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Mbaziira hr - notes
Human rights law (Makerere University)
Studocu is not sponsored or endorsed by any college or university
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HUMAN RIGHTS IN THE DOMESTIC PERSPECTIVE BY PROFESSOR
MBAZIRA
Courts and their roles in the enforcement of human rights. Including quasijudicial bodies like, the Uganda Human Rights Commission , and Equal
Opportunities Commission
Obligation to respect, promote, protect/fulfill. (obligations of the
state) adapted from CEHURD v MULAGO.
obligation in reference to Private Actors is very limited.
Issue in the case was Whether the acts and/or omissions of the staff of
the hospital violated the rights of the child of the 2nd and 3rd
Plaintiffs enshrined in Article 34(1) of the Constitution.
Whether acts and/or omissions of the staff violated the right to
access health information and the right to health of the 2nd and 3rd
Plaintiffs contrary to Articles 41(1), 8A, 45 and Objectives XX, XIV
(b) of the Constitution.
Whether their acts and omissions violated the right to family of the
2nd and 3rd Plaintiffs enshrined in Article 31(4) and 31(5) of the
Constitution.
Whether the 2nd and 3rd Plaintiffs were subjected to cruel,
inhuman, degrading treatment and psychological torture contrary to
Articles 24 and 44(a) of the Constitution.
Whether the Plaintiffs are entitled to the remedies sought.
Obligations to respect, protect, promote and fulfill the right to health
The analysis of the right to health cannot be complete without a discussion
of the internationally accepted ideas of the various duties or obligations
engendered by it as an economic, social and cultural right. To this end, the
African Commission in its principles and guidelines on the implementation
of economic, social and cultural rights in the African Charter has explained
that all human rights, including economic, social and cultural rights, impose
a combination of negative and positive duties on States. A useful framework
for understanding the nature of the duties imposed by economic, social and
cultural rights is the duty “to respect, protect, promote and fulfill”
these rights. No hierarchy is accorded to any of these duties and all should
be protected through administrative and judicial remedies
Obligation to respect
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The obligation to respect requires that States parties refrain from
interfering directly or indirectly with the enjoyment of economic, social and
cultural rights. This entails respecting the freedom of individuals and
peoples to use all of the resources at their disposal to meet their economic,
social and cultural needs and obligations.
The obligation to respect also requires States to take positive
measures to ensure that all branches of government (legislative,
executive and judicial) at all levels (national, regional and local), as
well as all organs of state, do not violate economic, social and
cultural rights.
Obligation to protect
The obligation to protect requires the State to take positive
measures to ensure that non-state actors such as multi-national
corporations, local companies, private persons, and armed groups do
not violate economic, social and cultural rights. This includes
regulating and monitoring the commercial and other activities of non-state
actors that affect people’s access to and equal enjoyment of economic,
social and cultural rights and ensuring the effective implementation of
relevant legislation and programs and to provide remedies for such
violations.
The obligation to protect is very much intertwined with the tertiary
obligation of the State to promote the enjoyment of all human rights. The
State should make sure that individuals are able to exercise their rights and
freedoms, for example, by promoting tolerance, raising awareness, and
even building infrastructures.
Obligation to promote
The duty to promote economic, social and cultural rights requires States
to adopt measures to enhance people’s awareness of their rights,
and to provide accessible information relating to the programs and
institutions adopted to realize them. In this regard, the African Charter
explicitly places an obligation on States Parties “to promote and ensure
through teaching, education and publication, the respect of the rights and
freedoms contained in the present Charter and to see to it that these
freedoms and rights as well as corresponding obligations and duties are
understood.”
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It also includes an obligation to promote the values and objectives of
economic, social and cultural rights in administrative and judicial decisionmaking. The training of the judiciary and administrative officials should
expressly include economic, social and cultural rights.15
Obligation to fulfill
The duty to fulfill economic, social and cultural rights requires
States parties to take positive steps to advance the realization of the
rights. Such measures should be comprehensive, coordinated, transparent,
and contain clear goals, indicators and benchmarks for measuring progress.
This obligation is “a positive expectation on the part of the State to move its
machinery towards the actual realization of the rights.”
The duty to fulfill includes the adoption of measures that enable and
assist individuals and communities to gain access to these rights on
their own. In cases where individual and communities are unable to gain
access to these rights by the means at their disposal, the obligation will be,
“to take measures necessary to ensure that each person within its
jurisdiction may obtain basic economic, social and cultural rights
satisfaction.
The rights of vulnerable and disadvantaged groups should be prioritized in
all programs of social and economic development, and particular attention
must be paid to vulnerable and disadvantaged groups in programs aimed at
ensuring access to appropriate services and resources.
This last layer of obligation requires the State to fulfill the rights and
freedoms it freely undertook under the various human rights regimes. It is
more of a positive expectation on the part of the State to move its
machinery towards the actual realization of the rights. This is also
very much intertwined with the duty to promote mentioned in the preceding
paragraph. It could consist in the direct provision of basic needs such as
food or resources that can be used for food (direct food aid or social
security).
