UNIVERSITY OF NAIROBI

FACULTY OF LAW
HUMAN RIHTS LAW
EUGENE ISMAEL ODHIAMBO
G34/142833/2021
INDIVIDUAL AND GROUP RIGHTS
Individual rights
Individual rights are the basic freedoms and the most essential provision of a democratic society.
The origin of individual rights can be traced back to be during the time of Magna Carta, a statute
written in 13th century on behalf of English barons by John, King of England to make sure that
no man could be forced to give up any part of his property except by law.
They are rights needed by each person in daily pursue of their lives and aspirations without any
interference from other individuals or the government. These rights are so important as to
warrant specific statutory protection from their inference.
Often these individual rights can be found in certain documents including but not limited to the
Constitution, Magna Carta, the English bill of Rights and the Declaration of the Rights of Man.
Common Individual Rights
The constitutions of democratic nations protect the legal rights of people accused of crimes from
unfair or abusive treatment at the hands of the government. Individual rights can include the right
to life, freedom of association, freedom of movement and residence, right to fair hearing, etc.

Examples of these commonly protected rights include;

1. Right to privacy
This right is discussed under article 31 of the Kenyan constitution and as summarized it
refers to the concept of an individual personal information being protected from public
access and scrutiny and as put by Court Justice Louis Brandeis “the right to be left alone”
This right has been interpreted to encompass the right to personal autonomy or to put it
simply choose whether or not to engage in certain acts. However privacy rights usually only
pertain to family, marriage, motherhood, reproduction and parenting. This right is often
balanced to suit the society’s best interests with an example being in the United States where
the citizens are aware of the government collecting personal information with many finding it
acceptable as long as it is solely for the purposes protecting national security.
2. Religion, belief and opinion
This right is catered for by Article 32 of the Kenyan constitution it involves the right of all
individuals to practice, discuss, teach and promote the religion or belief of their choice. Such
rights may include the right to wear religious clothing or practicing religious rituals (fasting)
or taking place in religious celebrations of their respective choice.
Notably in other countries such as the United States individuals are free to change their
religions or beliefs to embrace a non-religious beliefs. In Kenya however one cannot embrace
non-religious beliefs such as atheism as explicitly provided for under chapter 2(8) of the
Constitution which mentions that there shall be no state religion
The government only limits this right so as to protect public safety, health or morality and to
protect rights and freedoms of others.
3. Personal property
These are the rights referring to the legal ownership and use of resources. The democratic
system of government allows any individual to hold, accumulate, assign, lease, rent and or
sell their property either the physical (livestock the land) or intangible (intellectual property,
copyrights) to others.
These property rights ensure the owner enjoys the continuous peaceful possession of their
property without external interference from others except in situations of public interest
property for instance the police with a warrant issued from a court can legally enter ones land
to carry out duties of investigation of a crime. This is provided for under article 66 of the
constitution that governs the regulation of land use and property in Kenya. Therein stated “
the state may regulate the use of any land…in the interest of defence, public safety, public
order, public morality, public health, or and land use planning.”
They also allow for one to recover personal property taken from them illegally as this is a
protected right under article 40 of the constitution of Kenya.
4. Right of speech and expression
Expression can be taken by courts to be taken as religious communications, voluntary
association with others, petitioning the government or a printed comment concerning
something.
This right only protects people from the government and not from each other as one can still
be sued for defamation by another party if the comments are indeed defamatory to the others
reputation.
Article 33(2) of the constitution of Kenya states that this right however does not extend to the
following;
a) Propaganda for war
b) Incitement to violence
c) Hate speech
 d) Advocacy of hatred that
i. Constitutes ethnic incitement , vilification of others or incitement to
cause harm
ii. Is based on any ground of discrimination
Additionally this right does not prohibit private bodies such as business firms from limiting or
prohibiting certain forms of expression.
Ultimately these rights are of utmost importance as they allow man to live in a society which
values virtues such as equality, respect and dignity towards one another and their property and
freedom.
Stated in Article 19 (2) of the Bill of Rights “the purpose of recognizing and protecting human
rights and freedoms is to preserve the dignity of individuals and communities and to promote
social justice with the realization of the potential of all human beings.”
Failure to incorporate individual rights may lead to the rise of a tyrannical government that
practices absolute power over its subjects where by such a government dictates every action
taken by individuals with those going against set principles being liable to suffer consequences.
Group rights
Group rights have become an important topic in recent years as societies face immense
development challenges. Although there is no universal definition of group rights, they generally
refer to the collective term for individual rights that corporations, ethnic groups and political
movements claim are inferior or somehow separate from the individual’s legal rights. Generally
these rights advocate for equality and inclusion in society. Hence group rights are a way for
groups to gain power and responsibility over their own affairs and not submit it to something
outside of itself.
Group rights have been continuously ignored especially in African countries and other countries.
A variety of reasons can be attributed to certain phenomena such as colonial legacy and racism,
as well as political unrest, civil wars and poverty. Within Africa, group rights are ignored due to
colonialism which left African nations in an unfavourable economic and political state.
The practice of group rights is becoming more widely accepted in Africa and the rest of the
world. It’s a philosophy that asserts that people have certain fundamental rights not just as
individuals but also as members of groups. There are a number of reasons why politicians and
other public officials in particular should shift emphasis from individual rights to group rights.
First, an approach that focuses on group rights is more likely to help solve many pressing
problems facing modern societies. Second, it provides a platform for greater mutual
understanding among people who belong to different social groups as it promotes inclusivity
among individuals.
In Kenya, group rights are derived from the Constitution specifically under chapter 4 and are
used across the country today For example, hate speech is not allowed against anyone that is
Christian. This group has been known as a high target for terrorists and racially based violence in
situations in the past. The Kenya Human Rights and Equality Commission (KHREC) is a federal
government agency established under Article 248(2) of the Kenyan Constitution that protects
citizens from abuse, discrimination and violation of their human rights; this includes group
rights.
Some examples of group rights include the rights to political participation, freedom from
discrimination and protection from domestic violence.
Group rights are implemented in Kenya to address the needs of rural and most economic poor
people. The convention on the elimination of all forms of racial discrimination, adopted by the
U.N. General Assembly on December 21, 1965, recognizes that every person has a right to
equality before the law and other human rights without discrimination for reasons of race, colour,
descent, sex or ethnic origin (article.1 (a)). Group Rights illustrates how group rights have been
used to ensure equity in Kenya. In Swahili societies it is common for one person from each
family to own land together under a collective ownership system. This practice has been widely
overlooked as an important factor in explaining who gets land ownership rights because many
people think that being able to pass on property means that these parcels can be inherited by kin
also. However this is not always the case because group rights allow for handing over of land as
individuals wish
Group rights are based on the idea of the group and community as it exists in nature. A group is
composed of individuals who live together in a community or social group, interacting with each
other and sharing resources.
In Kenya a group must have at least five members in order to form a group. These members are
called group members. Any organization can be sectioned into three classes. The first class
comprises those having a membership of not less than ten. A second class has a membership of
not less than four and is headed by a chairman selected from among the members or appointed
by him or her; who presides over meetings of said organization and at whose request there must
be present at registered meetings as well as such other persons where required for the transaction
of business, who may belong to any section whatever and be paid up members or volunteers. A
third class has a membership almost equal to the first class but not all the same size, consisting of
certain specified groups who pay an annual sum for each member according to the number they
have on their rolls. These will be known as sections and their members as sectionals.
Importance of group rights
Group rights are important for society because they give all members of society a voice. Group
rights can include the right to assembly, freedom of speech and the right to petition government
for divorce.
The most important group rights are the constitutional rights of citizens, including the right to
vote, and to privacy. The three principles upon which these rights rest are: equality, opportunity
and educational attainment.
Specifically, these rights embody justice and progressive ideals with regard to addressing
poverty, homelessness and disease among others that have historically been part of unjust social
structures.

