THE ROLE AND PLACE OF MEDIA, CIVIL SOCIETY AND
ACADEMIA IN SAFEGUARDING AND PROMOTING HUMAN
RIGHTS IN EAST AFRICA
By
Prof. P.J. Kabudi
Faculty of Law
University of Dar es Salaam
1. Introductory Remarks
This paper is a composite presentation on the role and place of the media, civil
society and the academia in safeguarding and promoting human rights in East
Africa. As much as the three may appear different and may deserve a distinct
presentation they can be clustered together is the fact that all of them are nonstate actors. The Role of non-state actors in the promotion and protection of
human rights is critical and crucial in ensuring that the state and state actors
respect human rights and are held accountable for any violation against human
rights committed by them.
Some scholars have designated human rights as the great “credo” of the
contemporary time.1 Human rights discourse still elicits interest and remains a
topical theme as it was in the 1980’s when all the East African states were either
a one-party state or under military rule. It was a theme that dominated in the
media, inspired the civil society and engaged the academia in the struggles that
culminated in the re-introduction of multi-party politics and democratisation of
authoritarian states. The new democratic dispensation has further opened space
for the media, civil society and the academia contributing the human rights
discourse and development in East Africa. This paper briefly examines the
1
Espiell, H. Gros, The Evolving Concept of Human Rights: Western, Socialist and Third World Approaches, in
Ramcharan, B.G., (ed.), Human Rights: Thirty Years After the Universal Declaration, The Hague, Martinus
Nijhoff Publishers, 1979, p. 41
articulation of human rights in the East African Constitutions before discussing
the role and place of the media, civil society and the academia in safeguarding
and promoting human rights in East African countries of Kenya, Uganda and
Tanzania.
It is a fact that Kenya, Uganda and Tanzania are not only geographical
neighbours, but also share a lot of historical, political, social and cultural
experiences and similarities. They have the same legal system based on AngloSaxon common law tradition. And, up to 1977 they shared the same highest
court, which was the Court of Appeal for Eastern Africa. The abrupt demise of
the Court of Appeal for Eastern Africa was prompted by the collapse of the East
African Community which grouped together the three countries in a common
market. However, despite the demised of the East African Court of Appeal its
decisions are still binding authority in the respective countries through the
doctrine of precedent.
2
Also up to 1970, they shared the same University of
East Africa with university colleges at Makerere in Uganda, Nairobi in Kenya
and Dar es Salaam in Tanzania. During that time the Faculty of Law, University
College Dar es Salaam trained lawyers from the three East Africa countries. 3
The new East African Community has been established by the Treaty for the
Establishment of the East African Community comprising originally of Kenya,
Uganda and Tanzania was signed in 30th November 1999. Although the Treaty
has not re- established the Court of Appeal of Eastern Africa it has created the
East African Court of Justice which has jurisdiction over the interpretation and
application of the Treaty.4 However unlike the former EAC the Treaty
establishing the New EAC makes adherence to universally acceptable principles
2
See Mapunda, A.M., Mukoyogo, M.C., and Nguluma, A.T., Reflections on Stare Decisis in the Court of
Appeal of Tanzania, Eastern Law Review, Special Issue on the Tenth Anniversary of the Court of Appeal of
Tanzania, Vol. 16, Dec. 1989, No. 2, pp. 1-23
33
Kapinga, W.B.L., The Legal Profession and Social Action in the Third World: Reflections on Tanzania and
Kenya, 4 RADIC (1992), p.877
4
Article 27 of the Treaty for the Establishment of the East African Community.
