Elmari Coetzee

Student number: 23507452

LAH500: AFRICAN HUMAN RIGHTS LAW

Assignment: 2023 Semester 2

 African Human Rights Law (LAH500) Assignment 2023 Semester 2 - 23507452

CONTENTS

QUESTION 1.............................................................................................................. 3
QUESTION 2.............................................................................................................. 8
QUESTION 3.............................................................................................................11
QUESTION 4............................................................................................................ 14
REFERENCES..........................................................................................................17

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QUESTION 1
Introduction

Good day ladies and gentlemen and members of the Utopian Lawyers Association.
Thank you for the honour of allowing me to address you today. The topic I would like
to present is whether the three generations of human rights, as historically identified,
still have relevance in the modern day and age and can be considered relevant in
the international African human rights context.

Background of the three generations of human rights

In order to sensibly discuss the impact of the three generations of human rights, it is
essential that I provide you with a brief background on the origins thereof.

The roots of the categorisation of human rights into three generations can be traced
back to the chronological evolution of human rights during the seventeenth and
eighteenth centuries. These categories echo the call of the French Revolution:
Liberté; equalité and fraternité.

Liberté represents freedom and civil and political rights of the individual. These
rights were aimed at autocratic governments to ensure that individual will in, a sense,
be left alone to exercise their freedoms in civil and political choices. These rights
were first mentioned in the English Bill of Rights, in the Virginia Declaration of Rights
and the Déclaration des Droits de l’Homme et du Citoyen (‘Declaration of Man and
Citizen’)1. These rights are considered first-generation rights. As it is to be expected
these rights were considered crucial and demanded immediate attention and
implementation.

Equalité translates to equality. This represents second-generation rights and

consists of socio-economic rights. These second-generation rights were in response
1
Viljoen, F. (2012) International Human Rights Law in Africa. 2nd ed Cape Town: Oxford University
Press 5

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to the rapid urbanization and growing poverty during the industrial boom in the early
twentieth century. Interestingly enough, the first mention of socio-economic rights
was found in the Mexican Constitution and was aptly named “Of Personal
Guarantees”. It was suggested that implementation of these rights would be more
gradual, and the only guarantee required from the government was that land
expropriation would not occur unless it was required for a public purpose, combined
with remuneration for the loss suffered.

The third generation of rights, inspired by fraternité, referred to solidarity and

consisted of collective rights. With the growing globalization, concerns were raised
about the global effect and how it will impact the international community, especially
the poverty-stricken areas. This led to the emergence of rights such as the right to a
healthy environment, development and self-determination2.

As our societies developed numerous more rights were identified. The question now
beckons whether all the rights developed over time can be categorised in
accordance with the traditional three generations.

First generation rights: Civil and political rights

The Western democracies were the first to prioritise first-generation rights during the
period of the Cold War. The idea of these civil and political rights was mainly
developed inter alia by the English Revolution of 1688. From this emerged the
foundation that parliament was considered supreme. Along with the English, the
French Declaration of rights of man and citizen (1789) and the American Bill of
Rights (17910), gave effect to the first-generation rights. As a result, the notion if
authority or power was reshaped and amended to reside with the people instead of
the monarch. It was held that government should be representative of the people.

2
Ibid

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The emphasis of this category of rights was solely on civil and political rights.
Traditionally this was all the right of an individual which was affected against the
state. This includes the right to life, free speech, the right to vote and contest
elections, freedom of religion, equality, non-discrimination, etc. only to name a few.
These rights were considered as negative rights since it placed an obligation on the
state.

This implies that other rights mentioned in the South African Constitution 3 can be
included in this first generation of rights.

Second generation rights: Socio-economic and cultural rights

As a member of society, an individual has economic, social and cultural rights.

These rights are born from individualism and vary from person to person. These
rights were classified as second-generation rights and contained all the rights that a
person might have as a citizen and a member of society. It was stated that these
rights were negative rights since, in order for these rights to be realised, the state
had to intervene and affirm the rights in this category.

With the arrival of industrialization and the growth of capitalism, it was noted that
these rights had to be addressed and revisited. The fast-paced development led to
income inequality and in society becoming divided based on class. It was time for
human rights to evolve to address these inequalities.