Resources and progressive realization
Also central to any meaningful discussion of the right to health are the
concepts of resources and progressive realization. The African Commission
in its principles and guidelines explained that 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, is referred to as progressive
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realization. While the African Charter does not expressly refer to the
principle of progressive realization this concept is widely accepted in the
interpretation of economic, social and cultural rights and has been implied
into the Charter in accordance with articles 61 and 62 of the African
Charter. States parties are therefore under a continuing duty to move as
expeditiously and effectively as possible towards the full realization of
economic, social and cultural rights.
The concept of progressive realization means that States must
implement a reasonable and measurable plan, including set
achievable benchmarks and timeframes, for the enjoyment over time
of economic, social and cultural rights within the resources available
to the state party. Some obligations in relation to progressive realization
are immediate. For example, States have an obligation to take concrete and
targeted steps to realize economic, social and cultural rights. The essential
needs of members of vulnerable and disadvantaged groups should be
prioritized in all resource allocation processes.
the courts come into place to protect people from attack, e.g., the UHRC
has a mandate to promote Human Rights
Question; consider the Human Rights Enforcement Act, where it's
been applied and misapplied.
Role of courts in the enforcement of Human Rights
-Give audience to individuals who want to get a fair hearing
-offer checks of state power
-play an interpretive role/define scope of human rights
-offer remedies to those whose rights have been violated
-provide platform for dialogue between state and individuals
-help to translate international standards into domestic/applicable national
standards.
see; CEHURD v Mulago Hospital Mugambe J extracted principles of the
ICESR and as such made them applicable in Uganda.
-They also clarify obligations.
Article 126, clarifies structure of the courts, clarifies powers of the courts,
these courts are expected to abide by the principles in Article 126 2e
-Justice shall be done to all irrespective of their economic and social status,
right to equality
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-Justice shall not be delayed,
-Adequate compensation shall be awarded to victims of wrongs.
-Reconciliation of parties shall be promoted
-Substantive justice shall be administered without undue regard to
technicalities.
Question, are these principles adhered to?
GROUP 1 Instructions.
Go to court, attend at least four court sessions, and in these determine
whether the principles detailed above are adhered to. write a report not
exceeding 5 pages
describe sessions or hearings, what happened, dates, and detail each of the
principles and whether they were adhered to. it may be considered as a
portion of your coursework.
HUMAN RIGHTS and the JURISDICTION OF THE COURTS.
High Court has unlimited jurisdiction, and in this Article 50 is the starting
point to help us understand Human Rights. Anyone whose rights have been
infringed may approach a competent court.
Article 137, Question on interpretation of the Constitution is done by the
Constitutional Court.
the courts for many years were torn between interpretation under Article
137 and enforcement under Article 50. (Is there a difference between
interpretation and enforcement?)
Additionally, the procedure to approach the High Court under Article 50
Human Rights Enforcement Act. whose long title provides that it’s and “An
Act to give effect to Article 50(4) of the constitution by providing for the
procedure of enforcing human rights under chapter four of the constitution:
and for related matter”
Section 4 of the Act provides for the Enforcement of rights and freedoms
by the High Court.
Article 45, if the rights have been recognised under International
Instruments
Article 45 Human rights and freedoms additional to other rights
The rights, duties, declarations and guarantees relating to the fundamental
and Human other human rights and freedoms specifically mentioned in this
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Chapter shall not be regarded as excluding others not specifically
mentioned.
Section 5 of the Act. Enforcement of rights and freedoms by magistrate
courts
(1) A magistrate court shall hear and determine applications relating to the
enforcement or violation of human rights and freedoms guaranteed in
Chapter Four of the Constitution
In considering sections 5, 7 and 11 (2)c, is there an issue with the Human
Rights Enforcement Act?
See the Zaake case v AG, regarding applicability of the Act, and court said
that with or without regulations the Act is applicable.
The case arose from an incident in April 2020, where Zaake was arrested
and allegedly tortured by security forces in Uganda for distributing food to
vulnerable people during the COVID-19 lockdown. Zaake suffered various
injuries, including a broken spine and blunt force trauma to his head.
Zaake sued the Attorney General, alleging that his arrest and torture were
illegal and violated his rights under the Ugandan Constitution, as well as
international human rights law. He sought various remedies, including
compensation for his injuries and a declaration that his arrest and detention
were unlawful.
The case attracted national and international attention, with human rights
organizations and politicians condemning the alleged torture and calling for
justice for Zaake. The Ugandan government denied any wrongdoing and
maintained that Zaake had been arrested for violating COVID-19 lockdown
regulations.
FROM THE ACTUAL CASE.
