Human Rights Law LB306

• Philosophical and Historical Issues about Human Rights

• Definition of Human Rights- entitlements of human beings by virtue
of being human
• A right not in the BOR still remains a right but is not justiciable in a
court of law.
• There is no agreement as to the definition, scope, nature, content and
application of human rights.
• A number of theories have been advanced to deal with the origins of
human rights. The following are some of them:
Continuation…
• There are a number of theories that seek to define Human rights.

1. Natural Law theory – states that human rights are given. They support
this position by referring to Bills of Rights (given by the State) and
international treaties where states give these rights.
• E.g the 1980 Zimbabwean Constitution’s Bill of Rights, the ICCPR, ICESCR.
2. Deliberative theory/ scholars – they aver that rights are talked about.
They postulates that there is a conversation between state and citizens
which results in the adoption of the Bill of Rights.
• E.g the 2013 Zimbabwe Constitution.
Continuation…
3. Protestant theory – they say that human rights are fought for.
• you have to fight to get/enjoy the rights e.g civil rights movement in
the USA, process leading to the dismantling of apartheid in South
Africa (Long walk to freedom: Nelson Mandela), wars of liberation in
Africa; the Arab Springs in Africa.
Characteristics of Human rights
1. Universality of Human rights
• Human rights must be universal in their application.
• All communities around the globe must accept human rights without
any reservations.
• This view is based on the UDHR (1948) (which is now believed to be
part of international customary law)
• The declaration is not binding in the context of other treaties but it
shows a general acceptance.
Continuation…
• Are human rights universal? The basic answer is no, because of
culture, political and religious reasons.
• There is a concept of cultural relativism – fluidity of culture - it states
that culture, religion and other factors must be taken into account
when formulating human rights to particular communities.
• Rights that are regarded as contrary to culture, religion often have
reservations entered against them.
• Reservations – is where a state declares certain provisions not
applicable to it or suggesting its own interpretation of that provision.
Continuation…
• Reservations are regulated by the Vienna Convention on the Law of
Treaties.
• A state may not enter a reservation. The effect of which is to defeat
the spirit and purpose of the treaty. For instance a state that objects
to the definition of discrimination against women in the Convention
on the Elimination of all Forms of Discrimination Against Women
(CEDAW) defeats the spirit and purpose of the treaty.
2. Indivisibility
• Human rights are indivisible.
3. Inter-dependence of human rights
• Rights depend on each other
• They interrelate.
• In some cases, the violation of one right affect others.

4. Non-discrimination
• Human rights must be enjoyed by everyone without discrimination on
any basis except on objective differences e.g age.
State obligations
a) States have a duty to protect human rights
• The state should ensure that the state itself, its institutions, agents or
third parties (private persons or non-state actors) do not violate
rights. If there is any such violation, the state must provide effective
remedies in the form of procedural and substantive remedies. See
section 44 of the 2013 Zimbabwe Constitution.
(i) Procedural remedies – institutions and laws that enable
enforcement of rights as a matter of procedure – see section 175 and
85 of the Constitution and the rules of the Constitutional Court.
(ii) Substantive remedies
• That is the law that provides for legal basis for seeking remedies or
redress. E.g the Bill of Rights.
• The state must also take responsibility over violations of non-state
actors under the principle of state responsibility in International law.
State Responsibility

• Is based on the due diligence test which assesses the measures

adopted by the state upon becoming aware of violations by third
parties.
• The measures could apply to efforts to terminate an on going
violation or to provide a remedy in the aftermath of a violation.
• Such measures can be in the form of a genuine investigations to hold
non-state actors accountable. Failure to take effective measures to
deal with the third party violations results in the state assuming
responsibility over the acts of non-state actors.
Continuation…
• The principle was elaborated in the Velasquez Rodriguez v Honduras
case – a decision of the Inter-American Court on Human Rights.
• In the Zimbabwe Human Rights NGO Forum v Zimbabwe – a decision
by the African Commission made after the 2002 election – it was
noted that the applicant had to demonstrate –:
i) That the perpetrator were in no way connected to the government
in that event the state did not do enough to protect acts by non-
state actors,
ii) If the violations are imported by the government – then the state is
responsible.
Continuation…
• In both the Honduras and the Zimbabwe case above, there is state
responsibility by acts of the state itself and non-state actors.

b)Obligations to respect human rights – the state must do nothing to

allow enjoyment of human rights by the people.
• Any interference amounts to violations of human rights by the state
e.g shutting down internet (Zimbabwe after stay away pursuant to
fuel price hike in January 2019) violates freedom of expression among
other rights; interfering with peaceful protests – violates freedom of
assembly and association.
c) Duty to fulfill human rights
• The state is supposed to take positive acts to ensure that citizens enjoy the
rights e.g freedom of movement – the state must provide travelling
documents.