Relationship between group and individual rights

The relationship between individual and group rights can be approached from three ways
perspectives. First they can be seen to be mutually exclusive from one another, secondly the two
can be considered to coexist within the same plane and lastly the two can relate via means of
complementing each other.
To some scholars both categories of rights are mutually exclusive as they raise concerns over the
consequences of accepting various groups as legitimate right-holders arguing that this in turn
compromises individual rights1.
Additionally the fear of oppression of group rights on the member is argued to be a real one
especially in ascriptive groups where the members lack ability to leave such as racial, ethnic or
cultural groups2. For instance, it is frequently alleged that giving rights to cultural minorities can
reinforce the elite members in power to maintain traditions and the integrity of the minority,
against the wishes of other members of the same group, a situation best described as minorities
within minorities3. This is seen in Northern Kenya among the communities that still practice
FGM.
Secondly there exist scholars who are of the opinion that both categories of rights can coexist.
Alexis de Tocqueville and the English Pluralists for example held the theory that group rights
help to maintain a balance of power and the liberty within a society, since they check and can act
against an excessively powerful state.4
Finally, some other scholars argue that group and individual rights can complement each other
claiming that the interests that individual and group rights seek to protect are often the same 5 for
example the right to vote. Despite this generally being an individual right there are indeed some
marginalized groups who enjoy the privilege of this right being protected. The Gaaljecel people
of Wajir are assisted by the government which enhances their participation and inclusion in all

1
Narveson, Jan. Collective rights. Can. JL & Jurisprudence, 1991, 4: 329-345.

2
Peter, Jones. Group Rights. Entry in the Stanford Encyclopedia of Philosophy,
http://plato.stanford.edu/entries/rights-group/ (30.04. 14), 2008.

3
Eisenberg, A.; Spinner-Halev, J. (ed.). Minorities within minorities: equality, rights and diversity. Cambridge
University Press, 2005.

4
Stapleton, J. Group rights: Perspectives since 1900. 1995. Thoemmes Continuum.

5
Raz, J. The morality of freedom. Oxford University Press, 1986.
aspects of county and national development. Although not expressly mentioned, the relationship
between the right to vote (individual right) and the governments inclusion in that community’s
affairs( a marginalized group’s rights being protected) clearly brings out the point that truly these
rights can complement each other in certain circumstances.