EAST AFRICAN JOURNAL OF PEACE & HUMAN RIGHTS
Journal of the Human Rights and Peace Centre (HURIPEC)
Faculty of Law, Makerere University
Volume 17, Number 1
June 2011
Copyright © 2011 by HURIPEC
EAST AFRICAN JOURNAL OF PEACE & HUMAN RIGHTS
Volume 17 Number 1, 2011
EDITORIAL COMMITTEE
FACULTY OF LAW, MAKERERE UNIVERSITY
Managing Editor
J.
HURIPEC
Editor
Denis A. Katebire
HURIPEC
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COMMITTEE MEMBERS |
|
Samuel Tindifa |
Fredrick W. Jjuuko |
Hadija Namyalo |
HURIPEC |
Law & Jurisprudence |
Public & Comparative Law |
Sylvia Tamale |
Christopher Mbaziira |
Esther D. Naggita |
Law & Jurisprudence |
HURIPEC |
Law & Jurisprudence |
Henry Onoria |
Robert Kirunda |
Phionah |
Public & Comparative Law |
Public & Comparative Law |
Commercial Law |
Assistant Editor
Francis X. Birikadde
HURIPEC
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EAST AFRICAN JOURNAL OF PEACE & HUMAN RIGHTS
Volume 17 Number 1, 2011
INTERNATIONAL ADVISORY BOARD
Selina Goulbourne |
Winston P. Nagan |
Hope Lewis |
Coventry University |
University of Florida |
Northeastern University |
Penelope Andrews |
Patricia Kameri Mbote |
Fareda Banda |
CUNY Law School |
University of Nairobi School of Oriental & African Studies |
|
Chris Maina Peter |
Karin Arts |
Makau wa Mutua |
University of Dar es Salaam |
Institute of Social Studies |
SUNY, Buffalo |
Gudmundur Alfredsson |
Amina Mama |
Peter R. Schmidt |
University of Strasbourg |
University of California, Davis |
University of Florida |
Christof Heyns |
Onalenna Selolwane |
Abdul Paliwala |
University of Pretoria |
University of Botswana |
University of Warwick |
Deepika Udagama |
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J. Purusi Sadiki |
University of Colombo |
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University of Ghent |
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EAST AFRICAN JOURNAL OF PEACE & HUMAN RIGHTS
Volume 17 Number 1, 2011
The East African
Journal of Peace and Human Rights, ISSN:
Works published in the Journal do not necessarily represent the views of the Editors, the International Advisory Board, or the Human Rights and Peace Centre.
This journal should be cited as EAST AFR. J. PEACE HUM. RIGHTS. Further inquiries should be directed to:
Denis Asiimwe Katebire
HURIPEC
Faculty of Law
Makerere University
P.O. Box 7062
Kampala
UGANDA
Telephone:
Fax No:
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TABLE OF CONTENTS
ARTICLES
INTERNATIONAL HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW IN SITUATIONS OF ARMED CONFLICT
M.O.A. Ashiru . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
MAINSTREAMING HUMAN RIGHTS INTO ALL NGO WORK
Maria Nassali . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
THE GHOST OF THE ORGANIZATION FOR AFRICAN UNITY (OAU) HAUNTS AFRICA
Josephine Ndagire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
INTERNATIONAL HUMAN RIGHTS FRAMEWORK ON ACCESS TO
CONTRACEPTION FOR ADOLESCENTS IN AFRICA
Ebenezer Durojaye . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
CIVIL SOCIETY PARTICIPATION IN HEALTH SECTOR PLANNING, |
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BUDGETING, AND MONITORING IN SELECTED DISTRICTS |
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IN UGANDA |
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Sandra Kiapi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
105 |
HUMAN |
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UGANDA |
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Tenywa Aloysius Malagala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
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COURTS AND THE NEED FOR DYNAMISM IN THE PROMOTION OF REPRODUCTIVE HEALTH RIGHTS: A NIGERIAN PERSPECTIVE Babafemi Odunsi & Folake Olaleye . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
THE QUEST FOR POVERTY ALLEVIATION IN
NIGERIA: THE NEED FOR A
O.A. Orifowomo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
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FEDERALISM AND LEGAL PLURALISM IN ETHIOPIA: PRELIMINARY OBSERVATIONS ON THEIR IMPACTS ON THE PROTECTION OF HUMAN RIGHTS
Getachew Assefa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
THE RIGHT TO LEAVE AND ITS RAMIFICATIONS IN ERITREA
Simon M. Weldehaimanot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
POLITICIZATION OF LAND LAW AND GENDER RELATIONS IN UGANDA: |
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A CASE STUDY |
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Godard Busingye . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
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A HISTORICAL PERSPECTIVE ON LAND TRANSFER: “SHOWING THE
LAND,” SURVEY, AND REGISTRATION IN (B)UGANDA
FROM
Holly E. Hanson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
COMMENT
WESTPHALIAN PROCEDURE,
Eric Engle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
COURT DECISIONS
REVIEW OF MAJOR DECISIONS ON FUNDAMENTAL
RIGHTS AND FREEDOMS IN UGANDA,
Henry Onoria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
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INTERNATIONAL HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW IN SITUATIONS OF ARMED CONFLICT
M.O.A. Ashiru*
ABSTRACT
International Human Rights Law and International Humanitarian Law are two distinct areas of law both in origin and development, yet over the years Human Rights Law has had a major impact on International Humanitarian Law. This article considers the areas in which International Human Rights Law has played a part in armed conflict situations.
I. INTRODUCTION
Human rights law as embodied in
international human rights instruments and humanitarian laws
as embodied in the Geneva Conventions of 1949 and the
Additional Protocols thereto, prohibiting attacks on civilian
populations are systematically ignored and violated in armed
conflict situations and military occupation, by armed and
security forces and other parties to armed conflicts. By the
end of the twentieth century, there was a dramatic increase in
the number of countries which were involved in violent
conflicts and wars. There was also a dramatic increase in the
number of civilians affected by the deliberate and systematic
violation of human rights. This was witnessed, for example, in
wars which occurred in countries such as Yugoslavia, Rwanda,
Somalia, Iraq, Turkey and Liberia, and
For many decades now, there have been extensive debates on the application of human rights law to armed conflict situations, thus focusing on the relationship between International Humanitarian Law (IHL) and International Human Rights Law (IHRL). Even though it is now recognized that IHRL applies in armed conflict situations, there are certain obstacles which are encountered in the practical application of this law. This arises in situations where rights such as the right to life, the right to freedom from torture and other cruel and inhuman or degrading treatment or punishment, economic, social and cultural rights apply to both these bodies of law.
This article considers how human rights law is applied in armed conflict situations and
* Lecturer, Faculty of Law, Obafemi Awolowo University. Email:<ashirumo@yahoo.com>
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the practical problems encountered in its application. It also considers how these two bodies of law can work concurrently and also complement and reinforce each other.
II. CONSIDERATION OF BOTH BODIES OF LAW AND THE RECOGNITION OF HUMAN RIGHTS LAW IN ARMED CONFLICT SITUATIONS
IHL and IHRL vary in terms of their origin and
the situations in which they apply. IHL applies in times of
armed conflict, whether international or
On the other hand since human rights are
rights which are inherent to human beings, IHRL protects the
individual at all times from abuse by the State2 and thus it applies both in times of
peace and in armed conflict. It lays down rules that bind States
in their relations with individuals. There is however a growing
body of opinion which remains unsettled that organized groups
especially where they exercise
Despite their differences, these two bodies of law share a common ideal that is the protection of the lives, health and dignity of individuals. Also many of their guarantees are identical, such as the protection of the right to life, freedom from torture
1.International
conflicts are wars involving two or more states, they can also
be wars of liberations, regardless of whether a declaration of
war has been made or whether the parties involved recognize
that there is a state of war.
2.See, e.g., Article 2, International Covenant on Civil and Political Rights, 99 U.N.T.S.171; Article 15, European Convention for the Protection of Human Rights and Fundamental Freedoms, U.N.T.S. 123; and Article 27, American Convention on Human Rights, 1144 U.N.T.S.123.
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and ill treatment and the protection of family rights.3 The recognition by universal and regional human right bodies that human rights law applies to armed conflict situations bridged the gap between the separation of the law of peace and the law of war.4 The concurrent application of these two bodies of law was expressly recognized, for example, by the International Court of Justice in its Nuclear Weapons Advisory Opinion on the application of human rights in situations of armed conflict, with respect to the International Covenant on Civil and Political Rights (ICCPR). It rejected the position that the Covenant could only be applied in peace time and observed that:
… the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provision may be derogated from in time of national emergency. Respect for the right to life is not, however such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. … Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.5
The Court has held on to this view, which is observed from one of its fairly recent advisory opinions. In the Advisory Opinion on the Legal Consequences of a Wall in
3.Debates on the relationship between Human Rights Law and International Humanitarian Law tend to focus on civil and political rights in particular with regard to the use of force and deprivation of liberty, more than economic, social and cultural rights even though these latter rights are equally as important as the former ones. Economic, social and cultural rights where humanitarian law is concerned, includes issues such as ensuring adequate food supplies and protecting health during armed conflict. However when these issues are being dealt with, the focus of attention is usually placed on the relevant international humanitarian law rules than the human rights point of view. Article 6 of the Geneva Convention (IV), relative to the Protection of Civilian Persons in Time of War, dealing with a number of welfare provisions, does not apply beyond a year after the general close of military operations. It is likely that in such cases human rights law may fill the gap when the occupying power continues to exercise government functions.
4.These
are various international tribunals: the International Court
of Justice, the UN Human Rights Committee, the European Court
of Human Rights, the
5.ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, ¶ 25.
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the Occupied Palestinian Territory:
… the court consider[ed] that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.6
There are also international treaties and instruments, such as the Convention on the Rights of the Child of 1989,7 the Rome Statute of the International Criminal Court8 and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict 2000,9 which have incorporated or drawn from both human rights and international humanitarian law provisions.
III. DEROGATION AND
IHL is
6.ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, ¶ 106.
7.Art. 38, Convention on the Rights of the Child, 1989, 1577 U.N.T.S. 3. What is peculiar is that this article, which applies in peacetime, also contains provisions, which are applicable in armed conflict situations thus demonstrating the overlap between the law of peace and that of war, and the necessity of taking international human rights law into consideration. Article 77 of Additional Protocol I to the Geneva Conventions which provides that children who have not attained the age of fifteen years do not take direct part in hostilities and, in particular should not be recruited in the armed forces is replicated in Articles 38(2), (3) and (4).
8.Rome Statute of the International Criminal Court, 2002, 2187 U.N.T.S. 3.
9.Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts, 2000, 1577 U.N.T.S. 3.
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as the European Convention for the Protection of Human Rights and Fundamental Freedoms and the American Convention on Human Rights, which expressly allows for derogation of certain rights “in time of war or other public emergency.”10 On the other hand, for example, the ICCPR in its Article 4 (which provides for derogation) makes no mention of war. The omission was deliberately made in the course of drafting the Covenant. Where a derogation clause exists a State Party may only derogate from its obligations under the treaty,
to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.11
Derogation cannot be invoked lightly as it must be proportional to the crisis at hand and must not be introduced on a discriminatory basis. It must not contravene other international law rules, which includes IHL rules. In the case of Lawless v. Ireland, for example, the applicant who was a member of the Irish Republican Army claimed that his detention was a violation of Article 5 of the European Convention on Human Rights. The court considered the Irish Governments’ specific measures of derogation and found that they could be characterized as measures strictly required by the exigencies of the situation.
There are however certain rights, which are
10.Article 15, European Convention for the Protection of Human Rights and Fundamental Freedoms; and Article 27, American Convention on Human Rights. Public emergency was defined by the European Commission on Human Rights as “a situation of exceptional and imminent danger or crisis affecting the general public … constituting a threat to organized life of the community … while a different approach, stressing on the term “war” retained a “public emergency” as a situation “tantamount to war.”
See, ECHR, Lawless v.
Ireland,
11.Article 4, International Covenant on Civil and Political Rights. See also, Article 15, European Convention for the Protection of Human Rights and Fundamental Freedoms; and Article 27, American Convention on Human Rights.
12.Article 4(2) of the Convention provides a full list of the articles, which may not be derogated from. The Convention for the Protection of Human Rights and Fundamental Freedoms corresponding articles to this are found in Articles 2 and 3 (derogation only allowed in respect of death resulting from lawful acts of war), and the American Convention on Human Rights in Articles 3 and 4.
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proclaimed and notified to the other States Parties to the treaties.13 This provides a means of ensuring compliance with IHL and IHRL where they overlap.
IV. EXTRATERRITORIAL APPLICATION OF HUMAN RIGHTS
OBLIGATIONS
One of the problems in applying human rights
law in international armed conflict including situations of
occupation is with regard to the
A. Effective Control over a Territory
There have been a number of cases where human rights obligations have been applied to areas under the effective control of the State. This also includes situations of military occupation and troops taking part in peacekeeping operations. The rationale behind applying human rights law extraterritorially to situations where States have effective control over a territory, is to effectively and practically ensure respect for human rights. Consideration is given as to the application of various human rights treaties where such situations arise. The UN Human Rights Committee has considered the application of Article 2(1) of the ICCPR14 with regard to respecting and ensuring the Covenant rights
13.Article 4(3) International Covenant on Civil and Political Rights, Article 15(3) Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 27(3) American Convention on Human Rights. There may be instances where the human rights bodies concede that the situation on the ground in relation to the case being decided by them called for exceptional measures, yet no declaration of a derogation has been addressed to the appropriate body. This was the situation in the cases of Isayeva,
Yuzupova & Basayeva v. Russia (ECHR, Isayeva, Yuzupova, Bazayeva v. Russia, 57947/00, 57948/00, 57949/00, 24 February, 2005, 129) and Isayeva v. Russia (ECHR, Isayeva v. Russia, 57950/00, 24 February 2005, 128) both of which were decided by the European Court of Human Rights. These cases concerned the conduct of hostilities during military operations and what measures should have been taken to avoid or reduce the risk of incidents involving the civilian population and damage to property. Since no declaration under Article 15 had been addressed to the Council of Europe, the operations which had been conducted by the Federal Army were evaluated by the court as occurring in a normal legal contest.
14.Article 2(1) provides that “each State party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or opinion, national or social origin, property or other status.”
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to all persons who may be within the State Party’s territory and to all persons subject to the State Party’s jurisdiction. In its General Comment 31, the Committee held that by Article 2(1) of the Covenant, State Parties are required to:
respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State Party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.
The enjoyment of these rights is not limited
to citizens of States Parties but must also be available to all
individuals, regardless of nationality or statelessness, such as
asylum seekers, refugees, migrant workers and other persons. The
Committee then went on to state that the principle is also
applied to those within the power or effective control of the
forces of a State Party acting outside its territory, regardless
of the circumstances in which such power or effective control
was obtained, such as forces constituting a national contingent
of a State Party assigned to an international
The Committee has confirmed its position in particular to situations of military occupation,16 and also with regard to troops taking part in peacekeeping operations.17 This was the case in Northern Cyprus and in the occupied Palestinian territories. The International Court of Justice adopted a similar approach to that of the Committee with regard to the ICCPR, in its 2004 Wall Advisory Opinion. In interpreting Article 2(1) of the Covenant, the court found that reference to the object and purpose of the Covenant implied that the Covenant is applicable in respect of acts done by a State Party to the Covenant in exercise of its jurisdiction outside its own territory.18
15.General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc. CCPR/C/74/CRP/4/Rev.6 (2004), para. 10, available at <www.unhchr.ch/tbs/doc.nsf(Symbol)CCPR.C.21.Rev.1.Add.13.En?Opendocument>, (accessed on 23 March 2009).
16.Concluding Observations on Cyprus, UN Doc. CCPR/C/79/Add 39, Sept. 21, 1994, ¶ 3; Concluding Observations on Israel, 11, UN Doc. CCPR/CO/78/ISR, Aug. 21, 2003.
17.Concluding Observations on Belgium, CCPR/C/79/Add99, Nov. 19, 1998, ¶ 17; Concluding Observations on Belgium, CCPR/CO?81?BEL, Aug. 12, 2004, ¶ 6.
18.Wall
case, supra note 6, ¶¶
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1. Extraterritorial Applicability of the
European Convention on Human
The concept of “jurisdiction” for purposes of Article 1 of the Convention is thus taken to reflect its meaning in public international law. From the standpoint of public international law, the European Commission of Human Rights and the European Court of Human Rights have held that the term “within their jurisdiction” would not be equivalent to or limited to the national territory of the High Contracting Parties. Their responsibility can also be engaged because of acts of their authorities producing effects outside their territory. This would depend on whether or not that State had effective control over the territory in question.
The case of Cyprus v.
Turkey,21 concerned the
occupation of Northern Cyprus by Turkish forces in the aftermath
of a
19.Article 1 of the European Convention on Human Rights states that “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedom defined in Section 1 of this Convention.”
20.ECHR, Issa & Ors v. Turkey, App. No. 31821/96 (Final), 30 March 2005, ¶ 66.
21.ECHR, Appl. No. 25781/94, 10 May 2001.
22.ECHR, Preliminary Objections, 23 February 1995,
103 ILR 622, ¶¶
23.See supra note 20.
24.Supra note 22.
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Bearing in mind the object and purpose of the
Convention, the responsibility of a Contracting Party may also
arise when, as a consequence of military
The court in Issa & Ors v. Turkey distinguished its own decision from those in Loizidou v. Turkey and Cyprus v. Turkey. The applicants in the Issa case complained of the alleged unlawful arrest, detention, ill treatment and subsequent killings of their relatives in the course of a military operation conducted by the Turkish army in northern Iraq in April 1995. The court found that the armed forces of Turkey in the latter two cases were in total more than 30,000 personnel, which was no less than that alleged by the applicants in the Issa case. However the difference was that in the latter two cases, the troops in northern Cyprus were present over a much longer period of time and stationed throughout the whole territory of northern Cyprus. In addition to this, the area was patrolled and had checkpoints on all the main lines of communication between the northern and southern parts of the island. In the Issa case, on the other hand there was no evidence that the Turkish troops conducted operations in the area where the alleged killings took place.25 This case thus gives support to the fact that effective control does not mean control over every act or part of the territory, but that effective overall control over a territory is sufficient.
In the case of Bankovic v. Belgium,26 the court dismissed as inadmissible an application by the relatives of individuals who were killed in the 1999 bombing of a Belgrade building of the Radio Television of Serbia (RTS) during the North Atlantic Treaty Organization (NATO) air strikes against the Federal Republic of Yugoslavia (FRY). The application was brought against all the European NATO member states, which are also parties to the Convention for the Protection of Human Rights and Fundamental Freedoms. The FRY was not, and is still not, a party to the Convention. The applicants argued that the respondent States’ control over FRY airspace was “nearly as complete as Turkey’s control over the territory of northern Cyprus” and that this brought the RTS strike within the jurisdiction of the respondent States. This
25.ECHR,
supra note 20, ¶
26.ECHR, Bankovic & Ors v. Belgium & 16 Other Contracting States, Case No. 52207/99, 12 December 2001.
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argument was dismissed by the Grand Chamber, which held that NATO did not have effective overall control over FRY since the notion of jurisdiction under Article 1 of the Convention was primarily territorial. That a State could not exercise jurisdiction on the territory of another state without the latter’s consent, invitation and acquiescence, unless the former is an occupying State in which case, it can be found to exercise jurisdiction in that territory, at least in certain respects. That in the absence of effective ground control of a territory, precision air strikes and control of airspace did not create responsibility under the Convention.27
Before the decision of the Grand Chamber on
subsequent cases regarding jurisdiction on extraterritorial
application of the Convention, its decision regarding this issue
in the Bankovic case was taken as
being restrictive. The
to take diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.30
Effective control for purposes of human rights appears to be broader and more flexible than that of occupation in humanitarian law, where the obligations of the occupying
27.Id. This case also illustrates the importance of being a party to a treaty in order to benefit from it. The FRY was not, and is still not a party to the Convention, which meant that its citizens were deprived of any rights that they were previously granted and therefore had no claim to a remedy for human rights grievances. Thus, a particular action taken by a contracting state in the territory of another state would not be governed by the first states Convention obligations if the second state is also not a party to the Convention.
28.Grand Chamber Judgment, 12 May 2005.
29.ECHR
30.Referred
to in
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State are absolute. From case law decided by the European Court of Human Rights, the degrees of control under human rights law varies and so also the obligations of the State. This was noted in the comparison made between the cases of Issa & Ors v. Turkey, Loizidou v. Turkey and Cyprus v. Turkey.
On the other hand, in the
2. The
B. Power over a Person
Human rights obligations will also apply
extraterritorially where state agents have authority and control
over an individual. While it is clear that this would cover
situations where an individual is abducted, detained or
31.Id., ¶ 119.
32.
33.See also, Lopez Burgos v. Uruguay, Comm. No. 52/1979, UN Doc. CCPR/C/13/D/52/1979, 1981, which concerned violations of ICCPR by state agents on foreign territory.
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jurisdiction over the applicant as follows:
It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the ‘jurisdiction’ of that state for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey.34
V. THE APPLICATION OF LEX SPECIALIS IN INTERNATIONAL
HUMANITARIAN LAW
The principle of lex specialis in armed conflict situations applies in instances where human rights law and humanitarian law are incompatible and there is a conflict between them. As already established, IHRL protects individuals at all times from abuse of the State, which also includes armed conflict situations. If the application of IHRL conflicts with that of IHL, one of the rules must prevail. In such a situation the principle of lex specialis, (that is where a rule displaces the more general rule) will apply. Which law displaces the other will depend on how close the situation is to the battlefield. Thus where the use of force is at stake and it could be said that military operations are ongoing and that the armed forces have no real control over the situation and were not conducting a law enforcement operation, IHL would be the more appropriate law to apply, rather than IHRL, for the conduct of hostilities. On the other hand where the situation is remote from the battlefield and the state authorities had enough control over a situation to be able to carry out law enforcement operations, IHRL would be the more appropriate law to apply.
The International Court of Justice in its advisory opinions on the Nuclear Weapons35 and the Wall case36 applied this principle. In the Nuclear Weapons case, it was argued that the use of nuclear weapons violated the right to life laid down in Article 6 of the ICCPR.37 The court was of the view that the right under Article 6 is non-
34.Supra note 28, ¶ 118.
35.ICJ, supra note 5, ¶ 26.
36.ICJ, supra note 6, ¶ 101.
37.Article 6(1) provides that “every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
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derogable and thus applies in armed conflict and that even during hostilities it is prohibited to arbitrarily deprive a person of his life. However, the court defined the term arbitrarily according to IHL by recognizing the primacy of IHL over IHRL in armed conflict.
Whilst the
VI. CAN HUMAN RIGHTS BODIES APPLY INTERNATIONAL HUMANITARIAN LAW WHERE A VICTIM’S HUMAN RIGHTS HAVE BEEN VIOLATED IN AN ARMED CONFLICT SITUATION?
An individual can bring a matter before an independent body with regard to violation of his civil and political rights.39 However, there is no such procedure available where the individual’s rights have been violated under IHL, even though many serious violations of humanitarian law which occur also constitute serious violations of human rights. The question thus arises as to whether the human right bodies have the mandate to make pronouncements on violations of IHL, taking into consideration the fact that the provisions of a treaty appears to limit their mandate as contained in that treaty.40 Consideration as to how these bodies have dealt with such matters will be discussed.
A. The European Convention on Human Rights
The various bodies of the European Convention on Human Rights have been hesitant to make direct reference to IHL in their decisions. In Cyprus v. Turkey,41 though the
38.General Comment 31, supra note 15, ¶ 11.
39.For example, under Article 1 of the (First) Optional Protocol to the International Covenant on Civil and Political Rights, the Human Rights Committee may receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. Such an individual must have exhausted all domestic remedies before filing such a complaint to the Human Rights Committee. The Human Rights Committee will then consider whether the individual’s human rights have been violated.
40.Article 1 of the Optional Protocol, for example, limits the Human Rights Committee’s jurisdiction to “any of the rights set forth in the Covenant” which would mean that international humanitarian law cannot be directly applied.
41.Supra note 21.
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European Commission on Human Rights allowed the application of the Third Geneva Convention of 1949, it considered whether there had been a violation of Article 5 of the Convention, which deals with the right to liberty and security.
In Loizidou v. Turkey,42 the applicant’s complaint of refusal of access to her property, was made according to Article 1 of the Additional Protocol 1 to the Convention, that is violation of her right to peaceful enjoyment of her property as well a continued violation of the right to respect for her home under Article 8 of the Convention. Although the court recalled that the Convention should be interpreted in the light of the rules of interpretation set out in the Vienna Convention of 23 May 1969 of the Law of Treaties and that Article 31 paragraph 3(c) of the Vienna Convention indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties,” it did not apply international humanitarian law. Judgment was given in the complainants favour applying Article 50 of the Convention.
In Bankovic v Belgium,43 the applicants complained that the bombardment of the RTS headquarters by NATO violated some of their rights under the European Convention on Human Rights.44 They also based their claim on States’ duties arising from IHL, as the NATO States were party to the Geneva Conventions and the relevant rules of the Additional Protocol 1, and contended that both these set of rules contained norms of customary nature. The court did not consider the IHL argument but the notion of jurisdiction under Article 1 of the Convention was preferred.
In the latter cases brought before the European Convention on Human Rights bodies, the trend by the bodies has been to make use of IHL principles to interpret specific situations, without actually referring to them by name as seen in Ergi v. Turkey.45 The issue in this case was whether the killing of a person during a terrorist related ambush operation was necessary. The European Court of Human Rights found that the State had failed to take “all feasible precautions in the choice of means and methods of a security operation”46 involving the placement of an ambush in protecting the lives of the civilian population. The Court used the language of IHL to consider the alleged human rights violations by the Turkish security forces in the Kurdish areas.47
42.Supra note 22.
43.Supra note 26.
44.The right to life under Article 2, freedom of expression under Article 10, and right to an effective remedy under Article 13.
45.ECHR, App. No. 23818/93, 28 July 1998.
46.Id., ¶ 79.
47.See also, ECHR, Gulec v. Turkey, App. No. 21593/93, 27 July, 1998 and ECHR, Engel v. The Netherlands, App. No. 5370/72, 23 November, 1976.
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A possible explanation why the Court may have been cautious in applying IHL in their decisions may be because it is an expert in human rights law, rather than IHL. Certain terms used in IHRL and IHL have different meanings, and if the court were not trained to use IHL language, it is possible that a different decision from that which was intended may be reached.
B. The
Article 44 of the American Convention of Human Rights provides that:
Any person or group of persons, or any
This implies that only breaches of the Convention can be prosecuted. This would mean that neither the Commission nor the Court might examine alleged violations of other international treaties, as they would fall outside the scope of the Convention. To do otherwise would mean that an obligation is being imposed upon a State without its consent, which would be contrary to Article 34 of the Vienna Convention 1969, which provides that obligations can only be created for a State if that State has expressly accepted them.
There have however been quite a number of reports where the Commission has sought to justify its application of IHL to specific situations, which individuals have brought against State Parties.48 Its report in the Tablada (Abella)49 case is an example of this. This case concerned the attack of the military barracks of La Tablada, in January 1989, for almost thirty hours by 42 armed persons who allegedly feared a new coup d’etat would occur. The surviving attackers, applied to the Commission, complaining that Argentina had violated both HRL and IHL when responding to the assault. The Commission directly applied IHL (in particular Article 3 Common to the four Geneva Conventions of 1949) and did not use it merely as an aid to interpret HRL. Its explanation for applying IHL was because:
48.The case of Disabled Peoples’
International et al. v. United States was
the first attempt which the Commission made to deal with this
problem. See,
49.
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… The Commission’s ability to resolve claimed violations of this non- derogable right arising out of an armed conflict may not be possible in many cases by reference to Article 4 of the American Convention alone. This is because the American Convention contains no rules that either define or distinguish civilians from combatants and other military targets, much less, specify when a civilian can lawfully be attacked or when civilian casualties are a lawful consequence of military operations.50
In the Las Palmeras case,51 the
In the later cases of Bamaca
Velasquez52 and Mapiripan
Massacre,53 IHL was used as an effective tool of
interpretation in applying HRL rules. The case of Bamaca
Velasquez concerned a guerrilla fighter who
was tortured and murdered by the Guatemalan military during a
battle. The Commission requested that the Inter- American
Court should decide on the responsibility of Guatemala for the
violations of several articles of the American Convention on
Human Rights and also certain articles of the
Although the Court lacks competence to declare that a State is internationally responsible for the violation of international treaties
50.Id.,
¶¶
51.
52.
2000.
53.
2006.
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that do not grant it such competence, it can observe that certain acts of omissions that violate human rights, pursuant to the treaties that they do have competence to apply, also violate other international instruments for the protection of the individual, such as the 1949 Geneva Conventions and in particular, Common Article 3.
The Court then went on to state in paragraph 209:
Indeed there is a similarity between the content of Article 3, Common to the 1949 Geneva Conventions and the provisions of the American Convention and other international instruments regarding non- derogable human rights (such as the right to life and the right not to be submitted to torture or cruel, inhuman or degrading treatment). This court has already indicated in the Las Palmeras case, that the relevant provisions of the Geneva Conventions may be taken into consideration as elements for the interpretation of the American Convention.
VII. CONCLUSION
There is no doubt that over the years the importance of human rights has been recognized in armed conflict situations. Though IHL and IHRL have different origins and are distinct in their application, they share a common goal to protect the lives, health and dignity of persons. However these two bodies of law can no longer be compartmentalized taking into consideration the fact that violations of humanitarian law in most cases also constitute violations of ones human rights at the same time. Since it is unlikely that IHL will be changed in the near future to favour individuals to bring claims for violations in this area of law, it is necessary to overcome the challenges both bodies of law face when making decisions regarding armed conflict situations where such laws are involved, be overcome. One such challenge is the difference between the language of both bodies of law which each would need to comprehend in order to be able to use them.
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MAINSTREAMING HUMAN RIGHTS INTO ALL NGO
WORK
Maria Nassali*
ABSTRACT
This article argues that the governance of
NGOs is critical to the strengthening of the human rights
movement. It advocates for the rights based approach that
advances the moral obligation of NGOs to apply human rights
principles to themselves. It urges each NGO to address the
power inequalities within its operations, policies and
relationships, identify the rights and duty bearers and the
nature of the responsibilities. Cognizant that human rights
are indivisible and
I. INTRODUCTION
Persistent poverty and civil strife have
influenced the reconsideration of the development and
governance debates in order to
This article begins with a background to
the
* Chief Executive Officer, Uganda
Association of Women Lawyers
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NGO work in part two. The discussion proceeds with the justification as to why all NGOs should apply rights to their governance in part three. Part four examines the extent to which NGOs have respected the fact that human rights are universal, given that the aspirations and values of human rights exist in all societies.1
Furthermore, the legitimacy of NGOs is also
derived from the common norms pursued by the NGO and the
specific communities that the NGO works with.2
The discussion focuses on how NGOs have related human
rights to the knowledge and experiences of the communities that
they work with, in order to promote the ownership of the human
rights discourse. Using the example of how Development NGOs
(DNGOs) have adopted the
II. THE
GOVERNANCE
The
1. See, V. Leary, The Effect of Western Perspectives on International Human Rights, HUMAN
RIGHTS IN AFRICA:
GUTTO, HUMAN AND PEOPLES’ RIGHTS FOR THE OPPRESSED: CRITICAL ESSAYS
ON THE THEORY AND PRACTICE
OF HUMAN RIGHTS
FROM A SOCIOLOGY OF LAW PERSPECTIVE
160 (1993); C. Heyns & F. Viljoen, Current Developments: An Overview of
International Human Rights Protection in Africa, 15 SAJHR 421 (1999); A.A.
Human Rights and Francophone West Africa, in
RIGHTS, THE RULE OF LAW, AND DEVELOPMENT IN AFRICA 143 (Zeleza & McConnaughay eds, 2004).
2. M. EDWARDS, NGO RIGHTS AND RESPONSIBILITY: A NEW DEAL FOR GLOBAL GOVERNANCE
7 (2000).
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The application of human rights by all actors
became popular following the directive of then UN Secretary
General, Kofi Annan in 1997 that all UN agencies and programmes
make human rights a core value of their activities.3 This process is popularly referred to
as the
A
Traditionally, the role of NGOs is to serve as
a watchdog of the state’s rights obligations to the individual
and to promote good governance. As custodians of good
governance, NGOs are not only obliged to monitor and ensure the
application of good governance principles by the state and its
agencies, but to also observe the principles of accountability,
transparency, participation, equity, and
The justification for the
3.P. Alston & M. Robinson, The Challenges of Ensuring Mutuality of Human Rights and Development Endeavours, in HUMAN RIGHTS AND DEVELOPMENT: TOWARDS MUTUAL REINFORCEMENT
2 (Alston & Robinson eds, 2005); M. Robinson, What Rights Can Add to Good Development Practice, in
Alston & Robinson eds, id., at 29.
4.Id.,
at
5.See,
6.Preamble to the UDHR (1948).