of good governance, democracy, the rule of law, observance of human rights
and social justice to be a condition for a state to be a member of the
Community.5
2. Constitutionalism and Human Rights
East Africa has not escaped the wave of change towards pluralistic forms of
politics and constitutional order. The East African constitutional terrain has
witnessed ebbing negative and positive developments in the protection and
promotion of human rights. With the adoption of multi-party system, the East
African countries have once again affirmed their recognition of liberal
democratic principles. This includes one of the fundamental principles of liberal
constitutionalism, the recognition and guarantee of the fundamental freedoms
and rights of the individual.6 Constitutional rights, as correctly pointed out by
Goerlich “are not an isolated part of the constitution” but more to it “they are
incorporated in it, hence, these rights are dependent on the perception of the
general principles”.7
In a treatise on constitutions of the former British colonies, de Smith,
elaborating on constitutionalism, commented as follows:
“A contemporary liberal democrat, if asked to lay down a set of minimum
standards, may be very willing to concede that constitutionalism is practised
in a country where the government is accountable to an entity or organ
distinct from itself, where elections are held on a wide franchise at frequent
intervals, where political groups are free to organise in opposition to the
government in office and where there are effective legal guarantees of
fundamental civil rights enforced by an independent judiciary; and he may
55
Article 3 of the Treaty for the Establishment of the East African Community.
Kabudi, P.J., Human Rights Jurisprudence in East Africa: A Comparative Study of Fundamental Rights and
Freedoms of the Individual in Tanzania, Kenya and Uganda, Baden-Baden, Nomos Verlag, 1995, p. 9
7
Goerlich, H., Fundamental Constitutional Rights: Content, Meaning and General Doctrines, in: Karpen. U.,
(ed.), The Constitution of the Federal Republic of Germany: Essays on the Basic Rights and Principles of the
Basic Law, Baden-Basden, Nomos Verlag, 1988, p. 62
6
not easily be persuaded to identify constitutionalism in a country where any
of these conditions is lacking.”8
The same position is advocated by a Nigerian constitutional lawyer, Nwabueze,
who emphasized that:
“There can be no doubt that the core and substantive element of
constitutionalism is the limitation of government by a constitutional
guarantee of individual civil liberties enforceable by an independent tribunal.
Deriving from the fundamental values of society, values which, articulated in
public opinion, express a society’s way of life and uphold its members’
personality, individual civil liberties are indeed the very essence of
constitutional government.”9
The linkage of constitutionalism to human rights is one of the major feats in the
development of modern democratic constitutions resting on two fundamental
pillars that is limited government and guaranteed of individual rights and
freedoms. Another African scholar, Mahmoud Ben Romdhane from Morocco
points out that liberal constitutionalism or liberal democracy rests on four
pillars. These are:
(1) individual freedoms;
(2) public freedoms (among which are the right to organise, associate and
demonstrate as fundamental rights);
(3) people’s sovereignty through direct universal vote: and
(4) separation of powers (hence limitation of the executive). A limited
government is one which is based on principles of democracy.
All these constitutional principles and doctrines that are ipso facto relevant for
guaranteeing human rights are ingrained in all the four constitutions of the three
8
9
de Smith, S.A., The New Commonwealth and Its Constitutions, London, Stevens & Sons, 1964, p. 106
Nwabueze, B., Constitutionalism in Emergent States, London, C. Hurst & Co. 1973, p. 3
East African states of Kenya, Uganda and Tanzania. They incorporate a Bill of
Rights as well as the doctrine of separation of powers and the principle of rule
of law, with all their attendant attributes, i.e, checks and balances.
Human rights borrowing from section 70 of the Constitution of Kenya which is
a preambular clause to the Bill of Rights clusters freedoms and rights of the
individual three groups:
(a) life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association;
and
(c) protection for the privacy of his home and other property and from
deprivation of property without compensation.
However, human rights as currently conceptualised include also social, cultural
and economic rights. These rights are provided for in the Constitutions in
Tanzania and Uganda as part of the fundamental objectives and directive
principles of state policy. In the case of Tanzania the Constitution is categorical
that fundamental objectives and principles of state policy are not enforceable in
a court of law.10 Although fundamental objectives and directive principles of
state policy are not justiciable, this part of the Constitution has played a
significant role in the development of human rights jurisprudence in Tanzania.11
Socio-cultural and economic rights are being included in the Bill of Rights as it
is the case with civil and political rights. The draft Constitution of Kenya also
10
Article 7(2) of the Constitution of the United Republic of Tanzania
Kabudi, P.J., The Directive Principles of State Policy in Tanzania, in: Binchy, W., and Finnegan, C. (Eds),
Human Rights, Constitutionalism and the Judiciary: Tanzanian and Irish Perspectives, Dublin, Clarus Press,
2006, p. 37.