d) Duty to promote human rights

• The state must bring awareness of the rights to the people. It must do
programmes to educate the people about the nature, scope, content and
application of the right.
• Could be done through incorporation of such in school curricula, public media
aware, translation of human rights in all officially recognized languages in the
state.
Historical Aspects of human rights
• There is no date we can start to talk of human rights.
• Human rights literature talks of the aftermath of WW2 when the drive
to protect human rights started.
• State wanted to hold accountable those who committed attrocities
during WW2.
• International treaties and protocols were adopted and institutions
established to preside over criminal proceedings and enforce criminal
law, international humanitarian law and international civil law.
• Under international law states established adhoc tribunals to deal with
specific cases and abandn them.
Cont…
• Eg the Nuremberg Tribunal, ICTY tribunal( for former Yugoslavia), ICTR
Tribunal/ Gacaca Tribunal( Rwanda genocide of 1994), Special Court for
Sierra Leone(SCSL).
• The tribunals were created under the auspices of the UN
• In 2002, the ICC was established as the first ever international criminal
court
• In 1948 the UN came up with the Universal Declaration of human
rights.
• There after a number of human rights instruments came into being at
Global, Reginal and sub-regional levels.
National Protection of Human Rights
• Sources of human rights-legislation, authoritative texts, judicial
precedent.
• There is legal and institutional framework of human rights protection.
• LEGISLATIVE FRAMEWORK
• The primary responsibility of states is to protect human rights at
national level. The international human rights protection system is
secondary in nature because it is engaged when a state is either
unwilling or unable to protect human rights at international level.
• Weak institutions or legal frameworks are indications of weak
protection of human rights.
The Principle of Subsidiarity
• The primary responsibility to protect human rights is national while the
secondary responsibility is international.
• The principle of subsidiarity is rooted in the concept of exhaustion of domestic
remedies.
• It states that before an applicant approaches international mechanisms, he must
exhaust all available domestic/national remedies.
• Approaching international mechanism before exhausting national remedies will
be deemed inadmissible.
• The international for a is not presented as an appeal process. It is regarded as an
independent system where it is engaged at first instance basis.
• International forum is not based on national law.
Cont…
• The alleged facts should establish violation of international treaty
• The two applications ie the one on national and the other on
international are based on the same facts but different laws.
• The systems are independent of each other.
• There are however exceptions to the principle of subsidiarity eg delay
in the finalisation of the matter in the national courts etc.
The Bill of Rights
• Human rights are given expression in different forms in the various
human rights declaration, treaties and covenant. These are-:
(i) Civil and political rights
(ii) Economic, social and cultural rights
(iii) Humanitarian rights – that is the rights of those who are involved in
or affected by armed conflict e.g prisoners of war, wounded or the
sick.
(iv) Various categories of rights as defined by the nature of holders e.g
workers, women. Children, minority group, stateless persons,
indigenous people and people with disability.
Continuation…
• Human rights despite being universal have limits. The most important
limits on human rights are -:
(i) The generality with which rights are expressed in conventions.
(ii) Limitations clauses within individual clauses and
(iii) Limits caused by compelling rights

• Human rights content is influenced by many different traditions,

countries, cultures, religious movements such as feminism, socialism
and convention.
Continuation…
• Since human rights have different contests in different cultures, yet are
at the same time expressly universal, they are of necessity written in
very general language at international level. This allows states to
interpret those rights within their own cultural, religious and economic
context.
• While the meaning of human rights is the subject of intense debate,
the sources of current human rights law is generally accepted. The
original source document for current human rights is the UDHR (1948).
It expresses human rights in general terms as a common standard of
achievement for all people and all nations. (Bhargava, 2013)
Continuation…
• The ICCPR provides detailed individual rights of citizen in relation to
the power of the state.
• The ICESCR provides for economic, social and cultural rights especially
in the developing states.
• The UDHR has been endorsed by virtually all states and arguably
acquired status of customary international law.
• The ICCPR has currently 173 parties while ICESCR has 171 parties.
• The three have generally been accepted as forming the international
Bill of rights.
The Zimbabwean Bill of Rights
• Prior to the 1980 Constitution, there were some Bill of rights which
were not justiciable.
• It was only at independence in 1980 when Zimbabwe had a justiciable
Bill of rights which extended from section 11 to 24.
• The Bill of rights was narrow in its scope and as a result there was
agitation for the expanded Bill of rights by the people of Zimbabwe.
This led to a number of amendments to the Constitution.
• In 2013, Zimbabwe adopted the current Constitution which provide
for civil and political rights, economic, socio and cultural rights, group
rights among others.
Continuation…
• The Bill of rights extends from section 44 to 87.

Components of the Bill of rights

1) Application and interpretation section – section 44-47.
• The state, its agents and institutions must respect, promote, protect
and fulfill the Bill of rights.
• The Bill of rights applies both vertically and horizontally – between
citizens and citizens and the state.
Continuation…
• When interpreting the Constitution there is need to consider the
founding values and principles, the national objectives set down in
Chapter, must take into account international law, and all treaties and
conventions to which Zimbabwe is a party.
• May consider any relevant foreign law.
• The interpretation clause is so broad so as to include reference to any
relevant law anywhere in the world.
2) Fundamental human rights and
freedoms
• These extend from section 48 to 78.
• By heading, they are separated from the other rights in the Bill of
rights.
• They are described as “fundamental human rights and freedoms”
3) Elaboration of certain rights
• This covers section 79 – 84.
• It contains rights that are not provided under the heading
fundamental human rights and freedoms.
• A look at the rights indicates that they are connected with national
objectives under Chapter 2. e.g section 81 is relative to section 19,
section 82 to section 21.
• Are these rights actionable on their own without reference to the
fundamental rights and freedoms. See Mudzuru & Another v
Minister of Justice, Legal and Parliamentary Affairs CC 12-15
4) Enforcement of fundamental human
rights and freedoms
• This is covered in section 85.
• The heading is similar to the one for sections 48 t0 78.
• It provides for locus standi and procedural issues on approaching
court in the event of an infraction of the Bill of rights. See Chihava v
Mapfumo & Others CC 6-13
5) Limitations of fundamental human
rights and freedoms
• This covers section 86 and 87.
• Section 86 provides for the general limitation clause of the
fundamental human rights and freedoms except those that are
outlined in section 86(3).
• rights may also be limited during public emergency except those that
are outlined in section 86(3).
See NSSA v Nyambirai
In re Munhumeso 1994 (1) ZLR 49 (S)
Types of violations
i) Where one alleges that a fundamental right has been violated
(completed violation)
ii) Is being violated.
iii) Is likely to be violated – potential violation
Mawarire v Mugabe CCZ 1/13
Locus standi/ right to sue
i) Any person acting in their own interest.
ii) Any person acting on behalf of another person who cannot act for
themselves.
iii) Any person acting as a member or in the interests of a group or
class of persons.
iv) Any person acting in the public interest.
v) Any association acting in the interest of its members.
Cases: Chombo v Parliament and Others SC 5/13, Capital Radio v BAZ
2003 (2) ZLR 236
Requirements to act for someone in
detention
i) The victim cannot act for himself/herself.
ii) May be required to produce proof of consent.
iii) The victim has sufficient interest in the matter – can show that the
violation is in respect of the person.