The Applicant, Hon. Zaake Francis, brought this application under Article
50 of the 1995 Constitution of Uganda, Sections 3 and 4 of the Human
Rights (Enforcement) Act, 2019, Rules 5(1)(a), 6(1) and 7(1) of the
Judicature (Fundamental and Other Human Rights and Freedoms)
(Enforcement Procedure) Rules, 2019, Sections 14, 33 and 39 (2) of the
Judicature Act and Section 98 of the Civil Procedure Act,
The applicant alleged that the Acts of the respondents, inter alia, torture
violated Articles of the Constitution, Article 20, 24, 44(a) and (c) of the
Constitution.
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Counsel for the Respondents raised a preliminary objection in his submissions that; The Human Rights
(Enforcement) Act, 2019 is not applicable to this case because there are no rules yet in place by the rules
Committee to operationalize the 9 Act. He relied on S.18 of the Human Rights (Enforcement) Act, 2019
and explained that at the moment, the Rules Committee has not yet come up with the rules to
operationalize the Act. That in the absence of the Rules, considering the peculiar nature of the Human
Rights (Enforcement) Act, there ought to be clear direction on how these matters should proceed.
Counsel prayed that Court finds that the Human Rights Enforcement Act, 2019, for the reasons given is
not applicable and the application should be dismissed for being brought under a wrong law.
In reply, Counsel for the Applicant submitted that an Act is not applicable merely because there are no
rules by the Rules Committee. That the Courts have been rightly applying the law. He relied on S.14 of
the Acts of Parliament Act, Cap 2 and submitted that the Human Rights Act, having been published in the
Gazette on the 15th November, 2019 under volume CXII No.58 issue is now operational. That S.17 of 220
the Act, adopts the Civil Procedure Act and the Rules thereto to the enforcement of human rights.
Counsel further relied on Order 52 Rule 1 of the Civil Procedure Rules and Rule 7 of the Judicature
(Fundamental Rights and Other Freedoms (Enforcement Procedure) Rules, 2019 and prayed that the
preliminary objection raised by Counsel for the Respondents be over ruled with costs so that the matter
is heard on merit.
ANALYSIS
Analysis Article 79 (1) provides that; Parliament shall have power to make laws on any matter for peace,
order, development and good governance of Uganda.” S. 14 of the Acts of Parliament Act, Cap 2,
provides that (1) Subject to this section, the Commencement of an Act shall be such date as is provided
in or under the Act, or where no date is provided, the date of its publication as notified in the Gazette.
(2) Every Act shall be deemed to come into force at the first moment of the day of enforcement. (see
also MA No.3 of 2002, AG –v- DR. JAMES RWANYARARE & 9 others). S. 18 of the Human Rights
(Enforcement) Act, 2019 provides that subject to the provisions of this Act, the rules Committee may
make rules to give effect to the provisions of this Act. The above provisions of the law show that the
Human rights (Enforcement) Act is operational Although there is no commencement date of the Act,
the date of gazetting, which is the 15th of November, 2019, now becomes the date of commencement of
the Act under S.14(1) of the Acts of Parliament Act. Under S. 18 of the Human Rights (Enforcement) Act,
2019, it is not mandatory for the Rules 245 Committee to come up with rules for the
operationalization of the Act. Court therefore found no merit in the preliminary objection raised by
Counsel for the Respondents and thereby overruled it.
Section 10 of the Human Rights Enforcement Act. Personal Liability
for infringement of rights and freedoms
( 1 )A public officer who, individually or in association with others, violates
or participates in the violation of a person's rights or freedoms shall be held
personally liable for the violation notwithstanding the state being
vicariously liable for his or her actions.
Section 10 therefore imposes personal liability on public officers, and holds
them liable, and was invoked in the Zaake case and court confirmed its
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application, see the case, of Zaake, issue being that the court in its orders
doesn't apply it in giving awards, and only gave the award against the
Attorney General.
It is hereby ordered that the 1st Respondent pays a sum of UGX 75,000,000/- [Seventy-five Million
Shillings only] to the Applicant in compensation of violations of his rights and freedoms. The 1st
Respondent pays the costs of this application. The issue therefore being that the other respondent
were not made or ordered to pay anything.
Perhaps because the Human Rights Enforcement Act is a new law and
while, confirms section 10, but regrettably it wasn’t applied in the case.
Section 9 of the Human Right’s Enforcement Act provides for the orders
that may be made by court in human rights cases
(1) Where the competent court determines that a fundamental right
or freedom has been violated, unlawfully denied or should be
enforced, the competent court shall issue orders it considers
appropriate, including an order for compensation.
Court may therefore make orders for; Restitution, rehabilitation,
satisfaction;
(a) the restitution of the victim to the original situation before the violation
of his or her human rights and freedoms;
(b) the rehabilitation of the victim including the provision of medical and
psychological care;
or
(c)Satisfaction i.e., measures aimed at the cessation of the continuing
violation of human rights and freedoms;
In the Zaake V Attorney General as well as CEHURD v Mulago
Hospital, Judge gave compensation.