7.G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
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Economic, Social and Cultural Rights
(ICESCR).8 The African Charter9 demonstrates the concept of the
indivisibility and interdependence of rights by providing for
civil and political rights and economic, social and cultural
rights in one document. Further, the principles of the
The Declaration of the Right to Development of
1986 makes reference to the interdependence and mutually
reinforcing relationship between rights and development. It
defines development as a “comprehensive economic, social,
cultural and political process,” whose objective is the
“constant improvement of the
The Vienna Declaration of 1993 reiterates that
the three: rights, democracy and development, are mutually
reinforcing and interdependent.14 Similarly,
the Copenhagen Declaration of 1995 reaffirms the link between
human rights and development by establishing a new consensus
that places people at the centre of sustainable development in
order to achieve stable, safe and just societies for all.
The article adopts the principles identified by the Office of the High Commissioner for Human Rights, namely: express linkage to rights, accountability,
8.G.A. res. 2200A (XXI), entered into force January 03, 1976.
9.ACHPR, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct.
21, 1986.
10.C.
11.Declaration of the Right to Development (1986), art. 1.
12.UNDP, HUMAN DEVELOPMENT REPORT (2004); Robinson, supra note 3, at 26; M. Darrow
&A. Tomas, Power, Capture and Conflict: A Call for Human Rights Accountability in Development Cooperation, in 27 HUM. RTS Q. 474 (2005).
13.
14.Vienna Declaration (1993), paras. 8 and 74.
15.Id. See also, Alston & Robinson eds, supra note 3; Charter of Feminist Principles for African Feminists (2006).
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transparency, participation, equality and
empowerment16 and outlines their
meaning in respect to NGO governance in the following
discussion. In consonance with the earlier critiques of the
A. The
In discussing the principles of the
1.The Principle of Express Linkage to
2.The Principles of Accountability and
16.
17.P. UVIN, HUMAN RIGHTS AND DEVELOPMENT
(2004); P. Alston, Ships
Passing in the Night: The Current State of the Human Rights
and Development Debate Seen Through the Lens of the Millennium
Development Goals, in 27 HUM. RTS Q. (2005);
Alston & Robinson eds, supra note 3;
&CORNWALL, supra note 10; Darrow & Tomas, supra note 12.
18.Hugo Slim, By What Authority? The Legitimacy and
Accountability of
19.Alston,
supra note 17, at
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behaviour. NGOs have multiple accountability
obligations under the law, to the governmental regulatory NGO
Boards, NGO governing boards, to the NGOs’ mission and internal
rules and procedures, their membership, communities, public, NGO
sector- wide
3.The Principle of Participation and
4.The Principles of Equity,
20.UDHR, art. 21, ICCPR, art. 25, CRC, art. 12, CEDAW, arts 7, 13, 14(2), African Charter on Human and Peoples’ Rights (1981), art. 13.
21.African Charter on Popular Participation (1990), para. 10.
22.UN Declaration on the Right to Development (1986); Vienna Declaration (1993), para. 25; African Charter on Popular Participation (1990), paras 6 & 15.
23.J. Gaventa, Strengthening Participatory Approaches to Local Governance, 16 NATIONAL
CIVIC REV. 29 (2004).
24.UN Charter (1945), art. 1; ICESCR, art. 2(2); ICCPR, art. 2(1); UDHR, art. 1, African Charter (1981), art. 2 & 3.
25.UDHR, art. 1; ICCPR, art. 3; ICESR, art. 2(2) & 3; African Charter (1981), art. 5 & 19.
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action.26 Empowerment means the ability of people to claim and exercise their rights in order to improve their lives.27 The concept of empowerment within NGOs is two dimensional. Firstly, empowerment relates to internal empowerment with each NGO obliged to strengthen itself in terms of skills, capacity, resource mobilization, competitive remuneration and supportive working environment for staff. Secondly, empowerment entails addressing power inequities to enable the weaker party to take action themselves. Furthermore, empowerment addresses how the NGO sector addresses societal inequalities accruing from age, gender, ethnicity, race and sexuality among others. In the era of globalization, empowerment also entails the balancing of power inequalities within NNGOs and SNGOs.
B. Why Human Rights Principles in NGO Governance and Management?
Obviously HURINGOs derive their legitimacy from human rights and are therefore obliged to respect human rights.28 The International Council on Human Rights Policy (ICHRP) is on record as stating that, “as organizations that advocate for democracy and justice, HURINGOs need to show that they do not conduct their own affairs in an undemocratic or unjust way.”29 The ICHRP also contends that any organization that does not acknowledge that human rights are universal would not qualify to be a human rights organization.30 The controversy remains as to whether all NGOs that do not define themselves as HURINGOs should also apply human rights principles to their governance.
This article argues that democracy and
governance NGOs have to apply human rights because democracy and
rights are mutually reinforcing. Human rights form the
cornerstone of democracy. At the African level, all African
treaties provide for the promotion of democracy and human rights
in the same sentence or article, inferring that democracy and
rights are
26.CEDAW, General Recommendations on Temporary Special Measures, No. 25, para. 8.
27.
28.ICHRP,
DESERVING TRUST (2003), at
29.Id., at 11.
30.Id., at
31.African Union Constitutive Act (2000), art. 4 (m).
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of “respect for human rights and democratic principles.”32
NEPAD commits itself to “promoting and protecting human rights and democracy” by developing clear standards of accountability and participatory governance.33 SADC reaffirms “human rights, democracy and the rule of law,” as core principles and gender mainstreaming as a key objective.34 The fundamental principles of the East African Community (EAC) are “good governance, including adherence to the principle of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality and recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter.”35
In a debate on democracy and rights,36 Aina has argued that “asking the
question, “democracy for what?” underlines that “democracy is
for the promotion and advancement of individual and collective
The development of the
32.African Charter on Democracy, Elections and Governance (2007), art. 3(1).
33.NEPAD (2001), para. 49.
34.SADC Treaty (1992), arts 4 & 5.
35.EAC Treaty (1999), art. 6.
36.T. AINA, ELECTRONIC ROUND TABLE: DEMOCRACY AND HUMAN RIGHTS (2000), available at <www.africaaction.org/rtable/rtb2.pdf>.
37.Id., at 41.
38.C. Bell & J. Keenan, Human Rights,
39.SHIVJI, supra note 10, at 71; B. Ibhawoh, Restraining Universalism: Africanist Perspectives on Cultural Relativism in the Human Rights Discourse, in Zeleza & McConnaughay eds, supra note 1, at 30.
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and tames the exercise of power by all actors.41 Scholarly opinion suggests that the
UDHR together with the two UN Covenants have attained the status
of customary international law and thus provide a standard of
achievement of all nations and peoples.42 Consequently,
the application of
Although mainstreaming human rights in NGO work does not impute a consensus on the most appropriate way of integrating human rights in development and governance, it would expand the human rights movement. The task of serving as a watchdog of both the market and state fundamentalism cannot be achieved by human rights NGOs alone. It requires forging strategic alliances with all NGOs and with the broader component of civil society with the aim of infusing the human rights discourse in the policies and practices of NGOs. Conversely an exclusionary approach could block a natural and important growth of human rights movements.
In real life what is defined as the problem
and how it is addressed often depends on who has a voice, status
and power.44 Consequently,
mainstreaming human rights addresses power inequalities by
tackling the phenomenon of elite capture. The concept of elite
capture is “a process by which the elite skim development
resources intended for the legitimate development … and defines
politics in a way that protects their own interests.”45 Human rights therefore provide an
effective mechanism to overcome arbitrariness in
Furthermore, given that the human rights
community has fewer monetary and personnel resources than the
development community,
41.Robinson, supra note 3, at 36.
42.J. Donnelly, Human Rights, Globalizing Flows and State Power, in GLOBALIZATION AND
HUMAN RIGHTS 229 (Brysk ed., 2002); W. KOREY, NGOS AND THE UNIVERSAL DECLARATION OF HUMAN
RIGHTS: A CURIOUS GRAPEVINE 3 (2001); A. Reinisch, The Changing
International Legal Framework for Dealing with
REINFORCEMENT (Alston & Robinson ed., 2005), at 39; F. Viljoen, Africa’s Contribution to the Development of International Human Rights and Humanitarian Law, in 1 AHRLJ 19 (2001).
43.Robinson, supra note 3, at 32; Darrow & Tomas, supra note 12, at 487.
44.Id., at 475.
45.Id.
46.Id., at 520.
47.UVIN, supra note 17, at 36.
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50 billion annual revenue of the development
sector.48 Similarly, under the NGO
sector, the human rights component is comparatively less
financially resourced. For example, in 1996, the Organization
for Economic Cooperation and Development (OECD) found that 90%
of available resources belonged to only 20% of DNGOs.49 In 2005, 50% of the European
Commission funding was to DNGOs working in humanitarian and
relief services.50 Both OXFAM and
CARE generated ten times more revenue than Amnesty International
(USA) and more than twenty times that of Human Rights Watch,
which are the most resourced HURINGOs.51 Although
both South Africa and Nigeria boast of the most dynamic NGO
sectors in Africa, in both countries the number of
i) the vulnerable would be better protected from violation, ii) government would promote human rights standards and operate within a human rights framework, iii) public authorities would institutionalize human rights thinking and treat people with fairness and respect thus safeguarding their dignity, iv) wider civil society would popularly accept human rights standards as the principle by which we live and treat each other and by which conflicts are resolved, v) people would recognize and value both their own rights and the rights of others and would genuinely be tolerant of difference.53
The application of human rights principles to
NGOs’ work would contribute to a free, equal and equitable world
and shift focus from patronage to
48.Id., at 13.
49.I. De Senolissa, A New Age of Social
Movements: A Fifth Generation of
50.AWID (ASSOCIATION OF WOMEN IN DEVELOPMENT), THE SECOND FUNDHER REPORT:
FINANCIAL SUSTAINABILITY FOR WOMEN’S MOVEMENTS WORLDWIDE 48 (2007).
51.T.J. Scott, Evaluating
52.L. Seafield, South Africa: The Interdependence of All Human Rights, in HUMAN RIGHTS
UNDER AFRICAN CONSTITUTIONS: REALISING
THE PROMISE FOR OURSELVES
(A.A.
53. F. Butler, Building a Human Rights Culture, in HUMAN RIGHTSIN THE COMMUNITY:RIGHTS AS AGENTS FOR CHANGE (Harvey ed., 2005), at 69.
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propounded by
[T]he
Human rights are strategic in enabling all
NGOs and the wider civil society to build a shared perspective
and language in order to influence the political and human
quality of life in general.55 NGOs
have to be exemplars of the human rights practices they demand
of the state and market, in order to legitimately monitor the
wider civil society, states and the market.56
Put differently, for NGOs to have the moral authority to
demand human rights and democratic practices of others, they
must practice what they preach. In other words, the building of
a human rights culture or a
a mode of social organization that operates without need for coercion. It is a form of modernist power that imbues the individual with particular ways of thinking, knowing and behaving, thus instilling
54.
55.P. Van Tuijl, Entering the Global Dealing
Room: Reflections on the
56.ICHRP, supra note 28, at 3.
57.J.C. Momba, Civil Society and the
Struggle for Human Rights and Democracy in Zambia, in Zeleza & McConnaughay eds, supra note 1, at 230; C.E. Welch, Conclusion,
in Welch ed., supra note 51, at 264; S. Dicklitch & D. Lwanga, The
Politics of Being
58.Heyns & Viljoen (1999), supra note 1, at 422; Heyns & Viljoen (2004), supra note 1, at 130.
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modes of social consciousness that makes social action predictable. Discipline is learned and practiced in the day to day complex of social life, through institutional training received, for example, in the school, the university, the military, the workplace, the church and the prison, where notions of correct and incorrect behaviours and thoughts are clearly delimited. The epithet ‘common sense’ is achieved when a particular mode of thought and conduct is unquestioningly accepted as normal.59
There is a growing appropriation of the human
rights language in the mission statements of almost all
institutions and organizations. Some organizations have a dual
mandate of rights and development. Many traditional DNGOs are
concurrently undertaking advocacy to influence policies. Donors
and governments have also demanded accountability of NGOs
through the legal framework and the funding process. In an
effort perhaps of
The Charter of Popular Participation urges all NGOs and voluntary organizations to: be fully participatory, democratic and accountable; strengthen institutional structures that bring them together; disseminate successful African and grassroots experiences throughout the continent; establish forum for honest, popular and open dialogue between governments, grassroots organizations and NGOs; give increased support and target their operations within the framework of national economic strategies; give due considerations to initiatives at the grassroots, utilize African expertise, strengthen advocacy nationally and internationally and influence donors in genuine partnership.61
As early as
59. T. Evans, International Human Rights Law as Power/knowledge, in 27 HUM. RTS Q. 1055
(2005).
60.ICHRP, supra note
28, at
61.African Charter on Popular Participation (1990), part 111(d).
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practice.”62 Among others, the guidelines outline the values of NGOs as follows: advance and improve the human conditions; respect for the rights, culture and dignity of men and women; devolving the maximum resources to the task at hand, remain true to its mission and objectives; involve beneficiaries as partners, exercise willingness to collaborate and network and maintain high ethical standards at both organizational and personal level.63
Recently the International NGOs (INGOs) adopted an International Non- Governmental Accountability Charter.64 However, only INGOs can become formal signatories to the Charter.65 The Charter is a joint effort of INGOs working globally on human rights, sustainable development, humanitarian responses and other public goods. The purpose of the Charter is to: identify and define shared principles, policies and practices; enhance transparency and accountability both internally and externally; encourage communication with stakeholders and lastly improve INGO performance and effectiveness as organizations.66
The Charter reiterates that transparency and
accountability are good for government, business and
Similarly, humanitarian NGOs have a Code of Conduct, namely, the Humanitarian Charter and Minimum Standards in Disaster Response.69 African women
62.COMMONWEALTH FOUNDATION,
63.Id., Guideline 5.
64.International NGO Accountability Charter (2005).
65.Id.
66.Id., at 3.
67.Id.
68.Id., at
69.ICHRP, supra note 28, at 4.
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have developed the Charter of Feminist
Principles for African Feminists.70 The
Feminist Charter is a tool to monitor institutional development
and establish peer review mechanisms.71 The
Feminist Charter outlines individual ethics: the indivisibility,
inalienability and universality of women’s human rights;
networking; solidarity and mutual respect; care of other African
feminists;
Lastly, the Feminist Charter commits feminists
to subscribe to the feminist leadership which is characterized
by disciplined work ethics, strengthened multi- generational
network; ensuring that the feminists’ movement is recognized as
a legitimate constituency; building and expanding knowledge;
mentoring and providing opportunities for young feminist in a
C. The Principle of Express Linkage to Rights and the Universality of Human Rights
The following discussion analyses the extent to which NGOs have respected the universality of human rights. The discussion begins with an examination of how Northern NGOs (NNGOs) respect African NGOs in interpretation and prioritization of the human rights discourse. It is followed by an analysis of the appreciation by African NGOs of ordinary people’s conceptualization of human rights.
1. Conceptualization of Rights Amongst NNGOs
and
70.<www.africafeministsforum.org>
71.African Feminist Charter (2006), at 3.
72.Id., at
73.Id.,
at
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contextual realities of the world. Despite the recognition of the universality of human rights, human rights are still predominantly understood and expressed in western ideas and language.74 The genesis of human rights is almost exclusively confined to western history which perpetuates the misconception of human rights as a western concept. For example, Rhoda Howard dismisses the presence of human rights in traditional Africa, arguing that it was merely a concept of human dignity.75 On the other hand, Leary argues that while the “atrocities of the Nazi regime in Germany” were the immediate compulsion for the development of an international system of human rights, the contribution of the West in developing human rights “was great, but by no means unique.”76
Secondly, there is a difference in the prioritization of rights. NNGOs prioritized CPRs while SNGO also sought to address ESCRs. The prioritization of CPRs was influenced by the fact that human rights initiatives were predominantly spearheaded by lawyers, journalists and other professionals whose interests and activities are substantially affected by the infringement of CPRs.77 Further, during the Cold War, ESCRs were considered communist in inspiration and content and therefore lacked a comprehensive institutional framework for enforcement.78
Third, is the difference in strategies to advance human rights. Many African NGOs grew out of the overt support from the NNGOs.79 In practice, INGOs occupy such a “high moral plane in the public policy discourse” that questioning them is dismissed as either “naivety or being apologists for repressive governments and cultures.”80 Consequently, most SNGOs initially mirrored the strategies of NNGOs, such as standard setting through legally binding treaties, the documentation of abuses, research, public advocacy and providing assistance to the victims of human rights
74.MUTUA, supra note
1, at
75.R. Howard, Group Versus Individual Identity in the African Debate on Human Rights, in
76.Leary, supra note 1, at 30; MUTUA, supra note 1, at 16.
77.INTERNATIONAL HUMAN RIGHTS INTERNSHIP PROGRAM (IHRIP) AND THE SWEDISH NGOS
FOUNDATION FOR HUMAN RIGHTS, THE STATUS OF
HUMAN RIGHTS
ORGANIZATIONS IN
AFRICA 6 (1994).
78.J.
HUMAN RIGHTS NGOS IN
EAST AFRICA: POLITICAL AND NORMATIVE
TENSIONS (M. Mutua
ed., 2009), at
79.S.N. NDEGWA, THE TWO FACES OF THE CIVIL SOCIETY: NGOS AND POLITICS IN AFRICA 32
(1996).
80.MUTUA, supra note 1, at 37.
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abuses.81 While learning from the experience of others is essentially a positive thing in order to avoid repeating the same mistakes, in the 1990s, many SNGOs in addition to employing the strategies of NNGOs began investigating the root causes of the violation of rights.82 Hence, the differences in strategies with NNGOs preferring the apolitical liberal legalism approach to rights and SNGOs preferring a more political advocacy approach that addresses the roots causes of violations, such as bad governance and corruption.
Following the Vienna Conference, the Harvard Retreat highlighted the satisfaction, frustrations and some differences within the human rights movement, shaped by contextual experiences.83 The Harvard Retreat noted that the “… NGO movement has no single inspiration or aspiration, neither a spiritual nor secular authority to define one belief for all within it, no pope and no central committee.”84 Nonetheless, the Harvard Retreat emphasised that the differences between the NNGOs and SNGOs were “superficial relating to priorities and style,” but did not dispute the point that human rights are universal or the existence of an international human rights movement.85 The differences relate to the priorities, strategies and geographical focus of human rights work.
In criticizing NNGOs at the Harvard Retreat, participants from the SNGOs appreciated the fact that advocacy based on individual cases adds the attraction of realism to activism.86 Thus, SNGOs did not advocate for the abandonment of the traditional strategies of remedying individual human rights violations, but sought an expanded role that would also address the root causes of human rights violations.87 Likewise, at the African retreat of Amnesty International (AI) which was aimed at enhancing its “dynamic and effective presence, visibility and strategic direction” in
81.Id., at
82.M.E. Keck & K. Sikkink, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORK IN
INTERNATIONAL POLITIC (1998), at 184 & 88; MUTUA, supra note 1, at 37; T.W. Dichter, Appeasing the Gods of Sustainability: The Future of International NGOs in Microfinance, in NGOS, STATE AND
DONORS: TOO CLOSE FOR COMFORT (D. Hulmes & M. Edwards eds, 1997), at 3.
83.H.J. STEINER, DIVERSE PARTNERS: NGOS IN THE HUMAN RIGHTS MOVEMENT (Report of a Retreat of Human Rights Activists, 1999), at 17 & 81.
84.Id., at 8.
85.Id., at 81 & 17.
86.Id., at 23.
87.Id., at 22.
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Africa,88 African participants (while appreciative of AI’s hard hitting advocacy and critical role during dictatorial regimes) found AI’s ostensibly apolitical stance and the rule that barred its members from working in their own countries frustrating.89 The African participants contended that while NNGOs can afford to stay apolitical and detached from politics because they work in foreign lands and therefore have to respect the core principle of sovereignty in international law, African NGOs cannot afford to ignore the political trajectories within their midst.
Fourthly, because of the power imbalance in favour of NNGOs, NNGOs have set the international agenda and concentrated their activism in the South. Ironically, in spite of the human rights movement having been precipitated by the human rights violations in Europe following the 1st World War, it is currently a civilizing crusade” targeted at the South.90 African NGOs accuse NNGOs of prejudice by predominantly portraying Africans as “hopeless and helpless” victims while ignoring the human rights violations in their own countries as well as the negative impact of globalization on the global ecology and economy.91 In contrast, reports on the North are both episodic and insufficiently publicized.92
Ironically, African NGOs have equally ignored the experiences and knowledge of how ordinary people have applied human rights to their experiences, a point that is taken up in the following section of the study.
2. African NGOs and Cultural
88.AI
Africa Consultative Forum, Entebbe, Uganda,
89.Id., at
90.MUTUA, supra note 1, at 19.
91.F. Manji, Depoliticization
of Poverty, in DEVELOPMENT
AND RIGHTS (D.
Eade ed., 2004), at 28; Mutunga, supra
note 81, at 37; Dichter, supra note 82, at 129;
J.
EXPERIENCES (Wolfgang,
Kisaakye & Oberleitner eds, 2002), at 292; STEINER, supra note
83, at
92.Id.,
at
93.STEINER, supra note 83, at
74; A.A.
&T.R. Kearns eds, 2001), at 105; A.A.
(A.A.
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consistent stand in the interest of the large masses and for human rights values and causes.”94 For human rights to be entrenched as part and parcel of everyday struggle, it must infiltrate the ideological, financial and moral ethics of ordinary communities.95 By implication, NGOs have an obligation to learn how the local people have adapted their traditional culture to human rights principles. Erasing negative cultural norms requires the active participation of the communities in effecting change. As Odinkalu reminds us:
[P]eople are acutely aware of the injustices
inflicted upon them. … [T]he real life struggles for social
justice are waged despite human rights
This article is neither intended to blindly
romanticize
One of the unique contributions of the
African Charter is that it promotes “positive cultural values …
in a spirit of tolerance, dialogue, consultations to contribute
to the promotion of the moral
94.I.G. Shivji, Reflections on NGOs in Tanzania: What We Are, What We Are Not, and What We Ought to Be, 14 DEVELOPMENT IN PRACTICE 3 (2004); EDWARDS, supra note 2, at 1.
95.NDEGWA, supra note 79, at 16; M. Mutua, The Complexity of Universalism in Human Rights, in HUMAN RIGHTS WITH MODESTY: THE PROBLEM OF UNIVERSALISM (A. Sajo ed., 2004), at 196;
C.E. WELCH, PROTECTING HUMAN
RIGHTS IN AFRICA: ROLES AND STRATEGIES
OF
96.C.A. Odinkalu, Why More Africans Don’t Use the Human Rights Language, 2 HUM. RTS
DIALOGUE (1999).
97.African Charter (1981), art. 29(7).
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democracy.98 UNESCO’s Declaration of the Principles of International Cultural Cooperation acknowledges that each culture has dignity and values which must be respected and preserved and all cultures form part of the common heritage belonging to all mankind.99 Reference to culture is most routinely used to mean artistic expressions or its cultural products, such as literature, music, dance, arts, sculpture, theatre, film and sports.100 However culture is a “way of life, encapsulating a people’s identity and wisdom.”101 As substantiated by the Blair Commission:
[C]ulture is also about shared patterns of
identity, symbolic meaning, aspirations and about relationships
between individuals and groups within a society. Culture is also
about the relationship between ideas and perspectives about
Similarly, the Human Rights Council defines culture as:
a set of shared spiritual, material, intellectual and emotion features of human experience that are created and constructed within social praxis. As such culture is intimately connected with the diverse ways in which social groups produce their daily existence economically, socially, and politically. It therefore embraces both commonly held meanings that allow for the continuation of everyday practices as well as competing meanings that galvanise change over time.103
98.Preamble to the Protocol on Women (2003).
99.UNESCO Declaration of Principles of Cultural Cooperation (1966), art. 1(1) & I (3).
100.OUR COMMON INTEREST: REPORT
OF THE COMMISSION FOR AFRICA (2005)
(hereinafter Blair Commission), available at <http://www.commissionforafrica.org/english/report/thereport/english/11-
101.MUTUA, supra note 1, at 19.
102.Blair Commission, supra note 100, at 114, ¶ 3.
103.YAKIN ERTÜRK, INTERSECTIONS BETWEEN CULTURE AND VIOLENCE AGAINST WOMEN
(Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences: Implementation of General Assembly Resolution 60/251 of 15 March 2006, A/HRC/4/34 G. 2007), at 8.
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However, due to colonialism African culture is almost exclusively perceived as a source of human rights violations, as regressive and inimical to development.104 The CEDAW Committee depicts culture as a negative impediment to the enjoyment of women’s rights with no possibility of facilitating women’s empowerment.105 Similarly, in considering state reports, the African Commission tends to attribute the denial of women’s human rights to the restrictive construction of culture.106 The hostility against culture is influenced by the fact that the African Charter tends to represent culture as straightforward, monolithic and homogenized.107 Likewise, the African Cultural Charter does not elucidate what African culture actually is but speaks of it as a homogenous entity.108
Using an example of the issue of sexuality, Tamale illustrates the potential of the social legitimacy of African culture as an empowering resource to challenge male domination.109 Placing culture parallel to rights leaves majority of women without redress because it requires them to “strip themselves of culture before enjoying rights.”110 Consequently, women are left with the limited choice of either complying with the negative culture or of joining the dominant human rights discourse that trivializes their cultural experiences.111 Thus the UN Special Rapporteur on Violence Against Women argues that reducing violence against women to a cultural problem isolates it from the political/economic environment, yet “no custom, tradition or religion can be invoked to justify violence against women.”112
The misconception that culture and rights are antagonistic and distinct from each other distances human rights from the realities of African people and therefore frustrates the entrenching of rights as a lived concept. Every culture has notions of
104.Blair Commission, supra
note 100, at 116, ¶ 14; OKAFOR,
supra note 52, at 215; R. Murray, A Feminist Perspective on Reform of the African
Human Rights System, in 2 AFR.
HUM. RTS L.
J. 224 (2001); S. Tamale, The Right to
Culture and the Culture of Rights: a Critical Perspective on
Women’s Sexual Rights in Africa, in SEX MATTERS (2007),
at
105.C. Nyamu, How Should
Human Rights and Development Respond to Cultural
Legitimization of Gender Hierarchy in Developing Countries? 41HARV.INT’L L.J.381(2000); F.BANDA, WOMEN, LAW AND
HUMAN RIGHTS: AN AFRICAN PERSPECTIVE (2005), at
UNITED NATIONS SPECIAL RAPPORTEUR ON VIOLENCE AGAINST WOMEN,ITS CAUSES AND CONSEQUENCES
(2009), at 39.
106.Nyamu, id.; Banda, id.
107.Banda, id., at 251.
108.Cultural Charter for Africa (1976).
109.Tamale, supra note
104, at
110.Id., at 157.
111.ERTÜRK, supra note 103, at 17.
112.Id., at 3 & 19.
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human rights.113 The assumption that local practices do not embrace human rights ignores the fluid and transformative potential of local cultural norms as well as the impact of human agency in bringing about change.114 It is therefore incumbent on NGOs as proponents of human rights to demonstrate the relevance of international standards to the local context.115
Granted that culture is a
Similarly, in Tanzania, NGOs are obliged to respect the cultures and traditions of the communities they work with.120 However, the NGO Task Force in Tanzania complained that obliging them to respect the cultures of the communities within which they operated was retrogressive, imputing culture as exclusively negative.121 Okafor attests to no knowledge of any NGO that has ever bothered to report or conduct a single seminar on the aspects of the Nigerian culture that would support the human rights
113.Leary, supra note
1, at 30; GUTTO, supra
note 1, at 160; Heyns & Viljoen, supra
note 1, at 421;
114.C.
115.
116.GUTTO, supra note 1, at 156.
117.Id.
118.AFRICA COMMISSION, CONCLUSIONS AND RECOMMENDATIONS OF A WORKSHOP ON NGO PARTICIPATION IN THE WORK OF THE AFRICAN COMMISSION, GAMBIA (1991).
119.NGO Forum Indaba, SWAZI OBSERVER, 6 May 2008, at 14.
120.Tanzania NGO Act 2002, s.31 (b).
121.Id.
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discourse.122 Hence, the Botswana Council of NGOs (BOCONGO) is unique for having taken a decision to draw from positive Tswana culture.123
Cognisant that human rights is the “most globalized political value of our time,”124 the issue is not to earmark the boundaries of each culture but to understand culture as a dynamic concept that has blended with human rights, religion, modernity, and capitalism to mention but a few. Culture is historically constructed through human action, incorporated into the power structures, and reinterpreted through local understanding and interests.125
In Chiku Lidah v. Adam
Omari,126 it was reiterated
that Customary Law is not immutable but is a “living law capable
of adaptation and development.”127 Therefore,
NGOs should build on the positive cultural values that resonate
with human rights principles instead of dismissing culture as
solely an impediment to the realization of rights.128 The Human Rights Council calls for a
“cultural negotiation” that emphasizes positive elements to
advance human rights and demystifies the oppressed elements and
the hierarchies within.129 Yankin
Erturk rightly observes that the “threat to women’s human rights
comes from the monopoly over the interpretation and
representation of culture by the powerful few, rather than
culture per se.”130 The adoption of a
cross- cultural perspective that promotes the interplay between
cultural norms and universal human rights is crucial in
stimulating the mass support of human rights.131
122.OKAFOR, supra note 52, at 110.
123.BOCONGO CIVIL SOCIETY EDUCATION STRATEGY (2007), at 16.
124.A. Sarat & T.R. Kearns, The Unsettled Status of Human Rights: An Introduction, in Sarat
&Kearns eds, supra note 93, at 4.
125.Id., at
126.PC Civil Appeal No. 34 of 1991.
127.Id.
128.Banda, supra note
105, at 256;
129.Id.
130.ERTÜRK, supra note 103, at 29.
131.
132.Ngugi wa Thiongo, The role of intellectuals in African University, The Ford Foundation Distinguished lectures, (2004).
133.Id.
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The concept of ubuntu among
the Bantu people of
The Centre for Human Rights at Pretoria has demonstrated the utility of engaging cultural institutions. Since 2003, recognizing that a majority of Southern Africans are subject to the chieftaincy rule particularly over land and inheritance issues, as part of its Community Service Programme, the Centre has organised over twenty workshops targeting SADC cultural chiefs.140 The rationale of the programme is to challenge the chiefs to analyze their cultural civilization and act as advocates for progressive change.141 For example, in its original conceptualization, the estate of the deceased person was not taken as individual property of the heir for private appropriation but the heir served as the trustee of the estate for the collective good of all beneficiaries, akin to the concept of a legal administrator. The dispossession of
134. SOUTH AFRICAN HUMAN RIGHTS COMMISSION, REPORT ON THE SEMINAR
ON AFFIRMING A CULTURE
OF VALUES IN THE SOUTH
AFRICAN HUMAN
RIGHTS FRAMEWORK
(August 2006), available online at
135.D. Cornell & K. van Marle, Exploring Ubuntu: Tentative Reflections, in 5 AFR. HUM. RTS
L. J. 196 (2005).
136.Y. Mokgoro, Ubuntu and the Law in South Africa, in 4 BUFF. HUM. RTS L. REV. 15 (1998).
137.Interview with Assoc. Prof. Fred Jjuuko , Chairperson, The Free Movement, Uganda, 29 August 2007, at Makerere University.
138.Welch, supra note
1, at 206;
139.Mokgoro, supra note
136, at
140.Interview with Professor Hansungule, Centre for Human Rights, Pretoria, 14 May 2007,
at Pretoria.
141.Id.
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women’s property rights is a result of the introduction of individual property rights. Fareda Banda also uses women’s rights as an analogy to illustrate that human
rights and culture are not opposed to each
other but can be complementary.142 Moreover,
the reference to culture by states is intended to preserve the
unequal cultural interpretations bestowed upon privileged men.143 Likewise, Ifi Amadiume argues that it
is colonial rule and the introduction of Christianity which
destroyed the traditional power of African women derived from
“motherhood,”144 preached
At the Amnesty International African
Consultative Workshop of 2005, participants challenged women to
use the positive examples of women’s human agency in
However, in the case of Magaya v. Magaya,147 the eldest girl sought to become heir to her father. Fareda Banda observes that the instituting of the case by a “simple, old rural woman” challenges the myth that it is only elite “women who without cultural moorings seek different interpretations of African cultural values.”148 It is redeeming that the Protocol on Women provides that women be consulted about the content of the cultural norms that are to operate within their societies.149 Significantly, the Protocol on Women validates “Africa women’s agency in challenging culture as a concept of power, authority and reshaping of society.”150
Similarly the African Feminist Charter obliges the “critical engagement with discourses of religion, culture, tradition and domesticity with focus on the centrality of women’s rights.”151 Likewise, the Commonwealth Foundation NGO guidelines for
142.Banda, supra note 105, at 262.
143.Id., at 252.
144.I. Amadiume, Gender,
Political Systems and Social Movements: A West African
Experience in, AFRICAN STUDIES IN SOCIAL
MOVEMENTS AND DEMOCRACY
(M. Mamdani &
145.Id., at 56; Tamale, supra note 104, at 159.
146.Uganda Feminist Forum, 16 January 2008.
147.1999 (1) TLR 100 [1999] 3lrc 35.