CCJP v Attorney-General 1993 (1) ZLR 242 (S)

Bull v Attorney- General 1987 (1) ZLR 36 (S)
Levy v Benatar 1987 (1) ZLR 120 (S)
Requirements for acting in public interest
• What is public interest?
See Forum Party of Zimbabwe & Others v Minister of Local
Government 1996 (1) ZLR 461 (H) – the principle by court is that
public interest does not mean that everyone in the country has an
interest because where a section of the population is affected, then
the requirement is satisfied.
Ferreira v Levin N.O 2004 (4) SA 125 (CC)
M and anor v Minster of Justice 2016 ZLR
Chironga and Anor v Minster of Justice.
Association acting in the interest of its
members
• ZIMTA v Minister of education 1990 (2) ZLR 48
ZIMTA was held to have interest of its members summarily dismissed
by the Respondent.
Class Actions
• Sections 85(c) – is now more relaxed to approach the Constitutional
Court.

Any Person acting in Public interest

• What is public interest – see Forum Party of Zimbabwe v Minister of
Local Government 1996 (1) ZLR 461 (H).
• The principle by the court is that public interest does not mean that
everyone in the country has an interest because where a section of
the population, then the requirement is satisfied.
Cont…
• Ferreira v Levy NO 2004 (4) SA 461 (CC) – This case gives more than
ten indicators in the case
Typology of Violations
• Section 85(1) – (a) where you allege that a fundamental right has
been violated (completed violation).
• (b) is being violated
• Is likely to be violated (potential violation). See Mawarire v Mugabe
Appropriate Relief and Remedies
• Remedial Competence of our courts – it is unlimited. It has to match
the violation.
• See Mukoko v Attorney-General SC11-12
• NB At National or international law remedies are designed to reverse
all the negative consequences of a violation and guarantee non-
recurrence.
• Law can be expunged.
• City of Mutare v Matamisa 1998 (1) ZLR 512 (S)
Purpose of Constitutional Remedies
• Is to address or strike the root of a violation which is considered to have
undermined the constitutional agenda of creating a democratic society.
• For that reason constitutional remedies are regarded as forward looking
and that the public has interest in addressing the violation.
• There are a number of factors that are taken into account in
determining test/relief. They include the purpose of a remedy, the need
to address the constitutional violation, the profiles of the perpetrator
and the victim, the consequences of the violation on the victim, the
possibility of a successful implementation of the remedy etc.
Anderson v Attorney-General, Eastern
Cape 1998 (2) SA 38 (CC)
• Power of court is limited in providing remedies
• The court has flexible approach in dealing with the remedies
available.
Declaration of invalidity
• S175(6)(a) and (b) – the court should declare a provision
unconstitutional. The court should make a decision which is just and
equitable.
• Where a declaration would lead to a legal lacuna, the court should
read certain words into the provision and fit it in line with the
constitution or delete certain words. This approach is however very
much discouraged.
• The court may make an order limiting the retrospective effect of the
declaration of invalidity or an order suspending…
Continuation…
• Such declaration will only take validity after confirmation by the
Constitutional Court. Upon making the declaration the same court
may issue temporary relief to a party pending confirmation
proceedings in the Constitutional Court or may adjourn proceedings.
• NB A declaration of invalidity is not discretionary upon the court.
Once a court has interpreted a law to be unconstitutional, the
declaration must naturally follow.
• What is discretionary is the ancillary relief in confirmation with the
declaration.
• Section 85(3) –deals with a number of principles.
Continuation…
(i) The term and structure of any rules of procedure must ensure that
the right of access to court is fulfilled.
(ii) the rules must keep formalities relating to court proceedings to a
minimum.
(iii) A court must not be unreasonably restricted by technicalities.
However, the principles of natural justice must be observed.
(v) Persons with specific expertise maybe allowed to participate in
proceedings as friends of the court either –
(a) court driven-court invites a person
Continuation…
• (b) a party driven system- a party invites an expert to assist the court.
• (c) an interested party approaching the court to be allowed to assist
court – the party must show interest in the outcome.
• Section 167(5) – a person can approach with or without leave of court.
• See Hoffman v South African Airways 2001 (1) SA 1 (CC) @ 63 –
amicus should address court in relation to question of law and fact. He
differs from an interested party who has an interest in the outcome of
the matter.
• Amicus does not bear costs.
Continuation…
• Amicus joins because of expertise and interest in the matter. It
chooses the side it wishes to join unless if the court directs otherwise.
• Amicus should raise relevant and new thinking.
• Court has discretion to allow the amicus.
Powers of Courts to Constitutional
Matters
• (i) To issue a declaration of invalidity of an act or law. See section 175(1),(2),
(3),(5),(6).
• Section 175(4) – referral of constitutional issues to Constitutional Court. A
constitutional issue arises in a court other than the Constitutional Court.
• S v Roli – it is not food to place someone on remand when there is no
reasonable suspicion of commission of an offence.
• Muchero v Attorney-General 2000 (2) ZLR 286 (S) – no referral will lie to the
Constitutional Court once the presiding Magistrate has made a determination.
• Martin v A-G & Another 1993 (1) ZLR 153 (S) – deals with frivolous and
vexatious applications.
Jurisdiction of Courts
• The constitution introduces exclusive and concurrent jurisdiction of
courts in constitutional matters.
• There are issues exclusive to the jurisdiction of the Constitutional
Court. See section 167(2).
Jurisdiction of Constitutional Court
• Section 166, 167 and 175
• Highest Court in constitutional issues and decides only on constitutional matters.
• Makes a final decision whether a matter is constitutional or not.
• Pronounces on the constitutionality of a Bill after referral by President and also
referral of a Statutory Instrument in terms of the 5th Schedule to the
Constitution.
• Section 167(2) – deals with exclusive jurisdiction of the court- use of “may” is
peremptory.
• (i) advise on the constitutionality of legislation.
• (ii) hear and determine disputes of election to the office of the President.
Tsvangirai v ZEC & Others – Issue of whether access to material of voting in
Presidential election amounted to a dispute concerning election to the office of President.

