; both groups of teachers are eligible to become members. The respondent's

complaint is that they are not adequately represented. The evidence in the Court below

showed that secondary school teachers were eligible for membership of the existing

trade union ie Zambia National Union of Teachers. I take judicial notice of the existing

structure in the field of H education. There are in existence basic schools which run

from Grade 1 up to Grade 9.

Grades 8 and 9 are junior secondary schools. The teaching staff at these schools covers

all grades from Grade 1 to Grade 9. I take further judicial notice that the Government

is the sole employer of the teachers for the primary, basic I and secondary schools. If

two unions came into existence the Government will be faced, when negotiating

conditions of service for schools, with two unions. The two unions will be negotiating

with the Government for conditions of their teachers covering the same schools. In my

view this was not intended by the legislation. I do not think that the teachers in the

secondary schools are a different class from the teachers in primary and basic schools.

I am unable to agree with Mr. Simeza's argument or contention that secondary school

teachers belong to a different class. The two groups of teachers belong to one teaching

profession and there is an existing a union to which both groups or classes are eligible

for membership. For the foregoing reasons I would allow this appeal.

Freedom of movement

Read Article 22.

Freedom of movement has a wide scope. It includes the right to move about freely in Zambia,

the right to settle or live in any part of Zambia and the right to leave and return to Zambia. With

regard to the right to leave and return to Zambia, the Supreme Court in Cuthbert M. Nyirongo

v. The Attorney-General (see extracts below) held that a Zambian has a right to a passport since

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it is a prerequisite for the exercise of the said right. Only grave security considerations can

justify refusal to issue a passport or confiscation of a passport by the State. Like other rights,

freedom of movement is subject to restrictions that are reasonably required in the public interest

and are reasonably justifiable in a democratic society. For example, a person may be placed in

custody pending trial or deportation. Moreover, a court of law may, upon trying a person for a

criminal offence, sentence such a person to a term of imprisonment. Laws that are relevant here

include the Protected Places Act, the Public Health Act, the Immigration and Deportation Act,

etc. The Law of Tort and the Penal Code also have a bearing on the exercise of freedom of

movement. The State is also empowered to impose restrictions on foreigners. A foreigner does

not have a right to enter the country. The State may require that only foreigners issued with

visas or those exempted from doing so, may enter the country. Similarly, the state may impose

restrictions on the movements of foreigners within the country, particularly refugees. Thus, the

Refugee Control Act 1970, inter alia, regulates the movement of refugees in Zambia. Moreover,

during a state of emergency a person’s freedom of movement may be curtailed by being

restricted or detained without trial in the name of preserving national security.

Below are case summaries of cases relevant to freedom of movement:

Cuthbert Mambwe Nyirongo v. The Attorney-General 1991/SCZ/10

The appellant was found guilty of possessing Cannabis and fined. Before the appellant was

arrested in connection with that offence the Drug Enforcement Commission took possession of

some of the appellant's belongings including his passport. After the appellant was convicted he

applied for the return of his passport but to no avail. He sued the Attorney-General in the High

Court for the return of the passport. The High Court, dismissing his application, held that it

was not a right but a privilege to possess a passport, that the issuing authority had a discretion

to grant or refuse a passport, that the passport was the property of the government, and that the

appellant was a self-confessed criminal who had abused the privilege granted to him by

engaging himself in drug trafficking which was an international crime. The appellant appealed

to the Supreme Court.

We therefore hold that a Zambian citizen has a right to the issue of a passport subject

always to the restrictions referred to in Article 24(3)(a) of the old Zambian Constitution,

which Article has now been replaced by Article 22 of the present Constitution.

….

There is therefore no law applicable to the circumstances of this case which enables the

appellant to be deprived of his right to the issue or possession of a passport. This appeal

is allowed and we make a declaration that the appellant is entitled to the return of his

passport or a replacement thereof if his passport has been physically cancelled.