Unwanted Witness v Attorney General by Ssekana. Take note of what
the judge said about his Jurisdiction. the judge has a law before them but
relies on rules repealed by the Human Rights Enforcement Act
The application is brought against the respondents under Articles 20(2) 26,
29(1)(a), 30,40(2), 41,45, and 50(1) and (2), of the Constitution of Uganda,
Section 1 (1) and (2), 3, 4, 6, and 9 of the Human rights (Enforcement ) Act,
2019, for orders that the actions and conducts of the 1st, 2nd, 5th
respondents in arbitrarily shutting down the internet in the country, in 2021
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were unlawful and an infringement of rights enshrined under article 20(2),
29(1)(a), 30, 40(2),41 and 45 of the Constitution of The Republic of Uganda.
The applicant is an independent, Non- Partisan, and for a profit Civil society
organization based in Kampala, Uganda whose core objectives includes to
seek and create a sure uncensored online platforms for activists, citizens ,
bloggers, freelance journalists, and writers to promote human rights
through writing and informing ; to education the citizenry who also utilize
the platforms for strengthening free expression and demand for
accountability.
A preliminary issue was raised by the respondents to the effect that,
Whether the application is properly before this court?
This application is premised on facts which are similar in an earlier matter
which was filed by the applicant in Constitutional Court; Constitutional
Petition No.16 of 2017, the Unwanted Witness Uganda and
Tumuhimbise Norman vs. Attorney General, the Court before
dismissing the Petition which sought a declaration that shutting down social
media during the 2016 General Elections violated articles 29(1), 22 and 45
of the Constitution cited with approval a decision of the Supreme Court of
India which laid down a criteria for determining whether a shutdown was
permissible. In the cited decision, Modern Dental College & Research
vs. State of Madhya Pradesh part of the criteria was that;
An order suspending internet services indefinitely is impermissible under
the Temporary Suspension of Telecom Services (Public Emergency or Public
Service) Rules, 2017. Suspension can be utilized for a temporary duration,
only. Any order suspending internet issued under the Suspension Rules,
must adhere to the principle of proportionality and must not extend beyond
the necessary duration.
Shutdown only temporarily might fit well with the politics especially where
public order is fronted. As noted from the affidavit evidence, the shutdown
was for less than a fortnight and happened in Uganda for the second time.
Court rejected the Application on two points;
The court was of the view that a similar matter had been litigated before
and that bringing the same before the court was an abuse of court process.
And secondly relying on the Judicature (Fundamental and other Human
Rights and Freedoms)(Enforcement Procedure) Rules, 2019 provides
for actions that may be instituted under the rules,
Rule 5(1)(d) An action in public interest.
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Rule 7(2) provides that; A public Interest action under Article 5(1)(d)
shall be filed in the Constitutional Court under Article 137 of the
Constitution.
The applicant claimed that this application is brought in public interest.
This would mean that the same was supposed to be brought before the
Constitutional Court as provided under the above cited rules.
This application would also be improperly filed in this court and the same
ought to be struck off. The application is dismissed with costs to the
respondents.
Group 2 assignment. judicial review, relevance of the HREA, why he(Judge)
feels PIL should be heard before the Constitutional Court and not him
Chapter Four Uganda v National Bureau for Non-Governmental
Organisations.
The Applicant brought this application for judicial review seeking a declaration that: a) The decision of
the respondent concluding that the applicant is operating in contravention of the Non Governmental
Organisations Act, 2016 and the Non-Governmental Organisations Regulations, 2017 is irrational,
unreasonable, unlawful, and is void.
In the case before this court, it has been shown that the respondent suspended the applicant indefinitely
which was irregular due to lack of any timeframe and yet the said suspension was intended to allow
‘comprehensive investigations into their operations to enable the bureau determine whether or not to
revoke the NGO permit and cancel registration’.
The respondent should accord the applicant a hearing and conclusively deal with issues at hand justly
and fairly. The law expects that public functionaries would approach the decision-making process with
an open mind. Reason and justice and not arbitrariness must inform every exercise of discretion and
power conferred by statute. See Johannesburg Stock Exchange v Witwatersrand Nigel Ltd
A just or correct decision means that the decision-maker must inter alia interpret his or her
authoritative power correctly, correctly assess the surrounding facts and circumstances, consider
relevant factors and disregard irrelevant factors. See Kotze v Minister of Health and Van Zyl v New
National Party.
In the final analysis, I find some merit in this application to the extent that the decision to indefinitely
suspend the applicant was irregular because of its indefinite nature and yet it was intended to ‘allow
comprehensive investigations into their operations and the respondent is ordered to hear the applicant
within one month. Each party should bear its costs.
Group 2 are required to produce a 5-page report on responses from judge in
all three cases.