148.Banda, supra note 105, at 37.
149.Preamble to the Protocol on Women (2003), art. 17.
150.Tamale, supra note 104, at 159.
151.African Feminist Charter, available at <www.awdf.org/pages/?p.d=1&s.d=62>, at 11.
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good policy and practice, recommends the “respect for the rights, culture and dignity of men and women.”152
The Ganda proverb, Yiga
Ngokola (learn as you work) is based on the African
philosophy of community work and learning through community
activity.153 Building on the African
proverb Amagezi sigomu directly
translated to mean “knowledge does not belong to a single
person;” activities are initiated by singing, dancing or story-
telling to elicit vibrant discussions.154 A
case study of the Organization of Rural Associations for
Progress (ORAP) in Zimbabwe reveals that for meaningful
development to take place, NGO strategies must be rooted in the
people’s cultural knowledge.155 ORAP
undertook an extensive cultural analysis that identified shared
cultural values within the Ndebele language to shape its
philosophy:
III. THE PRINCIPLE OF INDIVISIBILITY OF RIGHTS
In this discussion, we review the traditional relationship that exists between DNGOs and HURINGOs, and critically examine how DNGOs have linked human rights to their
152.COMMONWEALTH FOUNDATION
GOOD POLICY AND PRACTICE (1995), Guideline 5.
153.D.W. Nabudere, Social transformation in Uganda: A Study of Grassroots NGOs, in Mutua ed., supra note 81, at 246.
154.Id.
155.A.E. Sibanda, Voicing a Peasant Alternative: The Organization of Rural Associations for Progress (ORAP) in Zimbabwe, in PEASANT ORGANIZATIONS AND DEMOCRATIZATION IN AFRICA
(Romdhane and Moyo eds, 2002), at 323.
156.Id., at 324.
157.Tamale, supra note 104, at 164.
158.
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work. The discussion also interrogates how HURINGOs appreciate the struggles of DNGOs as human rights struggles.
A. The Traditional Relationship between DNGOs and HURINGOs
The Vienna Declaration recognizes the indivisibility of human rights.159 The indivisibility of human rights provides a conceptual basis to mainstream rights in all the practices and policies of NGOs. Prior to the 1990s, “… development enterprise lived in splendid isolation from human rights, both at the level of discourse and practice.”160 As observed by UNDP:
Until the last decade, human development and
human rights followed different paths in both concept and
Development was considered a combination of
goodwill and technical knowledge, devoted to economic growth and
addressing poverty, while human rights was concerned with the
exposure of abuse of power.162 HURINGOs
preferred to stick to CPRs leaving the struggles for ESCRs and
social change to the DNGOs.163 Likewise,
development was conceptualized as a technical and not a
political process, rendering it blind to the dynamics of power
and exclusion.164 The principle of
express linkage to rights requires each NGO to undertake a
159.Vienna Declaration (1993), ¶ 5.
160.UVIN, supra note 17, at 1 & 47.
161.UNDP, supra note
12, at 2; Robinson, supra note 3, at
27;
162.J. Wolfensohn, Some Reflection on Human Rights and Development, in HUMAN RIGHTS AND DEVELOPMENT: TOWARDS MUTUAL REINFORCEMENT (Alston & Robinson eds, 2005), at 21; UVIN, supra note 17, at 47.
163.Id., at 31;
164.UVIN, supra note 17, at 3, 31 & 37; Manji, supra note 91, at 26.
165.ICHRP, supra note 28, at 14.
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human rights share the key common values of
inclusion,
In spite of the common goal of promoting the dignity, equality and welfare of the human person, neither the DNGOs nor the HURINGOs embraced the indivisibility of human rights with “enthusiasm or conviction.”167 Alston has likened the relationship between the development and human rights community to “… ships passing in the night, each with little if any sustained engagement with one another.”168
The ambivalence of applying human rights by
DNGOs is attributed to a number of factors namely divergent
goals, the marketing of rights as an essentially legal discourse
and the ambiguous conceptual framework. The major challenge in
merging the rights discourse and development discourse is the
divergent goals with development essentially preoccupied with
economic growth while rights focus on the preservation of the
dignity of the person and the exposure of abuses of power.169 On the one hand, HURINGOs prefer to
apply the
In practice, the merging of rights and development is susceptible to controversy, which repeatedly provides a smokescreen for hiding inequities and rights violations from scrutiny.172 This is due to the dismal reality of not automatically applying human rights as the core of good governance.173 Moreover, economic globalization tends to shift the balance of power towards markets, preoccupied with economic gain, to the detriment of a fair distribution of the benefits of economic growth in order to assure minimum rights for all.174 There is also a tendency for DNGOs to
166.Alston, supra note 17, at 825; Alston & Robinson, supra note 3, at 4.
167.Alston, id., at 755; Darrow & Tomas, supra note 12, at 472.
168.Alston, id., at 799.
169.UVIN, supra note 17, at 2.
170.Darrow & Thomas, supra note 12, at 492.
171.Id., at
172.J. Donnelly, Human Rights, Democracy and Development, in 21 HUM. RTS Q. (1999), at 162; UVIN, supra note 17, at 118.
173.M. Kjaer & K. Kinnerup, How Does Good Governance Relate to Human Rights, in HUMAN
RIGHTS AND GOOD GOVERNANCE:
BUILDING BRIDGES (Sano
& Alfredsson eds, 2002), at
174.Donnelly,
supra note 42, at
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simply repackage or add labels without
necessarily
Furthermore, DNGOs perceive rights as
Notwithstanding the above, many DNGOs and
agencies have adopted the
175.Scott, supra note 51, at 210; UVIN, supra note 17, at 53.
176.
177.Alston & Robinson, supra
note 3, at 5; Robinson, supra note 3, at
178.Butler, id., at 23.
179.Butler, supra note 53, at 67.
180.Alston, supra note 17, at 806.
181.Part .2.
182.ICHRP, supra note 28, at 74.
183.BUTLER, supra note 177, at 20.
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that allows partners to respond to changing situations and context.184
B. The Indivisibility of Rights: HURINGOs and the Development Agenda
HURINGOs have equally not appreciated DNGOs’
struggles as human rights struggles despite the concept of the
indivisibility of rights. Surprisingly, although the rights-
based approach grew out of HURINGOs’ efforts, HURINGOs have not
taken the lead to apply human rights principles to them.185 Ironically, major HURINGOs have not
eagerly embraced the struggles of DNGOs such as the
The two qualities that human rights
organizations distinctively bring to advocacy are knowledge of
the law and a precise grasp of institutional procedures.
Certainly, they can ‘shame and blame’ those who are guilty; but
so can others. The rich and passionate campaigning tradition of
human rights organizations is often most effective when
criticism is accompanied by precise descriptions of legal
obligations. Where human rights organizations can use their
184.R. DAVID & A. MACHINI, GOING AGAINST THE FLOW: THE STRUGGLE TO MAKE
ORGANIZATIONAL SYSTEMS PART OF
THE SOLUTION RATHER
THAN PART OF THE
185.Alston, supra note 17, at 800 & 827.
186.T. Evans, International Human Rights Law as Power/Knowledge, in 27 HUM. RTS Q. 1057
(2005).
187.Alston, supra note 17, at 761.
188.ICHRP, supra note 28, at 48.
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defend vulnerable people effectively would be much reduced. Once again, in a period of polarization this is a particular challenge. Human rights organizations cannot afford to stand on the edge of events, or be seen to be compulsively parsing law; but they might do harm to the cause of human rights if from weakness or passion, they give themselves up to the forces of polarization and put ‘loyalty to the cause’ before accuracy.189
Mutunga
the supercilious dismissal of people
struggles for justice in the global economy illuminates the
limitation of the dominant human rights discourse. … The human
rights movement has failed to acknowledge that the
Mostly, HURINGOs have not been active in the regional integration process. Yet, the existence of trade relations and diplomatic ties facilitate the successful enforcement of human rights in regional economic blocs.191 Moreover, all regional blocs provide for the active participation of civil society in the development processes.192
At the continental level, the African Union has categorically made human rights a key principle of its operations. The African Union provides for the building of partnerships, solidarity and cohesion between governments and all sectors of CSOs.193 It establishes the Economic, Social and Cultural Council (ECOSOCC),194 which statute was adopted in 2004. The objectives of ECOSOCC are to ensure continuous dialogue between the people of Africa; forge strong partnerships with civil society; promote civil society participation in the implementation of the AU policies and programmes; support and defend peace and security, culture of good governance, democratic principles and institutions, popular participation, human rights, freedoms and social justice; promote
189. Id, quoted in Mutunga,
supra note 81, at
190.Id., at 22.
191.Heyns & Viljoen, supra note 1, at 423 & 433.
192.African Union Constitutive Act (2000), arts 3(g)
& 22; SADC Treaty (1992), art 23; EAC Treaty (1999). art
7, arts
193.Preamble to the African Union (2000).
194.African Union Constitutive Act (2000), arts 3(g) & 22.
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gender equality and strengthen the capacities of CSOs.195 Some NGOs have attributed their lack of engagement with the AU to the criteria of observer status of the ECOSOCC. For example, to be an observer, an NGO must derive 50% of its finances from the membership.196 In addition, women’s organizations are likely to be excluded on the ground of discrimination on the basis of gender.197
SADC is yet to have a CSOs policy but works
with NGOs out of personal conviction.198 Frequent
change in the contact information of NGOs is also a hindrance to
effective and continuous communication with NGOs.199 Likewise in East Africa, NGOs have
hardly participated in the EAC activities.200
NGOs have not capitalized on the
The Consultative workshop of 2005204 recommended the establishment of the Economic, Social and Cultural Committee (ESCC) as one of the autonomous structures of the EAC.205 The EAC also noted that there were a number of organizations which
195.Statute of the ESCC of the African Union (2004) ,art. 2.
196.Id., at art. 2, rules v & vi.
197.Id., at art. 2 rule ix.
198.Interview with Madibela and Faye, Director and Technical Advisor, SADC Gender Unit, Botswana, 6 March 2008.
199.Interview with Hembe, Director HIV/AIDs, SADC Secretariat, 8 March 2008.
200.KCK EAC
201.Report of the Committee on Fast Tracking East African Federation (2004), at 311,
Appendix X (a).
202.Id., at 312, Appendix IX (b):
International Council of Social Welfare, East African Youth
Forum, Legal and Human Rights Centre Tanzania, East African
Youth Forum (Kenya Chapter), East African Youth Development
Association, East African Fine Coffee Association, East African
Book Development Association, East African Confederation of
Informal Sector Organizations (CISO), and East African
203.Interview with Betty Kiraso, Deputy Secretary General, EAC, 4 May 2009, Kampala.
204.Report of the Civil Society Workshop Organized by
the East African Community Secretariat from
205.Joint
Communique of the EAC Summit (2005), para.9,
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qualified but had not applied for observer status.206 One official wondered: “How come CSOs having powers to demand their inclusion in the debate (over the amendment of the Treaty) did not bother to do so even when some of them share the same building as the EAC Secretariat?”207 The once vibrant East Africa Youth Council has been dormant since 2000.208 Only KCK and East Africa Law Society (EALS) have actively engaged the EAC.209 However, there are many ESCRs that need to be safeguarded while promoting economic development. Moreover, the main objective of legal reform in East Africa is to facilitate economic globalization rather than the enhanced promoting and protection of human rights.210
Human rights NGOs can no longer remain aloof
to the globalization and development agendas because existing
voluntary codes adopted by businesses are so vague, applied in a
discretionary fashion, and avoid human rights issues.211 NGOs can use the tool of litigation
to stimulate public debate and prompt consumer boycotts with
206.Report of the Committee on Fast Tracking East African Federation (2004), 313, Appendix IX (c): EA Law Society, EA Council of NGOs, EA Federation of Employers, EA Manufacturers Association, EA Bankers Association, EA Chamber of Commerce and Industry, EA Organization of Trade Unions, EA Industries of Management, EA Media Owners Associations, EA Union of Journalists, EA Editors’ Guild, Rotary Club of EA, Lions Club of EA, EA Broadcasters Association, EA Community Abroad, Marketing Societies of EA, EA Public Relations Society, EA Cooperation Forum, EA Youth Council and EA Media Institute.
207.Member of the Legal and Harmonization Committee, 25 April 2007.
208.Interview with Deya, Executive Director, East Africa Law Society & Convenor of the Civil Society Forum, Arusha, 7 August 2007.
209.KCK EAC
210.C.M. PETER & S. MWAKAJE, INVESTMENT IN TANZANIA: SOME COMMENTS AND ISSUES 56
(2004).
211.P. Baehr, Human Rights NGOs and Globalization, in RESPONDING TO THE HUMAN RIGHTS
DEFICIT: ESSAYS IN HONOUR OF BAS DE GAAY FORTMAN (K. Arts & P. Mihyo eds, 2003), at 36.
212.D.D. Bradlow, Differing Conceptions of Development and the Content of International Development Law, 21 SAJHR (2005), at 56 & 69.
213.Id., at 70.
214.B. Maina, Civil Society and the Private Sector, in CIVIL SOCIETY IN THE THIRD REPUBLIC
(Okello ed., 2004), at 60.
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to socialize businesses to promote human rights.215 NGOs have to strengthen the state in order to regulate businesses to guarantee human rights for all.216
At the national level, many NGOs in East and
southern Africa have shunned the consultations process of
In South Africa, with the exception of the SANGOCO’s Poverty Hearings in 1998, there are hardly any efforts to address the rights dimensions of poverty. Furthermore, while the Mid Term Expenditure Framework was intended to be a participatory process by enabling stakeholders to scrutinize the budget, civil society was “… guilty of last minute, ad hoc responses to the budget rather than a more focused approach.”220 It is such casual participation that marginalizes NGOs from policy formulation, discourse and implementation.
215.Old Mutual, Soweto and SABC 3.
216.T. Halvorsen & G.G. Michelsen, Good Governance and Public Sector Reform: The Human Rights Consequences of Structural Adjustment Programmes, in Sano & Alfredsson eds, supra note 173, at 158; M. Kothari, Globalization, Social Action and Human Rights, in DEVELOPMENT AND SOCIAL
ACTION: SELECTED ESSAYS FROM DEVELOPMENT IN PRACTICE (Kothari & Eade eds, 1999), at 20.
217.Research on Poverty Alleviation (REPOA), Tanzania
WANYEKI & A. PATEL, THE
PROCESS OF INTEGRATING
GENDER IN THE POVERTY
REDUCTION STRATEGIC
PLAN PROCESS
IN KENYA AND THE CHALLENGES
ENCOUNTERED BY THE GENDER
LOBBY GROUPS
(2003), at 16 & 20; H. Kotze, Responding to the Growing Socioeconomic Crisis? A
Review of Civil Society in South Africa, in THE DEEPENING DIVIDE: CIVIL SOCIETY AND DEVELOPMENT
IN SOUTH AFRICA
(2003), at
218.Interview with
219.REPOA, supra note 217, at 15 & 27.
220.L. Verwey , K.
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IV. CONCLUSION
The article has justified why all NGOs should embrace human rights principles in their governance arrangements, irrespective of whether or not they define themselves as HURINGOs. To take the decision to swim off shore requires conviction and preparedness to do so, otherwise it could be misunderstood as recklessness. Requiring all NGOs to mainstream human rights, whether or not in their core mandate has caused considerable confusion in terms of practical steps to take. The tendency has been to settle for cosmetic reforms that do not challenge power inequities within organizational operations, or simply rename old strategies.
Evidently, there are tensions, contradictions
and ambivalence in the process of linking human rights to
governance. Numerous dilemmas coupled with a lack of
crystallized consensus on how governance and human rights can or
should complement each other abound. It is this ambivalence and
ambiguous status that presents an opportune moment for this
paper to contribute to the development of good governance and
best practices based on NGO experiences, rather than reacting to
The controversy surrounding the misconception
that African culture does not embrace human rights is
articulated, but with a caution to desist from either the
blanket rejection or the glorification of African culture.
African culture is a
The relationship between DNGOs and HURINGOs
is examined making a case for promoting the indivisibility of
human rights, which reinforces the relevance of rights in all
the policies and practices of NGOs. Just like the DNGOs cannot
afford to ignore the centrality of human rights in their
advocacy struggles, HURINGOs can no longer remain aloof to the
globalization and development agendas of DNGOs. Thus, even
HURINGOs can stimulate human rights through advocacy on
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such as corporate social responsibility and
fair business regulation. The failure to have a more effective
framework to hold major actors such as NGOs accountable may
erode the credibility of the human rights discourse to offer
protection from abuse of power. Although much responsibility
is placed upon HURINGOs to respect human rights values, all
NGOs have to reflect on the way they mediate unequal power
dynamics with other stakeholders, particularly in instances
where the NGOs’ stakeholders have weaker social, economic and
political voices. Given that there is no a single
comprehensive definition of the
Consequently, this article advocates for the further evolution of the human rights discourse to codify what can currently be described as moral obligations into legal obligations. Indeed, the ECOSOC recognises the evolving relationship between NGOs and the UN and has suggested reviews to facilitate the effectiveness of the NGOs’ contribution to the UN’s work.221 The OHCHR has already taken the strategic role of articulating the human rights obligation for UN agencies which can easily be stretched to NGOs. Similarly, INGOs have taken the initiative to articulate their responsibilities under the International Accountability Charter. Likewise, the African Feminist Charter is another attempt to that effect. The Charter on Popular Participation also underlines the relationship between popular participation and empowerment and recommends that NGOs are participatory, democratic and accountable.222 The governance of NGOs is critical to the strengthening of the human rights movement. It is only when human rights become part and parcel of everyday practices and vocabulary that a culture of human rights will crystallize.
221.UN Resolution 1996/31 (1996), ¶ 17.
222.African Charter on Popular Participation (1990), part III.
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THE GHOST OF THE ORGANIZATION FOR AFRICAN
UNITY (OAU) HAUNTS AFRICA
Josephine Ndagire*
ABSTRACT
This article examines the compatibility of
the African Charter on Human and Peoples’ Rights (Banjul
Charter) and the Constitutive Act of the African Union. It
posits that the atmosphere that inspired the Banjul Charter in
the 1970s and 1980s including the ideology of the Organization
of African Unity (OAU) is past. The change in the aspirations of
the African peoples ushered in a new political
Of all ghosts, the ghosts of our old loves
are the
I. INTRODUCTION
The idea of human rights comprises norms, standards and principles which are implemented through institutions.2 From the onset of the human rights movement, it aspired for universal application;3 evident in the drafting process of human rights treaties and declarations such as the Universal Declaration of Human Rights (UDHR).4 Hence, historically, human rights were solely enforced through international institutions
* Doctoral candidate, University of Emory
School of Law.
1.ARTHUR CONAN DOYLE, THE VALLEY OF FEAR (2006).
2.HENRY J. STEINER & PHILLIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 131 (2000).
3.Id., at 57.
4.The preamble to the UDHR refers to the “inherent dignity and of the equal and inalienable rights of all members of the human family” as “the foundation of freedom, justice and peace in the world.”
See also, U. OJI UMOZUKURIKE, THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 11 (1997).
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such as the United Nations Security Council,5 the Commission on Human Rights6 and other
It is worth noting though that the UN Charter anticipated regional systems in the enforcement of international peace and security,11 although it is silent on regional human rights cooperation.12 This explains why the UN initially opposed regional human rights systems on suspicion that their creation was an attempt to oppose the universality of human rights13 by emphasizing regional cultures. The delay in the implementation of the International Covenant on Civil and Political Rights (ICCPR) however forced the UN to encourage the creation of regional human rights systems.14
5.Article 39 of the United Nations Charter (UN Charter) mandates the United Nations Security Council (hereinafter Security Council) to promote, maintain or restore international peace and security. This mandate has been interpreted as including maintenance of human rights since gross violations of human rights are a threat to international peace and security. It is on this basis that the Security Council adopted resolutions establishing the International Criminal Tribunals for the former Yugoslavia and Rwanda. See, Security Council Resolution 955 establishing the International Criminal Tribunal for Rwanda, S.C. Res 955, and 49 U. It was established in 1994 in response to the murder of an estimated 800,000 Rwandans. See also, Security Council Resolution 827 establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, S.C.Res. 827, 48 U.N.SCOR, 48th Sess, U.N.Doc. S/Res/827 (1993).
6.This Commission was replaced by the Human Rights Council. See, GA resolution 60/251 establishing the Human Rights Council. Other institutions in this category include the Commission on Crime Prevention and Criminal Justice, the Commission on the Status of Women, and the Sub- Commission on the Promotion and Protection of Human Rights.
7.These include the Committee on Economic, Social and Cultural Rights (CESCR), the Human Rights Committee (HRC), the Committee Against Torture (CAT), the Committee on the Elimination of Racial Discrimination (CERD), and the Committee on the Rights of the Child.
8.STEINER & ALSTON, supra note 2, at 592.
9.Id., at 781.
10.Id., at 783.
11.See, Chapter VII of the UN Charter.
12.STEINER & ALSTON, supra note 2, at 780.
13.Id.
14.Id. Note that the General Assembly adopted a resolution encouraging the creation of regional human rights systems in regions where they did not exist. See, GA Res. 32/127.
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In 1981, four years after the adoption of the General Assembly resolution calling upon states to form regional bodies, the Banjul Charter, as an international human rights instrument was enacted with the intention of promoting and protecting human rights and basic freedoms on the African continent.15 The Banjul Charter is a reflection of post colonial struggles of Africa. It was inter alia inspired by the resolve to obtain utmost independence and state sovereignty through the total liberation of Africa from colonialism, foreign domination and occupation, aggression and apartheid. Although valid causes, Africa has since embraced new aspirations key among which is the protection of fundamental rights and freedoms.
II. THE OAU ‘LIVES ON’ IN THE BANJUL CHARTER
The African Human Rights system has been described as the “… least developed… most distinctive and the most controversial.”16 In order to understand its controversy and distinctiveness, the historical factors that were at play at the time of adoption of the Banjul Charter must be analyzed. Prior to its adoption, African States had already organized themselves politically and had formed the OAU.17 The core mandate of the OAU was to safeguard the newly acquired independence of African states and territorial integrity of member states. The British Broadcasting Corporation (BBC) reported at the time that its mandate was to “decolonize the remaining bastions of white rule.”18 This claim is illustrated by the absence of an effective provision for human rights enforcement.19 It is therefore no surprise that political considerations are depicted in the Banjul Charter and in part explains its distinctiveness.
The OAU faced criticisms throughout its tenure for what most described as double standards.20 True to its mandate, the OAU played a vital role in opposing the apartheid regime in South Africa and supporting liberation movements in Zimbabwe
15.African Charter on Human and Peoples' Rights (Banjul Charter), adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. See particularly, paragraph 2 of the preamble to the Charter.
16.STEINER & ALSTON, supra note 2, at 920.
17.Charter of the Organization of African Unity (OAU Charter) was adopted on May 25, 1963 by a Conference of Heads of State and Government.
18.African States Unite Against White Rule, BBC, May 25, 1963, available at <http://news.bbc.co.uk/onthisday/hi/dates/stories/may/25/newsid_2502000/2502771.stm> (last accessed on February 6, 2008).
19.PHILIP KUNIG & COSTA RICKY MAHALU, REGIONAL PROTECTION OF HUMAN RIGHTS BY INTERNATIONAL LAW 15 (1985).
20.Id.
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and Mozambique,21 while ignoring human rights atrocities committed in Uganda, the Central African Republic and Equatorial Guinea.22
In 1979, a resolution was adopted obliging member states to protect human rights.23 The underlying reason for the resolution was to strengthen OAU’s strong opposition to the racist regime of South Africa.24 The resolution led to a conference in Banjul, Gambia in 1981 which drafted the Charter that was subsequently approved in Nairobi, Kenya.25 Keba Mbaye; a well respected African scholar and Senegalese judge who led the team that drafted the Charter remarked that Banjul “was the best that could be achieved at the time.” The Banjul Charter was what African States were willing to accept in 1981 and that it would be improved upon later through amendments or revisions.
III. TRACING OAU IDEOLOGY IN THE BANJUL CHARTER
The Banjul Charter is a political statement in many ways. Indeed, the working papers of the OAU during the drafting process bear witness to this claim.26 The distinct and controversial features of the Banjul Charter are discussed in detail below:
A. Peoples’ Rights
The idea of peoples’ rights is not unique to the Banjul Charter.27 What makes it more peculiar to the African Human Rights system is that it was innovated to form the basis
21.BBC, supra note 18.
22.KUNIG & MAHALU, supra note 19.
23.Id. The most instrumental organization in
ensuring that a resolution was adopted was the International
Commission of Jurists which issued a Lagos Plan in 1961. See, YASSIN
24.KUNIG & MAHALU, supra note 19.
25.The OAU decision to establish a human rights Charter was taken at its 16th summit Conference at Dakar, Senegal, Decision 115 (XVI). The subsequent conference elaborated on the Dakar draft at Banjul, The Gambia. This led to the Banjul draft that was subsequently adopted in Nairobi, Kenya July 1981.
26.See, OAU Doc. AHGS/102/XVII, Nairobi, at 22; See also, OAU Doc.CM/112/Part 1,
Nairobi, at 31.
27.Art. 1(1) of the International Covenant on Civil and Political Rights (ICCPR), Art. 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Art. 1(2) of the United Nations Charter all make reference to peoples especially in relation to the right to self determination.
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of a major human rights treaty.28 The Banjul Charter provides for
collective or group rights which are referred to as ‘peoples
rights’ in the document. The concept of ‘peoples rights’ affirms
that it is an
Another interpretation is that individual rights serve to protect individuals against violations from the state30 whereas group rights can only be enjoyed as a group.31 By emphasizing human rights as an aspiration for “African peoples” and not individuals, the Banjul Charter fails to strike a balance between the universality of human rights and the desire to model human rights on the African experience.32 The African understanding of group rights must be distinguished from the socialist approach because the former is built on the dialect between the individual and the community whereas the latter makes human rights dependent on the interests of the State.33
Whereas reference is made to African peoples in the preamble, the term “peoples” is not defined by the Banjul Charter, which makes it problematic. The definition was deliberately avoided because the concept has no uniform meaning, even though it is the foundation of African communities. Note that the concept is used differently in other international covenants.34 Peoples’ rights have been hailed as a tool that could be used to fight and prevent the evils that inflict humanity.35
28.GEORGE WILLIAM MUGWANYA, HUMAN RIGHTS IN AFRICA: ENHANCING HUMAN RIGHTS THROUGH THE AFRICAN REGIONAL HUMAN RIGHTS SYSTEM 211 (2003).
29.N. Barney Pityana, The Challenge of Culture for Human Rights in Africa: The African Culture in a Comparative Context, in THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS: THE
SYSTEM IN
30.U.O.Umozurike, The African Charter on Human and Peoples’ Rights: Suggestions for More Effectiveness, 13 ANN. SURV. INT’L & COMP. L. 180 (2007).
31.Id.
32.It is clear from the preamble of the Banjul Charter that human rights are viewed as very essential for the attainment of equality, justice and dignity for Africans as a race and not individual Africans. It appears that at the time, Africans sought equality and lost dignity against another group or race. The Banjul Charter was thus another tool to continue with the struggles which the OAU had already began.
33.The major distinction between the Marxist and the African approach to human rights is that the African approach is moralistic or spiritual whereas the Marxist approach is purely based on materialism.
34.The term ‘peoples’ in the ICCPR, ICESCR and the
UN Charter, for instance, is used in relation to the right to
35.L. Sohn, International Law, cited in MUGWANYA, supra note 28, at 214. It should however be noted that the African Commission on Human and Peoples’ Rights has considered this question in relation to the right to self determination, say in the case of Katangalese Peoples’ Congress v. Zaire,
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B. Duties
The insertion of duties in the Banjul Charter is also not unique as so do many other human rights treaties. The Banjul Charter’s uniqueness is that it is the only instrument that details individual duties.36 In fact it has been criticized as being too “state- centric.”37 The duties in the Banjul Charter are a reflection of extreme nationalism and patriotism of newly independent post colonial African States which had resolved to jealously guard statehood.38
Moreover, duties also raise a question of
enforcement,39 because the Charter
makes no provision for enforcement of duties or remedies that
would accrue to an aggrieved State and/or the community.
Inclusion of duties in the Charter may lead to the
prioritization of duties where the rights and duties are in
conflict.40 In the past, several
communist regimes in Eastern Europe invoked duties to negate the
idea of human rights.41 It is
therefore possible that the inclusion of duties was a compromise
between several political ideologies which characterized the
post colonial
C.
Almost all African States were colonized,42 and to some extent still face neo- colonialism.43 Paragraph three of the preamble provides that, “Reaffirming the pledge
Eighth Activity Report
36.Pityana, supra note 29, at 64.
37.Olusola Ojo & Amadu Sesay, The OAU and Human Rights: Prospects for the 1980s and Beyond, 8 HUM. RTS. Q. 96 (1986).
38.Another measure taken to guard the newly
independent States was the adoption of the principle of
39.Supra note 29, at 65.
40.Supra note 18, at 50. See also, supra note 27, at 229.
41.Id.
42.Liberia and Ethiopia are arguably the only two countries that were not colonized. Ethiopia was colonized by Italy between 1935 and 1936, and regained independence soon after Italy lost in World War II (WW II).
43.Neo- Colonialism is a policy where a major power uses economic and political means to perpetuate or extend its influence over underdeveloped nations or areas: It is commonly manifested in economic relations between rich and poor countries, usually the latter are forced to adopt certain measures,
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… made in Article 2 of the said Charter (OAU
Charter) to eradicate all forms of colonialism from Africa …”
Paragraph 8 provides that, “Conscious of their (the African
member states) duty to achieve the total liberation of Africa,
the peoples of which are still struggling for their dignity and
genuine independence, and undertaking to eliminate colonialism,
D.
for example privatization of government
parastatals in exchange of financial
44.Namibia was the last African Country to acquire independence in 1990. This marked the end of the struggle against colonialism. The same year saw the release of Nelson Mandela from prison and the 1994 elections in South Africa marked the end of the apartheid regime. Arguably, the OAU had accomplished its major tasks. See also Uzomurike, supra note 53, at 93.
45.See supra note 27, at 268.
46.Weekly West Africa, cited in
47.Cees Flinterman & Catherine Henderson, The African Charter on Human and Peoples’ Rights, in AN INTRODUCTION TO INTERNATIONAL PROTECTION OF HUMAN RIGHTS 391 (Raija Hanski & Markku Suksi eds, 2000).
48.Communication No. 211/98 (2001), para. 70.
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decisions though authoritative, are not legally enforceable. In this regard, it may not be an easy task to remedy the shortcomings of the Banjul Charter by recourse to claw back clauses.
IV. THE CONSTITUTIVE ACT AND HUMAN RIGHTS
The creation of the African Union was first discussed at the fourth extra ordinary session of the OAU Assembly that was held in Sirte, Libya. Article 6 of the Sirte Declaration reads that:
In order to … effectively address the new social, political and economic realities in Africa and in the world (emphasis added), we are determined to fulfil our peoples’ aspirations for greater unity in conformity with the objectives of the OAU Charter and the Treaty Establishing the African Economic Community. It is also our conviction that our continental Organization needs to be revitalized in order to be able to play a more active role and continue to be relevant to the needs of our peoples and responsive to the demands of the prevailing circumstances. We are also determined to eliminate the scourge of conflicts, which constitutes a major impediment to the implementation of our development and integration agenda.49
The hasty drafting process of the Constitutive Act compared with the years it took to draft the Banjul Charter demonstrates the commitment of African leaders to embrace a new era.50 The Constitutive Act greatly impacted the Africa Human Rights System.51 The objectives of the African Union are broad. Most important for purposes of this scholarship is the express mandate of the Constitutive Act to promote human and peoples’ rights. The tone of the Constitutive Act is less politically inclined than the OAU Charter.52 Article 4(h) provides that member states have a right to intervene in the internal affairs of a member state where there are grave circumstances such as war
49.Sirte Declaration, EAHG/Draft/Decl. (IV) Rev.1 1999 (emphasis added), available online at <http://www.chr.up.ac.za/hr_docs/african/docs/ahsg/ahsg64.doc.> (accessed March 9, 2008).
50.Nsongurua J. Udombana, Can the Leopard
Change its Spots? The African Union Treaty and Human Rights, 17 AM. U. INT’L L. REV. 1177
51.Chidi Anselm Odinkalu, Africa’s Regional Human Rights System: Recent Developments and Jurisprudence, 2 HUM. RTS. L. REV. 99 (2002).
52.Alpha Fall, The Impact of the Constitutive Act of the African Union on Human Rights (LL.M Thesis, University of Notre Dame, 2002).