11
contains proposals for social, cultural and economic rights on their own right
and not as part of fundamental objectives and principles of state policy. 12
The following part proceeds to discuss the role and place of the media in
safeguarding and promoting human rights.
3. The Role and Place of the Media
The basic tasks of the media in a democracy have been classified under three
main headings13:
(1) The task of observing and informing primarily as a service to the public
(2) The task of participating in public life as an independent actor by way of
critical comment, advice, advocacy and expression of opinion
(3) The task of providing a channel, forum or platform for extra media voices
or sources to reach a self-chosen public.
The specific occupational tasks of the media are many. However they can be
classified basic activities. These are discovery, collection, and selection of
information; processing into news accounts; providing background and
12
Proposed Article 43 of the Proposed Constitution of Kenya published on 6 th May 2010 by the Attorney
General of Kenya provides that:
“ (1) Every person has the right(a) To the highest attainable standard of health, which includes the right to health care services, including
reproductive health care;
(b) To accessible and adequate housing, and to reasonable standards of sanitation;
(c) To be free from hunger, and to have adequate food of acceptable quality;
(d) To clean and safe water in adequate quantities;
(e) To social security; and
(f) To education.
(2) A person shall not be denied emergency medical treatment.
(3) The State shall provide appropriate social security to persons who are unable to support themselves and
their dependants.
13
Christians, C.G., et. al, Normative Theories of the Media: Journalism in Democratic Societies, Urbana and
Chicago, University of Illinois Press, 2009, p. 116.
commentary; and publication.14 Therefore for the media is required to advance
democratic system and protect and promote human rights by15:
(1) Providing surveillance
(2) Forming opinion
(3) Setting the agenda of public discussion
(4) Acting as a watchdog
(5) Acting as messenger and public informant
(6) Playing an active participant part in social life
It is imperative for the discussion on the role and place of media in promoting
and protecting human rights to be based on the constitutional provisions on the
Right to Freedom of Expression. It forms one of most important factors in the
development of political will and sustenance of democracy.16 This includes also
the promotion of independent judgment of government action and the
enhancement of public order.
All the constitutions in East Africa have provisions providing for the freedom
of expression. Freedom of expression is composed of four different
components. These are freedom of opinion, freedom to receive ideas and
information, freedom to communicate ideas and information and freedom from
interference with individual’s correspondence. All together they provide for and
guarantee the right to communication of ideas.
Freedom of the media or press is not expressly mentioned in the Constitutions
of East Africa. Lack of such an express mention is redressed by the fact that
realisation of the freedom to gather and disseminate information as guaranteed
in these constitutions of necessity includes freedom of the media or press.
14
Christian. C.G., et. al, op. cit., p. 119
Ibid.
16
Sieghart, P. International Law of Human Rights, Oxford, Clarendon Press, 1983, pp. 330 – 331; Karpen, U.,
Freedom of Expression, in: Karpen, U. (ed) The Constitution of the Federal Republic of Germany: Essays on the
Basic Law, Baden-Baden, Nomos Verlag, 1983, p.92.
15
Therefore, freedom of the media or the press is derived from the right to
freedom of expression and it has developed to the extent of some scholars
presenting it as a separate right.