One of the tools for the enforcement of rights is Public Interest Litigation,
which from its names pursues Public Interest whereby some victims for one
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reason or another are not capable of filing such cases on their own. Article
50 of the constitutions seems to allow for this, and shows who can approach
the court. and as such Public Interest Litigation has thrived. TEAN v NEMA
one may not be a victim but appear on behalf of the victims
The Environmental Action Network v Attorney General
On behalf of itself and non-smoking people, The Environmental Action
Network (TEAN) sued the government seeking protections from smoking
in public places. TEAN contended such measures were required for the
general good of public health in Uganda and to enforce the right to a clean
and healthy environment and the right to life.
The Government maintained that;
1) it did not have enough time for investigation after the case was filed and,
2) the application was based on hearsay -- the applicant company is not an
expert on the effects of secondary cigarette smoke and the applicant could
not claim to represent the Ugandan public.
The court overruled the objections stating that
1) when people's rights are infringed, the government is responsible for
investigation before the actual damage is done;
2) scientific reports are sufficient to prove the harm of cigarette smoke; and
3) the representative does not need to have the same interests as the
represented group if claim is for the public interest. The application was
allowed to be heard.
Public Interest Litigation has played many important roles.
Public Interest Litigation has given a voice to the voiceless, and created law
reform.
Muhindo and ors v Attorney General.
Applicants filed the application contending that;
A declaration that the absence of adequate procedure governing evictions is
a violation of the right to life, right to dignity and property, under
Articles 22, 24 and 26 of the 1995 Constitution of Uganda.
The main grounds upon which this application is premised are that;
That 21 years after the promulgation of the Constitution (1995) and 18
years after the enactment of the Land Act (1998) the Government of
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Uganda has unjustifiably failed, ignored, neglected or otherwise refused to
put in place clear measures or procedures consistent with the Constitution
and Universally accepted norms and standards for the regulation of eviction
and resettlement of persons affected by development projects;
That the International Human Rights instruments inter alia the (ICCPR) and
(ICESCR) to which Uganda is signatory, enjoin government with three core
obligations; the duty to respect, to protect and to fulfil human rights of
persons; and
That in the interest of fostering Human Rights, and the Constitutional vision
of a socioeconomic and political order based on the bill of rights, social
justice and progress that the court allows this application and grants the
orders sought.
The applicants go over a couple of affidavits regaling forced evictions, inter
alia, not being given enough time to redeem their property, a lack of
compensation.
It was further submitted that the haphazard land eviction indiscriminately
jeopardizes and prejudices the rights to life, property, welfare and dignity of
all Ugandans but more so – and disproportionately – poor, vulnerable and
marginalized individuals, families and groups of people including ethnic
minorities, women, children, indigenous people, and the disabled are the
worst victims.
In determination of the case, the court relied on Kenyan decisions to
capture the situation of forced evictions, plight of the poor and marginalized
and bemoaning the lack of legislation to deal with evictions relating to
Urban development.
The court was of the view that the applicants did not personally proffer
evidence as to what damage they’d suffered due to evictions however it took
note of the fact that Article 50 provides for Public Interest Litigation and
that a suit can be filed on behalf of others in the interest of the Public
interest,
And that while Uganda was bound by its obligations under the international
human rights instruments it has ratified, the order sought in this case was
too broad because it did not specifically refer to the rights and obligations
violated under the ICESCR and that allowing this order as it is without
indicating the specific rights and obligations violated under the ICESCR
would suggest that the state is in contravention of all its obligations with
regards to all the rights under the ICESCR, which is not the case under the
current circumstances.
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An order compelling the Government to develop comprehensive
guidelines governing land evictions before, during and after the fact.
The court is satisfied to grant this order in the circumstances and the
government should expedite the process of developing and implementing
the eviction guidelines. Due to the gravity of the consequences resulting
from the absence of such Guidelines from a human rights perspective, I
would want to make a further order that the Government embarks on this
process and report back on progress to court within seven months from the
date of handing down this judgment.
The process of developing the Eviction Guidelines should be consultative
and participatory, although the state should refer to the UN Basic Principles
and Guidelines on Development-Based Evictions and Displacement for
guidance on best practices.
I wish to note that although the guidelines are to be made, the government
should come up with a clear legislation with sanctions that would address
the current problem of illegal land evictions in Uganda by both the state
and private actors.
This being a public interest litigation case, I decline to award any costs.
Public Interest Litigation has clarified rights and values, especially since
some of these cases are a contestation on values.
PIL
has not been w/o challenges, see Unwanted witness case
Civil society has also played a key role. e.g Not-For-Profit Organisations,
cultural reforms etc, however these organisations are faced with
challenges. and some of these result form the legal framework e.g the Non
Governmental Organisations Act.
GROUP 3. ARTICLE THAT NGOs in petroleum face,
read the NGO Act 2016, Article he referred to and then interview 3 NGOs
working in the area of Human Rights and for each NGO understand what
that NGO does and deternine what they are doing in protecting and
enforcing HR, and the challenges they are facing, and the extent to which
the NGo has lived up to obligations imposed by the NGO Act. -A write-up
not exceeeding 5 pages.
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Section 5, 7 and 11.
