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 King John of England which set the
principle that the king and his gvt were not above the law. It sought to prevent the king from
exploiting his powers. It also placed limits of royal authority by establishing law as a power in
itself
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.
Individual rights can include the right to life, freedom of association, freedom of movement and
residence, right to fair hearing, etc.

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.
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 Supreme Court Justice Louis Brandeis “the right to be left
alone”
This right has also been interpreted to encompass the right to personal autonomy or to put it
simply choose whether or not to engage in certain acts.
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.
Justice laurrnce hyde states in barber v time that an individual is a member of society thus his
rights must be placed within a social context and as such, individual rights must be construed in
the light of duties incumbent upon indvds as citizens of a free country and as long as they behave
properly his or her right to privacy cannot be restricted

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.
State religion is an officially endorsed religion by a sovereign state. Kenya has no state
religion as explicitly provided for under chapter 2(8) of the Constitution which mentions that
there shall be no state religion further promoting one’s religious rights and freedoms without
fear of prosecution as the case in other countries such as Saudi Arabia whose state religion is
Islam where despite Christians and other religions to enter the country as foreign workers it
is illegal for non-Islamic ppl to practice their respective faiths openly
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.
Pursuant to article 40(1)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.
They also allow for one to recover personal property taken from them illegally as this is a
protected right also under article 40(2) of the constitution of Kenya.
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.”
 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.”
To summarize 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
A group can best be understood by a collection of two or more individuals who interact with
each other so as to achieve a common objective. The activities of a group therefore involves
regular contact, frequent interaction and mutual influence on each other.
Although there is no universal definition of group rights, they generally refer to the collective
term for 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.
In Kenya, group rights are derived and protected by the Constitution and Acts of Parliament and
are used across the country today.
This was evident in 2020 as Member of Parliament Oscar Sudi was arrested on 2 grounds of hate
speech while MP Johanna ngeno was prosecuted by the dpp for using abusive language that
could stir up ethnic hatred, this was against rules set across by the National Cohesion and
Integration Act 2008 article 13 which outlawed use of hate speech on ethnic grounds and
rightfully so because some communities in the country have indeed been targets of ethnic based
violence in situations in the past. The act further defines under article 13(3) the meaning of
ethnic hatred as being hatred against a group of persons defined by reference to colour, race,
nationally or ethnic or national origins
The Kenya National Human Rights and Equality Commission (KNHREC) is a federal
government agency established under Article 248(2) of the Kenyan Constitution whose duties
are set out in article 59 with some of the duties being it that protects citizens from abuse,
discrimination and violation of their human rights; this includes group rights.
Chapter 4 pt3 of the bill of rights provides for the specific application of human rights to certain
groups; children (53), people with special needs (54), the youth (55), the minorities and
marginalised (56) and the older members of the society (57)
Some examples of group rights include right to parental care for children under article 53, the
rights to political participation of the minorities article 56, freedom from discrimination and
protection from domestic violence.
Note that there exist other groups also protected by the const although not mention in part 3 of
the bill of rights such as consumers46, arrested persons49 and detained held in custody or
imprisoned
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)).
Importance of group rights
First, an approach that focuses on group rights is more likely to help solve many pressing
problems facing modern societies such as racial discrimination.
Second, it provides a platform for greater mutual understanding among people who belong to
different social groups as it promotes inclusivity among all individuals.

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.
Lastly, 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 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 a group one can’t leave 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

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.
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
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.

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

5
Raz, J. The morality of freedom. Oxford University Press, 1986.