The ownership of Media in East Africa is mainly divided in two groups. That is
Government owned and private owned media. Public owned media that are not
controlled by the Government but funded by public finances through
Parliamentary budget allocations are yet to be established in East Africa. In all
East African states radio stations until the late 1990’s was government owned
and controlled. The same applied to television stations with exception of
Mainland Tanzania which started with private owned television stations before
the state established one recently. However since the 1990’s private ownership
radio stations has been phenomenal especially with establishment of FM radio
stations in different towns and areas of Tanzania. 17 The same applies to Kenya
and Uganda where mushrooming of private radio stations has resulted in the
founding of FM stations that have been so powerful and influential in Kenya
and Uganda especially trough there call in programmes where listeners
participate live in radio programmes. This has led to friction of such radio
stations with the state where such live programmes have been used to criticise
the Government in Uganda. In the case of Kenya it is claimed that some FM
radio stations especially those broadcasting in vernacular languages were used
to ferment violence after the last disputed General Elections in Kenya. 18
17
Matumaini, J., The History of Radio Broadcasting for Development in Tanzania, Mwanza, St Augustine
University of Tanzania Press, 2009, p. 91 explains that since 1994 private radio stations have mushroomed in
Tanzania and there are currently more than 45 registered stations such as Radio One, Radio Sibuka, Radio
Faraja, Radio Times, Radio SAUT, Radio Sauti ya Injili, Living Water FM, Radio Uhuru, Radio Free Africa,
Passion FM, Clouds FM, Mlimani Radio, Radio Wapo, Radio Upendo, Radio Maria, Praise Power Radio,
Magic FM, Kiss FM, Radio Sauti ya Quran, Radio Aboud and Radio Tumaini.
18
Perhaps that experience is the reason for the Proposed Constitution of Kenya under Article 33(2) providing
that:
“The right to freedom of expression does not extend to(a) Propaganda of war;
(b) Incitement to violence;
(c) Hate speech; or
(d) Advocacy of hatred that –
The ownership of newspapers is the same like that of radio and television where
private owned newspapers out number government owned newspapers. There
are now more diverse newspapers in circulation catering for different interests
and tastes of the readers. They vary in the aspects they cover ranging from
social, economic and political issues to sports, leisure and gossips. This means
newspapers are not homogeneous but heterogeneous just the society is.
Despite that diversity in ownership of the media still it plays a great role in the
building of a democratic society and therefore in the protection and promotion
of human rights. However, that does not apply automatically. The media has
also been used to suppress human rights either by concealing or by deliberately
distorting the truth depending on those who own or control them. Section of the
media has played an important role as a forum in the struggles for democratic
governance and human rights in East Africa. At the same time there was a
section of the media which supported and justified the authoritarian rule in some
of the East African states.
Therefore for the media to be able to play a positive role in safeguarding and
promoting human rights it must believe in democratic systems of governance
and in human rights. It must be imbued in human rights culture and practice in
its editorial policy and coverage. It must abhor violation of human rights and
work to expose such violations in its midst. It must fight against discrimination
in the media.
The media has also been a victim of violations of human rights by the state.
Governments of East Africa in varying degrees and instances have taken action
that has curbed the freedom of the media. This has recently been witnessed by
states enacting Media Acts that instead of promoting freedom of the media it
(i)
(ii)
Constitutes ethnic incitement, vilification of others or incitement to cause harm;
Is based on the ground of discrimination specified or contemplated in Article 27 (4).
has curtailed it.19 The media has great role in the protection and promotion of
human rights by exposing violations of human rights committed by the state and
individuals. The major affront to human rights as much as it emanates from
state action and that needs a bold media to expose such actions.
The media can play a role of creating awareness and empowering the people in
relation to human rights. In this aspect the media needs to co-operate with the
civil society in making the people aware of the rights guaranteed and
empowering them by allowing participation of the people in promoting and
protecting human rights. It is only when they are aware and empowered that the
people can vindicate their rights and freedoms.
4. The Role and Place of the Civil Society
The civil society can be narrowly or broadly defined. The narrow definition of
civil society tends to favour an instrumentalist definition viewing them as
independent groups and associations pushing for particularistic interests which
form the totality of the concerns of the society.20 The broader definition
approaches the civil society from a programmatic viewpoint. It describes the
civil society as an arena where manifold social movements and civic
organisations from all classes attempt to constitute themselves into an ensemble
19
For example in Uganda the Press and Journalist (Amendment) Bill, 2010 has generated a lot of criticism from
media and human rights activist in Uganda that it is aimed at curbing the freedom of the media. In Tanzania
the process of preparing the Media Bill and the Access to Information Bill has stalled. The proposed
Constitution of Kenya has provisions on freedom of the media and access to information and it requires under
proposed Article 34 (2) that “All State-owned media shall(a) be free to determine independently the editorial content of their broadcasts or other communications;
(b) be impartial; and
(c) afford fair opportunity for the presentation of divergent views and dissenting opinion.”