GENERATIONS.
1STE GENERATION -CIVIL AND POLITICAL
SECOND GENERATION-ECONOMIC SOCIAL AND CULTURAL
THIRD GENERATION-GROUP RIGHTS
some argue that Gen 1 is more important gen 2
CIVIL AND POLITICAL RIGHTS
ICCPR
Expression, vote, life, etc, at one time described as fundamental.
Progressive Realization under Economic Social and Cultural Rights, unlike
Civil and Political Rights, however this perception has been demistyfied
becasue rights are interrelated and interdependent, and that rights are
indivisible. and that all rights are universal and require resources, e.g., the
right to vote. is equally expensive and that it can be required
Therefore the classification of the rights takes away and undermines the
existence of rights
article 10, 11 12, food, family, etc
these rights are also recognised under the African charter
15, 16, 17, work, family
In our bill of rights, water, food are visibly missing
national objectives.
vi-gender
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xiv-General socail and economic objectives.
Question, are these objectives justiciable, i.e, can they be relied on in court
to found a right to water?
for a long time it was argued that objectives are only directory and not
mandatory, however this position changed with the promulgation of article
8A. Mbaziira's discussion on Article 8A, it gives parliament directives
Seminar on the impact of PIL
e.g., cehurd case on rights to health. article. chapter, ESRs cases litigated
see, section13 Human Rights Enforcement Act
some of the decided cases
Salvatori Abuki, reads the rights ESCR into CPR.
Greenwatch, TEAN
CEHURD, 2011, Seeking to enforce maternal health rights. Constitutional
Court talks about exitence of Economic social and Cultural rights, and
realisation of rights,
NETPIL, the muhindo case
dealing with evictions read the case
DEVELOPMENT AND HUMAN RIGHTS
e.g., National Development Plan, the Human Rights Based Approach, that
whatever government does, it should aim at realising the rights the country
has committed to secondly, emphasise vulnerable groups so that no one is
left behind, and we must ensure to ensure right's holders or beneficiaries,
that duty bearers are accountable.
E.g In Karamoja, need of Karamojong women, PWDs and may be the eldery,
be midful of international instruments ratified, it should empowere
beneficiaries by giving them infmn on the programme, benefits and how the
same should be obtained, it should put in place a system to ensure that
whoever is working on this is held accountable.
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Mabati Scandal.
if HRBA had been used, those receiving would have known, now that it has
happened, the persons that took the Mabati must be held accountable.
he'll share writings on this.
read article iv on references.
Article 8A national interest.
HYBRID APPRAOCH
rights in bill of rights and others in state objectives.
TODAY LECTURE. Constitution of Uganda
ARTICLE 20. 1. human rights are inherent
2. Rights promoted by all organs of government. natural as well as artificial
entities
under escr, the state is the primary bearer of obligations. however other
artificial persons as well have obligations.
NATIONAL ACTION PLAN ON BUSINESS AND HUMAN RIGHTS(read it
53pages only.
courts of law have used CPR to enforce elements that woud be under ESCR,
this is called integrated approach. Art 22 guarantees the right to life,
Qn. can Article 22 be used to enforce Economic Social and Cultural Righhts.
?
then the case of Tellis v Bombay. an important facet of The Right to Life is
the Right to livelihood.
Salvatori Abuki. deprivation of subsistence is itself a threat to the right to
life.
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Egonda-Ntende in Salvatori Abuki "i would take it that the proper apprach
in this case its to firts test the law complained of against the substantive
provision of the constitution that protects the right alleged to have been
infringed. If on the face of ..........
CEFROHT case, right to life is relevant in establishing the right to food.
the constitution provides for Economic Social and Cultural Rights
Article 30 protects the Right to Education.
Sharon Dimanche.
Isaac v Attorney General, CS 353 right to Education read it, the Judge
extracts Right to Education under International Law.
Abuja declaration on Education
Article 31. Rights of the family
connection between marriage and ESCR, bse children are protected, their
right to Education, etc
shared a case to read. Nakaseke case
Article 32, Affirmative action in favour of marginalized groups.
there should be an objective that affirmative action seeks to address.
Equal Opportunities Act establishes the Equal Opportunities Commission
and even gives it quasi-judicial bodies
Section 1, defines affirmative action. define equal Opportunities in the
interpretation Section.
section 23, aperson may lodge a complain
Article 33 Rights of Women.
National Objectives and Directives of State Policy.
Objective 5, objective 7, Objective 9, Objective 12, Objective 14 they can be
relied upon and are justiciable, see CEHURD v AG, appeal, Justice
Katureebe, that the Objectives are justiciable, and that Article 8 is
justiciable.
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PRE-CLASS PREPARATION.
STATE v MAKWANYANE and ANOR 1995
The two accused were convicted on four counts of murder, one count of
attempted murder and one count of robbery with aggravating
circumstances. They were sentenced to death on each of the counts of
murder and to long terms of imprisonment on the other counts.