• Section 70 of the Electoral Act – created jurisdiction on the electoral

Court to deal with applications by persons seeking access to material
of any election.
• (iii) to determine whether a person is qualified to occupy the office of
the Vice President.
• (iv) whether Parliament or President has failed to fulfil a
constitutional obligation.
Jurisdiction of Supreme Court
• Section 169(1) – is the Court of appeal serve in constitutional matters.

Jurisdiction of High Court

• Section 171(1)(c) – decides constitutional matters except those that
only the Constitutional Court has exclusive jurisdiction.
Limitations of Human Rights
• Section 86 – see also section 369 of the South African Constitution.
• In Zimbabwe there is no case by the Constitutional Court on the
limitation clause. However, there are various cases in the South
African jurisdiction.
• Section 86(2) – see NSSA v Nyambirai
• Inre Munhumeso
• The general limitation clause is an improvement in the sense that
rights are now limited by the same criteria as opposed to each right
having its own criteria or standard.
Continuation…
• By effect a limitation is a justifiable violation.
• In terms of the general approach the court first of all interprets the
right or freedom and upon making a finding that there has been a
violation, it is required to apply section 86.
• The burden of proof lies on the applicant to prove violation, but then
shifts to the Respondent to justify the violation in terms of section 86.
• Generally more detailed evidence is required in the justification
process in comparison to the interpretation of the right.
Continuation…
• There are key phrases in section 86(2) that require elaboration in the context of
existing jurisprudence. Put together they put the justification criteria-:
• (1) Law of general application – there are two elements-:
• (a) what is law? – law is contemplated to include legislation made by a body mandated
by a constitution to do so.
• See Chimakure & Others v A-G SC 14-13 – it defines what is law? –legislation, common
law, delegated legislation.
• The following elements must be satisfied for a law to qualify as a law of general
application-: it must be precise in its application and effect, it must be accessible to the
general citizen, it must be predictable and it must comply with general principles of
legality.
• See August v The Electoral Commission 1999 (3) S 1 (CC)
General Application
• A law that applies to the public as a whole or to a substantial portion
of the public.
• Discriminatory law does not qualify. A law that applies arbitrarily does
not qualify.
• Premier of Mpumalanga v Executive Committees of the Association
of Governing Bodies of State Schools 1999(2) SA 91 (CC) –It was held
that discriminatory administrative decision based on a law of general
application do not qualify as law of general application themselves.
The legislation empowering exercise of discretion must provide for
clear guidelines for such exercise.
Chapter 12
• Section 235 – independence of commissions. See also section 236.
• Effectiveness of Commissions is linked to its independence.
Historical Development of international
law
• Relationship between national and international law
• National law determines the status of international law. The
relationship can be understood in 3 perspectives –:
(i) Dualism – these are two different laws. International law applies
after specific adoption into national law. See section 327. All
common law countries are dualist.
(ii) Monism – common in civil law jurisdiction – in these countries
once international law is ratified it becomes part of their law.
(iii) Nihilism – says national law is supreme over international law.
Section 327: domestication of international
treaties and Conventions
• Cases: Backer M v Government of Kenya, Kachingwe & Others Minister
of Home Affairs.
• Application of treaties as interpretation aids – Unit Dow v Attorney-
General AHRLR 99 (BWCA 1992).
• Treaties can only be used as aids to interpretation, but not as a means of
enforcement.
• Kachingwe case – argument was that the African Charter is part of our
law. The court in obiter indicated that it is part of our law.
• Mike Campbell Case – registration of SADC award.
• Gramara v Zimbabwe. See Article By Tarisai Mutangi
Continuation…
• Enforcing a foreign judgment – common law and the Civil Manual
Assistance Act.
• Section 327(6) – when a court is interpreting legislation it should
adopt interpretation that is consistent with any international
convention, treaty or agreement which is binding on Zimbabwe.
• Public international law – body of rules of conduct which are binding
to the members of the international community.
International law
• Is concerned with general principles and specific rules.
• It regulates relationships between states. It should be noted that
there are other members of the international community such as
international organizations.
• Individuals – have become increasingly recognized as participants and
subjects of international law.
• International law also implies criminal liability for serious violations of
humanitarian law governing armed conflicts.
Activities of International Organizations
• Covers various fields from cultural to military and economic co-
operation.
• Eg United Nations, Regional like African Union, Council of Europe,
NATO, IMF, WTO, WHO, etc.
• International law – :
• Procedure is different – there is no single central supranational
authority to make rules and enforce.
• Can be enforced through imposing sanctions on the violating state.
Sources of international law
• See article 38(1) of the Statute of International Law of Justice (ICJ).
• ICJ – is the biggest court you can ever find.
• ICJ applies the following law-:
(i) international conventions
(ii) International custom
(iii) General principles of law of civilized nations