20
Walubiri, P.M., Liberating African Civil Society: Towards a New Context of Citizen Participation and
Progressive Constitutionalism, in: Oloka-Onyango, J. (ed.), Constitutionalism in Africa: Creating Opportunities,
Facing Challenges, Kampala, Fountain Publishers, 2001, pp. 86-87.
of arrangements so that they can express themselves and advance their
interests.21
Despite the fact that the phenomenon of civil rights of the modern society is a
recent development in Africa the civil society in East Africa has played
significant and pivotal role in reversing social decay, rolling back the dictatorial
state, and advancing individual liberties.22
The role played by the civil society in the protection and promotion of human
rights in East Africa needs no emphasis. The civil society has actively pursued
issues of violations of human rights and struggles for the widening the
democratic space in East Africa. This has not been an easy struggle as it has
resulted in big sacrifices by some of the human rights activists being arraigned
by the state and jailed. There are times the existence of civil society was
threatened by the state through enactment of pieces of legislation that aim at
controlling and curbing them.
The organisation of civil society is based on the constitutional right to the
freedom of association while their operations are founded on the constitutional
right of the freedom to participate in public affairs.23 In all the three East
African states laws have been enacted for registration and regulation of NonGovernment Organisations (NGOs). The laws have been criticised on the
ground that they have introduces stringent conditions for the registration and
operation of the NGOs.
The role of the civil society in the protection and promotion of human rights is
manifold. Through the media and other forums the civil society contributes to
21
ibid
Mutua, M., Human Rights NGOs in East Africa: Defining Challenges, in Mutua, M, (ed), Human Rights
NGOs in East Africa: Political and Normative Tensions, Philadelphia, University of Pennsylvania Press, 2009,
p. 13
23
Article 21 (2) of the Constitution of the United Republic of Tanzania provides that: “Every citizen has the
right and the freedom to participate fully in the process leading to the decision on matters affecting him, his
well-being or the nation.”
22
the awareness creation and sensitizing the people on their rights and how to
defend them. In their organisational role the civil society through lobbying and
advocacy can push and influence the legislature to enact laws that protect and
promote human rights and monitor state action to ensure that it respects human
rights.
Another formidable avenue available to the civil society to further the
promotion and protection of human rights is acting through the court system.
This may be through taking up public interest litigation. The courts in East
Africa even during the one-party state delivered seminal judgments that ensured
that human rights violations are not tolerated with impunity. That was not
smooth operation as the judiciary in some countries was subjected to
harassment threatening the independence of the judiciary. Since the reintroduction of the multi-party state and widening of the democratic space the
civil society in all the three East African states have taken cases to court that
have not only resulted in redressing human rights violations but have advanced
human rights jurisprudence in East Africa.
5. The Role and Place of the Academia
The core functions of the academia are teaching, research and public service.
There has been increase of establishment of both public and private universities
in the East African countries. The academia and that mainly the institutions of
higher learning in East Africa have an important role to play in the promotion of
human rights. The constitutional basis of the academia having a place and
playing a role in the promotion and protection of human rights is the academic
freedom. Academics enjoy academic freedom to explore, develop and articulate
the truth without interference from the state or any other entity. Academic
freedom and freedom of scientific research is a derivative of the freedom of
thought and expression.
In teaching aspect it needs to be pointed out that in almost all the Universities in
East Africa offer Human Rights Law as a distinct course. It forms an area of
specialised post-graduate training especially at the level of Master of Laws
(LL.M.). In offering courses in Human Rights the academia contributes in
preparing a critical mass of experts who are conversant with human rights
issues. The role of academics in society has changed and gone beyond lecturing
to students. They have emerged what are known as public intellectuals who
participate in different public forums with the aim of enlightening the public on
different issues. Public intellectual use the media and other forums in pursuit of
knowledge dissemination and public opinion making.