They appealed to the Appellate Division of the Supreme Court against the
convictions and sentences. The Appellate Division dismissed the appeals
against the convictions and came to the conclusion that the circumstances
of the murders were such that the accused should receive the heaviest
sentence permissible according to law.
The 1993 constitution then came into force and there arose the
constitutionality of the death sentence imposed on the Appellants.
The court relied on the right to Freedom from torture, and stated that while
the constitution did not specifically deal with the issue of the death penalty,
the court should be generous and purposive so as to give expression to the
underlying values of the Constitution.(R v Big M Drug Mart Ltd)
They argued that the death sentence is a cruel punishment.
The Attorney General argued that the death penalty is recognised as a legitimate form of punishment in
many parts of the world, it is a deterrent to violent crime, it meets society's need for adequate
retribution for heinous offences, and it is regarded by South African society as an acceptable form of
punishment. He asserted that it is, therefore, not cruel, inhuman or degrading within the meaning
of section 11(2) of the Constitution.
Additionally, that the imposition of the death penalty for murder in the most serious cases could be
justified, that the death sentence meets the sentencing requirements for extreme cases of murder more
effectively than any other sentence can do. It has a greater deterrent effect than life imprisonment;
Court also observed that the death penalty was now seldom used, and that even the countries that still
retainer the death penalty rarely used it.
The court also considered the ECHR, the case of Soering v United Kingdom.
ICCPR and found that indeed the death penalty was regarded the Human Rights Committee of the
United Nations as cruel and inhuman punishment.
QUESTION BEFORE COURT: Is capital punishment for murder justifiable?
There is support for part of the Attorney General's argument in the
judgment of the Tanzanian Court of Appeal in Mbushuu and Another v The
Republic.147 It was held in this case that the death sentence amounted to
cruel and degrading punishment, which is prohibited under the Tanzanian
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Constitution, but that despite this finding, it was not unconstitutional. The
Constitution authorised derogations to be made from basic rights for
legitimate purposes, and a derogation was lawful if it was not arbitrary, and
was reasonably necessary for such purpose. The legitimate purposes to
which the death sentence was directed was a constitutional requirement
that "everyone's right to life shall be protected by law." The death sentence
was a mandatory penalty for murder, but it was not considered by the Court
to be arbitrary because decisions as to guilt or innocence are taken by
judges.
There was no proof one way or the other that the death sentence was
necessarily a more effective punishment than a long period of
imprisonment. In the view of the Court, however, it was for society and not
the courts to decide whether the death sentence was a necessary
punishment. The Court was satisfied that society favoured the death
sentence, and that in the circumstances "the reasonable and necessary"
standard had been met. Accordingly, it held that the death sentence was a
lawful derogation from the prohibition of cruel and degrading punishment,
and thus valid.
CONCLUSION.
The rights to life and dignity are the most important of all human rights,
and the source of all other personal rights in Chapter Three. By committing
ourselves to a society founded on the recognition of human rights we are
required to value these two rights above all others.
And this must be demonstrated by the State in everything that it does,
including the way it punishes criminals. This is not achieved by objectifying
murderers and putting them to death to serve as an example to others in
the expectation that they might possibly be deterred thereby.
In the balancing process the principal factors that have to be weighed are
on the one hand the destruction of life and dignity that is a
consequence of the implementation of the death sentence, the
elements of arbitrariness and the possibility of error in the
enforcement of capital punishment,
and the existence of a severe alternative punishment (life
imprisonment) and, on the other, the claim that the death sentence
is a greater deterrent to murder, and will more effectively prevent its
commission, than would a sentence of life imprisonment, and that
there is a public demand for retributive justice to be imposed on
murderers, which only the death sentence can meet.
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Retribution cannot be accorded the same weight under our
Constitution as the rights to life and dignity, which are the most
important of all the rights in Chapter Three. It has not been shown
that the death sentence would be materially more effective to deter
or prevent murder than the alternative sentence of life
imprisonment would be.
HELD.
Taking these factors into account, as well as the elements of
arbitrariness and the possibility of error in enforcing the death
penalty, the clear and convincing case that is required to justify the
death sentence as a penalty for murder, has not been made out. and
it follows that the provisions of section 277(1)(a) of the Criminal
Procedure Act, 1977 must be held to be inconsistent with section
11(2) of the Constitution.
MBUSHUU alias DOMINIC v R
The issue we have to determine is whether the death penalty is one
of such instances where the due process of law will deny a person his
right to life and its protection.
The first matter which we have to address ourselves is whether the
death penalty contravenes art 13(6)(d) and (e).
The relevant part of art 13(6)(d) provides as follows:
13(6)(d) seeks to protect the dignity of a person in the execution of a
punishment.
Paragraph (e) of clause (6) of art 13 provides as follows:
(e) it is prohibited to torture a person, to subject a person to inhuman
punishment or to degrading punishment.