The rights were considered more focused on society as a whole and how the state of
society, affects the individual. This included the right to work, be educated and
partake in cultural activities of one’s choosing. The rights as we know today which
effects the social sphere of our lives, fall into these second-generation rights. The
right to housing, property, reasonable remuneration, collective bargaining, social

3
Constitution of the Republic of South Africa 108 of 1996

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security, healthcare, etc. are all still present in our constitution and fall within this
category.

Third-generation rights: collective rights

As the development of the first two generations of rights proceeded, it became clear
that society also had rights that needed to be addressed. This was highlighted by
the decolonization in the 1960’s. Suddenly transnational threats such as terrorism
and climate change started affecting societies and it was noted that a need for
collective rights emerged.

With the approach adopted in the first two generations, the third generation of rights
was created. These rights focused on the combined, more abstract rights of society
as a whole and included the right to peace, development, environment, and the right
of a country to determine its own statehood and form its own alliances (self-
determination).

The aim of the third generation of rights was to create a sense of solidarity in
different countries that would unite mankind across borders by sharing the common
purpose of protecting rights.

Conclusion

With full explanation of the three generations of human rights provided and applied
to current constitutional law, I believe that the distinction between the three
categories is still relevant, but not necessarily in the essence of where which right
belongs. The generations were initially aimed at providing a framework for the
classification of human rights. Where the theory however lacks, is related to the time
frame proposed to rectify human right violation. It cannot be accepted that only first
generation rights infringement required immediate attention. All human rights,
irrespective of their nature or categorisation, should be treated as important and

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there should actively measures be put in place to safeguard against infringement of

these rights.

I thank you.

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QUESTION 2
MEMORANDUM

TO: Girl Child Mission

FROM: Elmari Coetzee

RE The African Charter on the Rights and Welfare of the Child (the African
Charter)

DATE: 20 September 2023

QUESTION PRESENTED

Prepare a legal memorandum to enlighten the board on the African Charter on the
Rights and Welfare of the Child (the African Children’s Charter).

DISCUSSION

The United Nations Convention on the Rights of the Child (CRC) is an international
human rights treaty which came into effect on 2 September 1990. It sets out
determinations relating to several matters of children’s rights4. The aim of the
convention was to identify all the rights related to children and to construct a way in
which governments can affect them.

The African Charter of Rights and Welfare of the Child (African Children’s Charter)
was drafted and adopted on 1 July 1990. The charter only came into effect on 29
November 1999. The need for an African charter was identified due to the fact that
only three African states5 participated in the drafting of the CRC and this raised
concerns that numerous regional matters were not addressed under the initial
charter. With the rapid increase in international child trafficking and the use of
children as child soldiers in conflict-stricken areas, it was crucial that these matters

4
This includes civil, political, economic, social, health and cultural rights of children.
5
See table in LeBlanc LJ, The Convention on the Rights of the Child: United Nations Lawmaking on
Human Rights (Lincoln, Nebr: University of Nebraska Press, 1995) 30.

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be addressed in an attempt to ensure the safety and security of children.

Furthermore, African culture is notorious for its disregard for women and various
harmful practices involving children, especially female children, had to be addressed
to navigate the African traditional landscape.

The preamble of the African Children’s Charter states that it seeks to contextualise
the universal values of the CRC into the unique African culture. It also recognises
that the plight of African children is crucial due to their socio-economic, traditional,
and cultural circumstances, as well as developmental challenges. For this reason,
African children require additional safeguarding6.

The critical features of the Charter are as follows.

 Article 27 states the definition of a child. A child is any human being under the
age of 18 years.
This is in contrast with the provision of the CRC which states that a child is
considered any person under the age of 18 unless national law recognises a
different age of majority. The Charter does not allow for any deviations from
the age of majority and thus aims to protect all African children under the age
of 18.
 Article 4 holds that any person undertaking any action relating to a child must
always keep the child’s best interest in consideration. Furthermore, it is
stated that in all judicial and administrative actions the child's views will be
heard, provided that the child is capable of such views and can communicate
them. The communication can be done directly or via a representative. The
CRC does not make provision for a child’s views to be considered in
administrative matters.
 Article 6 relates to name and nationality. Every child has a right to have a
name from birth and shall be registered directly thereafter. In the same way,
every child has the right to obtain nationality. All state parties to the Charter
will ensure that their Constitution provides that a child born within their