(iv) Judicial decisions and teachings
It deals with disputes between states
Sources of law
• 8 sources of law – traditional and non-traditional
• Article 38(1) of the Statute of ICJ – 5 traditional sources -:
• (i) Treaty – agreement between states.
• Interpretation same as just like the municipal law.
• (ii) Custom – is evidence of general practice accepted as law.
• Can be established by the existence of bilateral/multilateral relatiosn
between states. Eg Geneva Conventions and Hague Conventions (on
conduct of war, treatment), and UN Charter of 1948.
(iii) General principles of law
• These are principles of equity, justice and consideration of public
policy.
• Eg The principles of good faith – see Article 26 of the 1969 Vienna
Convention on the Law of Treaties.
(iv) Judicial decisions – of international courts and tribunals such as
ICJ, ICC, ICTY, ICTR, UN Special Court for Sierra Leone, European Court
of Justice, European Court of Human Rights, African Court of Human
Rights, Inter-American Court of Human Rights.
(v) Writings of
scholars/jurists/commendators
• Non-traditional sources
Concept of Human Rights in international
law
Areas of Concern
• International Human Rights Law (IHRL)
• Protects internationally guaranteed rights of individuals and groups
against violations by state.
• Scope of internationally guaranteed rights-:
• 1st generation rights – civil and political rights
• 2nd generation rights – economic-socio and cultural rights
• 3rd generation rights – rights of vulnerable groups and environment,
development rights.
International Protection of Human Rights
(IPHR)
• Levels- they fall within 3 key levels -:
(1) Global Human Rights System – this is made up of the United Nations
mechanisms for protection which are mainly 2 namely-:
(i)Charter based Human Rights System (protection based on the UN
Charter)
(ii)Treaty based human rights (protection based on the UN treaty
system.
(2) Regional Human Rights System
• They are a number including the following -: African Union Human
Rights System, European Human Rights System (Council of Europe),
Inter-American Human Rights System, Association of South-East Asian
Nations (ASEAN), Maghreb Human Rights System (Arabs), North and
West Africa.
• (3) Sub-Regional Human Rights System
• East African Community/States (EAC), ie Kenya, Uganda, Tanzania,
Rwanda and Burundi; Economic Community of West African States
(ECOWAS), SADC (15 member states).
Common Institutions in International
Human Rights Systems
• These are institutions that each human rights system establishes to
oversee the implementation of each treaty.
• May take the form of a judicial or quasi-judicial in nature such as a
court, tribunal, committee, working group, a group of experts or an
individual expert.
• Their competence is vested in the constitutive instrument.
• Each instrument appoints its own body to oversee its implementation.
The practice is universal.
Courts/ Tribunals (Judicial institutions)
• Institutions of a purely judicial character. Eg African Court on Human
and Peoples Rights, European Court of Human Rights, Inter-American
Court of Human Rights, Economic Community of Justice.
• There is no hierarchy between international courts inter-se or
between international and municipal courts.
• Sadly the monoist theory does not address the status of inter decision
in national system such decisions are not binding but have persuasive
value.
Treaty bodies
• They are not courts or tribunals. Their composition is not limited to people with legal
training.
• The common requirement is that they be of high moral integrity and be knowledgeable to
human rights covered in that particular treaty.
• That track record must prove impartiality. They are elected by member states and are of
different nationalities.
• They execute their mandate in personal capacities.
• A judge from a country whose dispute is before the body is automatically barred. They work
on part time basis.
• They monitor state compliance with treaty provisions using two primary methods -:
(i) Through state reporting procedure
(ii) By way of individual communications procedure
State Reporting
• The following are to be answered -:
• What is state reporting?
• To whom is reporting made?
• For what purpose?
• Is it compulsory?
• What happens if it is not done?
• What is the source of the obligation?
Continuation…
• The institution responsible for preparing state reports in Zimbabwe is
called the inter-ministerial committee on human rights and
humanitarian law (IMC) based in the Ministry of Justice, Parliamentary
and Legal Affairs.
• It was established by a cabinet decision in 1993 to be responsible for
among other things to prepare state reports to treaty bodies.
• Source of state reporting
• Article 2 of the ICCPR obliges each state to adopt measures that give
effect to the rights recognized in the covenant.
• Usually the first Article in each treaty provides for reporting.
African Charter
• Article 62 – a state party should report on legislative and other measures to give
effect to that treaty. The report is on the measures undertaken by the state.
• Art 62 – state reporting is an automatic compulsory obligation assured by
ratification of a treaty.
• Ratification – state should have participated in the formation of the treaty.
• Accession – is ratification of a treaty in which it did not participate in in its
formation.
• Succession – now government taking over obligations ratified by a previous
government. However, a new government has an option to do so. If a government
takes no action, it is assumed to have succeeded on the treaties.
• Succession ordinarily refers to action taken by a new state.
Continuation…
• Under succession, there is need for continuity of obligations –
obligations accrued to the previous government especially in relation
to individual rights will continue to bind the new government.