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crimes, crimes against humanity and genocide. Article 4 (h) when read together with Article 23(2) demonstrates a very big ideological difference between the OAU and the African Union.53
The Constitutive Act makes substantial
reference to human rights. Article 3 (h) provides for the
promotion and protection of human rights in accordance with the
Banjul Charter. Article 4 (m) also makes reference to human
rights by providing for the respect of human rights, democratic
principles and the rule of law. Other notable developments
include the obligations of states parties to promote gender
equality and the sanctity of human life.54 The
changes introduced by the Constitutive Act have been lauded as a
“new theoretical advancement in the democratization of the
continent and a rupture to the debilitating concept of
A. The Assembly of the Union
The Assembly of the Union has close links to the African Commission on Human and Peoples’ Rights to the extent that Article 52 of the Banjul Charter mandates the former to inform the Assembly of Heads of State (under the OAU) in its report of any human rights violation. Since the Assembly of the Union replaced the Assembly of Heads of State and Government, Article 52 should be read with the necessary modification. In the alternative, the Commission may specifically make a recommendation to the Assembly of Heads of State and Governments (Assembly of the Union).56 One of its major functions in this regard is to direct the Executive Council on how to manage conflicts, wars, and other emergency situations and the restoration of peace.57
53.Article 23 provides that “any Member State that fails to comply with the decisions and policies of the Union may be subjected to other sanctions, such as the denial of transport and communications links with other Member States, and other measures of a political and economic nature to be determined by the Assembly.” Although the principle of non intervention is reaffirmed in the Constitutive Act, it is now clear that African States cannot invoke the Principle at the expense of human rights or national interests.
54.Art. 4(o), Constitutive Act.
55.Fall, supra note 52.
56.Art. 53, Banjul Charter.
57.Art. 1(9)(g), Constitutive Act.
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B. The Executive Council
It comprises ministers of foreign affairs or other ministers from member states.58 It mainly prepares materials for the Assembly of the Union.59 General areas of its focus include, inter alia, social security, agriculture, transport and communications, food, water resources and irrigation, energy, industry and minerals, education and culture insurance and foreign trade.60 When these issues are analyzed, there is no doubt that they are matters of human rights concern.
C. The African Court of Justice
The African Court of Justice of the African Union has its roots in Article 18 of the Constitutive Act which envisages its establishment. The Court was established by the Protocol of the Court of Justice of the African Union. According to Article 19 of the Protocol, the Court shall have jurisdiction over all disputes and applications referred to it in accordance with the Act. From its mandate, it is clear that there is plenty of room for the Court to litigate human rights issues. This is evident in the wording of the Protocol which for instance allows the Court to “interpret any question of international law.”61 Another basis for human rights jurisdiction of the Court under the Protocol is the mandate to “… interpret … matters … in other agreements.”62 The “other” agreements can be said to include the Banjul Charter.
However, the anticipation of the African Court of Justice as a forum for human rights litigation is quite ambitious in light of the Protocol to the Banjul Charter on the establishment of an African Court on Human and Peoples’ Rights. Interestingly, Article 4 mandates the African Court on Human and Peoples’ Rights to make advisory opinions to the OAU (read AU) on any matter relating to the Banjul Charter or any other treaty. In response to the potential duplicity of functions of the two courts, they were merged by the Protocol on the Statute on the African Court on Justice and Human Rights, which is not yet in force.
58.Id., art. 10(1).
59.Id.
60.Id., art. 13.
61.Art. 19(c).
62.Art. 19(e).
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D. The Dilemma
Whereas the Constitutive Act is human rights oriented, it makes little reference to the Banjul Charter. What is even more surprising is the exclusion of the African Commission on Human and Peoples’ Rights from the organs of the African Union. Given the importance of the Commission and the Court on Human Rights, there is need to forge a nexus. Gutto warns that, “the failure to anchor the African human rights system as a principal system of the … AU is likely to reproduce the marginalization of the collective protection and promotion of human and peoples’ rights on the continent.”63 The failure or difficulty in linking the two may be attributed to the difference in the theoretical approaches between the two “systems.” The African Union as a political organ is much needed in human rights to the extent that it can be used as an enforcement mechanism. Possible suggestions or solutions to this problem are considered next.
V. NEW WINE, OLD SKINS: A CASE FOR RETHINKING THE BANJUL
CHARTER
The resolve to safeguard human rights is a
milestone in Africa’s history and must not be curtailed by a
defective human rights treaty. If not revisited, the
repercussions are likely to be twofold: first, efforts to
safeguard human rights by new institutions (African Court on
Human and Peoples’ Rights or the ‘future’ African Court of
Justice and Human Rights) though well intentioned will follow in
the footsteps of the African
63.Shadrack Gutto, The Reform and Renewal of the African Regional Human and Peoples’ Rights System, 2 AFR. HUM. RTS L. J. 175 (2002).
64.Laurence R. Helfer,
65.Id.
66.<http://www.law.uga.edu/~bodansky/courses/International_Law/class04.html> (accessed on April 10, 2008). Professor Bondasky explains that Consensualism, also known as voluntarism, is a theory of International law which states that international law is based on the free will of states. The rationale is that states are sovereign entities and hence they can only be bound by that to which they have consented. In other words, the State has a “will, moral authority, the power to consent, to enter into
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A. Exorcizing the OAU Ghost from the Charter
Article 68 of the Banjul Charter provides for amendment. Some however favor reform through institutional practice citing the need for stability.67 Proponents for institutional reform argue that necessary reforms of the Charter can be attained through institutions mandated to interpret it.68 In support of that claim, the Commission’s interpretation of claw back clauses is often cited.69 However, by expansively interpreting the Charter in order to remedy its flaws, the Commission acts ultra vires and strips the Charter of its integrity.70
B. So, Exorcizing What Ghost?
All claw back clauses must be struck out of the Charter because they hinder effective enforcement of human rights. For example, Article 9 provides for the right to receive information and to express and disseminate opinions within the law,71 thus effectively subjecting the Banjul Charter to the national law. While the Commission has interpreted the phrase broadly,72 it in essence usurps the authority of the Charter. Heyns observes that:
This creative, if somewhat desperate move on the part of the Commission to save the Charter from itself, should be succeeded by necessary modification of the Charter, given that the words of the
relations to conclude agreements, to form associations.” When this theory is adapted to the Africa Human Rights System, it would mean that as far as African States are concerned, they are committed to Human Rights Promotion and Protection only as far a as the Banjul Charter provides. This is ironical because it is clear from the Constitutive Act and the Protocol Establishing the African Court that African States are more ready to promote and protect human rights contrary to what they were willing to do twenty one years ago (this is the time lapse between the Banjul Charter and the Constitutive Act).
67.Christof Heyns, The African Regional Human Rights System: In Need of Reform? 1 AFR. HUM. RTS L. J. 157 (2002).
68.Id.
69.Id., at 284 (showing that the Commission derives its authority from other human rights instruments in accordance with Articles 60 & 61 of the Banjul Charter. Through this avenue, the Commission has been able to narrowly construe and claw back clauses).
70.Id.
71.Other rights include the right to property which is subject to the interest of the community (this has roots in the African understanding of society, which is communal) and in accordance with appropriate laws.
72.See, Civil Liberties Organization v. Nigeria, Communication 101/93.
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Charter are no longer understood, at least by the Commission, to have their ordinary meaning … Because the Commission could not follow the provisions of the Charter, the provisions of the Charter now have to follow the Commission.73
The proposal to amend the Banjul Charter in
this regard is rooted in the fact that the factors that prompted
the claw back clauses, that is, the “jealous” guarding of the
newly acquired independence have slowly faded away. The Banjul
Charter was borne by an organization immersed in the most
radical construction of state sovereignty.74
State sovereignty when coupled with the
The Banjul Charter excludes some internationally recognized human rights.75 These include: the right to respect of private life, home and correspondence,76 the right to freedom from forced or compulsory labor,77 the right to equality in marriage, during and at dissolution,78 the right to enter marriage with full and free consent of intending spouses,79 the right to form and join trade unions and the right to vote.80 Even the recognized rights such as minimum guarantees of an accused person are by far inadequate.81 The Commission or the Court may have to adopt a very expansive
73.See supra note 67, at 161.
74.Supra note 50, at 1207.
75.Supra note 29, at 344. See also, supra note 47, at 159.
76.Id.
77.Id.
78.Id.
79.Id.
80.Supra note 27, at 159. It should however
be noted that the Banjul Charter does make provision for what
could reasonably be construed as the right to vote in Art.13
(1). The vagueness or indirectness of the provision has led some
to consider the right
81.Article 6 of the Banjul Charter merely states that; “Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.” Contrast the narrowly constructed Art. 6 above with the broad and elaborate Art. 5 of the European Convention on Human Rights which provides that:
1.Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a
person for
(c) the lawful arrest or detention of a person effected for the purpose of bringing him
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interpretation of the right to a fair trial in order to apply the internationally recognized rights of an accused person in accordance with Article 60. The challenge with this approach is that only the Commission and not the Court is empowered to rely on other international instruments to interpret the Banjul Charter.82 The right to life provided for in Article 4 as the basis for the enjoyment of all other rights requires elaboration. The exact incidences when the right should be deprived should be laid down as witnessed in other international and regional human rights instruments.83
before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d)the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;
(f)the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. Article 7 of the American Convention on Human Rights is equally elaborate and need not be reproduced and so is Article 9 of the International Covenant on Civil and Political Rights. Therefore, the Banjul Charter would do very well to give states the exact limits within which the right to liberty can be deprived, given the political turmoil in Africa and the rampart un lawful arrests and detentions especially of political opponents. See also, MUGWANYA, supra note 28, at 302.
82. See supra note 47.
83. Article 4 of the Banjul Charter reads: Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. This should be contrasted with the Article 6 of the International Covenant on Civil and Political rights which provides that:
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
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Still on the normative content of the Banjul Charter, it needs to be strengthened in terms of state obligations and commitment. The new resolve and determination of states to respect human rights should be borrowed from the Constitutive Act. Paragraph 9 of the preamble to the Constitutive Act provides that, “DETERMINED to promote and protect human and peoples’ rights …” This should be contrasted with Paragraph 11 of the preamble to the Banjul Charter which states that, “Firmly convinced of their duty to promote and protect human and people' rights and freedoms taking into account the importance traditionally attached to these rights and freedoms in Africa…” The two paragraphs illustrate a variance in tone and the level of commitment to human rights in both instruments. This runs throughout the Banjul Charter, as noted by Heyns, Article 1 which lays down state obligations needs to be revisited.84
The powers of the African Commission on Human and Peoples Rights need to be broadened and made clear.85 The Commission needs to be free to operate without
2.In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.
3.When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4.Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5.Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6.Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
The Banjul Charter by failing to lay down similar boundaries purports to take away the internationally accepted limits within which the right to life can be deprived, this is not withstanding the fact that Art.60 of the Banjul Charter provides for the use of other international instruments.
84.Heyns notes that Art.1 is “a very weak way” of establishing State obligations because it
simply states that, “The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.” Heyns rightly suggests that the language should be much firmer and assertive or certain, say the Article should state , that “states parties undertake…”It should not be a mere promise or anticipatory obligation. See supra, note 67.
85. Id.
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restrictions. Much as this is not the case in practice any more, the mandate of the Commission needs to be reflective of what is done in practice.86 With regard to confidentiality of measures to be taken by the Commission, it has remedied this by publishing its decisions, recommendations and findings.87 While the Commission has undertaken several functions such as monitoring compliance of member states with the Banjul Charter, it is not expressly mandated to do so.88 Additionally, the Commission has developed a practice of remedying human rights violations. The Banjul Charter is however silent on the findings that can be made by the Commission and whether or not it can award remedies and if so, what kind of remedies?89 Even more interesting, the Commission is not authorized by the Banjul Charter to consider state reports90 but was authorized by the Assembly of States at its own request to consider state reports.91
The attempt to amend the Banjul Charter through informal agreements is ineffective because what is of most importance is what the Charter actually states. There is therefore an urgent need to clearly spell out what the Commission can or cannot do, otherwise for the Banjul Charter to say one thing and the Commission to do another, ‘mocks’ its legitimacy.
VI. CONCLUSION
The OAU was indeed “…a symbol and embodiment
of
...”92 This
article acknowledges the achievements of the OAU and recognizes
that it arguably executed its
86. Article 59 of the Banjul Charter provides that:
1.All measures taken within the provisions of the present Chapter shall remain confidential until such a time as the Assembly of Heads of State and Government shall otherwise decide. . .
2.The report on the activities of the Commission shall be published by its Chairman after it has been considered by the Assembly of Heads of State and Government.
87.Gutto, supra note 63, at 180.
88.See supra note 67, at 162.
89.Id., at 160.
90.Id.
91.Franz Viljoen, Overview of the African Regional Human Rights System, cited in Heyns, supra note 47, at 164.
92.Centre for Human Rights, The African Human Rights System, available online at, <http://www.chr.up.ac.za/centre_publications/ahrs/oau.html> (accessed January 4, 2008).
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holds them responsible for its flaws and challenges facing human rights enforcement in Africa. To its credit, the Charter left room for alteration in the hope that what could not be achieved then could be realized at a future time. The article argues that the time is ripe for alteration. Every last trace of the OAU ideology in the Charter must be replaced with a spirit commensurate with contemporary aspirations of the African peoples and the Constitutive Act so that the OAU ghost haunts Africa no more.
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INTERNATIONAL HUMAN RIGHTS FRAMEWORK ON ACCESS TO CONTRACEPTION FOR ADOLESCENTS IN AFRICA
Ebenezer Durojaye*
ABSTRACT
This article examines threats to adolescents’
lives and physical and mental
I. INTRODUCTION
Reproductive health eludes many of the world's
people because of such factors as: inadequate levels of
knowledge about human sexuality and inappropriate or poor-
quality reproductive health information and services; the
prevalence of
Adolescence is a critical period of transition to adulthood. Today, it is estimated that nearly 1.1 billion people of the world’s population (85 per cent of them living in developing countries) are adolescents, half of which will have sexual
* Doctoral Candidate and Research Assistant,
Department of Constitutional Law, University of the Free State,
South Africa.
1. Report of the International Conference on Population and Development (ICPD), UN Doc A/CONF.171/13 (1994), ¶ 7.3.
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intercourse by the age of 16 and most of them
by 20.2 Apart from grappling with
problems such as conflicts and poverty, Africa has continued to
bear the greatest burden of sexual and reproductive
In many parts of the world, including Africa,
adolescents are grappling with the physical and emotional
transformations that usually accompany their change of status.
Many of them are becoming sexually active at an earlier age than
before. Yet majority of adolescents lack proper access to
information and services relating to their sexuality, especially
with regard to contraception. Over the years, sexual and
reproductive health needs of adolescents have continued to be
ignored or treated with levity. This in turn has led to unmet
needs of adolescents’ sexual health needs. It is estimated that
about 15 million adolescents within the ages of
The average rate for births per 1000 among
young women in
2.A. Grunseit, The Impact of HIV and Sexual
Health Education on the Sexual Behaviour of Young People: A
Review Update 7 (1997). Adolescents are
often described as people within the ages of
3.UNAIDS, REPORT ON THE GLOBAL AIDS EPIDEMIC 20 (2010).
4.M. DE BRUYN & S. PARKER, ADOLESCENTS, UNWANTED PREGNANCY AND ABORTION: POLICES, COUNSELING AND CLINICAL CARE 7 (2004).
5.WORLD HEALTH ORGANIZATION, CONTRACEPTION ISSUES IN ADOLESCENTS HEALTH AND DEVELOPMENT 6 (2004).
6.A. Glasier et al, Sexual and Reproductive Health: A Matter of Life and Death, 368 LANCET
1595 (2006).
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among young women, occur in the region every year.7 Moreover, approximately 55 per cent of unmarried adolescents in West Africa, 47 per cent in Eastern and Southern Africa and 32 per cent in Central Africa have an unmet need for contraception.8
It should be noted that in the last 50 or more years, efforts have been made to ensure that access to modern contraception for all women moves from being merely a key element in primary healthcare services to being a basic human rights of women. Thus, at several meetings and fora such as the International Conference on Population and Development (ICPD)9 and the Beijing Platform of Action,10 including their follow- up meetings,11 it has been reiterated that couples and individuals have the right to freely and responsibly decide on matters related to their sexuality. Despite these developments, however, a significant number of adolescents in Africa still lack adequate access to contraceptive information and services.
Against this backdrop, this article examines
the importance of ensuring access to contraceptive information
and services to adolescents in Africa. The article examines
threats to adolescents’ lives and physical and mental
7.Id. See, E. Ahman
& I. Shah, Unsafe Abortion
Worldwide Estimates for 2000, 10 REPRODUCTIVE
HEALTH MATTERS
(2002), at
8.A.E.
BIDDLECOM ET AL, PROTECTING
THE NEXT GENERATION
IN
LEARNING FROM ADOLESCENTS TO PREVENT HIV AND UNINTENDED PREGNANCIES 17 (2007).
9.ICPD, supra note 1.
10.UN, FOURTH WORLD CONFERENCE ON WOMEN (Beijing, 15 September 1995), A/CONF.177/20.
11.Key
Actions for the Further Implementation of the Programme of
Action of the International Conference on Population and
Development,(ICPD +5), U.N. GAOR, 21st Special Sess., New
York, United States, June 30 – July 2, 1999, U.N.
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II. THE IMPORTANCE OF ACCESS TO CONTRACEPTION FOR
ADOLESCENTS
Contraception provides important options for sexually active adolescents to avoid unwanted pregnancies and sexually transmitted infections (STIs), including HIV. Ensuring access to information and services in relation to contraception to adolescents, not only reduces their risk of exposure to serious sexual harms, it could also promote their educational, occupational and social opportunities.12 While it has been noted that contraception use across the world has increased over the years, disparity still exists in terms of regions and groups having access to contraception. Many parts of developing countries, particularly Africa, still lack adequate access to contraception and young women among all others are often denied access to contraceptive information and services.
Without access to modern contraception, adolescents’ (especially female adolescents) ability to develop their full human potential is retarded, and the public health suffers.13 As mentioned earlier, unmet need for contraception remains high, and unintended pregnancies are a major contributor to the overall burden of disease in the developing world.14 A report has shown that the proportion of currently pregnant women under the age of 20 in Ghana, Kenya and Namibia who reported that there pregnancies were mistimed or unwanted was 46 per cent, 50 per cent and 55 per cent respectively.15 In a country as Nigeria, a report as far back as 1998 indicated that almost one million girls in the country became pregnant each year and most of these pregnancies were either unwanted or unintended.16 More recent studies have shown that the situation has not changed. For instance, a study conducted among women, majority of whom were under 30 years in about eight states in Nigeria, has revealed that about 28 per cent of them had experienced an unwanted pregnancy at some point in their lives. Of this figure, the majority of these pregnancies occurred among unmarried
12.CENTER FOR REPRODUCTIVE LAW AND POLICY (CRLP) & CHILD AND LAW FOUNDATION (CLF), STATE OF DENIAL: ADOLESCENTS REPRODUCTIVE HEALTH IN ZIMBABWE 17 (2002) (hereinafter CRLP & CLF).
13.See, M.J Welsh, J. Stanback & J. Shelton, Access to Modern Contraception, 3 BEST
PRACTICE AND RESEARCH IN CLINICAL OBSTETRICS AND GYNECOLOGY (2006), at 325.
14.J. Ross & W. Winfrey, Unmet need for Contraception in the Developing World and Former Soviet Union: An Updated Estimate, 28 INTERNATIONAL FAMILY PLANNING PERSPECTIVES (2002).
15.See, C. PARKER, ADOLESCENTS AND EMERGENCY CONTRACEPTIVE PILLS IN DEVELOPING
COUNTRIES 1 (2005).
16.UNFPA, STATE OF THE WORLD POPULATION REPORT (1998).
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women.17 Similarly,
a study among adolescents in South Africa has shown that about
40 per cent of adolescents in the ages of
There are several health consequences that
often arise as a result of early or unwanted pregnancies among
young people. It has been shown that pregnancies among
adolescents within the ages of
Apart from the risk to the health of adolescents, unwanted pregnancy also brings along with it adverse social and economic consequences for an adolescent. Because premarital pregnancy is usually frowned upon in many African communities, unmarried adolescent girls who get pregnant may likely experience violence or even be disowned by their parents.22 Pregnancy among female adolescents may severely limit their opportunity to pursue their education and render them economically dependent on partners or family members. Access to comprehensive information and services on contraception can avoid these deleterious consequences to adolescents.
17.G. Sedge et al, Unwanted Pregnancy and Associated Factors among Nigerian Women, 32 INTERNATIONAL FAMILY PLANNING PERSPECTIVES (2006).
18.DEPARTMENT OF HEALTH, SOUTH AFRICAN DEMOGRAPHIC AND HEALTH SURVEY 1998
(1998), at 143.
19.M. COLLUBIEM, M. GERASSU, & J. CLELAND,
OF CONTRACEPTION:COMPARATIVE QUANTIFICATION OF HEALTH RISKS,GLOBAL AND REGIONAL BURDEN OF DISEASE ATTRIBUTABLE TO SELECTED RISK FACTORS (2004).
20. WORLD HEALTH ORGANIZATION, REPRODUCTIVE HEALTH STRATEGY TO ACCELERATE PROGRESS TOWARDS THE ATTAINMENT OF INTERNATIONAL DEVELOPMENT GOALS AND TARGETS 7(2004).
21.PARKER, supra note 15, at 2.
22.See, C. ALISTER ET AL, ADOLESCENT SEXUAL AND REPRODUCTIVE HEALTH IN MALAWI: A SYNTHESIS OF RESEARCH EVIDENCE (Allan Guttmacher Institute Occasional Report 15, 2004), at 14.
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In addition to the problem of unwanted
pregnancies among adolescents in Africa, there is also the
challenge of STIs, including HIV/AIDS. The negative impacts of
unprotected sex among adolescents are more serious among the
females compared to their male counterparts. This is because
women are more susceptible to HIV infection than men due to the
fact that the greater area of a woman’s mucous membrane is often
exposed during sex.23 This usually
accounts for the higher prevalence of STIs other than HIV among
women than men. A report on the analysis of HIV prevalence in
Ghana revealed that the HIV positive
In South Africa, a report indicated that the
high HIV prevalence among young women compared to their male
counterparts.25 This high prevalence
among young women cannot be isolated from the high rate of
sexual violence in South Africa. Indeed, it has been reported
that South Africa has one of the worst incidences of sexual
violence in the world.26 With this
great challenge posed by the HIV/AIDS pandemic, the role of
effective contraception in the primary prevention of
23.A.E. Biddlecom et al, Women,
Gender and HIV/AIDS: Women Bear the Heaviest HIV/AIDS Burden, COUNTDOWN 2015: SEXUAL
AND REPRODUCTIVE HEALTH
AND RIGHTS FOR ALL
(2004), at
24.See, H. Chendi, HIV/AIDS Life Skills Progammes in Southern Africa: The Case of Malawi (unpublished working paper), cited in ALISTER et al, supra note 22.
25.See, DEPARTMENT OF HEALTH, SOUTH AFRICA NATIONAL HIV AND SYPHILIS PREVALENCE
SURVEY 2006 (2007), at 7.
26.HUMAN RIGHTS WATCH, SCARED AT SCHOOL: SEXUAL VIOLENCE AGAINST GIRLS IN SOUTH AFRICAN SCHOOLS 13 (2001).
27.H.W. Reynolds et al, Contraception’s Proved Potential to fight HIV, 81 SEXUALLY
TRANSMITTED INFECTIONS 184 (2005).
28.WORLD HEALTH ORGANIZATION, STRATEGIC APPROACHES TO THE PREVENTION OF HIV INFECTION IN INFANTS (2003).
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III. BARRIERS TO ACCESS TO CONTRACEPTION FOR ADOLESCENTS
In Africa, there are various barriers to access to contraceptive information and services. Some of the factors responsible for high teenage pregnancies and HIV prevalence in Africa include lack of access to accurate sexual and reproductive health information and services, incidences of unprotected sex and poor contraceptive use among sexually active adolescents, gender inequality and unfriendly nature of the health care setting. This section of the article now considers some of these factors.
A. Limited Access to Sexual and Reproductive Information
One of the major barriers to access to the use of contraception in Africa is ignorance on the part of adolescents. Many adolescents lack adequate knowledge and information with regard to their sexuality. Thus, when they are growing up and becoming sexually active they tend to know little or nothing about contraception. They are, therefore, unable to prevent unwanted pregnancies or STIs.
In many parts of Africa, discussions about sex or sexuality is regarded as taboo. Therefore, most parents shy away from discussing such an issue with their children. Hence, rather than relying on information from parents or guardians, studies have shown that most adolescents look elsewhere for information as regards their sexuality.29 For instance, a study has shown that most adolescents’ source of information about sexuality is from either their peers or the media.30 Most parents forget to realise the fact that they are the primary sexuality educators of their children. Oftentimes, in the name of tradition or religion, parents deliberately eschew talking to their young ones about their sexuality. Sometimes parents even deliberately pass wrong messages across to adolescents that may rather confuse or even mislead them.31 But the truth remains that adolescents want to be talked to by their parents or guardians.
A compilation of data from Demographic and Health Surveys since 1990 has shown that quite a substantial number of adolescent women in about 37 countries in the
29.O. Alubo, Adolescent Reproductive Health Practices in Nigeria, 5AFR.J.REPROD.HEALTH
(2005), at 117.
30.A.M. Sunmola et al, Reproductive
Knowledge, Sexual Behaviour and Contraceptive Use Among
Adolescents in Niger State of Nigeria, 6 AFR. J. REPROD, HEALTH (2002), at
31.J. Hughes & A.P. McCauley, Improving the Fit: Adolescents’ Needs and Future Programmes for Sexual and Reproductive Health in Developing Countries, 29 STUDIES IN FAMILY
PLANNING 233 (1998).
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world can at least identify one form of
contraception.32 The compilation
similarly reveals that in about 21 countries, eight out of ten
or more adolescent women are aware of one method of
contraception. However, this study shows great disparity in the
level of knowledge found among adolescents in
Even when adolescents are aware of or have
knowledge of contraception, many of them do not use
contraception regularly. For instance, a study among adolescents
between the ages of
B. Gender Inequality
Gender is a critical issue in ensuring access
to preventive health goods and services such as contraception.
Thus,
32.A.K. Blanc & A.A Way, Sexual Behaviour and Contraceptive Knowledge and Use Among Adolescents in Developing Countries, 29 STUDIES IN FAMILY PLANNING (1998).
33.Id.
34.See e.g., ALISTER ET AL, supra note 22, at 13. See also, C. HICKEY, FACTORS EXPLAINING OBSERVED PATTERN OF SEXUAL BEHAVIOUR: PHASE 2 LONGITUDINAL STUDY FINAL REPORT (1999).
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health.35 Mensch et al have succinctly captured the disadvantage position of girls in many societies as follows:
During adolescence, the world expounds for boys and contracts for girls. Boys enjoy new privileges reserved for men, girls endure new restrictions for women. Boys gain autonomy, mobility, opportunity and power (including power over girls’ sexual and reproductive lives), girls are systematically deprived of these rights.36
In addressing these inequalities, it is
important to consider the different needs and constraints of
young women, and to design interventions accordingly.37 Social, educational, religious and
economic inequalities underlie the reasons why girls and young
women often do not seek or use contraceptive services. Moreover,
in many African countries,
Understanding the social position of girls
and young women within societies and population
35.G. SEN ET AL, UNEQUAL, UNFAIR, INEFFECTIVE AND INEFFICIENT GENDER INEQUALITY IN HEALTH: WHY IT EXISTS AND HOW WE CAN CHANGE IT 1 (2007).
36.B.S. MENSCH ET AL,THE UNCHARTED PASSAGE:GIRLS’ADOLESCENCE IN THE DEVELOPING
WORLD 2 (1998).
37.K.L. DEHNE & G. RIEDNER, SEXUALLY TRANSMITTED INFECTIONS AMONG ADOLESCENTS: THE NEED FOR ADEQUATE HEALTH SERVICES (2005), at ix.
38.A.
Germain, Reproductive Health and
Human Right, 363 LANCET (2004),
at
39.M.N. Kisekka, The Culture of Silence: Reproductive Tract Infections Among Women in the Third World, available online at <http://www.iwhc.org/docUploads/CULTUREOFSILENCE.PDF > (accessed on 11 March 2009).
40.See e.g., E.T. Durojaye & A. Muchiri, Addressing the Link between Gender Inequality and Access to Microbicides in HIV/AIDS Response in Africa, 16 AFR. J. INT’L & COMP. L. (2008).
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C. Challenges in the Health Care Setting
Many adolescents in developing countries including Africa avoid using the health setting for fear of stigma or unwelcoming attitudes on the part of health care providers. Moreover, adolescents, particularly female adolescents are often uncertain whether their visits to health care setting to seek sexual health services, such as contraceptive services, will be made known to their parents. Adolescents are quite sensitive to their surroundings especially when they have become sexually active, hence, they tend to show some discomfort when they are not certain this fact will be kept away from their parents or guardians.41 While commenting on the challenges in the health care sector limiting access to emergency contraception (EC) in developing countries, Shiappacasse and Diaz have observed that lack of privacy; unfriendly attitudes towards adolescents and high cost of the EC often act as stumbling blocks to adolescents’ access to the product.42
Hobcraft and Baker have identified four major barriers to adolescents’ access to sexual and reproductive treatment in the health care setting. These are poor remuneration of health care providers, a working environment poorly equipped to deal with young people, personal biases of health care providers and uncoordinated parallel programmes in the health care system.43 Thus, even when many adolescents have indicated that their preferred source of contraceptive services is either a public clinic or hospital most of them do not use either of these medium.
A study among sexually experienced adolescents in Ghana, who knew a source for contraceptive or STI treatment, has shown that 53 per cent reported that feelings of shyness, or embarrassment were a barrier to obtaining contraceptives.44 These concerns are neither limited to EC nor to developing countries alone, they apply to other forms of sexual health services and to developed countries as well.45 For instance, a study among middle high school students in Los Angeles, US found that though there is a
41.See e.g., A.S. Erukhar
et al, What is
42.V. Shiappacasse & S. Diaz, Access to Emergency Contraception, 94 INT’L J. GYN. & OBST.
302 (2006).
43.G. Hobcraft & T. Baker, Special Needs
of Adolescent and Young Women in Accessing Reproductive Health:
Promoting Partnership between Young People and Health Care
Providers, in 94 INT’L J. GYN. & OBST. 352 (2006); D. Breaken et al, Access to Sexual
and Reproductive Health Care: Adolescents and Young People, 98
INT’L J. GYN. & OBST. (2007), at
44.L. HESSBURG ET AL, PROTECTING THE NEXT GENERATION IN GHANA: NEW EVIDENCE ON ADOLESCENTS SEXUAL AND REPRODUCTIVE HEALTH NEEDS 25 (2007).
45.Id.
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significant increase in knowledge, this has not translated into better sexual behaviour or increase in contraceptive use.46
Furthermore, in some situations it has been found that healthcare providers often lack adequate knowledge and skills with regard to contraceptive services. For instance, a study among healthcare providers in Nigeria indicated that a considerable number of those surveyed, exhibited lack of adequate knowledge with regard to EC.47 The implication of this is that health care providers are unlikely to give advice or prescribe such contraception to adolescents. Sometimes health care providers are faced with the ethical issue of whether to seek parental consent before providing sexual health services such as services related to contraception to adolescents. This has remained a very controversial issue in many African countries as some parents believe that their responsibility to cater for their children extends to knowing the kind of treatment they seek.
Experience has shown that many health providers are more readily inclined to seek parental consent before providing treatment for adolescents. However, a judicial pronouncement by the English House of Lords would seem to have clarified this contentious ethical issue. The Court held in the Gillick case that a doctor could lawfully give contraceptive advice and treatment to a girl under the age of 16 without parental consent if it was established that she had ‘sufficient maturity and intelligence’ to understand the nature and implications of the proposed treatment sought provided that certain conditions were fulfilled.48
The situations described above capture the nature of sexual and reproductive health challenges facing adolescents in Africa, thus confirming that gaps exist in realizing the health needs of adolescents in the region. This situation calls for a drastic change and requires the commitment of African governments in advancing the sexual health needs of adolescents in the region. One way of doing this is to invoke principles and standards contained in international and regional human rights instruments.
46.D.
Kirby et al, An Impact of Evaluation Project SNAPP: An
AIDS and Pregnancy Prevention in Middle School Programmes, AIDS EDUC. & PREVENTION SUPP. (2007), atA
47.O.M Ebuche et al, Health Care Provider’s Knowledge of Attitudes Towards and Provision of Emergency Contraceptives in Lagos, Nigeria, 32 INTERNATIONAL FAMILY PERSPECTIVES 83 (2006).
48.Gillick v. West Norfolk and Wisbech Health Authority and Department of Health and Social Security [1986] 1 AC 112.
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IV. SPECIFIC HUMAN RIGHTS IN RELATION TO ACCESS TO
CONTRACEPTION FOR ADOLESCENTS
The assertion that children and women are
subjects of rights and not merely objects of charity implies
that benevolent and charitable actions, while good, are
insufficient from a human rights perspective. A
A. The Right to Health
The right to health is one of the most
important rights that can be invoked to ensure access to
contraception for adolescents. According to the WHO, health is
broadly defined as a state of complete physical, social and
mental well being and not merely absence of disease or
infirmity.49 It is further stated
that the enjoyment of the right to health is a fundamental right
of all. Though criticized for being too aspirational and utopian
in nature,50 this definition has
provided a solid foundation for the recognition of the right to
health in subsequent human rights documents that emerged after
the WHO Constitution. For instance, Article 25(1) of the
Universal Declaration of Human Rights (UDHR)51
provides that ‘everyone has the right to a standard of
living adequate for the health and
49.The Constitution of the WHO was adopted by the
International Health Conference, New York,
50.See e.g., T. Evans, A Human Right to Health? 23 THIRD WORLD Q. 198 (2002) (arguing that if the definition of health as provided by WHO in its Constitution is taken at a face value, then we may end up in an absurd claim to eliminate disease, infirmities brought by aging and even mortality).