Edith Zewelani Nawakwi (female) v The Attorney-General (1990 -1992) ZR 112 (HC)

Talking about passports, I think it is an opportunity to say here that the holding of a

passport by a Zambian is not a privilege. It is not a privilege because he/she has a right

of movement enshrined in the Constitution: art 24 of the Constitution. In order to travel

outside the country a Zambian citizen needs a valid Zambian passport or travel

document. Just as they don't get permission from the authorities to travel from one part

of the country to another, so do they not need to get permission to travel outside the

country. Since they cannot travel outside the country without passports, they are entitled

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to have them, unless legal restrictions attaching to the freedom of movement imposed

by the Constitution validly apply.

Non discrimination

Read Article 23.

This article covers both de jure and de facto discrimination based on race, tribe, sex, place of

origin, marital status, political opinions, colour or creed. As is evident, Article 23 does not

prohibit discrimination on the grounds of religion, language, social origin, property, non-

political

opinions, birth or other status, disability, pregnancy, age, culture and belief. It does not even

have an express equality clause as is the case with many other constitutions . Moreover, it

applies only to persons acting by virtue of any written law or in performance of the functions

of any public office or any public authority. This means it does not have a horizontal

application, that is to say, it does not prohibit discrimination perpetrated by private persons or

entities. Furthermore, the anti-discrimination clause sanctions discrimination under customary

law or personal law. But it is well-known that most of the discrimination against women occurs

in the area of personal law and customary law given the fact that Zambian society is patriarchal.

The cases of Sarah Longwe v. Intercontinental Hotel and Elizaberth Mwanza v. Holiday Inn

illustrate the kind of difficulties women face as a result of this clause. The effect of the

exemption is to undermine the rights of women because it is precisely under personal law and

customary law that women suffer the most discrimination.

Although disability is not mentioned specifically as a ground for discrimination, in the case of

Brotherton v Electoral Commission of Zambia 2011/HP/0818, the High Court found that by not

providing disabled people with facilities for easy access to polling stations, persons with

disabilities were discriminated against. This is notwithstanding that disability was not

specifically listed as a ground of discrimination in the Constitution.

Below are relevant case summaries:

Edith Zewelani Nawakwi (female) v The Attorney-General (1990 -1992) ZR 112 (HC)

The applicant, an unmarried mother, applied for declarations that the names of her two children

should be included on her passport without the need to obtain the consent of the putative father.

The court found as a fact, inter alia, that on a previous application the applicant obtained the

particulars of her children entered on her passport by firstly swearing an affidavit stating she

was the mother of a particular child born out of wedlock. When subsequently she applied for

the renewal of the passport she was told by the passport office of the need to swear an affidavit

in similar terms to the affidavit sworn initially. She refused to do so because, she said, the

procedure was discriminatory, wasted time and incurred unnecessary cost and she applied to E

the Court for the declaration. The applicant argued that the need to swear the affidavit as a

single mother offended various articles of the Constitution. The respondent put the point in

cross-examination that because the applicant had been issued with a passport she applied for

she had no cause of action which related to her children.

In my considered view it is not at all justified, from whatever angle the issue is looked

at, for a father to treat himself or to be treated by the institutions of society to be more

entitled to the affairs of his children than the mother of that child or those children. The

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mother is as much an authority over the affairs of her children as the father is. There

would of course be some cases where one of the parents may lose, temporarily or

forever, his/her share of that entitlement. Such a situation may arise where a parent

abandons a child or children or becomes so mentally sick that the best interests of the

child or children would dictate his/her exclusion from him/her or them. Each such case

would of course depend on its own facts.

The realities of these times have brought about another dimension to this problem of

children parentage. This case now before this Court is one in point. Here the petitioner

is both the father and mother of the two children. She is an unmarried mother. She is

bringing up her two children without a husband. Now is it fair for this society to have

to require of her to have been or to be married in order for certain things to be possible

to be done for her children? The answer, in my considered view, is in the negative! It

is in the negative because firstly the reality of her situation and of many others like her

is that she has illegitimate children; and secondly because discrimination based on

gender only has to be eliminated from our society. Men and women are partners and

not only partners but equal partners in most human endeavours. They must thus be

treated equally.