6
The African Charter on the Rights and Welfare of the Child 7
7
Ibid 9

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borders, and at the time of birth has not been granted nationality by another
state, will obtain nationality from his or her state of birth.
 Article 21 deals with the contentious matter of harmful social and cultural
practices and grants protection to a child. It states that appropriate measure
must be taken to eliminate harmful practices, both social and cultural which
affects the welfare, dignity, normal growth and development of a child.
Specific mention is made to practices that harm the health and life of a child
and practices that constitute discrimination based on sex. Child marriages
and betrothals are also forbidden. The minimum age for marriage should be
18 years and all marriages must be registered.
 Article 22 prohibits a child from taking part in any armed conflict or hostilities.
It forbids the recruitment of children into the armed forces. This provision is
far stricter than any other child convention.
 Article 23 addresses refugee children. The states that are party to the charter
undertake to grant refugee status, in accordance with the applicable
international law, to any child seeking such assistance. The child must be
offered protection and humanitarian assistance.
 Article 26 states it is the aim of the charter to ensure that the special needs of
a child are considered the highest priority if they are living under
circumstances of discrimination or apartheid. This will include living
conditions in areas of military destabilisation. As far as possible material
assistance should be provided.
 Article 31 addresses the responsibilities of a child. Every African child shall
have the responsibility to perform work for family cohesion and serve his
national community. A child is expected to always respect his parents and
elders.

Conclusion

The African Charter on the Rights and Welfare of the Child makes specific provisions
relating to the rights and protection of African children, by taking their culture
background and customs into account. The aim of the Charter is to offer every child
the maximum protection and allow them to lift out their fundamental human rights.

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QUESTION 3
Introduction

It was stated that African integration with the rest of the world would only be
successful if effective ties could be established with the people of Africa. It is
necessary to explore and understand their common identity and citizenship to truly
give effect to integration8. For this reason, the African Union (AU) structured their
organisation in a way to promote participation and consultation with civil societies of
Africa. This was done by establishing the Economic, Social and Cultural Council
(ECOSOCC) and the Pan-African Parliament9.

The question now arises as to what role these civil society organisations (CSO’s)
play in the promotion of human rights.

Civil society and human rights

The CSO’s often facilitate panel discussions on behalf of the Forum on human rights.
Discussions are held on human rights issues that societies encounter, and it
provides a platform where ideas can be shared, and consultation can be held on how
to deal with challenging situations. Should a community have encountered a
situation where they feel that human rights were violated and no relief is available
due to it being a first encounter, the matter can be addressed and discussed,
allowing for input and advocacy.

These discussions often reveal the current situation on the ground and the state of
the protection of human rights in a specific society. It also provides an opportunity to
determine what the common perception is regarding the development and protection
of human rights.

8
Viljoen, F. (2012) 206
9
Ibid

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Once the Forum holds deliberations, the CSOs are afforded an opportunity to
present the consolidated concerns that were presented to them by the community.
The CSO’s are afforded the chance to present their possible solutions for the matters
identified and make recommendations on how to rectify the situation. The Forum of
CSO’s jointly can then submit their recommendations to the African Commission.
Once the African Commission has considered all the matters and recommendations
brought before it, it will then proceed and adopt the recommendations from the
CSO’s Forum. This way problematic matters can be addressed and resolved.

The interaction between the CSO’s and the African Union allows for extensive
networking opportunities. This allows for in depth consultation and has been
extremely successful in creating advocacy for matters that require urgent attention.
An example is where certain state parties have refused to allow the African
Commission to formally visit their country. Such inquiry visits are often held to gather
information relating to the status of human rights in a country. In these cases, it
seems that the CSO’s have somehow managed to have the African Union
commissioners attend a formal conference or other activities. This allowed for an
informal opportunity to address pressing matters. In this sense the CSO’s act as
mediators to bring groups together and facilitate cooperation10.

The CSO’s play a crucial role in the implementation of legal instruments of the
African Union by participating in the decision-making process. They have also made
strides in creating awareness for the African people.

The CSO’s have been involved in several important projects and interventions within
the human rights sphere. In these cases, they engaged with the African Union and
canvased for support for the mandate that was proposed. They continue to protect
and promote human rights through their involvement, and this is instrumental in
allowing the integration of African Human Rights into standard rules of practice.
CSO’s are constantly involved in education, the training of journalists, devising and

10
This was the case in both Burubdi and Angola.

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drafting media strategies and developing capacity to ensure that they can create
more public awareness of African Human Rights.

The African Union has had so much success with CSO’s that it created a dedicated
Civil Society division which is responsible for mainstreaming societal contributions
through the AU policies and requirements.