51.GA Res 217 A (III), UN Doc A/810 (10 December 1948).
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comprehensive recognition of this right is contained in Article 12 of the international Covenant on Economic, Social and Cultural Rights (ICESCR)52 where it is provided that ‘States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ Article 12(2) further contains among others, important determinants of the right to health such as prevention and treatment of diseases, essential for the enjoyment of the right.
It should be noted that the right to health as contained in these instruments does not by any means guarantee perfect health for all.53 It is not in contention, however, that this right encompasses an obligation on a state to ensure access to preventative health services for all.54 In other words, states are legally obligated to ensure access to preventive health services, such as access to contraception, for adolescents. The Committee on ESCR in its General Comment 14, while clarifying the content of the right to health, has urged states to provide access to comprehensive sexual and reproductive health care services (including access to contraception) for adolescents.55 This is no doubt an implicit recognition of the fact that adolescents should be assured unimpeded access to contraceptive information and services.
With specific regard to the health of adolescents, Article 24 of the Convention on the Rights of the Child (CRC)56 recognizes the right of children to the enjoyment of highest attainable standard of health. Article 24(f) further enjoins states to develop preventive health care guidance for parents and family planning services. A careful look at this provision does not seem to explicitly refer to adolescents. Packer observes that this provision is worded in such a way as to give room for ambiguity.57 According to her, the provision is capable of two possible interpretations. It could mean ensuring access to family planning services for the parents of an adolescent. Alternatively, it could imply ensuring access to family planning services for an adolescent in order to prevent unwanted pregnancies. The latter interpretation is more plausible. Clearly, the
52.Adopted 16 December 1966; GA Res 2200 (XXI), UN Doc A/6316 (1966) 993 U.N.T.S 3 (entered into force 3 January 1976).
53.B.C. TOEBES, THE RIGHT TO HEALTH UNDER INTERNATIONAL HUMAN RIGHTS LAW 19
(1999).
54.CRLP & CLF, supra note 12, at 40.
55.UN Committee on Economic, Social and Cultural Rights, The Right to the Highest Attainable Standard of Health, General Comment 14, UN Doc. E/C/12/2000/4 para 23.
56.Adopted in 1989, U.N. Doc. A/44/49, entered into force 2 September 1990.
57.See, C.A. PACKER, THE RIGHT TO REPRODUCTIVE CHOICES 85 (1996); and D. Fottrel, One Step Forward or Two Steps Sideways? Assessing the First Decade of the Children’s Convention on the Rights of the Child, in REALIZING CHILDREN’S RIGHTS: 10 YEARS OF THE CONVENTION ON THE RIGHTS OF THE CHILD (D. Fottrel ed., 2000), at 4 (castigating the drafting style of the Convention as being broadly
framed to the extent that their meanings are ambiguous and/or they fail to improve on existing standards).
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intention of the drafters of this article could have been made more explicit to avoid this unnecessary ambiguity.58 The poor use of language here is a reflection of opposition to sexual health education and services for adolescents. Based on this, Packer submits that this provision neither includes nor excludes adolescents from preventive health care services.59
However, in its General Comment 4, the
Committee of the CRC has urged states to develop and implement
programmes that ensure provision of sexual and reproductive
health services, including access to contraception, for
adolescents.60 The Committee further
imposes obligations on states to ensure that health facilities,
goods and services (including contraception) are of good quality
and are sensitive to the specific needs of adolescents.61 Also, in one of its Concluding
Observations to Belize, the Committee has noted with great
concern the high teenage pregnancies existing in the country and
therefore urged the government of Belize to ensure comprehensive
and appropriate access to sexual and reproductive health care
services for all adolescents in the country.62
A health care service that is sensitive to the needs of
adolescents must no doubt respect their autonomous
Furthermore, the right to health has been guaranteed under Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),63 which provides that states shall take all necessary measures to eliminate discrimination against women in the field of health care in order to ensure access to treatment for women on equal basis with men. This provision is very important in ensuring access to contraception for female adolescents and improving their health. As shown above, lack of access to contraception can compromise the health of adolescents. In addition to this provision, Article 16 guarantees the right to family planning services for all women. Also, Article 14 specifically guarantees access to family planning
58.See, S. Toope, The Convention on the Rights of the Child: Implications for Canada, in M. CHILDREN’S RIGHTS: A COMPARATIVE PERSPECTIVE 33 (Freeman ed., 1996), at 43 (where the provisions of the Convention have been criticized for being ‘loosely, if not sloppily’ drafted). See also, D. Gomien,
Whose Rights (and whose duty) Is it? An analysis of the Substance and Implementation of the Convention on the Rights of the Child, 7 N. Y. L. SCH. J. HUM. RTS 162 (1989).
59.PACKER, supra note 57, at 85.
60.Committee on the Rights of the Child, Adolescent
Health and Development in the Context of the Convention on the
Rights of the Child, General Comment No. 4, CRC/GC/2003/4
61.Id., ¶ 39(c).
62.Committee on CRC Concluding Observations: Belize UN Doc CRC/C/146 2005, ¶ 347.
63.Convention on the Elimination of All Forms of Discrimination Against Women, GA Res 54/180 UN GAOR 34th Session Supp. No 46, UN Doc A/34/46 1980.
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services for women in rural areas. These provisions of CEDAW are one of the most explicit and perhaps broadest recognitions of the general right to family planning treatment (including access to contraception), for women especially female adolescents.64
In its clarification of the content of CEDAW, the CEDAW Committee has observed that its provisions guarantee access to health care services, including services on contraception and STIs prevention to adolescents.65 In what appears to be an affirmation of the sexual autonomy of adolescents, the Committee in its General Recommendation 24 has urged states parties to ensure access to sexual and reproductive health care services, without prejudice for all women and girls.66
At the regional level, the right to health is
guaranteed in the major human rights instruments under the
African human rights system. For instance, Article 16 of the
African Charter on Human and Peoples’ Rights (African Charter)67 provides that every individual shall
have the right to the best attainable state of physical and
mental health. This provision is broad enough and would seem to
encompass access to sexual health services including
contraception. Indeed, in the Purohit case
the African Commission on Human and Peoples’ Rights (African
Commission) has held that ‘Enjoyment of the human right to
health as it is widely known is vital to all aspects of a
person's life and
The Protocol to the African Charter on the Rights of Women (Women’s Protocol),70 the most recent of the human rights instruments in the region, contains, in
64.CRLP & CLF, supra note 12, at 40.
65.General Recommendation 24 of CEDAW on Women and Health, UN GAOR, 1999, Doc A/54/38 Rev 1.
66.Id., para 21.
67.OAU Doc CAB/LEG/67/3/Rev 5, adopted by the Organization of African Unity, 27 June 1981, entered into force 21 October 1986.
68.Purohit & Moore v. The Gambia, Communication 241/2001 decided at the 33rd Ordinary Session of the African Commission held from 15th – 29th in Niamey, Niger, May 2003.
69.OAU Doc. CAB/LEG/24.0/49 (1990), entered into force Nov. 29, 1999.
70.Adopted by the 2nd Ordinary Session of the African Union General Assembly in 2003 in Maputo, CAB/LEG/66.6 (2003), entered into force 25 November, 2005.
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its Article 14, elaborate and explicit provisions recognizing the right to health, including sexual and reproductive health of women. This important article further provides that states should respect and promote a woman’s right to control her fertility, decide the number and spacing of her children, choose any method of contraception, self- protection from sexually transmitted infections including HIV/AIDS, legal abortion in certain situations and family planning.
Also, the provision enjoins states parties to
take appropriate measures to ‘provide adequate, affordable and
accessible health services, including information, education and
communication programmes to women especially those in rural
areas.’ By these unique and radical provisions, the Women’s
Protocol has become a
In addition to the above mentioned human
rights instruments, there are various
71.See, Center for Reproductive Rights
(CRR), Protocol on the Rights of Women in Africa: An Instrument
for Advancing Reproductive and Sexual Rights (Briefing Paper,
2005), at
72.See, F. Banda, Blazing a Trail: The African Protocol on Women’s Rights Comes into Force, 50 J. AFR. L. 81 (2006); C.M. Danwood, Reclaiming (Wo)manity: The Merits and Demerits of the African Protocol on Women’s Rights, 53 NETHERLANDS INT’L L. REV. (2006).
73.ICPD, supra note 1, ¶ 7.41.
74.ICPD+5 Key Actions, supra note 11.
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(MDGs) in 2005, it was reiterated that to achieve the health- related targets of the MDGs, it would be necessary to ensure universal access to sexual and reproductive health care services for all by the year 2015.75 This will surely include access to information and services related to contraception.
The Maputo Plan of Action, which was the brain child of African ministers of health, has recognized that facilitating access to sexual health services including contraceptive services for adolescents is imperative for attaining universal access to sexual and reproductive health services in the region.76 It particularly urges African governments to implement policies and measures that support provision of sexual and reproductive health care services (including those related to contraception) addressing the needs of adolescents in the region. Undoubtedly, such policies and measures must recognize the autonomous decision- making capability of adolescents to seek sexual health services
B. The Right to Information and Education on Sexual Health
The right to freedom of information is a well recognized right under international law. For example, Article 19 of the Covenant on Civil and Political Rights77 guarantees the right to information of all. More specifically, in relation to sexual health information, Articles 10(h) and 16.1(e) of CEDAW recognize the rights of women to access to information related to family planning generally, including those in rural areas. These provisions are broad enough as to include access to contraceptive information to adolescents, especially female adolescents.
Adolescents require accurate information with regard to their sexual health, including information related to contraception; otherwise they may take decisions which could be injurious to their health and lives.78 Indeed, the Committee on CEDAW has urged states to provide without prejudice, access to information and education on sexual health information (including those related to contraception) to girls within their
75.See, The Draft Resolution of the
76.Maputo Plan of Action for the Operationalization
of the Continental Policy Framework for Sexual and
Reproductive Health and Rights
77.G.A. Res. 2200, U.N GAOR, Supp. NO. 16 at 52, U.N DOC. A/6316 (1966), 999 U.N.T.S. 171, 174 (entered into force on March 23, 1976) (hereinafter ICCPR).
78.See, CRR, supra note 71, at 4.
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countries.79 The Committee further explains that access to sexual health information and education forms an integral part of the enjoyment of the right to health. According to the Committee, states are obligated to ‘ensure the rights of female and male adolescents to sexual and reproductive health education by properly trained personnel in specially designed programs that respect their rights to privacy and confidentiality’.80 Similarly, the Committee in its General Recommendation 21 has noted as follows:
In order to make an informed decision about safe and reliable contraception measures, women must have information about contraceptive measures and their use, and guaranteed access to sex education and family planning services as provided in article 10(h) of the Convention.81
In relation to children and adolescents, Article 13(1) of the CRC specifically guarantees to young people, the right to ‘seek, receive and impart information and ideas of all kinds’. This provision is broad enough to accommodate information related to contraception for adolescents. Under Article 13(2)(b) it is further provided that the right of a child to seek, receive and impart information may be limited for the sake of public health or morals. This provision easily provides a fertile ground for opposition to adolescents’ access to sexual health information, including access to contraceptive information. This can be particularly true for many African countries, as shown above, where deep religious and cultural norms on sexuality forbid premarital sex for young people. Adherents of these norms may rely on the provision of Article 13(2)(b) to justify their opposition to access to sex education or information on contraception for female adolescents in their countries.
But such an interpretation should not be permitted as it would be inconsistent with the spirit of the CRC, which is aimed at ensuring children’s and adolescents’ physical and mental well being. Freeman argues that if states were to take children’s rights seriously, then all actions taken with regard to them must be for their interests and not to their detriment.82 Thus, this provision deserves a purposive interpretation which must be to the benefit of children and adolescents. Indeed, the Committee on
79.See General Recommendation 24 of CEDAW, supra note 65, ¶ 18.
80.Id.
81.Committee on CEDAW, General Recommendation 21 on
Equality in Marriage and Family Relations, Thirteenth Session,
General Assembly Report Supp. No. 38 (A/49/38) paras
82.M. Freeman, The Limits of Children’s Rights, in THE IDEOLOGIES OF CHILDREN’S RIGHTS
29 (M. Freeman & P. Veerman eds., 1992), at 38.
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CRC in its General Comments 383 and 484 has
urged states to guarantee access to sexual health information
and education (including those related to contraception) for
adolescents. According to the Committee, states parties to the
Convention should refrain ‘from censoring, withholding or
intentionally misrepresenting
Adolescents have the right to access adequate information essential for their health and development and for their ability to participate meaningfully in society. It is the obligation of States parties to ensure that all adolescent girls and boys, both in and out of school, are provided with, and not denied, accurate and appropriate information on how to protect their health and development and practise healthy behaviours.87
Furthermore, in its General Comment 1 on the Aims of Education, the Committee has adopted a holistic approach to education so as to encompass certain life skills needed by children to develop a healthy lifestyle, good social relationships and responsibility, which are crucial to their pursuits of life options.88 Also, Article 24 of the CRC dealing with the right to health of children can be invoked to ensure access to contraceptive education and information for adolescents.
The Committee on ESCR, in its General Comments 14 on the right to health and 13 on the right to education, provides a good basis for ensuring access to contraceptive information for adolescents. For example, in its General Comment 14 the Committee notes that the enjoyment of the right to health can only be realized if access to health- related information, including sexual health information, is guaranteed.89
83.Committee
on the Right of the Child, HIV/AIDS and the Right of the
Child, General Comment No. 3, CRC/GC/2003/3
84.General Comment 4 of CRC, supra note 60, ¶ 28.
85.General Comment 3 of CRC, supra note 83, ¶ 16.
86.Id.
87.General Comment 4, supra note 60, ¶ 26.
88.Committee on CRC, The Aims of Education, General Comment 1, CRC/GC/2001/1 April
2001, ¶ 9.
89.General Comment 14, supra note 55, ¶ 23.
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Also, in its General Comment 13 on the right to education, the Committee reasons that education must be provided for all and must adapt to the changing societies. This can be interpreted to imply ensuring access to health education needed for the development of adolescents.90 Indeed, the Committee in some of its Concluding Observations has interpreted the provision on the right to education to also include sexual health education.91 Similarly, the Committee has linked lack of sexual health education to high incidence of unwanted pregnancies and abortions.92
As noted earlier, the right to freedom of information is explicitly guaranteed under Article 19 of the ICCPR. Although this provision is generally worded, it has been interpreted by the Human Rights Committee to request governments to provide sexual health, including contraceptive education, to their citizens.93 Coliver has explained that women need basic information about their reproductive physiology including the ways diseases can be transmitted sexually, the ways risk of transmission can be minimized, the benefits and risks of various methods of contraception, and safe options to adopt when those methods fail.94 She notes further that without information, an individual is unable to make crucial decisions with regard to matters concerning his/her reproductive health, thus resulting in violation of an individual’s rights to liberty and dignity.95
Under the African Children’s Charter, Article 14(f) enjoins states to take measures to realize the right to health of children by developing preventive health care and family life education and provision of services. No doubt this provision is an improvement on the ambiguous provision of Article 24 of the CRC. It clearly obligates states to ensure that information and education in relation to sexual health is made available to children and adolescents. Also, under Article 11 of the Charter the right to education for children is guaranteed. This can similarly be relied on to facilitate
90.See, C.A. Packer, Preventing Adolescent Pregnancy: The Protection Offered by International Human Rights Law, in 5 INT’L J. CHILD. RTS (1997), at 65.
91.See e.g., Concluding Observations of the
Committee on Economic, Social and Cultural Rights: Cameroon,
92.CRLP & CLF, supra note 12.
93.For example, in one of its Concluding
Observations to Poland, the Committee asked the state party to
‘introduce policies and programmes promoting full and
94.See, S. Coliver, The Right to Information Necessary for Reproductive Health and Choice under International Law, 44 AM. UNIV. L. REV. (1995).
95.Id., at 1288.
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access to information on sexual health to adolescents. Thus, it has been argued that the Charter’s holistic view and approach to rights to health and education of children easily provides a platform for ensuring access to sexual health information, including information related to contraception for adolescents.96
In a similar version as the ICCPR, the African
Charter in its Article 9 equally provides for the right to
information for all. This, as earlier stated, can be broadly
interpreted to apply to providing sexual health information,
especially information related to contraception for adolescents.
The Women’s Protocol in Article 12(2) enjoins states to promote
literacy among women. This, no doubt, will include sexual health
education including education related to contraception. Since a
strong correlation exists between girls’ access to education and
literacy and capacity to protect themselves from sexual
The right to information and freedom of
expression over the years has evolved as to impose concrete and
immediate obligation on states to provide access to information
and to refrain from interfering with the communication of
information that is essential for the promotion and protection
of sexual health and choices.98 Clarifying
the nature of this right, the European Court of Human Rights in
Open Door Counseling & Dublin Well Woman
Centre v. Ireland99 has held
that any attempt by a state to hinder access to sexual health
information will amount to a violation of the right to
information under international law. While recognizing the fact
that this right is not absolute, the court further held that any
restriction on this right must be justifiable at law. In the
same manner, the African Commission on Human and Peoples’ Rights
has held that the freedom of expression is a basic right that is
essential to an individual’s personal development.100 Coliver argues that the obligation
created by this right is both positive and negative. That is,
governments are
96.CRLP & CLF, supra note 12, at 42.
97.R.J. COOK ET AL, REPRODUCTIVE HEALTH AND HUMAN RIGHTS: INTEGRATING MEDICINE, ETHICS AND LAW 211 (2003); Center for Reproductive Rights, supra note 71.
98.See, Durojaye & Muchiri, supra note 40.
99.Eur. Ct. H.R. (ser. A) (1992) 246.
100.See, Constitutional Rights Project and Others v. Nigeria (2000) AHRLR 227 (ACHPR
1999).
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sexual and reproductive health for their citizens and at the same time governments must not hinder access to this form of information.101
In addition to the provisions of these binding
human rights instruments, there are also consensus statements
and resolutions supporting the need for sexual health
information for adolescents. For instance, at the ICPD it was
agreed that sexual health information should be made available
to adolescents so as to help them understand their sexuality and
protect them from incidences of sexually transmitted infections
and unwanted pregnancies.102 Similarly
at Beijing, governments of the world recognized the peculiar
vulnerability of adolescents to sexual and reproductive
At the regional level, the Maputo Plan of
Action agreed to by African health ministers in Maputo in 2006,
emphasized the importance of creating an enabling environment
for women and adolescents and empowering them so as to safeguard
their sexual and reproductive health.104 This
will obviously include guaranteeing access to health related
information, particularly contraceptive information, which will
help adolescents protect themselves from STIs including
HIV/AIDS. A state may be in violation of the right to health if
it distorts
C. The Right to Life
Lack of access to sexual health services, especially contraceptive services for adolescents can lead to deleterious consequences. As shown above, inaccessibility to comprehensive information and services on sexual health including information and services related to contraception may endanger the lives of adolescents. It is no longer contestable that issues of sexual and reproductive health are matters of life and death.105
101.Coliver, supra note 94, at 1293.
102.ICPD, supra note 1, ¶ 7.41.
103.UN, supra note 10, ¶ 106(2) (m).
104.Special Session: The African Union Conference of
Ministers of Health, Universal Access to Comprehensive Sexual
and Reproductive Health Services in Africa: Maputo Plan of
Action for the Operationalization of the Continental Policy
Framework for Sexual and Reproductive Health and Rights,
105.See, A. Glasier et al, Sexual and Reproductive Health: A Matter of Life and Death, 368
LANCE (2006).
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Indeed, it is now settled at international law that a denial of health care services will impugn on the right to life of an individual.106 The right to life is adequately guaranteed in virtually all international and regional human rights instruments. The UDHR in its Article 3 guarantees the right to life of all. Similarly, the ICCPR in its Article 6 provides for the right to life.
The Human Rights Committee monitoring states’
compliance under the ICCPR in its General Comment 6 on the right
to life has explained that the right to life should be broadly
understood as to intersect with health issues such as maternal
mortality and treatment and prevention of diseases.107 In the Committee’s view, the right to
life is not only the most fundamental of all human rights but it
is also
In the same manner, the Committee on CESCR in
its General Comment 14 has explained that the violation of the
right to health can interfere with the enjoyment of other rights
such as life, dignity, liberty and
Yamin has similarly hinted that
106.See, General Comment 14, supra note 55; see in particular, Pachim Banga Khet Majoor Samity v. State of West Bengal (1996) 4 SCC 37 (where a denial of emergency medical treatment has been held to be in violation of the right to life).
107.UN GAOR Human Rights Committee 37th session Supp. No. 40.
108.See, Human Rights Committee Concluding Observation: Chile 30/3/99 UN Doc CCPR/79/Ad. 104, 15.
109.See, e.g, Human Rights Committee Concluding Observations: Bolivia 01/04/97 UN Doc CCPR/79/Ad. 74, 22; Concluding Observation: Guatemala 27/08/2001 UN Doc CCPR/CO/72GTM, 19.
110.Cook et al, supra note 97, at 162.
111.A.E. Yamin, Not Just a Tragedy: Access to Medication as a Right under International Law, 21 BOSTON UNIV. INT’L L. J. 334 (2003). See also, V. Leary, The Right to Health in International Human Rights Law, 1 HEALTH & HUM. RTS 27 (1994).
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tribunals such as the European Commission on Human Rights. In Tavares v. France,112 for example, the Commission has held that the right to life guaranteed under the European Convention extends beyond a state’s duty to abstain from intentional killing but also includes taking necessary steps to protect unintentional loss of life.
In a region where adolescents bear the greatest burden of STIs, unwanted pregnancies, incidences of unsafe abortions and deaths resulting from early pregnancies, all due to lack of access to contraception, it will amount to an understatement to say that adolescents’ lives are threatened. Evidence abounds to show that each year millions of young women die due to sexual and reproductive ill health.113 The sad aspect of these deaths is that most of them are avoidable. Where an adolescent cannot get access to the treatment or means of treatment he/she needs most, death is likely to be the necessary consequence.
More importantly, with respect to contraceptive services, inability of a state to ensure confidential services to adolescent patients may not only hinder access to sexual health treatment to adolescents, but may also make them forego such treatments. The likely consequences of this will be risk of pregnancy, STIs, including HIV, and perhaps resort to unsafe abortion. Indeed, it is a well known fact that each year tens of thousands of young women lose their lives or suffer from morbidity due to lack of confidential sexual health treatment.114 Comprehensive access to contraceptive information and services can avoid some of these deaths or morbidities.
Under the CRC, the right to life, survival and development of a child is guaranteed in Article 6. The Committee on CRC has observed that the obligation of states to realize the right to life of adolescents include paying attention to their sexuality and eliminating all conditions that may be injurious to their health needs.115 Also, in order to ensure the health and survival of adolescents, it is imperative that they must be assured access to comprehensive sexual health care, including contraceptive services, peculiar to their needs. In this regard, the Committee has noted that ‘effective prevention programmes are only those that acknowledge the realities of the lives of adolescents, while addressing sexuality by ensuring equal access to appropriate information, life skills and to preventive measures.’116
112.App. No. 16593/90 Euro. Comm. HR.
113.See, e.g., Glasier et al, supra note 105.
114.R.J. Cook & B. Dickens, Recognizing Adolescents’ Evolving Capacities to Exercise Choice in Reproductive Healthcare, 70 INT’L J. GYN. & OBST. 17 (2000).
115.Committee on CRC General Comment 3, supra note 83, ¶ 11.
116.Id.
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At the regional level, the right to life of
all individuals including children and adolescents is explicitly
guaranteed under Article 4 of the African Charter. Article 4
provides that every human being shall be entitled to the respect
for his/her life and the integrity of his/her person. Whereas
Article 5 of the African Children’s Charter declares that:
‘Every child has an inherent right to life. This right shall be
protected by law.’ In a language similar to that of the African
Charter, the Women’s Protocol in its Article 4 equally
guarantees the right to life and security of all women. The
African Commission has affirmed the interrelatedness of all
human rights when it found in the SERAC case
that the Nigerian government was in violation of the rights to
health, life, clean environment and so on due to pollution
caused by the activities of
D. The Right to
The concept of
Explaining the importance of Article 2 of the ICCPR, the Human Rights Committee118 has noted that ‘Non discrimination together with equality before the law and equal protection of the law without discrimination constitutes a basic and general principle relating to the protection of human rights’. Similarly, the Committee in some of its Concluding Observations has noted that lack of access to contraception to women
117.See, Social and Economic Rights Action Centre (SERAC) and Another v. Nigeria (2001) AHRLR 60 (ACHPR 2001).
118.General
Comments of the Human Rights Committee on the
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amounts to discrimination.119 The CEDAW in its Article 2 urges states to take measures to eliminate all forms of discrimination against women. Article 12 specifically provides for access to health care services to women on equal basis with men. This provision no doubt can be invoked to ensure access to contraceptive information and services for female adolescents.
Indeed, as mentioned earlier, the Committee on CEDAW has interpreted this provision to apply to the needs of girls.120 The Committee has urged states to eliminate discrimination in health care services to women and girls in their country. In the same manner, the Committee on CESCR has noted that access to health care services, including sexual and reproductive health services, should be guaranteed to all without discrimination as to sex or age.121 These clarifications would seem to cover elimination of discrimination to female adolescents seeking contraceptive information and services.
Virtually all the above mentioned instruments
proscribe discrimination on prohibited grounds that may impair
an individual’s rights to enjoy the fundamental rights
guaranteed under these instruments. The term ‘other status’
contained in almost all of these instruments has been explained
to include age, economic or marital status.122
One of the core principles underlining the CRC is
119.See, e.g., Concluding Observations of the
Human Rights Committee: Georgia,
120.General Recommendation 24 of CEDAW, supra note 65, para 18.
121.General Comment 14 of Committee on ESCR, supra note 55.
122.See, e.g., Committee on ESCR in its
General Comment 20 on
123.Fottrel, supra note 57, at 10.
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states to address the needs of girls in many developing countries. She argues further:
The main protection offered girls is found
in article 2, which guarantees equality and
While this argument would seem valid and not
to be taken lightly, it should, however, be noted that the
Committee on CRC has tried as much as possible to give
attention to gender issues in its interpretations of the
provisions of the Convention. For instance, the Committee has
explained that discrimination against girl children often
leads to denial of access to sexuality information and
services to them. It further expresses concern about
Under the African human rights system, Article 3 of the African Children’s Charter proscribes discrimination against every child irrespective of the child’s or his/her parents’ race, religion, sex, ethnic group, language, birth and other status. Equally, Article 2 of the Women’s Protocol specifically calls for states to eliminate all forms of discrimination against women in the region. The Protocol broadly defines discrimination in the following way:
Any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their mental status, of human rights and fundamental freedoms in all spheres of life.126
Additionally, Article 5 of the Protocol urges states to take adequate steps and measures to eliminate harmful traditional practices which entrench discrimination against women and girls in the region. Article 3 of the African Children’s Charter is not different from
124.Id.
125.Committee on CRC General Comment 3, supra note 83, ¶¶ 7 & 8.
126.Article 1 of the Women’s Protocol, supra note 70.
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Article 2 of the CRC. Therefore, the criticism referred to above with regard to the gender insensitivity of the CRC equally applies to the African Children’s Charter. Given the fact that the African Children’s Charter came after the CRC, and bearing in mind the peculiar challenges faced by adolescent girls in Africa, one would have thought that the drafters would avoid the mistakes of the CRC and give more attention to the needs of adolescent girls in the region.
Unfortunately, this is not the case. The
African Children’s Charter is silent on important issues, such
as prevalence of child marriages in Africa, which is
potentially harmful to the health of girls. However, the
Women’s Protocol, unlike the African Children’s Charter,
contains broad and radical provisions relating to the sexual
and reproductive health needs of women and girls in Africa.
For instance, as argued earlier, the Protocol explicitly
guarantees women’s sexual and reproductive rights, provides
that women should be protected from STIs including HIV/AIDS,
recognizes women’s and girls’ rights to seek contraceptive
services and forbids marriage of a girl under the age of 18.
One may unarguably conclude that the provisions of the Women’s
Protocol are by far the most
The African Charter in its Article 2
provides that every one is equal before the law and that no
one should be discriminated against on grounds such as gender,
religion, political beliefs or other status. Article 3
similarly guarantees to every individual the right to equality
and equal protection of the law. The African Commission on
Human and Peoples’ Rights in the case of Legal
Resource Foundation v. Zambia127 has
explained the relevance of Articles 2 and 3 of the African
Charter dealing with
The right to equality is very important. It means that citizens should be expected to be treated fairly and justly within the legal system and be assured of equal treatment before the law and equal enjoyment of all the rights available to all other citizens. The right to equality is important for a second reason. Equality or lack of it affects the capacity of one to enjoy many other rights.
127. (2001) AHRLP 84 (ACHPR 2001), ¶ 63.
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This decision provides a strong basis for arguing that adolescents, particularly adolescent girls, should not be denied access to contraceptive information and services on the grounds of gender, age or marital status. Governments will need to strive to remove all forms of barriers to access to sexual health services for adolescents in their countries.
At both the ICPD and the Beijing conferences, it was agreed that if improvements were to be brought to women’s health, there will be need to address gender inequality across the globe. The Beijing conference particularly recognized that some customary practices are harmful to the health of women and perpetuate discrimination against them.128 Both conferences also resolved that women should enjoy their sexual and reproductive rights without coercion, violence or discrimination.129 One of the targets of the Millennium Development Goals (MDGs) is to address the pervading gender inequality worldwide. In this regard, goal No 3 of the MDGs emphasizes the importance of promoting gender equality and women’s empowerment as an effective pathway to combat poverty, hunger and disease and to stimulate truly sustainable development.130 At the World Summit on Children it was affirmed as follows:
We are determined to eliminate all forms of discrimination against the girl child throughout her life cycle and to provide special attention to her needs in order to promote and protect all her human rights including her right to be free from coercion and from harmful practices and sexual exploitation. We will promote equal access to basic social services such as … health care including sexual and reproductive health care….131
The Solemn Declaration on Gender Equality in Africa132 enjoins African countries to accelerate the implementation of gender specific economic and social programmes so as to prevent the spread of STIs, including HIV/AIDS, among women. In addition states are to ensure ‘the active promotion and protection of all human rights for women
128.UN, supra note 10.
129.Id., ¶ 91 and ICPD, supra note 1, ¶ 7.8.
130.UN Millennium Declaration and Millennium Development Goals, 2000 A/RES/55/2.
131.UN General Assembly Resolution, A World Fit for
Children, adopted at the Twenty- Seventh Special Session held
on 11 October 2002,
132.Solemn Declaration on Gender Equality in Africa, adopted at the AU Assembly of Heads of State and Government meeting in Addis Ababa in July 2004.
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and |
girls to development…’133 This can be interpreted to |
mean addressing |
discrimination relating to access to contraceptive information and services for adolescents in the region. Furthermore, at the Grand Bay Declaration and Plan of Action, African governments were urged to work ‘assiduously towards elimination of discrimination against women and the abolition of cultural practices which demean and dehumanize women and children.’134
E. The Right to Autonomy
This right encompasses the right of an individual to determine his or her sexual and reproductive autonomy. Although nowhere is this right specifically guaranteed in any human rights instruments, the right nonetheless is intrinsically linked with other rights such as rights to privacy, security, liberty and dignity. These combinations of rights form the basis of an individual’s rights to make choices with regard to his or her sexuality. They also support the fact that adolescents are entitled to seek confidential contraceptive information and services without the need for parental consent.
As stated earlier, unless the privacy and
confidentiality of adolescents is guaranteed, they may avoid
seeking necessary help with regard to their sexual health. It
must be noted that the right to independent
Indeed, the Human Rights Committee has
observed that failure on the part of a government to enact
appropriate legislation and ensure access to contraception and
sexual health information amounts to a violation of the right to
sexual and reproductive
133.Id., ¶ 6.
134.The first OAU Ministerial Conference on Human
Rights held from
135.Cook & Dickens, supra note 114, at 20.
136.CRLP & CLF, supra note 12.
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a view to enacting laws that will facilitate access to comprehensive family planning services, including contraceptive services, so as to provide women with options.137
Under the CRC there is no
In some of its Concluding Observations to states parties to the Convention, the Committee on CRC has affirmed the need to guarantee adolescents’ right to privacy while seeking sexual health information and services. For example, the Committee in its Concluding Observations to Djibouti observed that lack of confidentiality can be a barrier to adolescents’ access to sexual health services.140 The Committee has equally advocated that adolescents’ health care services are assured without the need for parental consent.141 In its General Comment 3, the Committee specifically urges states parties to ensure children’s and adolescents’ right to privacy and confidentiality in the context of HIV/AIDS services.142 Similarly, the Committee in its General Comment 4 has noted that for the health and development of adolescents to be promoted, states are enjoined to respect strictly their confidentiality and privacy, particularly with regard to health related matters.143
In addition to the above, Article 16(1) of CEDAW guarantees a woman’s right to decide freely and responsibly the number and spacing of her children and access to information and the means to do so. This provision would seem to be one of the important provisions affirming an individual’s right to sexual and reproductive health autonomy. Indeed, the Committee on CEDAW in its General Recommendation 24 has emphasized on the need for women and girls to be assured their right to sexual and
137.Concluding Observation: Argentina, supra note 119.