Going back to the facts of this case, Zambia has to accord every mother of a child,

single or married, the same powers that the father enjoys. Anything less would not be

justified. The fear that the mothers may be stealing children if they are allowed to

include their young children in their passports is a very unreasonable argument because

in all honesty they are entitled to have those children where they want them to go. One

cannot steal what belongs to oneself. It should be a matter between the father and the

mother of a child to resolve as to whether to allow a child to go to country A and not to

B. If they cannot agree then one or both of them should be free to apply to court for a

solution. Such a situation would not arise in the case of a single parent.

Thus when all is said and considered I find and hold that (1) the petitioner has been

unfairly discriminated against on the ground of sex; (2) the petitioner's children's

particulars be indorsed in her present passport without a requirement for her to furnish

fresh affidavit or other fresh documents in respect of them; (3) a single-parent family

headed by a male or female is a recognised family unit in the Zambian society; (4) a

passport is part of the freedom of movement and as such it is a right for every Zambian

to have one or be indorsed in one unless there is a valid legal excuse barring such

possession or endorsement; and (5) a mother of a child does not need to get the consent

of the father to have her children included in her passport or for him/her or them to be

eligible for obtaining passports or travel documents. Either parent has the inalienable

right to be a recommender, in whatever form the recommendation is required to be

made, for the child or children. This applies to birth certificates and passports in this

country as they do to other things. I also award the costs of this action to the petitioner.

Application granted.

Phllis Bubala Kasempa v. The Attorney General 1994/HP/4916

The facts of the case are not in dispute and they are that the Petitioner who is a single

woman was recruited in the Zambia Air Force as a Corporal on 1st June, 1989. Under

the terms of her contract she would have served for seven years with an option to serve

for a further thirteen years. The petitioner served for four years up to 31st December

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1993 when she was discharged from the Force because she became pregnant outside

wedlock. Her becoming pregnant outside wedlock was said to have contravened clause

8(b) of the Zambia Air Force Administrative Instruction No. 35 and she was discharged

under Regulation 9 (3) of the Defence Force (Regular Force) (Enlistment and Service)

Regulation, Third Schedule Serial No. (XVIII).

Administrative Instrument No. 35 is neither an act of Parliament nor a Statutory

Instrument and cannot be said to be a rule of law by any stretch of the imagination. It

is nothing more than an administrative circular and is not covered by the proviso

contained in Article 23 (5) of the Constitution.

Clause 8 (b) of the Administrative Instrument which was used by the Respondent to

discharge the Petitioner from the Zambia Air Force is quite clearly discriminatory and

falls foul of Article 23 of Constitution. I will grant the Petitioner a declaration that the

provisions of Administrative Instruction No. 35 are null and void for being in conflict

with the Constitution of the Republic of Zambia.

Stanley Kingaipe and Charles Chookole v Attorney General 2009/HL/86

Having regard to the authorities cited herein, I find that the petitioners’ to protection

from inhuman and degrading treatment under Article 15, the right to privacy under

Article 17 were violated. I must hasten to note that after the petitioners were put on

ARVs they responded positively to the treatment and this is going by their own

evidence- but this does not take away the fact that their fundamental rights to privacy

and protection from inhuman treatment were infringed.

….

I must say that, listening to the petitioners on this point, they were not convincing

though they tried to insist that they were discharged because of their HIV status. Indeed

having regard to the facts of the whole case, I find that there is no evidence to show that

the petitioners were discharged because they were HIV positive. The relief sought by

the petitioners must fail for lack of merit and evidence.

….

For avoidance of doubt, my judgment is that and I declare that the respondent’s decision

to carry out mandatory HIV tests on the petitioners without their informed consent was

a violation of their right to protection from inhuman and degrading treatment and the

right to privacy. The damages are as stated herein.

Protection of young persons

Read Article 24. The Article protects young persons from exploitation. It prohibits employing

young persons “in any occupation or employment which would prejudice his health or

education or interfere with his physical, mental or moral development” (Article 24(1). Article

24(2) protects young persons against “physical or mental ill-treatment, all forms of neglect,

cruelty or exploitation” and Article 24(3) prohibits trafficking of young persons. For purposes

of this Article, a young person is defined as “any person under the age of fifteen years.”(Article

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24(4)). Note however the confusion caused by the 2016 amendment to the constitution where

in Article 266 a young person is defined as “a person who has attained the age of nineteen

years, but is below the age of thirty-five years.” Considering that the Bill of Rights was not

affected by the 2016 amendment, the definition of a young person in Article 24(4) must prevail.