Conclusion

It is clear from the above that CSO’s play an integral role in the monitoring and
developing of human rights. They serve as a direct channel from the community to
the lawmakers and their functioning allows for greater access, consultation,
negotiation and transparency.

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QUESTION 4
Introduction

The International Court of Justice (ICJ) is the main court and judicial institution of the
United Nations. To a lesser extent the ICJ will involve itself in human right matters 11.
The following discussion will relate to the structure of the court and its jurisdiction.

Structure

The ICJ was established in 1945 in terms of the Charter of the United Nations. It
consists of fifteen judges, of whom three are African. These judges are
representative of the main forums as found in civilization. They are also well-versed
in the various international legal systems. The judges are not merely appointed but
are elected by the General Assembly and the Security Council of the United Nations.

The United Nations Charter includes the Statute of the International Court of Justice.
In terms of this statute12, all members that form part of the UN automatically become
State parties in terms of the SCJ Statute13. It should be noted that S 93(2) does
allow non-UN states to become parties to the Statute of the ICJ on certain conditions
that will be determined by the General Assembly, after a recommendation from the
Security Council. Each case’s conditional will be determined individually.

Jurisdiction of the ICJ

The ICJ has both contentious and advisory jurisdiction. The reason for this
allocation of jurisdiction is due to the court having to settle disputes and problems in
accordance with international law.

Contentious disputes are often referred to the court by states and this is as a result
of voluntary participation.
11
Viljoen, F. (2012) 67
12
S 93
13
Owuor M (2023) Slides LAH500 – International Court of Justice

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The ICJ often acts in an advisory role. The court is required to provide advisory
opinions on any legal question that is referred to it by the authorised organs of the
United Nations. Specialised agencies are also allowed to take matters under
advisement with the ICJ.

As stated earlier the ICJ’s involvement in international human rights matters is

limited. However, in some instances their judgements may have close bearing on
human rights and the UN charter14 requires all members to comply with the decisions
of the ICJ. The decisions of the court are however only binding between the parties
involved and only on the specific matter before the court; the judgement does not
create a binding precedent for future cases.

The ICJ applies international law in the manner prescribed by Article 38 of the
Statute of the ICJ. The article provides that the court must consider all international
conventions, international customs and general principles of law that are recognised
by civil societies before they arrive at any decision. It does make a provision that the
court may reference academic writings that can be considered as teachings as well
as previous judicial court rulings, made by the ICJ.

In its advisory position, the ICJ has exercised its advisory jurisdiction in a few cases.
In one such instance, the Court confirmed the right to self-determination of the
citizens of Namibia and Western Sahara15.

The court does sometimes deal directly with human rights violations. In Armed
Activities on the Territory of the Congo (Democratic Republic of the Congo v
Uganda),16 the court held that Uganda violated international human rights law. they

14
S 94
15
Advisory Opinion on Western Sahara[ [1975] ICJ Rep 12.], and Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security
Council Resolution 276 (1970)[ [1971] ICJ Rep 16.].
16
ICJ (19 December 2005).

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also contravened the provision of the African Charter and the International
humanitarian law in the Ituri province of the democratic republic of Congo. The court
further stated that Uganda also violated the Vienna Convention on diplomatic
relations when its military forces attacked the embassy.

Conclusion

The matters that may be referred to the ICJ is clearly stipulated in the Statute
thereof. These matters do not normally include judgement or advisory services on
international human rights law, however, the judgements that are given by the ICJ
may have an influence on the application of International Human Rights Law, since
the court will be bound by prior judicial judgements. Also, the ICJ may render advice
and recommendations that can be beneficial in the development of human rights.

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REFERENCES
1. Viljoen, F. (2012) International Human Rights Law in Africa. 2nd ed Cape
Town: Oxford University Press
2. Stadio (2023) African Human Rights Law Study Guide
3. LeBlanc LJ, The Convention on the Rights of the Child: United Nations
Lawmaking on Human Rights (Lincoln, Nebr: University of Nebraska Press,
1995)
4. The African Charter on the Rights and Welfare of the Child
5. United Nations Convention on The Rights of the Child (CRC)
6. Owuor M (2023) Slides LAH500
7. Advisory Opinion on Western Sahara[ [1975] ICJ Rep 12.], and Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Council Resolution 276
(1970)[ [1971] ICJ Rep 16.].

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