138.CRLP & CLF, supra note 12, at 44.
139.T. Hammerberg, The UN Convention on the Rights of the Child and How to Make it Work,
12 HUM. RTS Q. 100 (1990).
140.See, Concluding Observation of CRC: Djibouti, UN. Doc CRC/C15/Add.131.¶ 46.
141.General Comment 4, supra note 60.
142.General Comment 3, supra note 83, ¶ 24.
143.Id., ¶ 11.
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reproductive
More importantly, the Committee has interpreted the provision on the right to health of CEDAW as guaranteeing confidential sexual and reproductive health information and services.147 The Committee has called on states parties to ensure, through properly trained personnel, the right of male and female adolescents to sexual health services and information. It equally calls on states to design programmes that will respect adolescents’ privacy and confidentiality in health care services (including contraceptive services).148
Even though the ICESCR contains no provision
on the right to privacy, the Committee on CESCR has equally
interpreted the right to health guaranteed under the Covenant,
to include the freedom of an individual to exercise his or her
sexual and reproductive choices and the right to have access to
‘safe, effective, affordable and acceptable methods of family
planning of their choice as well as the right of access to
appropriate
144.General Recommendation 24 of CEDAW, supra note 65, ¶ 14.
145.See, e.g., Concluding Observations of the
Committee on CEDAW: Belize, 21st Sess.,
&271st mtgs., para. 211, U.N.
Doc. A/50/38, paras.
146.See, Concluding Observations of the
Committee on CEDAW: Indonesia, 377th mtg., para. 284(c), U.N.
Doc. A/53/38 (1998); and Concluding Observation s of the
Committee on CEDAW: Turkey, 16th Sess.,
147.General Recommendation 24 of CEDAW, supra note 65, ¶ 18.
148.Id.
149.General Comment 14 of the Committee on ESCR, supra note 55, ¶ 23
150.Id.
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The American Supreme Court in Casey v. Population Services International,151 while relying on the Fourteenth
Amendment of the US Constitution to strike down a legislation
which criminalizes the distribution of contraception to
adolescents, has held that minors have the fundamental right to
choose ‘whether or not to beget a child.’ In another case
involving the constitutionality of a legislation proscribing the
use of contraception to unmarried persons, the court held that
‘If the right to privacy means anything, it is the right of the
individual, married or single, to be free from government
intrusion into matters so fundamentally affecting a person as
the decision whether to bear or beget a child.’152 These decisions clearly demonstrate
willingness on the part of the courts to uphold adolescents’
autonomous
Under the African regional human rights system, the African Children’s Charter guarantees the right to privacy for children in its Article 10. While there is no specific provision on the right to privacy in the African Charter, Article 5 of the Charter does recognize an individual’s right to dignity. Also, Article 3 of the Women’s Protocol guarantees women’s rights to human dignity.
It should be noted that when adolescents are prevented from seeking information and services with regard to their sexual health, particularly access to contraception, their dignity as human beings is impugned. Margalit has explained that dignity, unlike honour, is not a positional good. It is supposed to be accorded to everybody, by virtue of the most universal common denominator of being human.153 Shalev has similarly argued that the right to autonomy in making health decisions, particularly sexual and reproductive health decisions, is founded upon an individual’s fundamental right to liberty.154 All individuals, including adolescents, have the liberty to make choices with respect to their sexual health. That is, one is entitled to the recognition of one’s capacity as a human being to exercise choices in the shaping of one’s life.155
During the ICPD, it was affirmed that all individuals shall have the freedom to decide freely without restriction regarding their sexual and reproductive health needs. More particularly, this consensus statement further made reference to the fact that
151.(1977) 678433 US (SC).
152.Eisentadt v. Bard (1973) 405 US 438.
153.A. MARGALIT, THE ETHICS OF MEMORY 220 (2003).
154.C. Shalev, Rights to Sexual and Reproductive Health: The International Conference on Population and Development and the Convention on the Elimination of All Forms of Discrimination against Women, 4 HEALTH & HUM. RTS 46 (2000).
155.I. Berlin, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY (I. Berlin ed., 1969), at
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adolescents needed to be assured of respect
for informed consent, confidentiality and privacy so as to
address issues of sexual abuse and other sexual and reproductive
health matters.156 This position was
reiterated at the ICPD+ 5 when governments were called upon to
guarantee access to appropriate
A similar position was taken at Beijing where
it was agreed that respect for adolescents’ confidentiality and
privacy in health care services is essential in guaranteeing
their equality and securing their future.158
At the World Summit for Children, world leaders resolved
to take action to protect the rights of children and adolescents
by respecting their dignity and securing their
V. CONCLUSION
This article has shown that adolescents, especially female adolescents in Africa, continue to face threats to their health and lives due to lack of access to contraceptive information and services. Death and morbidities arising from sexual and reproductive ill health among adolescents in the region are preventable if adolescents have access to comprehensive sexual and reproductive heath services. It would appear that African countries are not paying enough attention to the health needs of their adolescents. Much more would need to be done in order to advance the sexual and reproductive health of adolescents in the region. More importantly, African governments must show commitment to the health of the young people by increasing their spending on the health of their population generally and young people in particular.
It would be recalled that at the Abuja Declaration160 African leaders agreed to commit not less than 15 per cent of their annual budgets to the health sector to address challenges posed by HIV/AIDS and other diseases in the region. However, several
156.ICPD, supra note 1, ¶ 7.45.
157.ICPD+5, supra note 11, ¶ 73(a).
158.UN, supra note 10, ¶ 93; Report of the
(2000), A/55/341, ¶ 79(f).
159.UN General Assembly Resolution, supra note 131, ¶ 4.
160.African
Summit on HIV/AIDS, Tuberculosis and other Related Infectious
Diseases, Abuja- Nigeria, April
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years after this promise, only few African
countries are meeting this target. Africa must realize that if
it must meet the
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CIVIL SOCIETY PARTICIPATION IN HEALTH SECTOR PLANNING, BUDGETING, AND MONITORING IN SELECTED DISTRICTS IN UGANDA
Sandra Kiapi*
ABSTRACT
This article highlights some of the
findings of a survey carried out by Action Group for Health,
Human Rights and HIV/AIDS (AGHA) Uganda on health sector
transparency, accountability and civil society participation
in health sector budgeting and planning in selected districts
of Uganda. It examines some components of participation
including the right of access to information and the
obligation of the state to seek the active and informed
participation of the public in decision making. Uganda has
embraced a participatory approach to developing plans and
budgets for the health sector. However, some components of the
right to participation in
I. INTRODUCTION
Public participation in decision making is
an essential component of a
* Former Executive Director, Action Group for Health, Human Rights and HIV/AIDS (AGHA), based in Kampala, Uganda. Email: <maliamaks@gmail.com>
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national and international level.”1 Individuals and communities affected by
health policy decisions are entitled to participate in the
identification of priorities and targets that guide policy
formulation.2 This requires the
active and informed participation of individuals and communities
in health decisions that affect them with Government taking
steps to facilitate effective participation of communities, by
ensuring the right to seek and receive
Transparency within the health sector is a prerequisite for public participation. In the context of health sector planning and budgeting, transparency is defined as the full disclosure of all relevant policy and fiscal planning information in a timely and systematic manner.5 The availability of information means decisions made will be backed by evidence. Civil society organizations (CSOs) in Uganda have a key role to play in monitoring the right to health by participating in health sector planning and budgeting at both the national and district levels. CSOs are important for public participation because in most cases they serve communities and various interest groups such as women, children, and people living with HIV/AIDS, among others. Their role and mandates put them in a unique position as they are often directly in touch with the communities they serve and therefore in position to effectively represent community interests.
The 1995 Constitution of Uganda underscores the importance of the active participation of all citizens at all levels.6 Civil society organizations were involved in the development of the Poverty Eradication Action Plan (PEAP).7 The Ministry of
1.Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health: E/C.12/2000/4, CESCR 11/08/2000 (hereinafter General Comment 14), para. 11.
2.PAUL HUNT, MISSION TO UGANDA: REPORT OF THE SPECIAL RAPPORTEUR ON THE RIGHT OF
EVERYONE TO THE ENJOYMENT OF THE HIGHEST ATTAINABLE STANDARD OF PHYSICAL AND MENTAL
HEALTH, E/CN.4/2006/48/Add.2 at 12.
3.HELEN POTTS, ACCOUNTABILITY AND THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH 10 (2008).
4.Id.
5.Daisy Owomugasho, Uganda, in BUDGET TRANSPARENCY AND PARTICIPATION: NINE
AFRICAN CASE STUDIES ( 2007), at 282.
6.UGANDA CONST.(1995), art. 176(2)(b), and National Objectives and Directive Principles of
State Policy.
7.GOVERNMENT OF UGANDA, POVERTY ERADICATION ACTION PLAN 6 (2000).
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Health recently took steps to allow civil society organizations to participate in health sector planning, budgeting and monitoring at the national level. In 2005, owing partly to limited public participation in health planning, budgeting and monitoring, some Uganda Government officials mismanaged grant money from the Global Fund to Fight AIDS, Tuberculosis and Malaria (GFTAM).8 Funds for AIDS, TB and malaria programs were misappropriated, creating skeptism from both donors and the international community on Uganda’s ability to manage its grants.9 As a result, the GFTAM required countries to have civil society representation in the Country Coordination Mechanisms (CCM) to participate in planning, but also to act as a watch dog on the use of resources.10
In 2007, the Action Group for Health, Human Rights and HIV/AIDS (AGHA) Uganda, launched a targeted campaign to build the capacity of selected Ugandan CSOs to advocate for government accountability and transparency in the health sector. AGHA and its partners developed a tool with a set of indicators and questions addressed to health planners and CSOs to monitor both the use of health resources and the level of civil society participation in health planning, budgeting, and monitoring at the national and district level. The questions were geared towards exploring the level and effectiveness of participation, as well as the barriers to CSO participation in the health sector in Uganda. The questions explored procedures taken in developing the national plan and district annual work plans, the parties involved in the planning process, the number and type of meetings attended by CSOs, whether CSOs were adequately prepared for meetings and if views were listened to, as well as the availability of health policy documents in lower level facilities, among others.
This article discusses the findings of this data collection process and explains some of the limitations which affect the level of civil society participation in health sector planning, budgeting and monitoring. First, this article gives a background to the survey and lays out the methodology used. Second, it provides a brief overview of the legal and policy framework for CSO participation in health decision making. Third, it explains the findings of the survey. Fourth, it briefly discusses the implications of the findings and finally draws conclusions. The findings reveal that health sector planning process at the national level is a collaborative process including various stakeholders
8.Charles Wendo, Why Global Fund Whip is Cracking Now, THE NEW VISION, November 1, 2008, at 10; C. Natukunda, Who is Responsible for What? THE NEW VISION, November 1, 2008, at 11.
9.Wendo, id.
10.INTERNATIONAL TREATMENT PREPAREDNESS COALITION,MAKING GLOBAL FUND COUNTRY COORDINATING MECHANISMS WORK THROUGH FULL ENGAGEMENT OF CIVIL SOCIETY (Uganda Country Report, 2008), at 53.
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which gives opportunity for CSO participation and allows health priorities and budgets to be influenced. However, the structures for CSO representation at the national level do not allow for democratic representation as there is no democratic process in place for selecting representatives.11
At the district level, although there are
structures and policies in place to encourage CSO participation
in health sector planning, budgeting and monitoring, the
implementation of these policies and structures remains weak.
The results suggest a variety of reasons for weak participation
including a lack of open and transparent access to information
regarding health budgets, resources, and policies, limited
capacity of civil society in Uganda, a lack of coordination
within civil society, and a lack of trust between CSOs and the
political leadership. The Ministry of health and district
planners have not taken adequate steps to facilitate effective
participation of CSOs by ensuring the right to seek and receive
II. BACKGROUND
A. About AGHA
The Action Group for Health, Human Rights and HIV/AIDS (AGHA) is a non- governmental organization (NGO) founded in July 2003 to mobilize health professionals and health consumers to address issues of human rights as they relate to health, with a specific focus on HIV/AIDS.12 AGHA brings together doctors, nurses, other health professionals, and NGOs and other institutions interested in promoting the right to health, to create local and national networks dedicated to global health advocacy.
Uganda is one of the poorest countries in the world and has a heavy burden of preventable infectious diseases.13 Malaria constituents 15.4 percent of the total disease
11.The Health Policy Advisory Committee has 2 elected civil society representatives. However, the procedure by which they were voted remains unclear to CSOs that do not belong to their coalitions.
12.For more information, see Action Group for Health, Human Rights and HIV/AIDS (AGHA) Uganda at <www.aghauganda.org>.
13.The Government of Uganda has reaffirmed its commitment to achieving the Millennium Development Goals (MDGs), which show extensive overlap with National Poverty Eradication Action Plan (PEAP). Through the Health Sector Strategic Plan (HSSP) I and II, Uganda has prioritized its
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burden in the country.14 About 100,000 children are HIV infected and 50,000 in need of Anti Retroviral Therapy (ART), but only 26 percent of those in need receive ART.15 As of February 2009, about 160,000 patients had been initiated on ART which represents only 50 percent of those that are eligible for treatment.16 Uganda has a fertility rate of 7.1, one of the highest in the world.17 Neonatal and maternal conditions constitute the highest percentage of the burden of disease in the country at 20.8 percent.18 Greater resources than available are needed to deal with the ever increasing population and high disease burden.
Corruption continues to be a problem in Uganda’s health sector. The scandal over the mismanagement of GFTAM grants combined with less globally publicized but no less critical mismanagement of HIV, TB, and malaria medicines, threaten the health rights of the population. Weak monitoring systems in the government structures and laxity by the civil society and the public to aggressively monitor health sector spending have facilitated mismanagement of health sector funds. As a result, AGHA launched a targeted campaign to promote transparency and accountability in the health sector.
B. The Monitoring Tool
In order to better understand the engagement of civil society in health budgeting and monitoring in Uganda, AGHA developed a set of indicators for monitoring the use of health sector resources and civil society participation in Uganda. These indicators and the resulting data collection instruments were developed through participatory approaches involving other CSOs under the umbrella of Voice for Health Rights (VHR), a coalition of civil society organizations in the health sector. The purpose of the indicators was to assess the current status of accountability, transparency, and participation of civil society in the health sector in Uganda, in order to generate
allocation of the limited resources for
health as a commitment to progressively achieving the milestone
of 15% of national budget for health by 2010, and the amount per
capita that needs to be spent to meet the Uganda National
Minimum Health Care Package. See,
HSSP II,
14.Id., at 2.
15.Save the Children/Ministry of Gender, Labour and
Social Development, Calling for the
Realization of the Rights of Orphans and Other Vulnerable
Children, THE NEW VISION,
Friday November 21, 2008, at
16.Ministry of Health, Press Statement on the
17.MINISTRY OF HEALTH, ANNUAL HEALTH SECTOR PERFORMANCE REPORT, 2006/2007; GOVERNMENT OF UGANDA, UGANDA DEMOGRAPHIC HEALTH SURVEY (2006).
18.Id.
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information and data that could be used to inform and promote dialogue between health sector leadership and civil society, as well as the advocacy efforts by CSOs. The indicators and the resulting data collection tool focused on five areas of inquiry (i) Planning and financial accountability; (ii) Timeliness in release of funds; (iii) CSO meaningful participation; (iv) Access to information and (v) General management. The focus of discussion for this paper however is limited to health sector planning, CSO engagement and access to information which are directly linked to participation.
C.Methodology
1.The District Health System.— AGHA and its
partners collected data in eight districts and at the national
level. There are over 80 districts in Uganda each of which is
individually responsible for management of its health services.
The district is the key administrative unit in Uganda, with
lower administrative units known as County, Sub- counties,
parishes and villages.19 The District
Health System consists of various tiers under the overall
direction of the District Health Officer (DHO).20 Each district usually has a District
Hospital and the district is sub divided into health
2.The
19.Other departments include the District Educational Office and the District Forest Office.
20.The District Health System comprises a
21.Id.
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the procedures for district planning and budgeting, and to get financial figures on the planned and actual funds available for implementing programs in the financial year 2006/2007. These interviews also helped to assess the availability and accuracy of information. Interviews were also conducted with two CSO representatives to the national Health Policy Advisory Committee, as well as the Assistant Commissioner Planning/Health Services at the Ministry of Health.
Second, Focus Group Discussions (FGDs) were conducted in seven districts with about 10 to 12 members of CSOs including one or two lower level health center managers. The intention of the focus groups was to develop a broad and deep understanding of the opinions of the CSO staff, healthcare managers at the health sub- district about the district planning process, particularly in relation to CSO participation in planning, and access to health information. The notes from the interviews and FGDs were then transcribed and compiled according to districts in a database designed in line with the various thematic areas. The research theme then identified the emerging ideas or patterns. The emergent patterns and connections within and between the categories were identified, and the relative importance of the different themes and interconnections highlighted.22 The research team also collected and reviewed supplementary materials, from Government publications including the National Health Policy, Health Sector Strategic Plan II, and the 2007 Ministry of Health Transfers to the districts.
3. Challenges and Limitations of the
22. ELLEN
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III. LEGAL AND POLICY FRAMEWORK GOVERNING PUBLIC
PARTICIPATION IN DECISION MAKING
Although Uganda’s legal and policy framework that governs the health system has put in place measures to allow the public to participate in fiscal and policy planning and have access to public information, in practice there is greater public participation at the national than at the district level.
A.Legal Framework for Civil Society Participation at the National Level
1.Public
2.Access to
3.The Right to
23.Article 176 (1) of the Constitution states that
decentralization shall be based on the district as a unit
under which there shall be such lower local and administrative
units as Parliament may by law provide. The lower
administrative units on which the health sub districts are
24.Article 41 provides: “Every citizen has a right of access to information in the possession of the State or any other organ or agency of the State except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to the privacy of any other person.” The Access to Information Act, 2005 was enacted to promote an efficient, effective, transparent and accountable Government. The Act also seeks to promote transparency and accountability in all organs of the state by providing the public with timely, accessible and accurate information. This will empower the public to effectively scrutinize and participate in government decisions that affect them. However, the rules of procedure to regulate the procedures of this Act have however never been made hence delaying the effective operationalization of the law.
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medical services to the population.25 Article 39 recognizes the right of
every Ugandan to a healthy and clean environment. Article 45
recognizes that all those rights, including the right to health,
which are not mentioned explicitly shall not be disregarded.
Uganda is a party to the International Covenant on Economic,
Social and Cultural Rights which recognizes the right of
individuals and communities to participation in
B. The Policy Framework
The Ministry of Health (MoH) has created
structures and policies which allow civil society to participate
in health planning. The National Health Policy (NHP) calls for a
sector wide approach (SWAp) to health policy formulation.26 The Health Sector Strategic Plan
(HSSP) II
There is a growing recognition and
appreciation of the role of CSOs in health sector planning at
HPAC. As a result, CSOs are increasingly influencing policy at
the national level. One CSO representative on HPAC felt that
representation was effective because her views are taken into
consideration, and the views of the CSO representatives are
increasingly considered in
25.Objective XX of the 1995 Constitution of Uganda.
26.MINISTRY OF HEALTH, NATIONAL HEALTH POLICY 7 (1999).
27.Interview with Enid Wamani, Vice Chairperson, HPAC September 22, 2008. See also,
INTERNATIONAL TREATMENT PREPAREDNESS COALITION, supra note 10.
28.Interview with Enid Wamani, id.
29.Interview with Robinah Katiritimba, Uganda National Health Consumers Organization,
October 2008.
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by which the current representatives were
selected.30 The two persons on HPAC
represent over 1000 CSOs carrying out health related activities.
The MoH required CSOs at the national level to select their
representatives and then forward the names to the MOH with
evidence in form of minutes of the meeting. The names forwarded
came from only two
The Annual Government of Uganda (GoU)/Development Partner (DP) Joint Review Mission (JRM) is another mechanism for civil society participation in health sector planning. Through the JRM, the MOH invites CSOs and other stakeholders to review the Annual Health Sector Performance Report and determine whether overall performance has been satisfactory. The JRM also sets the priorities for the following year at the strategic level, through the identification of priority technical programmes, agreeing to undertakings and determining broad allocations for the budget cycle. AGHA participated in the JRMs in 2007 and 2008, and also contributed to a report on health sector performance in Kitgum district in 2008. Lastly, there is the National Health Assembly (NHA) which was created to provide an annual forum for the central and local governments, civil society, and development partners to review sector policy, plans and performance.
Although there is an increasing recognition of the role of CSOs in policy formulation at the national level, CSOs still face a number of challenges. Firstly, CSOs generally do not have a single voice. Each CSO, even while representing civil society in HPAC, has a mandate it adheres to, and a constituency it represents which is generally narrow. CSOs therefore do not speak as one voice. As one of the HPAC CSO representative stated, “I remain accountable to my constituency … the few issues I have raised have been listened to….”32 This is largely because there is no set criteria for selecting CSO representatives at these structures. Selection is based on prominence or visibility of a particular CSO within the Ministry of Health and a few selected coalitions.33 Secondly, although the CSOs that participate in these fora are required to
30.Minutes of AGHA meeting with CSO representatives, November 6, 2008.
31.Malaria and Early Childhood Illness NGO Secretariat (MACIS), UNHCO. By virtue of their nationwide scope of work, other representation comes from The AIDS Support Organization (TASO), African Medical Research Foundation (AMREF), and the Private Not for Profit Institutions like the Uganda Catholic Medical Bureau, the Uganda Protestant Medical Bureau, Uganda Muslim Medical Bureau and the Private sector including Uganda Manufacturers Association.
32.Id..
33.Interview with Dr. George Bagambisa, Assistant Commissioner Health Services/Planning, Ministry of Health, September 28, 2008.
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provide feedback to the people they represent, this does not always happen. The feedback that is provided is usually only given to the smaller constituency that the CSO represents, and not to civil society as a whole. Thirdly, CSOs are very many in number, diverse in mandate, most of them uncoordinated, and struggling even to keep their projects running due to limited resources. Compared to the Development Partners (DP) who are said to be well coordinated, the majority of the CSOs lack the human resource and financial capacity to engage in public policy formulation.
During a consultative meeting AGHA held with CSO representatives from Kitgum District, they raised the concern that development partners have a stronger voice in decision making because they provide technical and financial support both at the district and national level.34 One CSO representative at HPAC reiterated the need for her constituency to build their technical capacity by familiarizing themselves with working documents like the National Health Policy, the HSSP, the Millennium Development Goals, and other guiding documents.35 There is a growing recognition and visibility of CSOs at the national level, which provides a good opportunity to make involvement effective. The window is open for CSO participation at the national level. The challenge is therefore for CSOs to effectively coordinate themselves to ensure transparent and democratic representation.
C. Framework for Public/CSO Participation at District Level
Whereas the mechanism for CSO participation at
the national level has been somewhat streamlined through
structures and processes, there is still need for greater
operationalization and restructuring of the mechanisms for
collaboration between districts, health
At the district level, the District Health Teams (DHTs) were established as a technical group charged with the responsibility of planning, budgeting, coordinating resource mobilization, and monitoring of overall district performance.36 The DHTs, alongside the diverse partners including CSOs and DPs develop the District Health Sector Strategic Plan, which in turn is an integral part of the rolling District Development Plan. The Chief Administrative Officer (CAO) holds an annual conference to review the district budget which is passed by the District Council. In
34.
35.Interview with Robinah Kaitiritimba, CSO Representative on HPAC, October 2008.
36.HSSP II, supra note 13, at 19.
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some districts, CSOs are allowed to passively
participate in the annual budget conference. The NHP established
the Health
IV. FINDINGS
A.District Health Planning
1.Procedures for District Development
37.NHP, § 5.3.
38.Id., HSSP II, supra note 13, at 19.
39.Id.,
at
40.Id.
41.Id.
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process varied from district to district.
One DHO said the CAO identifies a team and the Chief Finance
Officer (CFO) chairs the meeting. Another DHO said it was the
DTPC. Yet another DHO said identification of stakeholders is
based on the guidelines set by the Ministry of Local
Government. There was a general feeling that little or no
representation of CSOs exists at the lower levels because most
CSOs do not have branches at the lower levels. Furthermore,
there may be no funds to support such meetings at the lower
levels: “At the
Respondents did note that at the lower
levels, there are supposed to be village health teams (VHTs)
which comprise of community members who participate in the
management of health facilities, but these VHTs are not
functional which limits civil society participation. The
variation in the procedure highlights the need to develop
standard guidelines for development of district plans,
particularly priorities for health. There is also need to
develop clear standards or criteria to identify stakeholders
who should be involved in the development of the district plan
and to hold district leadership accountable to following these
standards. These stakeholders should include CSOs that carry
out
2. Staff Involvement in
B. CSO Meaningful Participation
According to one CSO representative, meaningful participation is defined as, “Participating to understand and to contribute, as well as to monitor implementation.”44 By definition, meaningful participation should also include the ability to participate in
42.FGD, Soroti.
43.FGD, Kitgum
44.Interview with Robinah Kaitititimba, supra note 35.
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a way that actually influences policy. The data collected at the district level provided little evidence that civil society is able to influence policy, contribute to or even monitor implementation of policies.
1.The Number of Interest
2.Number of Planning
However some respondents reported that they successfully attended all the scheduled meetings. “I think for HIV Committee, I was able to attend all the meetings planned in that financial year.”47 There are no clear benchmarks or guidelines on the number and even the type of meetings that CSOs should attend in a year. The District AIDS Committee (DAC) was often cited by respondents as a committee where there is good CSO representation and participation.48 Yet recently the DACs have been crippled by lack of resources for coordination of meetings: “These District AIDS Committees were active when they were funded by Uganda AIDS Commission but since it closed we have not had any meetings because of funds.”49
45.FGD.
46.FGD Participant, Lyantonde.
47.FGD Participant, Lyantonde.
48.However, there was some concern about insufficient provision for participation of PLHA
on the DACs.
49.FGD Participant, Tororo.
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3. Notice for
The audit also found that meaningful participation and engagement of CSOs is limited by mutual mistrust between some of the organizations and district planners. Some district officials were implicated in the misuse of monies from the Global Fund, and in some cases district officials have been found to divert public drugs to private clinics. CSOs in Kitgum were frustrated by the fact that a number of government staff arrested for stealing drugs have been released without trial.52 CSOs also complained that they are not involved in the management of funds received after they have been disbursed. Their limited involvement ends at the planning process. On the other hand, it was mentioned that CSOs too had elements of corruption. District officials pointed out that some CSOs are reluctant to share their work plans and budgets with district officials. CSOs also do not engage Government in the planning and management of their resources
Generally, there is limited CSO engagement in implementation. For progress to be achieved in the government obligation to enhance public participation in decision making, there is certainly strong need to engage CSOs in implementation, given their networks of resource persons at the grassroot level. If CSO participation is to be meaningful, those involved must be adequately informed and facilitated to participate. CSOs and indeed all public officials involved in health planning must be aware of the number and type of planning meetings they are to attend in a year, the agenda for these meetings, the relevant documents that facilitate these meetings, and must be given all
50.
51.FGD Participant, Kitgum.
52.Id.
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the relevant information in adequate time to prepare for these meetings. This is what active and informed participation entails otherwise participation will amount to mere representation that does not influence decision making.
4. Challenges
C. Access to Information
Access to health related information is a crucial aspect of meaningful participation. The majority of respondents reported that there was some access to information either on request or voluntarily, but capacity constraints such as inadequate or lack of human resources, infrastructure, equipment and logistics were also identified to be hampering the flow of information. Respondents also stated that some stakeholders guard the information in a jealous manner, instead of sharing it broadly with others. There is certainly a strong need for the districts to develop clear information dissemination strategies, ideally leveraging the existing mechanisms. FGD respondents from Bushenyi said, “The government should always give information, and we shouldn’t struggle for the information. For example, the district has not bothered to tell us that at such a health centre there are ARVs so that people can go there for treatment.”53
Staff in the health facilities did not have adequate access to relevant policies such as Human Resource and Financial Policies, National Health Policy and the Health Sector Strategic Plan. Inaccessibility to relevant policies and documents can contribute to poor conceptualization and misinterpretation of issues, which will greatly impact on the quality of service delivery. Health sector staff and stakeholders must be oriented on the existing policies that affect their work.
53. FGD, Bushenyi.
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V. DISCUSSION OF FINDINGS
Uganda has embraced a participatory approach
to developing plans and budgets for the health sector.
Considerable progress has been made in implementing the
decentralization strategy envisioned in the Constitution and
National Health Policy. However, some components of the right to
participation in
The findings of this survey however suggest that the Ministry of Health has not taken adequate steps to ensure the active and informed participation of individuals and communities in health decisions. Not much has been done to educate the public, District Council Members, and CSOs about the right to participation in planning, the right to seek and receive health planning information, and the right to express views that are respected. This is manifested by the fact that many health facility staff do not have access to basic planning documents such as the HSSP, NHP, as well as by the mistrust between CSOs and District Health Planners. Health planning is largely seen as the role of health planners and a few selected stakeholders. Moreover, limited information sharing and lack of capacity also undermines the ability of CSOs to meaningfully participate, magnified by the uncoordinated representation in planning even where there is an opportunity. These factors have been major obstacles to meaningful participation.
A. Lack of Active and Informed Involvement
Although the structures for CSO representation at the national level have been set out through processes such as HPAC and its working groups, these structures have not yet been developed at the district level. Some CSOs have participated in meetings at the Districts but have not been officially elected by other CSOs as their representatives. The number and type of meetings to be attended by CSOs has also not been defined. In some districts, CSO involvement in budgeting comes too late because by the time they get involved, decisions about the budgets have already been made.
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B. Limited Information Sharing
Participation requires that information should
be available and not withheld if tangible
C. Lack of Technical Capacity
Another limitation affecting participation is the lack of technical capacity on the part of some CSOs. At both the district and national level, some CSO representatives lack the capacity to understand technical issues of health policy planning including health priorities and strategies in the MDGs, PEAP, the NHP and the HSSP. Moreover, CSOs are diverse, understaffed, and poorly facilitated. This limits their ability to fully participate in health sector planning. Yet where information is guarded jealously, CSOs will remain under capacitated, and unable to engage in meaningful discussions with health planners.
D. Uncoordinated Representation
There are no set criteria or guidelines for CSO representation in health sector planning both at the national and district level. Therefore, there is a general problem of uncoordinated representation. At the national level, CSOs are selected on the basis of prominence and visibility of their leadership.
Additionally, inadequate feedback mechanisms
hinder civil society representatives from truly representing
broader civil society in health sector planning and decision
making. CSO representatives are supposed to bring information
back to their
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coordination of civil society is still weak in Uganda, and CSOs still do not have a unified voice while representing others. This is largely because CSOs have varied mandates and are diverse except for the UAC Partnership committee. Without a common forum for consultation and providing feedback, there is a risk that the few CSOs involved in health sector planning represent only very limited constituencies or interests.
VI. CONCLUSION
A policy and legal framework for public participation in planning and governance exists in Uganda. But this framework does not comprehensively embrace a human rights perspective. This is because Government officials in the health sector, particularly at the district level, have not taken steps to facilitate effective participation of communities. Not much has been done to ensure the right to seek and receive health- related information, and the right to express views which are respected. As a result, health planners and CSOs have not understood the need for CSO engagement and therefore information sharing. This is magnified by the fact that CSOs remain uncoordinated, diverse and with varying interests. The district level planners need to take steps to actively engage CSOs in planning by providing them with information on time, and engaging them at the onset of the planning process. CSOs on their part must devise means of coordinating their activities so as to ensure that representation is democratic, feedback to others is provided, and that they have a unified voice. CSO representatives must also enhance their capacity to understand technical issues in health planning to enable them to meaningfully influence health decision making.
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HUMAN
HEALTHCARE IN UGANDA
Tenywa Aloysius Malagala*
ABSTRACT
The promotion of the right to the health of
the people involves, among other things, the eradication of
injustices such as the discrimination and stigmatization of
patients by health services providers. This article argues that
a human
(d) Freedoms and Entitlements; (e)
Available, Accessible, Acceptable and Quality; (f) Respect,
Protect and Fulfil; (g)
(j)Empowerment and International Assistance and Cooperation.
I.INTRODUCTION
Health is a fundamental human right closely related to the right to life and necessary for the full realization of other human rights, including economic rights.1 Article 1 of the Universal Declaration of Human Rights provides that ‘all human beings are born free and equal in dignity and rights;’ and Article 25(1) provides that ‘Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and the necessary social services.’ It follows, therefore, that every human person is entitled to be treated with dignity. Consequently,
* Graduate of the University of Essex. Email:<aloysiusmalagala@yahoo.co.uk>. I thank my supervisor, Professor Paul Hunt and his colleague, Professor Kevin Boyle (RIP) for their insights, erudite supervision and contribution to my training.