Weaknesses of the Zambian Bill of Rights

There are several weaknesses inherent in the Zambian Bill of Rights. First, very few

unprogressive provisions in other statutes, such as the CPC, offend human rights provisions in

the Constitution. This, however, is not due to the fact that subordinate laws have excellent

human rights standards but that the Constitution has several broadly defined exceptions that

almost every other law easily meets. Furthermore, various human rights provisions in the

Constitution are expressed in language lacking in specificity and are hence liable to

interpretations that may water them down.

Secondly, due to the drafting style the Bill of Rights has inherent weaknesses in how the rights

are provided for, that is, primarily as constraints on state power and much less so as personal

entitlements. Most of the rights in the Bill of Rights, including personal liberty and the right to

privacy, are not given as positive affirmations or entitlements but as a residue of constraining

state power. The right to privacy is simply provided for by prohibiting searches on one’s person

or property, while the right to liberty is described in terms of constraints on unlawful arrest and

detention. This, coupled with several broadly crafted exceptions, makes it difficult to know the

actual content of a certain right.

Thirdly, the Constitution does not provide for many rights that are now associated with the

criminal justice system or which are usually found in international normative frameworks and

relatively new African constitutions such as those of Kenya and South Africa. The right to bail,

for example, is taken for granted in many jurisdictions, but is not provided for in the

Constitution.

In addition to these weaknesses, Alfred Chanda (2005) lists the following weaknesses in the

bill of Rights:

1) Lack of Gender Neutrality

First, the Bill of Rights is not expressed in gender neutral language. It uses the masculine terms

`he' or `him' or `his' in describing the person who is entitled to rights.

2) Language

Second, the Bill of Rights is framed in highly technical language which makes it difficult for

the ordinary person to understand it. In contrast, the Bills of Rights of South Africa, Kenya,

Malawi, Namibia, among others, are written in simple user-friendly language which any

ordinary literate person can understand. A Bill of Rights should not be the preserve of lawyers.

3) Lack of domestication of international instruments

Fourth, although Zambia has ratified all the major international human rights treaties, such as

the International Covenant on Civil and Political Rights, 1966, the International Covenant on

Economic, Social and Cultural Rights, 1966, the Convention on the Elimination of All Forms

of

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Discrimination Against Women 1979, the Convention on the Rights of the Child 1989, the

African Charter on Human and People's Rights, 1981 and scores of others these have not been

incorporated in the domestic legal system and cannot, therefore, be directly enforced in

Zambian courts.

4) No controls on presidential power to declare an emergency

Fifth, there are few controls on the President's power to declare a state of emergency and the

safeguards provided to those detained without trial are inadequate.

5) Weak Institutional structure

The institutional structure for the protection and enforcement of fundamental rights and

freedoms under the present constitution is very weak. The system entirely depends on a litigant

bringing action in court to challenge a governmental action. Because of poverty and ignorance

few people can do this. Moreover, the lack of specialization on the bench has led to mediocre

decisions being handed down in constitutional cases.

6) Wide Derogation clauses

The Bill of Rights contains wide derogation clauses which have the effect of negating the

essential content of the rights protected. Most of the rights can be restricted on the grounds of

defence, public safety, public order, public morality and public health. In addition to these

general restrictions almost all the rights (except for protection from torture, or to inhuman or

degrading treatment) have further restrictions. The right to property, for example, has twenty-

six (26) additional restrictions. The only test that these restrictions must meet is that: first they

must be reasonably required in one of the specified interests; and secondly, they must be

reasonably justifiable in a democratic society. These phrases do not easily lend themselves to

definition. As a result the courts' power to protect individual rights has been severely

circumscribed. The timidity of the judiciary in politically sensitive cases has aggravated the

situation. In the majority of cases when civil liberty cases have presented any real choice within

the constitutional language courts have invariably sustained the government action impugned.