• Purpose of state reporting

• Take stock of effectiveness of the treaty. Identify challenges faced by
states in giving effect to the treaty.
• Regular monitoring of human rights situation in the country and
assess the extent of the realization of rights.
Benefits of state reporting
• Developing and adopting best practices in implementing the
provisions of a treaty.
• Develop benchmarks for state and treaty bodies to assess progress in
implementation of treaty.
• For states and treaty bodies to better understand notorious
challenges in giving effect to the treaty.
• Constructive dialogue between treaty bodies and state parties.
State Reporting Cycle
• Step 1 – data collection
• It makes or breaks the purpose and benefits of state reporting. Collect
only relevant information.
• Involvement of stakeholders with interest and capacity to provide
unbiased information is critical.
• Research methods or instruments depends on the setting 9.
• Ideally issues ought to be presented as they come out. Stakeholders
involvement removes the … of shadow reports.
Developing data techniques – a research methodology must be adopted
that best harvest the information. Research must never be ad hoc.
Step 2 - Drafting
• Drafting is done by the state party – in Zimbabwe it is done by IMC.
• The drafter must comply with the rules in the treaty.
• Each state has guidelines of how such reports should be prepared.
Step 3 – Submission of state report
• Have to be submitted in terms of the procedure of each treaty body.
• The report will be translated into the working languages of the system
to which it has been sent.
• Treaty body members expected to go through the report prior to
consideration and prepare issues ahead of consideration.
• A member or team is often appointed for effectiveness.
• NB NGO’s are allowed to submit shadow reports and also to attend.
Step 4 – Consideration of Report
• A state party delegation appears before a relevant treaty body to
present report during a session of the treaty body.
• Head of delegation offers brief remarks to introduce the report.
• Members of the treaty body pose questions to the delegation
expecting responses. State delegation must be receptive to
constructive comments and take them seriously.
• State delegation can undertake to respond in writing by a stipulated
time.
Step 5 Concluding observations
• Comments on the report. These are comments on the successes,
difficulties and recommendations.
• The state must consider these observations as they are meant to
build.
Step 6 – Implementation/Follow up
• Though not binding per se, the state party is expected to implement
the recommendations.
• Invariably, a shift in policy and law reform dominate the cocktail of
measures to be adopted in the implementation process.
• Subsequent periodic reports must build on the initial report within
the required time lines.
Effective reporting
• State must understand the rationale for the state reporting.
• Political will for resource mobilization to fund related activities such as
IMC capacitation, on site visits and general data collection.
• Committing staff to exclusively deal with state reporting.
• Timeous reporting.
• Consultative approach in the preparations of reports. Effective data
collection methods and elimination of bureaucracy in accessing
information from the public institutions.
• Honest presentation. Report should comply with guidelines in order to be
useful.
Individual Communications Procedure
• A treaty may vest in the treaty body the competence to receive and
consider complains of human rights violations by the state filed by
individuals, NGOs etc.
• Each treaty provides for a list of individuals or organizations with
standing to lodge such complaints before it.
• It also provides with list of requirements to be met by the
complainant before the treaty body accepts the complaint
(admissibility requirements).
• The requirements are different although the rule requiring exhaustion
of local remedies is the same.
Exhaustion of local remedies
• It provides that before an applicant seizes international forum, he ought to
have exhausted all available remedies at national level.
• The rule is rooted in state sovereignty which provides that a state must be
given a chance to put its house in order before it is brought before an
international forum of adjudication.
• This approach complies with the principle of subsidiarity in as much as it is
meant to ensure the adoption of cost effective measures to address their
violation.
• It is also meant to ensure that the international forum benefits especially
from the factual analysis of a national court because international forum is
much removed from the scene of violation.
Continuation…
• However, the rule accepts exceptions which are as follows-:
• (i) only remedies that are available, effective and sufficient must be
exhausted.
• a remedy is available when it is readily accessible without
impediments.
• It is effective where it offers a likelihood of success.
• It is sufficient where it is capable of addressing the wrong.
Continuation…
(ii) Where domestic remedies are unduly prolonged.
(iii) Only remedies of a judicial nature must be exhausted.
(iv) Where national proceedings are unduly prolonged.
(v) Where victims are indigents (paupers).
(vi) Where domestic legislation oust the jurisdiction of national courts.
Mike Campbell v Republic of Zimbabwe- SADC case
(vii) Where rights claimed are not guaranteed by domestic law.
See Serac v Nigeria
(viii) Where a complainant is in forced exile. See Jawara v The Gambia
(ix) In cases of serious or massive violations of rights involving large numbers of
complainants.
The UN Human Rights System
(1) Independent Experts vs State Representatives
(2) Treaty Bodies vs Charter based bodies
(3) Treaty bodies – Human Rights treaties and Committees
(4) Charter based bodies: Human Rights Council, ECOSOC, UN General
Assembly
Independent Experts vs State Representatives
• Independent Experts eg Treaty bodies, Special procedure
• Special procedure – treaty bodies may among themselves pick an
expert as an expert to deal with a particular issue.
• Special rapportuer – expert appointed.

