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CENTER FOR HEALTH, HUMAN RIGHTS AND DEVELOPMENT

(CEHURD)

9TH ANNUAL NATIONAL INTER UNIVERSITY

MOOT COURT COMPETITION

PEN IS MYTIER INITIATIVE (PIMI) VERSUS

1.ATTORNEY GENERAL
2.KWERO HIGH SCHOOL

RESPONDENT S PLEADINGS
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THE 9 TH NATIONAL INTER- UNIVERSITY CONSTITUTIONAL LAW

MOOT COURT COMPETITION

BEFORE THE HIGH COURT OF THE REPUBLIC OF OYANDA

IN THE MATTER BETWEEN:

Pen Is Mightier Initiative PIMI ………………..……………………………………PLAINTIFF

VERSUS

ATTONERY GENERAL

……………………………………….DEFENDANTS

KWERO HIGH SCHOOL

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PLEADINGS FOR THE DEFENCE

My Lord, the Applicant brought this action for declarations that his rights were violated by the
Respondent in contravention of Articles 8A, 22, 24, 44, 45 and Objectives XIV and XX of the
National Objectives and Directive Principles of state policy of the Constitution of Oyanda and
International Human Rights Conventions and Treaties to which Oyanda is a signatory. The facts
giving rise to this suit are undisputed and clear.

ISSUES RAISED FOR DETERMINATION

1. Whether the Government’s failure to ensure that girls in Oyanda were protected from
harmful cultural and religious practices, beliefs and archaic laws amounted to a violation
of the girl’s human rights guaranteed under the Constitution of Oyanda and applicable
laws.

2. Whether the failure of the government to pass and implement a School Health and
Sexuality Education Policy is a violation of various human rights guaranteed under the
Constitution of Oyanda and applicable law.

3. Whether the failure of the government to provide essential training and equipment
to the government medical workers to enable arising out of them handle issues to
teenage pregnancies was a violation of girls’ rights guaranteed under the constitution of
Oyanda and applicable law.
4. Whether the failure of Kwero High School to ensure a protective environment for
students to study free from sexual exploitation was a violation of human rights
guaranteed under the Constitution of Oyanda and applicable law.
5. Whether the failure of Kwero High school to investigate and prosecute Robert Keli was a
violation
of Ariana’s rights guaranteed under the Constitution of Oyanda.
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ISSUE ONE

1. Whether the Government’s failure to ensure that girls in Oyanda were protected from harmful
cultural and religious practices, beliefs and archaic laws amounted to a violation of the girl’s
human rights guaranteed under the Constitution of Oyanda and applicable laws

My lord we do not dispute and contend the Applicants submission that Article 301 of the
Constitution of Oyanda recognizes the right to education of all persons in Oyanda. This right is
further recognised under the International Covenant on Economic, Social and Cultural Rights
(ICESCR)2 the African Charter on Human and Peoples’ Rights(African Charter)3

Our Contention is that the Right to Health and the Right to Education are not part of the
expressly non derogable rights provided under Article 444. It is our submission that Paragraph 5
line 1 -65 of the facts states that “The COVID-19 pandemic found the state of Oyanda, like many other

Least Developed Countries, unprepared. After receiving its index COVID-19 case on the 29th of March
2020, the country was immediately put under mandatory lockdown, and all institutions of learning had to

close’’ as Article 15(1) ECHR6 states that in time of war and other or other public emergency
threatening the life of the nation any high contracting party may take measures derogating from its
obligations under the Convention to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its the obligations under international law.
Whereas Oyanda is not a member of the ECHR, we stand to be persuasively guided by the
same that the state violated some rights though but they are reasonable and justifiable since the
government was trying to cub down the deadly COVID 19 virus and there was no other way it
could without issuing such.

We vehemently submit that all the steps taken by the Respondent were to ensure that the health

and lives of Oyanda ,Article 25(1) UDHR7 that; Everyone has the right to a standard of living
adequate for the health and wellbeing of himself and of his family; including food, clothing,
housing and medical care and necessary social services… are preserved as seen in paragraph 15
line 1 of the un contested facts8 which state that “They referred Ariana and her mother to the bigger
referral hospital, 40 kilometers away which was better equipped to handle such cases.’’ Though Ariana died
1
Constitution of Oyanda
2
ICESCR
3
African Charter
4
Constitution of Oyanda
5
Un contested facts
6
ECHR
7
UDHR
8
Un contested facts
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as result of over bleeding which came as a result of negligently taking chilli paper and liquid soap as seen in
paragraph14 line 18 of the un contested facts 9 hence her cause of death was not as result of lack of health
facility

ISSUE TWO

2. Whether the failure of the government to pass and implement a School Health and
Sexuality Education Policy is a violation of various human rights guaranteed under the
Constitution of Oyanda and applicable law.