1. See, article 6 of the International Covenant on Civil and Political Rights (ICCPR) as interpreted by the Human Rights Committee General Comment No.6 (189).
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one of the attributes of a life of dignity
that everyone aspires to is health, which ‘is a state of
complete physical, mental and social
This article argues that the promotion of the
right to health of the people involves more that than provision
of medical facilities, prevention, and treatment of ailments. It
involves addressing the injustices such as discrimination,
stigmatization and abuse of patients by health service
providers. The most victims of such abuses are vulnerable
members of society in Uganda, such as women, children, lepers
and all the victims of neglected diseases. To promote this right
to health of the people, it is incumbent on all the
(g) Accountability; (h) Active and Informed Participation; and (i) Empowerment; and International Assistance and Cooperation.
From 1986 to 1993, the current Ugandan
Government under President Yoweri Museveni began a period of
rehabilitation and reconstruction of the country. Many
multilateral and bilateral donors increased their levels of aid
to support the rehabilitation effort. Although improvement of
healthcare
2.See, the Opening text of the WHO Constitution (1946).
3.See, A.H. Khan, Health and Human Rights, in DAILY STAR, Thursday December 20, 2007.
4.Amartya Sen notes that ‘good health and economic prosperity tend to support each other. Healthy people can more easily earn an income, and people with a higher income can more easily seek medical care, have better nutrition, and have the freedom to live healthier lives.’ Cited in id.
5.See, J.MACRAE,AIDING RECOVERY:THE CRISIS OF AID IN CHRONIC POLITICAL EMERGENCES
(2001).
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perspective either by the Government or by
the donors. In fact, even though Uganda’s Poverty Reduction
Strategic Plan (PRSP) recognizes health as key to poverty
reduction, and thus contributes greatly to the growth and
development of people and the country at large. The health
sector does not apply a right to health analytical framework to
promote health, and not all its policies are fully
II. DEFINITION OF HUMAN
A human
III.THE TEN KEY RIGHT TO HEALTH ANALYTICAL FRAMEWORK
A. Human Rights Laws on the Right to Health
Uganda is signatory to a number of international and regional human rights treaties that give rise to the legal basis of the right to health. The human rights obligation to promote the right to health of all people in Uganda stem from these international and regional human rights instruments. These instruments ought to guide Uganda in its legislation and policy on the right to health.
6.See, H. POTTS, ACCOUNTABILITY AND THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH 13 (2007).
7.Id.,
at
8.See, Toebes Brigit, Human Rights and Health Sector Corruption, in GLOBAL HEALTH AND
HUMAN RIGHTS: LEGAL AND PHILOSOPHICAL PERSPECTIVES (J. Harrington et al, 2009).
9.See, IRENE KHAN, THE UNHEARD TRUTH: POVERTY AND HUMAN RIGHTS 5 (2009).
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1.International Human Rights
2.Regional Human Rights
However, of all the human rights instruments, it is the ICESCR in particular which articulates most broadly the legal foundation of the right to health by providing
10.Adopted and opened for signature, ratification and accession by the General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 3 January 1976, in accordance with article 27; hereinafter ICESCR.
11.Adopted by the UN General Assembly on 10 December 1984 (resolution39/46); entered into force on 26 June 1987; hereinafter CAT.
12.Adopted and opened for signature, ratification and accession by the UN General Assembly resolution 44/25 of 20 November 1089; entry into force 2 September 1990, in accordance with article 49; hereinafter CRC, art. 24.
13.Adopted in 1979 by the General Assembly, hereinafter CEDAW, art 11(1) (f) and 12.
14.Adopted and opened for signature and ratification by the General Assembly resolution 2106
(XX)of 21 December 1965; entry into force by 4 January 1969, in accordance with article 19; hereinafter ICERD, art. 5(e)(iv).
15.Adopted by the General Assembly resolution45/153 of 18 December 1990, art. 28.
16.Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M.58 (1982), entered into force October 21, 1986, art. 16.
17.OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999, art. 14.
18.Protocol of 2003, art. 14.
19.Council of Europe treaty, adopted in Turin on 18 October 1961 and revised 1996. The revised Charter came into force in 1999 and is gradually replacing the initial 1961 treaty. See art. 11 (Revised).
20.Protocol
of San Salvador, O.A.S. Treaty Series No. 69 (1988), signed
November 17, 1988, reprinted in Basic
Documents Pertaining to Human Rights in the
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that everyone has the right ‘to the enjoyment
of the highest attainable standard of physical and mental
health.’21 However, the scope and
meaning of the right to health has been clearly explained by the
Committee on Economic, Social and Cultural Rights that oversees
the implementation of the ICESCR.22 While
in its General Comment No. 3 the Committee reiterates the state
parties’ core obligation to ensure the satisfaction of minimum
essential levels of each of the right enunciated in the
Covenant, it leaves the minimum essential level of each right to
the discretion of the incumbent state party;23
although the
3. The Ugandan National Legal
Precisely, the Constitution of Uganda upholds
the human rights principle of
21.See, art. 12.
22.See, General Comment 14, adopted in May, 2000. The Committee on Economic, Social and Cultural Rights publishes its interpretation of the content of human rights provisions in the form of General Comments on thematic issues. Although these general comments are not legally binding documents, they offer authoritative interpretation of the meaning and content of a particular right for the benefits of the States parties to the ICESCR, in order to assist them implement the covenant; and to help the States parties in fulfilling their reporting obligations. See, The Purpose of General Comments, U.N. Doc. E/1989/22, Annex III (1989), at 87, reprinted in Compilation of General Comments and General Recommendations, adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 (2003), at 8. See also, Fact Sheet No. 16 (Rev.1): Committee on Economic, Social and Cultural Rights, available at <http://www.unhchr.ch/html/menu6/2/fw16.htm#5>.
23.See, General Comment No. 3, ¶ 10.
24.See, The 1978 Declaration of Alma Ata. Although this declaration is not legally binding like human rights treaties, its message on the right to health is widely recognized in other international and regional human rights instruments as above.
25.See, UGANDA CONST. (1995), arts 21 (equality and
26.See id., Preamble, ¶¶ XX (on medical services), XXI (on clean and safe water), and XXII (on food security and nutrition).
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benefits.’27 However, as noted by the Uganda Human Rights Commission (UHRC) in its research on health rights, the provisions of this Constitution ‘reflect a commitment but do not amount to an obligation since they fall outside the substantive provisions of the Constitution.
Consequently, ‘the right to health is neither
appreciated nor understood within the medical and legal
circles.’28 It is not therefore
surprising that there appears to be no court decisions existing
in which judicial review has taken place on the basis of the
right to health and yet enormous incidences of violation of this
right have occurred and continue to occur. However, in an effort
to actualize the constitutional provisions on the right to
health, the Constitution of Uganda and the Local Governments Act29 downsized, restructured and
decentralized the services of the Ministry of Health (MoH).
Responsibility and authority for delivery of health services
were brought down to the level of the district and other local
authority entities such as municipalities. Since then, the MoH
has introduced a
While the Constitution of Uganda and the
Local Governments Act are steps in the right direction to
promote the right to health in Uganda, they are not enough to
guarantee the same. The Uganda National Health Policy of 1999
has provisions on the legal aspects of health but it lacks any
enforcement mechanism. Its policy objective is to ‘review and
develop the relevant legal instruments that govern and regulate
health and
27.See, National Objectives and Directive Principles of State Policy, objective XIV(b).
28.See, UGANDA HUMAN RIGHTS COMMISSION (UHRC), THE VOICE OF PATIENTS: THE STATE
OF THE RIGHTS OF PATIENTS AND THEIR ATTENDANTS IN UGANDA (2005), at x.
29.Cap. 243.
30.See, MINISTRY OF HEALTH, REPORT OF UGANDA HEALTH FACILITIES SURVEY (UHFS) 1
(2000).
31.Id.
32.See, MINISTRY OF HEALTH, NATIONAL HEALTH POLICY (1999), § 13, available online at <http://www.health.go.ug/docs/NationalHealthPolicy.pdf> (accessed on December 28, 2007).
33.See id. These include laws regarding (a) the development and control of the National Heath Service, (b) traditional medicine, including traditional midwifery, (c) the training in and conduct of medical and health research, (d) the importation, manufacture, use and disposal of hazardous materials,
(e)the protection of employees against health hazards related to their employment in liaison with relevant
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Government of Uganda has not accomplished
much. The existing regulatory framework to monitor the health
In a 2005 newspaper article, one Kibuuka
reported the confiscation of 500 containers of fake drugs by
Phoebe Mukasa, the District Drug Inspector.34
He also reported the instant death of John Ssenfuka 17, a
resident of Magalagata village in Galiraaya
4. Other
organizations, (f) food hygiene and safety, (g) Government Notice No. 245 of 1961 that governs and regulates the Religious Medical Bureaux, (h) Environment Health Control, (i) consumer protection, especially for the vulnerable groups including women, children and persons with disability, and (j) stigmatization and denial due to ill health or incapacity.
34.See, L. Kibuuka, Drugs Authority Raids Fake Shops in Kayunga, THE NEW VISION, December 10, 2005.
35.See, MINISTRY OF HEALTH, HUMAN RESOURCES FOR NATIONAL HEALTH POLICY (2006), available online at <http://www.health.go.ug/docs/HRH_Policy_Final.pdf> (accessed December 28, 2007). The Policy invites the Government of Uganda to ensure that roles, mandates and responsibilities of various bodies dealing with regulation, standards and maintenance of ethical conduct are clearly defined, and regularly communicated; [and also to] ensure that effective legal and monitoring mechanisms for dealing with patient/client grievances are in place, while deploying appropriate advocacy to educate patients/clients on their rights.
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a.Everyone has the right to have access to healthcare services, including reproductive healthcare; sufficient food and water; and social security, including, if they are unable to support themselves and their dependants, appropriate social assistance must be accessible.
b.The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.
c.No one may be refused emergency medical treatment.
Such clear provisions on the right to health
in the national constitution make it easy for the victims whose
rights have been violated to be defended in the courts of law.
Already, the South African Constitutional Court has recorded at
least two cases on the right to health.36 In
the Soobramoney case,37 the court had to decide whether a
local hospital had violated the right to healthcare, expressed
in article 27 above, by refusing to provide the plaintiff, Mr
Soobramoney, with periodical renal dialysis treatment necessary
to maintain his life. Unfortunately, the court ruled in favour
of the Minister of Health, stressing the need for
Article 196 of the 1988 Constitution of Brazil details the right to health in the following words: Health is a right of everyone and a duty of the State, guaranteed by social and economic policies aimed at reducing the risk of illness and other hazards and at universal and equal access to the actions and services for its promotion, protection and recovery. Consequently, the Brazilian courts have been able to defend the right to health. For instance, more often than not in cases involving the State’s denial of access to HIV/AIDS treatment to patients, the courts have often generally interpreted the right to health and ruled against the State and ordered it to provide medical treatment to the public.
36.See, Soobramoney v. Minister of Health
37.Id.
38.Id.
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In Dina Rosa Vieira v. Municipality of Porto Alegre,39 the plaintiff claimed that she was entitled to receive free HIV treatment from the local government as a corollary of her right to healthcare according to article 196 cited above. Although the defendant gave lack of resources as the reason for this, the Supreme Federal Tribunal rejected the defendant’s argument, and found it to have violated the rights to life and healthcare guaranteed in the Brazilian Constitution. The Tribunal ordered the State to provide all treatment needed by the plaintiff.40
In Choose v. Byrne,41 the Supreme Court of New Jersey contested the legality of a statute, which prohibited the medical funding of abortions except where it was medically proved necessary for preserving the woman’s life. The plaintiffs claimed that the denial of medical funds violated the human rights assured by the due process and equal protection clauses of the New Jersey and US Constitutions. The Supreme Court concluded that this statute violated the ‘fundamental right to health under both constitutions.’42
The European Court of Human Rights has given a
ruling on
Open Door and Dublin Well Women v. Ireland,43 the European Court of Human rights ruled that there had been an interference with the right of the applicant counselors to impart information and the right of Mrs X and Ms Geraghy to receive information in the event of pregnancy. There was a violation of article 10 of ECHR.44 It is therefore clear that a number of countries take the right to health seriously by putting in place a legal framework to protect and promote it. Why should Uganda be an exception?
5. The Role of the UN Special
39.Decision
No.
40.Id.
41.Supreme Court of New Jersey, 91 N.J. 287; 450 A. 2d 925, 18 August 1982.
42.Id.
43.See, ECHR, judgment of 29 October 1992, A.246.
44.Id. See also, The Right to Know, Human Rights and Access to Reproductive Health Information, in ARTICLE 19 (S. Coliver ed., 1995), at 329.
45.On 22 April 2002, at the 49th meeting, the Commission on Human Rights in resolution 2002/31, appointed Paul Hunt, as Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health. He was mandated to gather, request, receive and exchange right
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guidance on the practical implementation of
the right to health.46 For instance,
in his report from the Ugandan Mission,
The Special Rapporteur also reiterates that
the principle of
to health information from all relevant
sources; dialogue and discuss possible areas of cooperation with
relevant actors, including governments, relevant United Nations
bodies, specialized agencies and programmes, in particular the
WHO, and the Joint United Nations Programme on HIV/AIDS, as well
as
46.The Missions he has undertaken include: Mission
to Uganda,
47.See, E/CN.4/2006/48.Add.2, ¶¶ 33 and 34.
48.See, E/CN.4/2006/48.Add2, ¶ 36.
49.See, PEAP 2000, summary and objectives, at 12; PRSP, Resource Allocation to the Health Sector in Uganda, Paper No. 7, 2004, at 16.
50.See, Village Health Committees (Health Centres I to IV), in the HSSP of Uganda’s PRSP.
51.See,
Report of the Special Rapporteur on the Right to Health Mission
to Uganda,
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B. Uganda’s Legal Obligations under the Right to Health
Like any other State that has ratified these binding international human rights instruments, Uganda has an obligation to ensure the right of every one to the enjoyment of the highest attainable standard of health.52 There are mainly three types of obligations for Uganda under these instruments. These are: respect, whereby it must refrain from directly or indirectly interfering with people’s right to the enjoyment of the highest standard of physical and mental health;53 protection, whereby through legislation it provides laws that prevent third parties such as corporations or investors from interfering with people’s enjoyment of the right to health;54 and fulfilment, for instance, by taking positive and effective measures to facilitate the progressive realization of all human rights in general, and the right to health in particular. The obligation to ‘respect’ requires a State to refrain from actions that endanger the health of an individual, as explained by Bothe.55 In a way, and according to Toebes, the obligation to respect is a ‘negative obligation’ for the State.56 On the same point, Eide also had the following to say:
The obligation to respect requires the State, and thereby all its organs and agents, to abstain from doing anything that violates the integrity of the individual or infringes on his or her freedom, including the freedom to use the material resources available to that individual in the way she or he finds best to satisfy the basic needs.57
It is incumbent on the Uganda Government to
provide access to healthcare facilities and to
52.UN Doc. A/60/348, at 7.
53.The right to health is violated when government agents torture people physically or mentally, as it has been reported in many instances by the Uganda Human Rights Commission Reports.
54.For instance, a number of investors (international or national) may dispose of industrial wastage that unless caution is taken, can be hazardous to people’s health.
55.See, Bothe Michael, Les Concepts Fondamentaux du Droit à la Santé: Le
Point de Vue Juridique, in LE
DROIT À LA
SANTÉ EN TANT QUE DROIT DE L’HOMME
56.See, C.A.B. TOEBES, THE RIGHT TO HEALTH AS A HUMAN RIGHT IN INTERNATIONAL LAW
312 (1999).
57.See, A.EIDE,THE NEW INTERNATIONAL ECONOMIC ORDER AND THE PROMOTION OF HUMAN
RIGHTS (1987), UN Doc.E/CN.4/Sub.2/1987/23, July 1987, § 67.
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and physical integrity.’58
In short, Uganda’s obligation to respect the right to
health and the underlying determinants of health involves
respect for equal access to healthcare facilities by all people,
especially in remote and unprivileged areas,59
respect for equal access to family planning services and
pre and postnatal care, respect for equal access to water and
sanitation, abstention from environmental and industrial
policies detrimental to health, abstention from traditional
practices detrimental to health and information on such
practices,
Uganda’s legal obligation not to discriminate
in the provision of access to healthcare and underlying
determinants of health also includes actions that have the
intention or effect of nullifying or impairing the equal
enjoyment or exercise of the right to health. Discrimination can
occur mainly if all people do not equally access safe and
portable water, adequate sanitation, a healthy environment,
health education, adequate supply of food, nutrition, and
adequate housing. The obligations to protect and to fulfil are
of a positive nature. Both require the Uganda Government to take
certain measures to protect and assist its people realize their
rights. According to Eide, the obligation to protect requires
the State and its agents to take ‘measures necessary to prevent
other individuals or groups from violating the integrity,
freedom of action, or other human rights of the
58.TOEBES, supra note 56, at 313.
59.The reporting practice of ICESCR mentions people living in remote rural areas (the minorities and indigenous populations, women, children, the elderly, the mentally ill, disabled persons, persons with HIV/AIDS, and drug and alcohol addicts) as those usually denied access to healthcare facilities. See, TOEBES, supra note 56, at 116.
60.EIDE, supra note 57.
61.See, G.J.H. Van Hoof & K.D.V. Mestdagh, Mechanisms of International Supervision, in
SUPERVISORY MECHANISMS IN INTERNATIONAL ECONOMIC ORGANIZATIONS (P. Van Dijk ed., 1984), at 106. See also, Article 12 of the ICESCR; General Comment No. 3, 1990, ¶¶ 3, 4, and 7; and the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/CN.4/1987/17, ¶¶ 17 and 18.
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the accessibility of the healthcare services provided.62
However, most important of all, Uganda has a core legal obligation to ensure the satisfaction of, at the very least, the minimum essential levels of each right enunciated in the Covenant, including essential primary healthcare.63 The following sum up the core legal obligations of Uganda’s right to health, according to General Comment No.14:
(a)obligation to ensure the right of access to
health facilities, goods and services on a
(b)obligation to ensure access to the minimum essential food which is nutritiously adequate and safe, to ensure freedom from hunger to everyone;
(c)obligation to censure access to basic shelter, housing and sanitation, and an adequate supply of safe and clean water;
(d)obligation to provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs;
(e)obligation to ensure equitable distribution of all health facilities, goods and services; and
(f)obligation to adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing health concerns of the whole population; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; they shall include methods, such as rights health indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan are devised , as well as their content, shall give particular attention to all vulnerable or marginalized groups.64
It is Uganda’s legal obligation to establish an integrated health system responsive to local priorities, according to the report on the Uganda Mission by the UN Special Rapporteur on the right to health.65 Such a system should be flexible enough
62.TOEBES, supra note 56, at 328.
63.See, CORE OBLIGATIONS:BUILDING A FRAMEWORK FORECONOMIC,SOCIALAND CULTURAL
RIGHTS (Chapman and Russell eds., 2002), especially the different articles on the minimum core obligations under each of the rights recognized in the Covenant. See also, D. Bilchiz, Giving Social- Economic Rights Teeth: The Minimum Core and its Importance, 118S.AFR.L.J.(2002), at 484 (defending the principle of minimum core obligation based on the moral principles of priority and basic needs).
64.See, General Comment No.14, ¶ 43.
65.See, Report of the Special Rapporteur, supra note 51, ¶¶ 55, 59.
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to cater for neglected diseases, outbreaks of communicable diseases (e.g. HIV/AIDS, tuberculosis, and malaria).
C. Resource Constraints and Progressive Realization of the Right to Health
It is true that the right to health cannot
be realized immediately and overnight because of resource
constraints and time needed to put the infrastructure in
place. However, the progressive realization principle in the
ICESCR recognizes the limits of availability of resources. The
ICESCR cannot absolve Uganda for not advancing the right to
health on grounds of limited resources. It imposes an
immediate obligation on Uganda to ensure that it constantly
moves towards improving the health and
The UN Special Rapporteur on the right to health is very explicit about the use of indicators in his 2003 and 2004 reports to the Committee on Human Rights and the General Assembly. His 2006 report to the Human Rights Commission is particularly important for it sets out a framework for considering health indicators from a human rights perspective. He lays emphasis on the importance of health indicators, but warns that they should be disaggregated on grounds such as sex, race and ethnicity. He specifies three types of indicators: structural, process and outcome.67
D. Obligation to Seek International Assistance
It is Uganda’s obligation to seek international assistance and cooperation in order to access more resources needed to achieve the progressive realization of the right to health.68 Nevertheless, other states have an international obligation under articles 55
66.See, General Comment No.14, ¶¶
67.See, Reports of the Special Rapporteur on the Right to Health to the General Assembly (2003) A/58/427; (2004) A/59/422; and to the Commission on Human Rights (2006) E/CN.4/2006/48.
68.See, P. Hunt, Using Rights as a Shield, in 6 HUM. RTS L. & PRACTICE (2002) (encouraging developing countries to use the Covenant to demand international assistance from the developed States).
See also, O.FERRAZ &J.MESQUITA,THE RIGHT TO HEALTH AND THE MILLENNIUM DEVELOPMENT GOALS
IN DEVELOPING COUNTRIES: A RIGHT TO INTERNATIONAL ASSISTANCE AND COOPERATION 12 (2006); S.
SKOGLY, BEYOND NATIONAL BORDERS: STATES’ HUMAN RIGHTS OBLIGATIONS IN INTERNATIONAL
COOPERATION (2006),
at
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and 56 of the UN Charter, to cooperate in the development and realization of all human rights.69 In particular, in order to abide by the international obligation in relation to article 2(1) of the ICESCR, states parties have to aid Uganda in promoting the right to health whenever Uganda puts that request to them. They are under an obligation at all times not to impose embargoes or similar measures that may restrict Uganda’s supply of adequate medicines and medical equipment (in line with General Comment No. 14).70 What if those other countries also have resource constraints and hence may not be in position to help Uganda? To such a question, one could argue, like UN Special Rapporteur Passim, that these countries should endeavour to help Uganda realize at least the minimum core obligation relating to the right to health as a matter of duty of international assistance and cooperation.71
The donor community deserves credit for
supporting Uganda’s health sector. The Health Policy Statement
2003/04 acknowledged that donors contributed 81 per cent of the
2003/04 development health budget that is managed through a
international assistance and cooperation is not yet concluded, all countries, rich and poor, have obligations in their foreign relations to the extent that they influence the enjoyment of human rights for individuals in other countries).
69.For more detailed information on
DOWNTRODDEN: ESSAYS IN HONOUR OF EIDE (Morten Bergsmo ed., 2003); R. Künnemann,
Extraterritorial Application of the International Covenant on Economic, Social and Cultural Rights, in
EXTRATERRITORIAL APPLICATION OF HUMAN RIGHTS TREATIES (F. Coomans & M.T. Kamminga eds, 2004); Magdalena Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights, INTERSENTIA (2003); and Koen De Feyter, World Development Law, INTERSENTIA (2001).
70.General Comment 14, ¶ 39 concludes: “… States parties have to respect the enjoyment of the right to health in other countries and to prevent third parties from violating the right in other countries
... States should facilitate access to essential health facilities, goods and services in other countries, whenever possible, and provide the necessary aid when required … to ensure that the right to health is given due attention in international agreements … that their actions as members of international organizations take due account of the right to health. Accordingly, States parties that are members of international financial institutions pay greater attention to the protection of the right to health in influencing the lending policies, credit agreements and international measures of these institutions.”
71.See, D. Lyons, The
Correlativity of Rights and Duties, 4 NÔUS (1970), at
72.See, Report of the Special Rapporteur, supra note 51, ¶ 74.
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to the Health Sector Strategic Plan, US $28
per person per year is needed to finance Uganda’s national
minimum health care package. This is too little according to the
WHO’s Report of the Commission on Macroeconomics and Health
which puts US$30 to $40 per person per year as minimum financing
to cover essential health interventions for a
E. Freedoms and Entitlements
Like other human rights, the right to health contains the freedom to make decisions about one’s own health’76 including the right to consent before medical treatment and the right not to be discriminated against. It contains entitlements that include the existence of ‘a health system protection,’77 which provides a minimum level of access to water and sanitation, and health care.
F. Available, Accessible, Acceptable and Quality
The right to health analytical framework
requires that all health care services, goods and facilities be
made available, accessible and culturally responsive to the
health needs of the people concerned. In most African countries,
including Uganda, information on sexual and reproductive health
is largely unavailable. Hunt et al have explained that it is the
practice in many countries for sexual and reproductive services
to be ‘geographically inaccessible to communities living in
rural areas, or it is provided in a form that is not culturally
acceptable to indigenous peoples and other
73.See, WHO, REPORT OF THE COMMISSION ON MACROECONOMICS AND HEALTH (2001), ¶ 16.
74.Id.
75.OFFICE OF THE UN RESIDENT COORDINATOR, UGANDA: PROMISE, PERFORMANCE AND CHALLENGES: ATTAINING THE PEAP AND MDGS 50 (2003).
76.See, POTTS, supra note 6, at 4.
77.Id.
78.See, Paul Hunt et al, The Right to the Highest Attainable Standard of Health, in OXFORD
TEXTBOOK OF PUBLIC HEALTH (R. Detel et al eds, 2009), at 344.
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determining the extent to which women in poor conditions can seek care.79 It is also true that the quality and outcome of care can influence women’s decision whether or no to seek it. Therefore, all the conditions are vital in tackling maternal and infant mortality and in the general promotion of the right to health.
G.
The right to health analytical framework is
particular on the issue of
H. Active and Informed Participation
The right to health analytical framework requires that all stakeholders in health matters be given a chance to participate actively and in an informed manner in all health policy- making processes. The right to participation is recognized in international human rights law as one of the core human rights principles.84 Hunt et al have argued that ‘while it
79.UNITED NATIONS MILLENNIUM PROJECT, WHO’S GOT THE POWER? REPORT OF THE TASK FORCE ON CHILD HEALTH AND MATERNAL HEALTH (2005).
80.See, supra note 78, at 9.
81.Id.
82.See, WHO, A HUMAN RIGHTS APPROACH TO TUBERCULOSIS 12 (2001).
83.See, COREIL ET AL, SUPPORT GROUPS FOR WOMEN WITH LYMPHATIC FILARIASIS IN HAITI
42 (2003).
84.See, Article 25 of the International Covenant on Civil and Political Rights; General Comment 25; Articles 8 (on Freedom of Association), 13 (on Education), and 15 (on Cultural Life) of the International Covenant on Economic Social and Cultural Rights. The 1986 UN Right to Development and
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is not suggested that affected communities
should participate in all the technical deliberations that
underline policy formulation, their participation can help to
avoid some of the
Participation builds people’s capacity to demand their rights and positively influences the enjoyment of the right to health.86 Provisions must be made to sensitize the masses and enlist their support. Village health teams in Uganda are a good example of effective participation in the promotion of the right to health. The teams are formed by villagers who receive basic training and are deployed to help in the identification of local health needs and form grassroots delivery mechanisms, including giving advice and the administration of medicine where possible. However, the government must provide resources and support to these vehicles in order to ensure effective participation.87 Front Line (the International Foundation for the Protection of Human Rights Defenders) argues that:
[i]ndividuals, groups and communities hold a
human right to be involved in
I. Empowerment
The outcome of empowerment is
the 1993 Vienna Declaration and Programme of Action have clear provisions on participation.
85.See, Hunt et al, supra note 78.
86.Id.
87.Id.
88.See, The Right to Participation, available at <http://www.frontlinedefenders.org/node/701> (last accessed 18 August 2009).
89.See, AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999).
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freedom of action and decisions must be allowed; and where people have opportunities and capabilities, for instance, to escape premature mortality, preventable morbidity or involuntary starvation,90 all of which need empowerment if people are to achieve substantive freedoms to live a life they have reason to value.91
J. Monitoring and Accountability
According to Yamin, accountability is a
central feature of any
Hunt et al have highlighted that
‘accountability mechanisms provide rights- holders (individuals
and groups) with an opportunity to understand how
In summary, any effort aimed at the promotion
of the right to health must be respectful of the above ten
elements of the right to health analytical framework. Hunt et al
caution that ‘states are required to conform to the key features
as a matter of binding law. Moreover, they are to be held to
account for the discharge for their right-
90.Id.
91.Id., at 18.
92.See, A.E. Yamin, Beyond Compassion: The Central Role of Accountability in Applying a Human Rights Framework to Health, in 10 HEALTH & HUM. RTS J. (2008), at.1.
93.Id.
94.Id., at 13.
95.Hunt et al, supra note 78, at 347.
96.Id., at 338.
97.Id.
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IV. APPLYING A HUMAN
HEALTH IN UGANDA
A human rights accountability to promote health can be considered at both the macro and micro levels. First of all it is important to realize that health is a human right with its foundation in international human rights law which regulates States’ obligations and people’s entitlements. Thus, all States are obliged to promote health as a human right under international human rights law, which bases itself on international treaties, which the States sign and ratify, and on international conventions and various mechanisms that operate in the UN and at the national level.98
At the macro level, a human rights
accountability for health prescribes that Uganda provides
adequate funding for health; that Ugandapromotes
The micro level is when human rights are
considered as a conceptual system that analyses and guides the
process of realizing the right to health, other than naming
and shaming States that violate human rights. At the micro
level, a human rights accountability for health adopts a
critical evaluation of the relationship between the healthcare
providers and the patients. It requires Uganda to examine the
efficacy of the health laws in addressing such matters as
discriminatory practices in the provision of healthcare
services; the approach requires Uganda to provide accurate
healthcare information to the people, about when and where to
turn for appropriate and timely healthcare; and at micro level
delays in receiving care at the healthcare facility. It
tackles
The human
98. See, L.P. Freedman, Using Human Rights in Maternal Mortality Programs: From Analysis to Strategy, in 75 INT’L J. GYN. & OBST. (2001), at 51 & 53.
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dignity in health concerns both being free
from avoidable diseases and the way individuals, communities and
societies engage in the process of obtaining and maintaining the
highest attainable standard of health.99 At
both the macro and micro levels, human rights principles guide
the analysis, design, implementation, monitoring and evaluation
of
V. THE RIGHT TO HEALTH IN UGANDA
The right to health in Uganda is provided for under the Uganda Poverty Reduction Strategic Plan (PRSP) that was first designed in 1999, as directed by the World Bank and IMF. A desk review of Health Sectors, I and II in the Uganda PRSP reveals a considerable amount of information about the measures taken to implement the right to health in Uganda. On the one hand, Uganda has registered tremendous progress in the design and implementation of programmes, which contribute to the full realization of the right to health. For example, there was a reduction in the HIV prevalence rate from 6.8% in 1999 to 6.2% in 2000. There was also an increase in the number of health facilities. The abolition of user fees in 2001 also led to an increase in health service utilization, especially the out patient department (OPD) attendance from 41% in 1999 to 84% in 2002.
The Uganda Government has also made
remarkable progress in its campaigns to control malaria, TB, and
measles. Despite improvements, problems remain. Thus, infant,
child and maternal mortality rates are still high. A case study
done by the Uganda Debt Network in 2003 revealed that infant
mortality among the poor is 80% higher than among the
99.Id., at 55.
100.See, Uganda Debt Network, The Poverty Reduction Strategy Papers (PRSP) and Resource Allocation to the Health Sector in Uganda (Discussion Paper No. 7, April 2004), available online at <www.eldis.org/static/Doc16789.htm>
101.See, Report of the Special Rapporteur, supra note 51, ¶ 51.
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overall level of service delivery.102
The Uganda Poverty Eradication Action Plan
(PEAP) is widely praised as a comprehensive and realistic
The HSSP ought to have disaggregated data and
a detailed discussion on the causes of health inequality and the
financial barriers that hinder the poor from accessing
healthcare services. It must also articulate the issues of
A human
102. See, KREIMER ET
AL,UGANDA
(2000).
103.See, Uganda Debt Network, supra note 100.
104.Id., at 9.
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population having access to health facilities by 2005 was not achieved. Not every sub- district in Uganda (serving approximately 100,000 people) has a health centre staffed by a doctor with a small theatre for operations such as caesarean sections and hernia repair.105
Generally, the health services are still poor
especially in remote areas due to understaffing, poor terms and
conditions of work, and low salaries which are sometimes
delayed. While the trained staff concentrate in urban centres,
they lack supervision and because of this, their quality of
service is below the average standard.106 To
reduce discriminatory tendencies in the health sector, there is
a need to make reproductive health services accessible by all
people in rural areas. The ministry of Health should provide for
an efficient emergency maternal referral system at the health
Although it is true that the HSSP in the
Uganda PRSP faces a number of challenges (mainly, a gap in
funding due to the expenditure ceiling imposed on by MFET and
inadequate human resources),108 there
is a need for intensive health promotion, education and
coordination by all stakeholders. In a country like Uganda where
health insurance companies are just coming onto the market,
there is need to control those who might be inclined to exclude
persons such as the elderly, the disabled, or others with
certain diseases, or those who cannot afford to pay, since these
companies are after maximizing profits. Charles Bwogi reported
that many insurance companies had been excluding coverage for
people living with HIV/AIDS despite the fact ‘insurance policies
are meant to offer
105.Id.