State Representatives
• E.g Human Council, General Assembly
• States peer review other as opposed to an independent committee
overseeing.
Treaty bodies v Charter base bodies
• Treaty bodies – established by human rights treaty.
• Competence for rights covered by the treaty.
• Obligation for state parties to the treaty.
• Eg Human Rights Committee, Committee for the Rights of the Child
Charter based Bodies
• Mechanism derive from the UN Charter. Competence according to
resolution creating the mechanism/institution/sub-structure.
• Potentially obligations for all UN member states.
• On Charter based side, the General Assembly is the deciding body.
• General Assembly establishes other institutions eg Human Rights Council.
• Special procedure- the General Assembly appoints experts (special
rapporteur)
• Decisions are made through resolutions. If a state party does not ratify
any of the treaties, it will still fall under the Charter based treaty.
Continuation…
• Under the Human Rights Council (HRC), there is the universal Periodic
Review (UPR).
• Not every member state is a member to the Human Rights Council.
• UPR – involves submitting periodic review to the HRC. There is
constructive dialogue when reports are submitted.
• There is no Charter based system under the African Charter – it falls
under treaty based system.
Treaty bodies – functions
• Composed of independent experts.
• Reporting procedure & NGO shadow reports
• Individual complaints/communication procedure.
• Country visits.
• Ratification
• Reservations
• Delays in submitting reports
#Art 14 of ICCPR – Right to fair trial
• Human Rights Committee – General Comment No. 32
• HRC – General Comment No. 31 – talks abut the nature of the legal
obligations required by the ICCPR.
• General Comment (GC)30 – On state reporting – purpose, essence of
state reporting.
• GC 29 – state of emergency.
• GC 26 – deals with continuity of obligations
• GC 24 deals with reservations
Classification of treaties
(1)Territorial – these are based on territory or organization eg SADC,
ECOWAS, AU, EU
(2)Universal – Only UN are universal in nature.
(3) Thematic – focus on particular theme.
(4) General – covers a number of rights eg ACHPR
(5) People specific – specific groups of people such as children, women
(CEDAW), disabled.
General Comment 31-Effect: State
Obligations
• Binds all arms of government
• To give effect to treaty obligation – this is of immediate effect on
subscribing states
• Obligation to implement treaties
• Obligations are in respect of all persons in the territory.
• Obligation to guarantee non-recurrence of violation by taking both
special and general measures.
General measures to protect your client
• If the damage is caused by a law – you may need a declaration of
invalidity.
• General measures deals with the remedy that has a general impact on
society,.
Status of Decisions of Treaty Bodies
• State reporting or individual complaints will lead to recommendations.
This outcome is referred to as a decision, finding, recommendation.
• At the conclusion of state reporting procedure, the treaty body issue
concluding observations (recommendations).
• Both of these are not legally binding . However, there is moral obligation
for state to comply with them in good faith (pactum sund servanda).
• The follow up mechanism devised by Treaty bodies have not yielded
desired results. This has resulted in many of the decisions of most treaty
bodies not being implemented.
Continuation…
• The UN System has no compliance monitoring mechanism in respect
of treaty body decisions. The problem is compounded by the fact that
there is not structured for deploying compliance incentives such as
sanctions, expulsion from the intergovernmental organization etc.
• There have been suggestions as to explore the possibility of seeking
the assistance of national courts to enforce those decisions at local
level. So far compliance has been achieved due to efforts of other
stakeholders such as civil society organizations, the media and efforts
of complainants themselves.
Continuation…
• In some countries National Human Rights Institutions play a pivotal
role by holding the governments accountable to their international
obligations at the domestic level eg the South African and Ugandan
Human Rights Commissions.
• They have a clear mandate of monitoring their governments
compliance with international law obligations such as state reporting
and implementation of decisions.
Compliance strategies adopted in different
Human Rights Systems
• Compliance with international court decisions has been a problem in all
systems where such courts exists. This has resulted in the adoption of
strategies which may be classified as follows:
(i) National & international
(ii) political, judicial and legislative
• It is international where an international institution monitors or supervises
compliance at national level. Whether or not that institution is political,
judicial or legislative in nature eg in the African Human Rights system –
judgments of African Court on Human & Peoples’ Rights are final and legally
binding in terms of Art 28 of the Protocol and the Council of Ministers
monitors that execution on behalf of the AU Assembly in terms of Art 29.
Continuation…
• In the Council of Europe, the Committee of Ministers (Deputy
Ministers of Foreign Affairs of member states) monitors execution of
judgments of the European Court of Human Rights.
• They hold periodic meetings known as DH meetings to assess
progress by member states to comply with court judgments.
• They also devise implementation strategies by adopting resolutions
that require states to implement certain judgments in a certain
manner eg the decision of 2000 on the re-opening of national
decisions that are contrary to the European Convention on Human
Rights.
Inter-American System
• The court itself has been instrumental in monitoring and supervising
complaints by requiring states to submit reports on the measures
adopted to implement the judgments of the court.
• This approach was later to become known as the “written procedure”.
• Some member states including Panama sought to challenge this
competence by the court arguing that it was contrary to its
jurisdiction.
• After seeking an opinion from a number of stakeholders, the court
ruled that monitoring compliance was part and parcel of the inherent
jurisdiction of the judicial organ.
Continuation…
• Case: Buena Ricardo et al v Panama
• Inter-American Court judgment of February 2, 2001 (merits,
reparation and costs).
• In terms of “The Written Procedure” the court conducts are hearing
exclusively to determine whether or not its judgments have been
implemented.
• It accepts views or comments from the victim or legal representative
and will only close the file once it is satisfied that the judgment has
been fully implemented. This procedure is now widely accepted
among member states of the Inter-American System.
An Overview of the African Human Rights
System-Legislative framework
• The grundnorm is the Constitutive Act of AU, which establishes the
AU. Adopted in Nairobi, Kenya in 1981 and entered into force in 1986.
• The highest decision making board is the head of state of AU states.
• AU Commission is the secretariat.
• Universal ratification by AU member states.
• Best practice on domestication – Nigeria.
• Zimbabwe ratifies on the 30th May 1986, arguably part of our law.
• See Kachingwe case
Continuation…
• Art 3(g) & (h) – talks of promotion and protection of human rights. It
becomes one of the objectives of the AU.
• The AU then adopted the ACHPR in 1981 and come into force in 1986-
it lodged the human rights tentacle. The Charter is a human rights
charter, not binding unless ratified.
• Concept of Peoples’ Rights eg Endrois case and duties.
• Non-derogable.
# under UN –there is the CRC whereas under the African system we have
the African Charter on the Rights and Welfare of the Child (ACRWC).
Continuation…
• Under the AU system there can never be suspension or derogation of rights.
• AU Charter provides for rights and obligations.
• It establishes a monitoring body – African Commission on Human and Peoples’ Rights
– Part 2 establishes the African Court on Human and Peoples’ Rights by way of a
Protocol.
• It is a general human right instrument on the continent.
• At the time of adoption of the charter, it only created a Commission and then
subsequently created a court. They believed in pacific settlement of disputes. When
the court becomes necessary, they adopted the Protocol to the African Charter on the
establishment of the African Court on Human and Peoples’ Rights.
• Art 27, 28 & 29 creates duties for individuals. See Chapter 4, part 3 of our constitution.
continuation…
• Article 62 establishes state reporting obligation- state reporting every