My Lord ,it’s our submission too that the Right to Health is not expressly provided for
in the
Constitution,We are in agreement with submission by the Applicants regarding
Article,8A,20,33,
39and 45 of the Constitution of Oyanda, Article 25 of the Universal Declaration of Rights,
Article 16 of the African Charter10, Article 12 of the ICESCR11.
Oyanda has ratified a number of international human rights treaties as seen in paragraph 10 line
number 9 of the un contested facts which state that “Oyanda is a party to several regional and
international human rights instruments and is a member of the World Health Organisation “12which
specifically guarantee the right to health but al so provide for progressive realization in regards to
the enjoyment of the rights hence the concepts of resources and progressive realization are
cardinal to the right to health. Justice Mugambe defined progressive realization in CEHURD

V Attorney General 13 as the obligation to progressively and constantly move towards the full
realization of economic, social and cultural rights within the resources available to a State,

including regional and international aid. In the case of Purohit and Moore v The Gambia 14

expressed that “it is aware that millions of people in Africa are not enjoying the right to health
maximally because African countries are generally faced with the problem of poverty which
renders them incapable to provide the necessary amenities, infrastructure and resources that
facilitate the full enjoyment of this right.
Article 2 of the International Convention on economic, social and cultural rights
(ICESCR)15 states that each party to the convention undertakes to individually through
international assistance and cooperation especially economic and technical to the maximum

9
Un contested facts
10
African Chater 1981
11
International Covenant of Economic Social and Cultural Rights
12
paragraph 10 line number 9 of the un contested facts
13
paragraph 10 line number 9 of the un contested facts
14 4
Communication No.241 of 2001(2003) AHRLR 96 African commission on Human and Peoples’ Rights
15
International Convention on economic, social and cultural rights
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of its valuable resources to progressively achieve the full realization of rights recognized in the
charter which include adoption of legislative measures for its people to enjoy the best attainable
standard of physical and mental health.

In P a r a g r a p h 1 line 11-1716of the facts which states that Oyanda is a low income country as
70 percent of its people are below the poverty line and it’s on this premise that Oyanda is still
in the process of progressive realization so as to fully achieve ,the right to health . The Oyanda is
a poor state incapable of providing all the necessary health amenities at once due to the lack
of resources as reflected in paragraph 16 line sentence number 4line number1 -517 which states
that “The Attorney General also argued that the State was not in a position to provide all the equipment
needed because there was no money and that the whole world was still reeling from the effects of the
COVID-19 pandemic.” In CEHURD v Attorney General18 the learned justice Cheborion Barishaki
denied the principle of progressive realization with regards of failure of a doctor to attend to a
pregnant woman on grounds that to save her life did not require money but it our
submission that all the applicants complaints of the government failing to provide essential Sexual
and Reproductive Health commodities and supplies after the pandemic requires financial resources
which are not available at the moment because they have been diverted to the pandemic.

Nevertheless, the government has attempted to realize through provision of basic health services
that are within their reach are provided to the citizens of Oyanda as indicated in paragraph 10
line919 which state that “Ariana was enrolled in school on the government program of girl
child education, “It is therefore our submission that the Respondents are not in contravention
of Articles 8A, 39, and 45 as read together with Objectives XIV and XX.20 The government
undertaking all practical and reasonable measures to ensure that realization of the highest
attainable standard to implement the a school Health and sexuality Education Policy within the
available resources by utilizing the limited resources at disposal and for that it should not be
faulted. My Lord we pray that this issue be resolved in the Respondents’ favor.

ISSUE THREE
3. Whether the failure of the government to provide essential training and equipment
to the government medical workers to enable arising out of them handle issues to teenage
pregnancies was a violation of girls’ rights guaranteed under the constitution of Oyanda and
applicable law

We are in agreement with submission by the Applicants regarding Oyanda is obligated

under the Constitution to protect, fulfill and promote the rights to education,
health, life and freedom from discrimination of its citizens AND It is our submission

that After receiving its index COVID-19 case on the 29th of March 2020, the country was
immediately put under mandatory lockdown, and all institutions of learning had to close’’ as Article

15(1) ECHR21 states that in time of war and other or other public emergency threatening
the life of the nation any high contracting party may take measures derogating from its
16
Un contested facts
17
Un contested facts
18

19
ibid
20
Constitution of Oyanda
21
ECHR
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obligations under the Convention to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with its the obligations under
international law. Whereas Oyanda is not a member of the ECHR, we stand to be
persuasively guided by the same that the state violated some rights though but they are
reasonable and justifiable since the government was trying to cub down the deadly
COVID 19 virus and there was no other way it could without issuing such.