In Kachasu v Attorney-General an 11 year old girl, a member of the Watch Tower Sect, was

suspended from school for refusing to sing the national anthem and to salute the national flag.

Despite finding that the petitioner had been hindered in the exercise of her freedom of

conscience, the court, nevertheless, upheld the law under which she had been suspended on the

ground that it was reasonably required "in the interests of defence, public safety, and public

order." In Patel v. Attorney-General, where the petitioner's property was searched without

warrant and seized the court upheld the government action on the ground that the impugned

regulations and action were adequately covered by the derogation clauses.

In The People v. Bright Mwape and Fred Mmembe , the two petitioners were charged with

defamation of the President contrary to section 69 of the Penal Code. They challenged the

constitutionality of this section on the ground that it conflicted with the constitutional

guarantees of freedom of expression (and the press) (Art. 20) and freedom from discrimination

(Art.23). Although Justice Chitengi agreed that the petitioners had proved that their rights under

the constitution were hindered he sustained the impugned law on the ground that it was

reasonably required in the interests of defence, public safety and public order. The Supreme

Court upheld the High Court decision. In Christine Mulundika and Seven Others v. The People

, the former President, who was on trial for allegedly addressing an illegal assembly, challenged

the constitutionality of section 5(4) of the Public Order Act.

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APPENDIX: COURSE OUTLINE

LPU 3975: HUMAN RIGHTS

Course aim

The aim of this course is to introduce students to the concepts and content of human rights.

COURSE OBJECTIVES

By the end of this course students are expected to:

Discuss the concept of human rights

Evaluate human rights jurisprudence applicable to Zambia

Critically discuss gender and other types of discrimination under general and customary

law

Explain the justiciability of human rights

Analyse the role of the judiciary and the legal profession in promoting the observance

of human rights

Critically discuss contemporary issues in human rights law

COURSE CONTENT

Introduction to Human Rights Laws

Human rights concepts

International human rights

Judiciability of international human rights law

Categories of Human Rights

Civil and political rights

Economic, social and cultural rights

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Group, solidarity or third generation rights

Women’s rights

Vertical dimension of human rights (application of human rights between states and the

individual)

Horizontal dimension/third party application (application of human rights between

individuals or other private subjects)

Key Human Rights Instruments

The United Nations Based and Treaty Based Procedures

The United Nations Charter.

Human Rights Provisions of the UN Charter

Legal character and significance of the UN Charter Human Rights provisions

Universal Declaration of Human Rights

Adoption and content

Legal and political status

Significance of the Declaration

The International Covenant on Civil and Political Rights

An overview

Substantive provisions

Obligations of states parties

Enforcement mechanism

The International Covenant on Economic, Social and Cultural Rights

An overview

Substantive provisions

Obligations of states parties

Enforcement mechanism

Other Specialized Human Rights Instruments

UNCERD

An overview

Substantive provisions

Obligations of states parties

Enforcement mechanism

UNCRC

An overview

Substantive provisions

Obligations of states parties

Enforcement mechanism

UNCRPD

An overview

Substantive provisions

Obligations of states parties

Enforcement mechanism

UNCAT

An overview

Substantive provisions

Obligations of states parties

Enforcement mechanism

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Overview of Regional Human rights Systems

Promotion and protection of human rights within the European Arrangement

Organisation of American States System for the protection of Human Rights

The African Charter on Human and Peoples Rights

National Human Rights

The protection of Human Rights during the colonial period

Evolution of the Zambian Bill of Rights

Form and Content of the Zambian Bill of Rights

The Role of Women in the Development of the Zambian Human Rights system

The judicial role in the enforcement of fundamental rights and freedoms in Zambia

Alternative models for the protection of human rights and fundamental freedoms in

Zambia

Development of the Zambian Bill of Rights

Marginalized and vulnerable Groups

Rights of women

Rights of children

Rights of persons with disabilities

Rights of the elderly

Method of Teaching

Three hours of lectures and one seminar per week

Assessment

Assignment 15%

Test 25 %

Examination 60%