Another area that the academia participates is research on different legal issues
including Human Rights studies and publishing the findings focus.24. A lot of
research has been conducted on human rights in East Africa. Most of the studies
on human rights in Africa in general and East Africa in particular have four
trends in their focus. The first trend are expository studies that have leaned more
on the exposure of human rights violations, some giving the events in
chronological order and publication of a detailed list of victims. That system is
appreciated by human rights activists as it helps to open the eyes of the world
about human rights violations and mobilise action to redress or stop such
violations. It also galvanises the people into action and being vigilant in
promoting and protecting their rights. The second trend of studies on human
rights is that dealing with conceptualisation of human rights in Africa in general
and East Africa in particular.25 The conceptualisation of human rights debate in
Africa was for a long time preoccupied with issues of universalism and cultural
24
Kabudi, P.J., Human Rights Jurisprudence in East Africa: A Comparative Study of Fundamental Rights and
Freedoms of the Individual in Tanzania, Kenya and Uganda, op. cit., p. 7
25
Shivji, I.G., The Concept of Human Rights in Africa, Dakar, CODESRIA Book Series, 1989, pp. 10 -23
relativism in human rights as a relic of Eurocentrism. 26 This argument was
favoured by some African politicians who were bent to justify their actions that
violated human rights arguing that human rights as articulated in international
legal instruments and Bill of Rights are based on Western Europe cultural
setting and values which is individualistic and capitalist as opposed to the
African collective and communalistic approach to rights and duties. The third
trend is that of comparative studies on human rights which were ushered by the
adoption of the African Charter of Human and Peoples’ Rights.27 These studies
have tackled the issue of human rights mainly from the international law point
of view. The fourth trend of studies is that which focus on the internal
perspective and development of human rights in East Africa in general and in
each country in particular. Such studies analyse the constitutions of the
respective states and judicial decisions on the Bill of Rights in order to discern
the development articulation of human rights jurisprudence in East Africa.28
The Academia in fulfilling its public service function it has a role to play in the
protection and promotion of human rights. They can participate in awareness
raising and empowerment of the people. They can also participate in Legal Aid
Schemes and Legal Aid Clinics where complaints of violation of human rights
may be taken to court. Some universities in East Africa such as the Faculty of
Law, University of Dar es Salaam have for many years provided legal aid
services to indigent people and have taken landmark cases to court that have
influenced the development of law in Tanzania.
26
Amin, Samir, Eurocentrism, London, Zed Press, 1989, ad passim.
See for example Peter, C.M., Human Rights in Africa: A Comparative Study of the African Charter on
Human and People’s Rights and the New Tanzanian Bill of Rights, Westport, Greenwood Press, 1990;
28
See for example Kabudi, P.J., Human Rights Jurisprudence in East Africa: A Comparative Study of
Fundamental Rights and Freedoms of the Individual in Tanzania, Kenya and Uganda, Baden-Baden, Nomos
Verlag, 1995
27
6. Concluding Remarks
This presentation has discussed the role and place of non-state actors in
safeguarding and promoting human rights in East Africa. The media in East
Africa has been in the forefront of exposing human rights violations and
therefore galvanising action against them. The media as part of the democratic
institutions are crucial in the inculcation of the democratic culture that respects
human rights. The civil society in East Africa has played a critical role in
bringing constitutional changes in East Africa and making the people aware of
their human rights as well as galvanising action against violations. The growing
robust and vigilant civil society in East Africa continues to play an important
role in the development of human rights jurisprudence through legal aid
schemes and taking up strategic cases to court.
As it has been discussed in this presentation the academia and academics in
their teaching, research and offering public service have propounded and
articulated issues that have contributed in the deepening of understanding of
concepts of constitutionalism and human rights and their application in East
Africa.
The constitutional and legal framework for promotion and protection of human
rights in East Africa is based on a solid foundation. The ongoing constitutional
reforms aimed at furthering democracy constitute a move on the right direction.
Despite the ups and downs on the human rights situation in East Africa the
Courts as guardians of the Constitution have played a positive role in
vindicating human rights. The non-state actors have enabled many people to
know their rights and have empowered them to seek redress against human
rights violations in courts of law. The non-state actors have also pushed
vigorously for constitutional reforms aimed at strengthening democratic
institutions and protection and promotion of human rights in East Africa.