2 years.
Protocol of African Charter on the Rights
of Women in Africa
• Adopted in Maputo (2003)
• This is a thematic protocol which came into force in 2005.
• Ratified by 34 states across the continent. Zimbabwe ratified it on 15th
April 2008.
• Enacted to protect and promote women’s rights in the face of harmful
cultural practices.
• It does not establish another supervising body. See also section 80(3)
of the Constitution – harmful laws, customs, traditions and cultural
practices are void.
Continuation…
• In terms of Article 27 – African Court is responsible for interpreting
Protocol although African Commission has competence to interpret
the protocol.
• Article 26 of the Protocol – reporting obligations are in terms of
Article 62 of the African Charter.
• NB In 2010, the African Commission adopted guidelines on state
reporting.
• Reporting is alone done to the African Commission.
African Charter on the Rights & Welfare
of the Child
• Adopted in 1990 & entered force 1999.
• 46 ratifications to date.
• Zimbabwe ratified.
• Reason – African children exist in a unique society where traditional,
cultural, economic, disasters, armed conflict and hunger stricken.
• Establishes African Committee of Experts on the Rights and Welfare of
the Child.
• This is thematic – deals with children’s rights.
Institutions
• AU Assembly/Executive Council
• African Commission on Human & Peoples’ Rights
• The African Court on Human and Peoples’ Rights
• The African Committee of Experts on Rights and Welfare of the Child.
African Commission
• Since 1987, in Banjul, the Gambia.
• Has 11 Commissioners assisted by legal officers, researchers and
interns.
• Secretariat run by full time Executive secretary.
• Charged with protection, promotion of rights on the continent.
• Has interpretative mandate eg through resolutions.
• Also has advisory jurisdiction.
• See Art 45 – promote, protect, interpretation and any other task
assigned to it.
Issue Principles and Guidelines on the Right
to a fair trial 2003 passed by resolution.
• Passed – resolution on Refugees (2004
-Resolution on Status of Women in Africa (2005)
-Resolution on Elections in Africa (2008)
-Principles of Freedom of Expression (2002)
-Roben Island Guidelines on Torture (2002)
Continuation…
• AU holds two sessions per year where they consider state reporting, inter-state
communications and those between states and individuals.
• They make recommendations.
• There is poor implementation record. No one has been held accountable.
• State compliance is done by the Executive Council itself. It carries out fact-finding
mission to member states.
• They have thematic special rapporteurs.
• Monitors implementation of the African Charter and Women’s Protocol.
• Experts and commissioners.
• Takes cases to the African Court eg the case against Libya.
• Refers cases on non-compliance to the court.
Individual Communication Procedure
before the Commission
• Regulated by Charter 3 of the African Charter.
• The Charter regulates between state inter se and those between
individuals and states. See DRC v Burundi & Uganda – this is the first
and only inter-state dispute.
• African Human Rights Law Reports (AHRLR), www.chr.up.ac.za
• For a case to be accepted for consideration by the Commission, it must
meet minimum requirements that are provided for in Article 56 of the
African Charter.
• The same criteria has been adopted by the court, as well as African
Committee of Experts.
Continuation…
• These criteria are collectively referred to as admissibility requirements:
• (i) the identity of the author of the communication/ case must be
disclosed even if the author request for anonymity.
• (ii) A communication must be compatible with the constitutive art of
the AU, or the African Charter. In other words it must be based on
allegations of violations of any of the two instruments.
• (iii) It must not be written in disparaging or insulting language against
the state concerned and its institutions.
• See case of Cameroonian League of Human Rights v Cameroon
Continuation…
(iv) The communication must not exclusively on news disseminated
through the mass media.
• See Jawara v The Gambia
(v) It must be submitted after exhausting local remedies.
(vi) The Communication must be submitted within a reasonable time.
(vii) The communication must not deal with a dispute that has already
been settled in accordance with the principles of the Charter of AU or
the Constitutive Act of AU or the present Charter.
• See Amnesty International v Tunisia
Committee of Experts
• It has rules- the court has Rules.
• Decision – landmark of the AU Commission- SERAC v Nigeria – on
state reporting see para 57- government have a duty to respect their
citizens, not only through appropriate legislation and enforcement,
but also by protecting them from damaging acts that may be
perpetuated by private parties.
• Para 65- The minimum are of the right to food requires that
government should not destroy or contaminate food sources.
• Centre for Ministry Rights (Kenya) and Ministry Rights Group
International on Behalf of Enderois Welfare Council v Kenya
Continuation…
• Para 277 and 288 – the right to development is two pronged test – it is useful
as both a means and end.
• A violation of either procedural o substantive element constitutes a violation
of the right to development …it is not simply the state providing, for example
housing for individuals or peoples, development is instead about providing
unlike ability to chose where to live…
• Jawara case – para 34 – remedies the availability of which is not evident,
cannot be invoked by the state to the detriment of the complainant.
• Purohit v The Gambia para – 57- Human dignity is an inherent basic right to
which all human beings, regardless of their mental capabilities or disabilities
are entitled to, without discrimination.
African Committee of Experts
• Hold two sessions in a year and state reports are considered.
• Established by the African Charter.
• Made up of experts who are part time.
• Based in Addis Ababa, Ethopia.
• Preside over individual communications.
• Competence to refer cases to the African Court.
• Fact finding mission.
• Cases decided: Nubian case –birth registration; Northern Uganda case –
involvement of children in armed conflicts.
Continuation…
• The Committee has produced two General Comments:
(i) Rights to Nationality upon birth
(ii) Right of children of incarcerated mothers or care givers.
• The General Comment on Child Marriage in Africa will be produced
soon.
African Court
• Established by a Protocol to the African Charter on the establishment of
the African Court Protocol which came into force in 2004, but was
adopted in 1998.
• Based in Arusha, Tanzania, but it can sit anywhere.
• Constitutive Act is the AU- Article 5(1)(d).
• Talks about the Court of Justice as one organ of the AU.
• The court is a Human Rights Court.
• AU merged African Court of Justice and African Court of Human Rights.
They adopted the Protocol on the African Court of Justice and Protocol on
Human Rights was adopted in 2008.
Continuation…
• 2008- merger Protocol consisting the two. It requires 15 ratifications
to come into effect.
• When it comes into effect, the two would be combined. At the
moment only the African Court of Human Rights is operational.
• Malabo Protocol (2014) – seeking to establish an African Court with
criminal jurisdiction in the future.
• Once the court becomes functional, it will have 3 chambers – General
chambers, Human Rights Chambers and Criminal chamber.
African Court (currently)
• Access – is always a debatable issue
• Who has standing to bring a matter? – Article 5 -:
(i) the commission –African Commission on HPRs
(ii) State party
(iii) a state party whose citizen is a victim of human rights violation
(iv) the court may entitle relevant NGOs with observer status before it.
(v) individuals
• The reason for restricting individuals from flooding the court with cases.
*NB* read Article 5(3) & 34(6).
The state must be a party.
Jurisdiction of Court
• Contentious jurisdiction – Article 3.
• Advisory jurisdiction – Article 4.
• Subject matter – all cases in dispute concerning interpretation of
application of ACHPR, Court protocol & any other relevant instrument
ratified by sued party.
• Complement Commission’s protective mandate: Article 2 – it defines
the relationship between the Commission and the African Court.
Admissibility before the Court
• Court should rule on admissibility of a case.
• May request an opinion of the Commission.
• Takes into account Article 56 of the Charter.
• NB Case should not be pending before the Commission.
• Court may transfer cases to Commission –Article 6(3).
• Commission may refer cases to Court – Article 5(1) and rule 118 of
Commission R.O.P