We vehemently submit that all the steps taken by the Respondent were to ensure that the health

and lives of Oyanda ,Article 25(1) UDHR22 that; Everyone has the right to a standard of living
adequate for the health and wellbeing of himself and of his family; including food, clothing,
housing and medical care and necessary social services… are preserved as seen in paragraph 15
line 1 of the un contested facts 23which state that “They referred Ariana and her mother to the bigger
referral hospital, 40 kilometers away which was better equipped to handle such cases.’’ Though Ariana died
as result of over bleeding which came as a result of negligently taking chilli paper and liquid soap as seen in
paragraph14 line 18 of the un contested facts hence her cause of death was not as result of lack of health
facility
Oyanda has ratified a number of international human rights treaties as seen in paragraph 10 line
number 9 24
of the un contested facts which state that “Oyanda is a party to several regional and
international human rights instruments and is a member of the World Health Organization “which
specifically guarantee the right to health but al so provide for progressive realization in regards to
the enjoyment of the rights hence the concepts of resources and progressive realization are
cardinal to the right to health. Justice Mugambe defined progressive realization in CEHURD

V Attorney General 25 as the obligation to progressively and constantly move towards the full
realization of economic, social and cultural rights within the resources available to a State,

including regional and international aid. In the case of Purohit and Moore v The Gambia 26

expressed that “it is aware that millions of people in Africa are not enjoying the right to health
maximally because African countries are generally faced with the problem of poverty which
renders them incapable to provide the necessary amenities, infrastructure and resources that
facilitate the full enjoyment of this right.

22
ibid
23
Un contested facts
24
ibid
25

26
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ISSUE 4

4. Whether the failure of Kwero High School to ensure a protective environment for
students to study free from sexual exploitation was a violation of human rights
guaranteed under the Constitution of Oyanda and applicable law.
We are in agreement with submission by the Applicants regarding Article 34(a) of the CRC
27
which mandates states to protect the child from all forms of sexual exploitation and sexual
abuse, including the inducement or coercion of a child to engage in any unlawful sexual activity.
Relatedly, Article 19 of the CRC obliges states to take all appropriate legislative,

administrative, social and educational measures to protect the child from all forms of physical or
mental

violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including

sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care
of the child. The CRC Committee has noted that States have the obligation to adopt all measures
necessary to ensure that adults responsible for the care, guidance and upbringing of children will
respect and protect children’s rights. Furthermore, the CEDAW Committee has called upon states
to undertake measures to curtail violence against girls and women associated with educational
institutions and schooling.
It’s our submission that the acts the teacher did where not in the ambit of their employment as
soldiers of the Respondent. Defilement was merely a wrongful mode of performing the acts what
the teachers were employed to perform, but was the performance of acts of a class which they
were not employed to perform at all.. We accordingly pray that court finds the Respondents not
liable on this aspect. Basing on our submission that the right to health and right to movement are
not non derogable rights and the justification presented above we pray that court finds this issue
in favor of the Respondent.

ISSUE FIVE
5. Whether the failure of Kwero High school to investigate and prosecute Robert Keli
was a violation of Ariana’s rights guaranteed under the Constitution of Oyanda

We are in agreement with submission by the Applicants regarding Article 3(4) 28of the
African Women Protocol provides for the protection of the right to dignity, which includes the
state’s duty to protect women from ‘all forms of violence, particularly sexual and verbal
violence. Also, Article 12(1) 2 9 expressly obligates states to take all appr opr i at e mea
sur es to‘ protect women, especially the girl-child, from all forms of abuse, including sexual
harassment in schools and other educational institutions and provide for sanctions against the

27
CRC
28
African Women Protocol
29
IBID
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perpetrators of such practices. ‘However basing on paragraph 16 sentence number 1030 of the
un contested facts which states that “no student had reported him and there was no DNA evidence
to prove that he was responsible for Ariana’s pregnancy. The school noted that it would be prejudicial to
justice to fire a teacher or expel a student with no evidence of wrongdoing.

The school further argued that there was no evidence that Robert Keli was liable for any wrongdoing,
as no student had reported him and there was no DNA evidence to prove that he was responsible for
Ariana’s pregnancy. The school noted that it would be prejudicial to justice to fire a teacher or expel a student
with no evidence of wrongdoing. The school further argued that there was no evidence that Robert Keli
was liable for any wrongdoing, as no student had reported him and there was no DNA evidence to prove
that he was responsible for Ariana’s pregnancy. The school noted that it would be prejudicial to justice to fire a
teacher or expel a student with no evidence .

PRAYERS
My Lord S.33 of the Judicature Act Cap 13 as amended provides that the High Court shall have, in
the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant
absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties
to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before
it, so that as possible all matters in controversy between the parties may be completely and finally
determined and all multiplicities of legal proceedings concerning any of those
matters avoided. In the premises we pray that this application be dismissed with costs since the
Applicants have failed to prove on a balance of probabilities that the Government contravened
Articles 8A, 22, 24, 44, 45 and Objectives XIV and XX of the National Objectives and
Directive Principles of State Policy of the Constitution of Erute.

DRAWN & FILED

BY:-

AttorneyGeneral’s
Chambers, P.O Box
888,
Plot 1 Kwero Road,
Kwero district.

30
Un contested facts