Torture has been defined in the Declaration on the Protection of All
Persons from being Subjected to Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment'
`Torture means any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted by or at the instigation of a public official
on a person for such purposes as obtaining from him or a third person
information or confession, punishing him for an act I
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he has committed, or intimidating him or other persons. It does not
include pain or suffering A arising only from, inherent in or accidental to,
lawful sanctions
Court cited the decision is of the United States Supreme Court in Furman v
Georgia where Brennan, J said that “the State, even as it punishes, must
treat its members with respect for their intrinsic worth as human beings.
He warned that members of the human race should not be treated as B nonhumans, as objects to be toyed with and discarded.” To him, even the vilest
criminal remained a human being possessed of common human dignity.
Court found that though the death penalty as provided by s 197 of the Penal
Code Offends article 13(6)(a) and (e,) it was not arbitrary, hence a lawful
law, and it is reasonably necessary and it is thus saved by art 30(2)( that the
impugned law is in public interest and that it is a lawful law under art 30(2)
of the Constitution). Therefore, it is not unconstitutional.
We may observe here that we are aware of the drive to abolish the death
penalty worldwide. But that has to be done, as the learned Trial Judge has
aptly put it, by deliberate moves `to influence public opinion in a more
enlightened direction. For the present, even international instruments still
provide for the death penalty.
It may not be out of place to quote Paul Sieghart in The International Law of
Human Rights (Oxford University Press) 1983 at p 130.
“As human rights can only attach to living human being”s, one
might expect the right to life itself to be in some sense primary, since none
of the other rights would have any value or utility without it. But the
international instruments do not in fact accord it any formal
primacy: on the contrary ... contain qualifications rendering the right less
than absolute, and allowing human life to be deliberately terminated in
certain specified cases ... The right to life thus stands in marked contrast to
some of the other rights protected by the same instruments: for example,
the freedom from torture and other ill-treatment ... and the freedom from
slavery and servitude ... are both absolute, and subject to no exceptions of
any kind. It may therefore be said that international human rights law
assigns a higher value to the quality of living as a process, than to the
existence of life as a state ... the law tends to regard acute or prolonged
suffering (at all events in cases where it is inflicted by others, and so it is
potentially avoidable) as a greater evil than death, which is ultimately
unavoidable for everyone.
Before we finish, we commend the learned Trial Judge for his unexcelled
industry in his exploration of the human rights literature.
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Both appeals are allowed. The conviction or murder is quashed and the
sentence of life imprisonment is set aside. The striking out of the death
penalty is also quashed and that penalty is declared constitutional.
LECTURE. Madam Adoch
RIGHT TO LIFE.
ARTICLE 26 KENYAN CONSTITUTION, the Kenyan constitution says
life begins at conception
ARTICLE 11. SOUTH AFRICAN CONSTITUTION
ARTICLE 22 provides the framework of our right to life.
Most domestic constitutions even India provides the right to life.
Right to life has so far been interpreted by the courts.
The Ugandan Constitution has a Bill of Rights and national and state
objectives. Right to life is a guarantee to not just to life, but life with dignity
i.e., encompasses Economic Social and cultural Rights. Olga Tellis v
Bombay, deprivation of livelihood takes away right to life, Salvatori Abuki
case
Means of survival or livelihood, exposing them to their right to llive.
It has interpreted to include the right to food. Dying of hunger is equivalent
to being murdered because the court has not protected your rights under
their state obligations
Kishen ,pucl v union of india
Krishan v State of Andra Pradesh
Kishen and another v State of Orissa, People’s Union for Civil Liberties
Right to life encompasses right to Education, right to work
An individuals right to work, right to work, in manty constitutions, e.g Haiti,
includes right to health and respect of the person, Right to emergency
medical treatment.
Kenyan constitution under Article 43. Person shall not be denied emergency
medical treatment-lifesaving treatment
The conception of the right to life has been broadened. The courts have
expanded the scope of the RTL, and that one has to protect from all things
that lead to preventable or unnatural death
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ABORTION.
Article 22. Abortion in circumstances where it’s provided by law. Life begins
at the moment of conception.
Rex v Bourne, doctor acquitted a woman that had been raped.and that the
health of the woman
GMM case, FIDA Kenya and ors v Attorney General
Kenya withdrew the guidelines and left the lacuna
Roe v Wade, is abortion against a right o life, and which rights have more
weight and at what point.
A memo on proposals to inform abortion reforms. Whether there’s a case for
legalization of abortion. GMM case is very informative
THE DEATH PENALTY.
Mwakanyane.
Death cant be undone, depends on nature of investigations,judge,
etc, access to lawyers, poor people in a state are more likely to be
culprits to the death penalty
Pages on Article 22 of the constitution to retain
Sentenced to death for crimes they did not commit. Article in The
Guardian.
Search for the innocence files/the Innocence Project
In the Mwakanyane case, the history of the ESCR in South Africa.
Read on Justification or legality of the death penalty.-State v
Mwakanyane(law and not what majority of people want)
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