106.See, UPPAP II.
107.Id. The UPPAP II report highlighted lack of adequate qualified staff generally, mainly doctors, anaesthetic staff and laboratory technicians.
108.Id., at 11.
109.See, C. Bwogi, HealthCare Insurance Schemes Taking Shape, THENEWVISION, September 28, 2005 (citing Dipankar Mahaalanobis, Managing Director of Microcare).
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Organizations (HMOs) like IAA and AAR who offer health insurance products.110 The current Insurance Act,111 which created the Uganda Insurance Commission that regulates health insurances, does not have provisions for regulation of the Health Maintenance Organizations (HMOs).
Unlike the proper insurance companies, the
HMOs do not have to deposit one billion Uganda shillings with
the Uganda Insurance Commission before registration. The
implication of this is that in the case of a big claim or an act
of insolvency on part of the HMOs, the client loses out
completely.112 Uganda should revise
its insurance legislation to include provisions that govern the
operation of HMOs, otherwise they should operate as proper
insurance companies. The New Vision of
7 June, 2006 reported that the
A. The Uganda Ministry of Health and the Right to Health
The Uganda Ministry of Health has its mission
as ‘to provide a network of functional, efficient and
sustainable health infrastructure for effective health care
service delivery to all the people of Uganda, thus bringing
about the full realization of the right to health. However,
there are serious concerns as to whether this mission is being
realized. Among the various reasons is the fact that the
Ministry of Health has not fully considered a human
110.The HMOs have been operating as
111.Cap. 213.
112.See, Bwogi, supra note 109.
113.Dr. Francis Runumi, the Commissioner for Health Planning at the Ministry of Health announced that the new scheme would begin on 1 July 2007. He made this announcement on Monday, 5 June, 2006, while presenting a paper on the principles of social health insurance to a stakeholders meeting in Mbale, Uganda.
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accounts for the continued existence of discrimination and stigma among the poor members of society, most especially those suffering from neglected diseases. The poor and the most vulnerable are far from realizing their right to health since not many are yet able to access adequate medical care. The construction of new health centres, and the rehabilitation and upgrading of existing health facilities has not yet been accomplished to satisfy the demand.
The very poor state of the roads
In order to prevent this situation, the MFPED
places a ceiling on budget expenditures to any ministry and to
donor aid to Uganda in general. However, this is an unfounded
fear as regards the Ministry of Health expenditure. In fact
‘growth in budget expenditures are necessary to achieve the
country’s commitments under the PEAP,’ and moreover, the
Ministry of Health can properly absorb more aid without causing
inflation in Uganda, since it uses the funds overseas to import
drugs and medical equipment which are not manufactured in
Uganda. It needs more funds to set up more health facilities in
order to combat crises such as HIV/AIDS and other infectious
diseases. Sachs has
Artificial ceilings on health expenditure, in the name of macroeconomic stability, are a false economy. There is no true stability without health, and the Ugandan economy can fully absorb [any] massive increases in foreign grants for health than [what the] donors are likely to make available.115
114.For a detailed explanation of the ‘Dutch Disease,’ see C.S. Adam & D.L. Bevan, Aid, Public Expenditure and the Dutch Disease, 2003, available online at <http://econwpa.wustl.edu/ eps/dev/papers/0409/040927.pdf> (accessed December 18, 2005).
115.J.D. Sachs, Open Letter to the Government of Uganda, THE NEW VISION, 23 May 2002.
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One might conclude that ‘the IMF, World Bank and Ugandan Finance Ministry have decided that protecting against inflation is more important than protecting people’s lives.’116 The Uganda Debt Network once reported that there were instances where the donors’ funds were rejected by the MFPED, citing macroeconomic concerns.117 However, it is imperative to assert that the link between health status and economic growth is very strong. As Bloom says, ‘a healthy population leads to a productive labour. When people are healthy, they increase their life cycle savings for further investments.’118 The Uganda Government should address the shortage of funds to the health sector by increasing domestic resource mobilization and by appealing to bilateral donors to increase their support to the Ministry of Health. The World Bank cancelled Uganda’s debt worth US$3.764B (about shs. 7 trillion). This is a good practice which should be emulated by other donors. It is assumed that a portion of that money will go a long way in uplifting the standard of health care services in Uganda.
B. Monitoring and Evaluation
The HSSP in the Uganda PRSP used mortality
rates and identified process indicators: the DPT3 immunization
rate; the percentage of health centres with qualified staff; the
percentage of health units without stock outs; and perception of
services. It is very important the Government of Uganda makes
all efforts to find out whether or not the health strategy
benefits the poor and the most vulnerable. The monitoring
indicators used to measure progress do not measure the impact of
the strategy on the poor people or regions. For instance, the
indicators used (e.g. the per capital level and
The Government needs to set up indicators that will measure the percentage of vulnerable people affected by its health strategy. It should aim at having statistical data on the percentage of the population affected by any health intervention in a final report distributed to all stakeholders periodically. Such a report would provide the basis for
116.See, Omaswa, quoted in W. Nyamugasira & R. Rowden, New Strategies, Old Loan Conditions, 2002, available at <http://www.brettonwoodsproject.org/topic/adjustment/ Ugandaanalaysis. pdf> (accessed December 18, 2005).
117.See, Uganda Debt Network, supra note 100, at 8.
118.See, D.E. Bloom, D. Canning, and J. Sevilla, The Effect of Health on Economic Growth: Theory and Evidence (National Bureau of Economic Research Working Paper No. 8587, 2001).
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policy reform and the improvement of health intervention to improve the health situation of the most vulnerable. But in order to monitor Government progress in this direction, it is necessary to have a ‘right to health unit’ or a body that constantly advises, guides and reminds the Government and all the development partners of their commitment to the realization of the right to health in Uganda. The right to health unit that was launched by the Uganda Human Rights Commission in January 2007 is highly commendable and should be supported by the Uganda Government and the international community.
C. Accountability Mechanism
In a human
There are a number of proper and effective mechanisms to hold the duty bearers (including donors), accountable for failure to secure programmes that contribute to the progressive realization of the right to health. The Paris Declaration on Aid Effectiveness provides a good example that should be emulated in this regard. At the international level, it established mechanism whereby donors and recipient governments are held mutually accountable to each other.120 At the national level, the Paris Declaration encourages partners and donors to take a joint mutual assessment of the progress made in the implementation of the agreed commitments on aid effectiveness using local mechanisms such as consultative groups.121
In Uganda, there are both judicial and
119.See, Paris Declaration on Aid Effectiveness: Ownership, Harmonization, Alignment, Results and Mutual Accountability (2005). This Declaration created strong mechanisms for mutual accountability.
120.Id., ¶ 9.
121.Id., ¶ 50.
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health. The judicial means include the
national courts of law,122 while the
Furthermore, there is an urgent need to educate people about their human rights in general and the right to health in particular. They should be made aware of the available complaint mechanisms to resort to in case their human rights are violated, including the right to health. Health education needs to be properly streamlined, and there is need to provide information on prevailing health problems and measures taken to prevent and control them.124 It should also have health activities for parents to help them ensure the proper development of their children. It should also have health education for young people aimed at exposing the dangers of alcohol and drug abuse as well as eating disorders.125 Moreover, health education is found to be one of the most
122.The Constitution of the Republic of Uganda provides for the enforcement of Rights and Freedoms by Courts. Article 50(1) says that any person who claims that a fundamental or freedom guaranteed under this Constitution has been infringed or threatened is entitled to apply to a competent court for redress, which may include compensation; and article 50(2) provides that any person or organization may bring an action against the violation of another person’s or group’s human rights. Article 50(3) provides that any person aggrieved by any decision of the court may appeal to the appropriate court, while clause (4) of the same article requires Parliament to make laws for the enforcement of the rights and freedoms under this Chapter (Chapter 4).
123.See, POTTS, supra note 6, at 5.
124.See, Guidelines, UN Doc. E/1991/23/ SUPPL. No. 3, at 105; UN Doc. E/C. 12/ 1994/W, QUESTION 25, at 14.
125.See, Second Report of the Federal Republic of Germany, UN Doc. E/1986/A/ASS.10, ¶
124.
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effective tools in the fight against HIV/AIDS.126 The curriculum for training health professionals should contain human rights education, including education on the right to health of both the health professionals themselves and those of the patients. It is argued that if health professionals know their human rights and those of the patients, they will be in a better position to contribute effectively to the promotion of the gradual realization of the right to health in Uganda.
Until recently, in Uganda, health education for adolescents, especially on sexual and reproductive health, has been very restricted. It is traditionally a taboo for parents to talk openly about sex in front of their children. Young people were normally left alone to discover by themselves all about this important aspect of human life. Such practices have resulted in a number of problems for the young (including teenage pregnancies that may result in unsafe abortion, early marriages, and street children), all of which have adverse implications for the right to health. The most affected by this lack of sex education are girls and women who become vulnerable to violation from men.
D. Participation
Active participation is one of the major
principles in a human rights accountability to promote the right
to health. All the stakeholders must take an active part in both
the design and implementation of a healthy strategy that affects
their lives. It is imperative that any effort to bring about the
progressive realization of the right to health considers the
importance of achieving
126.Representative of Netherlands, UN Doc. E/C. 12/1989/SR.15 ¶ 59. The importance of health education for the people was emphasized a long time ago in history. Sigerist maintains that the French philosophers, for example, recommended health education for the people. See, H.E. SIGERIST, MEDICINE AND HUMAN WELFARE 80 (1941); G. ROSEN, A HISTORY OF PUBLIC HEALTH 109 (1993).
127.See, REPORT OF THE UN SPECIAL RAPPORTEUR ON THE RIGHT TO HEALTH, UN DOC A/60/348, submitted in accordance with Commission Resolution 2005/24, at 12.
128.See, Uganda Debt Network, supra note 100, at 8.
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VI. CIVIL SOCIETY AND A HUMAN RIGHTS ACCOUNTABILITY FOR
HEALTH IN UGANDA
Civil Society Organizations (CSOs) make a
great contribution in any development work. They are very
innovative in service delivery, building local capacity, and can
efficiently and effectively advocate for the poor. However, to
be able to play this constructive role in society, CSOs need to
work hand in hand with the Government. However, the reality is
that the Government of Uganda seems to pay little attention to
the role of the private sector (profit and
Sometimes the challenging political situation
in which CSOs operate becomes a hindrance to their work, because
the government may perceive their work to be a threat to its
policies. It is true that CSOs sometimes act on their own, or in
opposition to government ventures, thereby causing tension and
conflict. In such a situation, the work of CSOs has a limited
impact on public policy and practice. However, it is time to
realize that policy engagement can often have a greater impact
than contestation and that policy advocacy by CSOs can spur more
widespread benefits than their service delivery effort left
alone.129 Research has shown that by
getting the fundamentals
VII. MULTINATIONAL FINANCIAL INSTITUTIONS AND A HUMAN RIGHTS ACCOUNTABILITY FOR HEALTH IN UGANDA
Based on the legal obligation of its members
to respect, protect and fulfil the right to health, the policies
of the World Bank ought to foster the progressive realization of
the right to health. However, in Uganda, as we have already
seen, funding the Ministry of Health is constrained due to
129.See, J. COURT ET AL, POLICY ENGAGEMENT: HOW CAN CIVIL SOCIETY ORGANIZATIONS
BE MORE EFFECTIVE? (2006), at 1, available at <www.odi.org.uk/Rapid> (accessed 4th July 2006).
130.Id.
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yet the World Bank is aware of the
interconnectedness between the rights to health, education, and
freedom from
Mothers’ illiteracy and lack of schooling
directly disadvantage their children. Low schooling translates
into poor quality of care for children and then higher infant
and child mortality and malnutrition. Mothers with more
education are more likely to adopt appropriated
Sometimes the policies of the World Bank and IMF cause a shortage of funds in other areas that are determinants of the right to health, such as the education, clean water, sanitation and adequate housing, in which case these policies lead to a violation of the right to health. By supporting the Uganda PRSP that does not treat health as a human right, the World Bank and IMF also violate the right to health in Uganda. They ought to constructively criticize and influence the redesign of the PRSP to better articulate the right to health concerns.
However, some critics argue that the decision
to fix a budget ceiling in Uganda is mainly political. They
maintain that the perceived influence of the international
financing institutions cannot be proved in Uganda. Nevertheless,
they agree that these financial institutions support this policy
(of budget ceiling).132 There is
great need for these institutions to look beyond macroeconomic
stability. The IMF should allow increase in concessional aid, in
the form of grants that can have little impact on the
macroeconomics of the country. Although, already, the IMF is
supporting the call for donors to meet the 0.7% of their gross
domestic product and provision of aid over a
131.See, WORLD BANK,ENGENDERING DEVELOPMENT THROUGH GENDER EQUALITYINRIGHTS, RESOURCES AND VOICE (2005).
132.See, J. Odaga & P. Lochoro, Budget Ceilings and Health in Uganda, CARITAS UGANDA, January 2006, at iii.
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right to health is to be promoted in Uganda.133 The international trade practices of pharmaceutical companies may have an adverse effect on the realization of the right to health in Uganda. This is more so when these companies value market perspectives that regard health care as a commodity to be sold like any other good and not as a public good to be distributed to all, including the poor and most vulnerable.
VIII. THE WAY FORWARD
Uganda, like any other State, is obliged ‘to
adopt legislation and to take other measures to assure that the
health care providers do not disadvantage or exclude individuals
or groups.’134 Uganda must design a
comprehensive strategy to meet the obligation to fulfil the
right to health. It is not enough, for instance, to arrest and
imprison drug dealers without a proper education programme for
the youth and the public about the dangers of using drugs.
Toebes argues that the US authorities violated an obligation to
fulfil the right to health.135 The
authorities failed to respond adequately to an outbreak of
cocaine use in the US by mounting a national health campaign to
counteract
Under the obligation to fulfil, Uganda should take measures necessary to ensure that each person within its jurisdiction has opportunities to obtain satisfaction of those needs, recognized in the human rights instruments, which cannot be secured by personal efforts.137 Uganda may implement this obligation ‘progressively’ and to the maximum of its resources.138 This means an obligation to progressively improve the level of healthcare facilities, such as dispensaries, clinics, hospital transport and services. It involves taking concrete and immediate steps to improve the healthcare infrastructure. From a human rights perspective, and according to WHO, the basic essentials of the right to health entail a number of elements. The first is primary healthcare, which includes at least education concerning health problems and the methods of preventing and controlling them. The second is the promotion of food supply and proper nutrition.
133.The Commission for Macroeconomics and Health 2001
recommended an increased flow of donor aid to low income
countries, in a sustained,
134.See, TOEBES, supra note 56, at 328.
135.See also, B.X.
Waltkins et al, Arms Against Illness: Crack Cocaine
and Drug Policy in the United States, 2 HEALTH & HUM. RTS (1998), at
136.See, TOEBES, supra note 56.
137.Id., at 332.
138.See, Article 2(1) ICESCR.
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The third one is the adequate supply of safe water and basic sanitation and, the fourth covers maternal and child health care, which includes family planning; immunisation against the major infectious diseases. Lastly, it includes the appropriate treatment of common diseases and injuries and the provision of essential drugs.139
In providing these healthcare services to
people, the principle of non- discrimination must be upheld.140 That is, there must be equal access
to health services by vulnerable groups, and the services ought
to be sufficiently available and their quality has to be
considered. Thus, the doctors and nurses must be skilled;141 and the equipment and drugs must be
adequate for all the people in Uganda.142 Surprisingly,
although discrimination may not be expressly rooted in the laws
of Uganda, it is exercised in access to healthcare and to the
underlying determinants of health (safe drinking water, housing,
nutritious food, and a healthy environment).143
Failure to ensure access to safe and adequate drinking
water in villages across the country; failure to provide family
planning and
Uganda must take action to improve the health situation of prisoners. The prisons are very congested, and have poor sanitation. Sometimes prisoners sleep on the floor without blankets. They have no opportunity for physical exercise and recreation, and often have poor nutrition. However, it may actually be hard to improve the prisoners’ health condition when that of the prison warders and other law enforcement agents like the police also leaves much to be desired. Crucially, any effort to improve the health situation should therefore be comprehensive enough to cater for all the
139.See, World Health
Organization, Declaration of Alma Ata on ‘Health for All and
Primary Healthcare strategies’ (International Conference on
Primary Healthcare, Alma Ata, September
RIGHTS (T.C. van Boven et al eds., 1998), at 60. The same message is quoted by TOEBES, supra note 56, at 288.
140.See, ICESCR, arts 2 & 3; CEDAW, arts 1 & 2.
141.See, UN
Doc. E/1991/23, Suppl. No. 3, indicators
142.See, UN Doc. E/C.12/1995/SR.14, ¶ 55; UN Doc. E/1986/4/Add. 9, at 9; UN Doc.E/1990/5/Add. 13, ¶ 107.
143.A similar form of discrimination happened in
Serbia. See,
FIDH,SERBIA:
DISCRIMINATION AND
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people including prison warders and other law enforcement agents. Measures to promote a healthy environment include those that conserve natural reserves, prevent deforestation and clean up chemical dumps.144 This is in line with the provisions of paragraph 2(b) of article 12, namely that ‘States parties have to improve all aspects of environmental and industrial issues that affect human health. However, most important of all for the Government is a serious political commitment to promote the right to health; such a commitment is manifested through national policies and legislation aimed at fostering the achievement of the progressive realisation of the right.145
The good thing is that there is already Government will in Uganda to promote the right to health of the people. In a speech at the 4th Conference of African National Human Rights Institutions held in Kampala in 2002, the President of Uganda showed that he was fully aware of the fact that in Uganda, just like in other African countries, the realization of the right to health is still elusive.146 He was convinced about the central role that issues of health play in any meaningful development strategy. He now and again reiterated his commitment to truly advance human rights and development through the promotion of good governance and the rule of law. He supported the advancement of basic economic, social and cultural rights, namely, the right to education, and showed interest in the promotion of the right to health and other determinants of health, such as clean water, adequate food and safe sanitation. He showed that he values the efficient use of available resources through proper planning and implementation, and the elimination of corruption by democratically empowering all the people to participate fully and actively in matters regarding their health and development aid generally.147
In a way, the President of Uganda appreciates
the central importance of the State in building an environment
that supports the adoption of a
However, in its commitment the Government
must set up a timeframe in which to realize the right and also
set up
144.See, Second Report of Canada, UN Doc. E/1990/6/ADD.3, ¶ 23.
145.See, CEDAW, art. 2 (obliging States parties to take legislative measures to promote and protect the right to health). Article 3, on the other hand, recommends measures other than legislative ones.
146.See, Speech by His Excellence, Yoweri Museveni, at the Opening of the 4th Conference of African National Human Rights Institutions, Kampala, August 14, 2002, at 8 (available online at <www.nhr.net/pdf/African4thNhri>).
147.Id.
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help in the evaluation of whether the progressive realization of the right to health is being achieved or not.148 The right to health indicators can be considered as the ‘quantitative or qualitative abstracts of information that can be used to describe’ the right to health situation and context and to measure the changes or trends in the enjoyment of this human right over time.149 Nonetheless, since the right to health requires the development of an effective and inclusive health system of good quality, according to the UN Special Rapporteur on the Right to Health, Uganda must invest in human resources for health if it is to bring about the progressive realisation of the right to health. It must devise proper means to train and retain health professionals, as an effective and efficient solution to the devastating problem of ‘skill drain’ to the health sector in Uganda.150
In a similar vein, in a transparent and participatory manner, the Government of Uganda, through the Ministry of Finance, Planning and Economic Development, in collaboration with the Ministry of Health, and other development partners, should design a National Policy Framework that views health from a human rights perspective, in the general context of the Uganda Poverty Eradication Action Plan (PEAP). Particularly, the Ministry of Finance, Planning and Economic Development should increase budgetary allocations to the Ministry of Health, to effectively, improve on the terms and conditions of health workers, especially of those working in rural and remote areas. This motivation strategy could include provision of better accommodation with good facilities like electricity and water for healthcare workers; and, increased salaries and the timely payment of healthcare workers, as recommended by the Uganda Human Rights Commission research on health rights.151
148.See, YOUR RIGHTS (J.M. Waliggo et al eds., 2005), at 5, available at <www.uhrc.org>
149.See, B. ANDERSASSEN & H.O. SANO, WHAT’S THE GOAL? WHAT IS THE PURPOSE? OBSERVATIONS ON HUMAN RIGHTS IMPACT ASSESSMENT 15 (2004).
150.The human rights approach to the right to health demands, as expressed by the UN Special Rapporteur on the Right to Health, that the solution to the problem of ‘skill drain must be locally determined, with meaningful ‘active and informed participation of representatives of poor and rural communities, healthcare workers and civil society.’ See, UN Doc. A/60/348, at 17.
151.YOUR RIGHTS, supra note
148, at xvii. The research recommended the following to the
Ministry of Health: increased salaries to health workers in
order to check on rampant corruption; constant and timely supply
of drugs in all health facilities; provision of
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Uganda must devise a health system that focuses on the disadvantaged, the most vulnerable in society and those living in poverty. Until recently, the people of northern Uganda have been living very desperate health conditions. The health condition of the internally displaced persons (IDPs) in Gulu, Kitugm and Pader is appalling. The northern conflict between the Uganda People’s Defence Forces (UPDF) and the Lord’s Resistance Army (LRA) led by Kony forced people into camps with no adequate shelter, no adequate safe water, no quality sanitary provisions and no access to timely healthcare services. There is a need for an effective national health law to regulate the importation and distribution of medical equipment, the sale of drugs, the relationship between health care providers and patients, patient admission and administration procedures, pharmaceutical companies, etc.
In short, the use of a human
Uganda urgently needs an essential public
health infrastructure that will protect and promote the health
of the people equally, through the provision of adequate, safe
and clean water and sanitation for all. Crucially, the
Ministry of Health must adopt measures to control and prevent
the transmission of major epidemic and endemic diseases such
as ebola, diphtheria, tetanus, poliomyelitis, tuberculosis,
whooping cough, and measles. The fight against HIV/AIDS is not
yet over. Uganda must do more to prevent the scourge. To this
end, it is essential to invest in health and reallocate
resources in a
for health better summarizes these recommendations.
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COURTS AND THE NEED FOR DYNAMISM IN THE PROMOTION OF REPRODUCTIVE HEALTH RIGHTS: A NIGERIAN PERSPECTIVE
Babafemi Odunsi* & Folake Olaleye**
ABSTRACT
Courts have played, and can always play
important roles in the protection, fulfillment and respect of
reproductive health rights as a genre of human rights. In
their roles of judicial
I. INTRODUCTION
While we celebrate the promise of a new administration that understands the importance of reproductive health care in women’s lives and the role of government in ensuring access to care, we know that the courts continue to be an important avenue for restoring and protecting reproductive freedom.1
Reproductive health rights, as human rights, consist of two main
*Senior Lecturer, Faculty of Law, Obafemi Awolowo University; McArthur Fellow, Faculty of Law, University of Toronto; Formerly, Research Associate, AIDS and Human Rights Research Unit, (Centre for Human Rights and Centre for the Study of AIDS) Faculty of Law, University of Pretoria. Email:< Femiodunsi2002@yahoo.com>
**McArthur Fellow, University of Toronto. Email: <folakeolaleye1967@yahoo.com>.
1. ACLU (AMERICAN CIVIL LIBERTIES UNION), REPRODUCTIVE RIGHTS IN THE COURTS (2009), available online at <http://72.3.233.244/reproductiverights/38611res20090202.html>, (accessed on 13 October 2009) (emphasis added).
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responsibilities on the part of stakeholders that include individuals, communities, social institutions and more particularly the government as the custodian of State resources and protector of collective interests.2
For emphasis, international treaties, national legislations and constitutions, consensus decisions at international conferences as well as international organizations have echoed and emphasized the sanctity of reproductive health rights.3 The obligations of stakeholders, especially governments, to create an enabling social, economic and legal structure for the realization of reproductive health rights have resonated in the various international treaties and other mediums. Yet, there remains the important task of ensuring that stakeholders carry out their obligations in the global drive to make the enjoyment of reproductive health rights a reality, rather than the ‘paper rights’ it seems to be, especially in the developing countries of Africa such as Nigeria. Courts have crucial roles to play in the drive to achieve practical realization of reproductive health rights.
Against this background and from a Nigerian
perspective, this article reflects on the roles of courts in
promoting reproductive health rights (or undermining
It is argued that there is valid legal basis to claim the right to health, and by the same token, reproductive health rights in Nigeria despite the constitution’s silence on it. At necessary points, the article draws on pertinent cases to underscore the remarkable roles which courts have played (and still need to continue playing) in the promotion of reproductive health rights in Nigeria and beyond. The role of the courts is considered in relation to the plethora of factors that affect the promotion of reproductive health rights.
2.Ruth
3.Id.
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II. THE PROMOTION OF REPRODUCTIVE HEALTH RIGHTS AND THE
COURTS: AN OVERVIEW
In a comprehensive scope, ‘promotion’ of
reproductive health rights connotes the three- piece obligations
to respect, protect
and fulfil human rights in
the specific context of reproductive health, as well as taking
measures to attain these goals. The obligation to respect
dictates that governments and
As various decided cases reflect, the courts in different contexts have played (and will continue to play) vital roles in the unceasing struggle for the promotion of human rights. Through courageous decisions and imposition of sanctions in deserving cases, courts have curtailed inordinate transgression of human rights. Also by means of dynamic and pragmatic utilization of judicial mechanisms, courts have also used existing or established rules and principles to sustain emerging or novel human rights issues. It is through this approach that the courts, inter alia, have expanded the frontiers of human rights to accommodate reproductive health as distinct from the generic right to health.
Tacitly and explicitly, series of international treaties, national constitutions and legislations have recognized and given credence to the sanctity of reproductive health rights.5 Courts at high levels in different parts of the world have also upheld the rights
4.See, R.J. COOK, B.M. DICKENS & M. FATHALLA, REPRODUCTIVE HEALTH AND HUMAN RIGHTS, INTEGRATING MEDICINE, ETHICS AND LAW 37 (2003).
5.See e.g., NIGERIA CONST. (1999); International Covenant on Economic, Social and Cultural Rights, U.N.G.A. Res. 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with article 27 (‘Economic Covenant’); African [Banjul] Charter on Human and Peoples’ Rights, 27 June
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of citizens to reproductive health on different fronts.6 Consensus decisions of high- calibre global conferences such as the International Conference on Population and Development (ICPD) held in Cairo, Egypt in 19947 and the Fourth World Conference on Women (FWCW) held in Beijing, China held in 19958 have further strongly affirmed the inviolability of reproductive health rights. A wide spectrum of learned writers, activists and stakeholders also agree on the importance of promoting reproductive health rights.9 Despite all these, the acceptance of reproductive health rights in its different dimensions as legitimate human or basic right remains a contentious issue in different parts of the world. This makes unfettered enjoyment of the right a challenging task, even in developed countries such as the USA, where reproductive health rights seem to have been taken for granted.10
Religious,
In another vein, promotion of reproductive health rights may be hampered because of ambiguity in the laws touching on reproductive health. Due to uncertainty, the government and policy makers may find it difficult to take required measures for promoting reproductive health rights. In such a situation the courts can also intervene to clear the ambiguity and thus create a legal atmosphere helpful to the promotion of reproductive health rights. Indeed the courts at different times have acted creditably in
1981, OAU Doc. CAB/Leg/67/3 Rev. 5, 21 ILM 58 (1982), entered into force 21 Oct. 1986 (now domesticated in Nigeria as African Charter on Human and People’s Rights Act, Cap. A9 Laws of the Federation of Nigeria, 2004)
6. See e.g., Roe v. Wade (1973) 410 US 113, and R v. Morgentaler (1988) 4 DLR (4th ) 385
(Canada).
7.UNITED NATIONS, REPORT OF THE INTERNATIONAL CONFERENCE ON POPULATION AND
DEVELOPMENT (Cairo,
Egypt,
8.UNITED NATIONS, REPORT OF THE FOURTH WORLD CONFERENCE ON WOMEN [THE BEIJING
DECLARATION AND PLATFORM FOR ACTION], (United Nations Doc., New York, N.Y, A/Conf. 177/20, 1995).
9.See generally, COOK, DICKENS & FATHALLA, supra note 4.
10.See, ACLU, supra note 1.
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upholding the sanctity of reproductive health rights in the face of unfriendly societal norms and ambiguous laws.11
III. REPRODUCTIVE HEALTH RIGHTS: EVOLUTION AND
INTEGRATION
Reproductive health is a state of complete
physical, mental and social
The above stated definition was entrenched and given prominence at the Fourth United Nations International Conference on Women held in Beijing in 1995.13 The definition is a modification of the broader concept of right to health.14 Moreover, reproductive health is a genre of health as a whole. Building on the definition, the Beijing Conference further elaborated on reproductive health rights:
These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health….It also includes their right to make decisions concerning reproduction free from discrimination, coercion and
11.See generally, LAW STUDENTS FOR REPRODUCTIVE JUSTICE, MAJOR U.S. SUPREME COURT
RULINGS ON REPRODUCTIVE RIGHTS (2008). See also, Adam Easton, Award for Poland Abortion woman, BBC NEWS, <http://news.bbc.co.uk/2/hi/europe/8271895.stm> (accessed on 13 October 2009).
12.UN DEPARTMENT OF PUBLIC INFORMATION, PLATFORM FOR ACTION AND BEIJING
DECLARATION (1995), ¶ 94.
13.UNITED NATIONS, REPORT OF THE FOURTH WORLD CONFERENCE ON WOMEN [THE BEIJING
DECLARATION AND PLATFORM FOR ACTION], U.N. Doc., N.Y, A/Conf. 177/20, 1995.
14.See, WORLD HEALTH ORGANIZATION CONSTITUTION, 1988.
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violence as expressed in human rights documents.15
It bears mentioning that while the Beijing Conference in 1995 gave remarkable attention and significance to reproductive health rights, international appreciation of the right to make reproductive health choices can be traced back to long before the Conference.16 For instance, in 1968, participants at the First International Conference on Human Rights held in Tehran accepted, among others, that “parents have a basic human right to determine freely and responsibly the number and spacing of their children and a right to adequate education and information to do so.”17 Along similar lines, the Alma Ata Declaration of 1978,18 in the definition of primary health care encompassed family planning as well as maternal health.
The U.N. Decade for Women
15.Para. 95, repeated in large part in para. 223 of the Beijing Platform.
16.In 1968, the First International Conference on Human Rights held in Tehran recognized that “parents have a basic human right to determine freely and responsibly the number and spacing of their children and a right to adequate education and information to do so.” The International Conference on Population (ICP) held in Mexico City in 1984 reformulated the right and proclaimed that “all couples and individuals have the basic right to decide freely and responsibly, the number and spacing of their children and to have the information, education and means to do so.” CEDAW, which was adopted in 1979 provides in Article 16(1)(e) that “States Parties shall ensure on a basis of equality of men and women … The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.” In 1992, the UN Conference on Environment and Development held in Rio de Janeiro in its Agenda reaffirmed the right to decide on the number and spacing of one’s children and further affirmed that governments should provide health facilities, including “affordable, accessible services, as appropriate for the responsible planning of family size.” In 1993, the World Conference on Human Rights held in Vienna recognized “On the basis of equality between women and men, a woman’s right to accessible and adequate health care and the widest range of family planning services, as well as equal access to education at all levels.”
17.Final Act of the International Conference on
Human Rights, Tehran, Iran, 12 May 1968, Res. XVII, U.N. Doc.
A/Conf.32/41 (1968), reproduced in
U.N. Department of Public Information, United Nations and
the Advancement of Women
95.1.29(1995).
18.For full text of the Alma Ata Declaration see, Achieving Reproductive Health for All: The Role of the WHO, in A.L. Waddell (ed.) WHO /FHE/95, at 2.
19.Adopted by the United Nations General Assembly on 18 December 1979, entered into force on 3 December 1981 (hereinafter the Women’s Convention).
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to family planning.”20 The Committee on the Elimination of
All Forms of Discrimination against Women (CEDAW Committee), the
United Nations body that monitors compliance with the Women’s
Convention, in different respects has expatiated on State
parties’ obligations under the Convention
The United Nations Conference on Environment and Development held in Rio de Janeiro in 1992, though not specifically on health or reproductive health, still addressed reproductive health rights, urging governments to provide health care facilities, including “affordable and accessible reproductive and sexual health services, as appropriate for the responsible planning of family size.”21 In 1993, at the Vienna World Convention on Human Rights, member states recognized “on the basis of equality between women and men, a woman’s right to accessible and adequate health care and the widest range of family planning services, as well as equal access to education at all levels.”22
The Cairo International Conference on Population and Development (ICPD) of 1994 can be described as another landmark in the international attention on reproductive health and its integration in the framework of human rights. Women’s reproductive health was given significant attention at the Conference where the globally recognized definition of reproductive health right, as earlier stated in this article, was adopted before it was expanded and amplified at the Beijing Conference in 1995. These earlier foundations set the tone for the declarations and injunctions on reproductive health at the Beijing Conference in 1995.
Beyond Beijing, there have been other international drives to integrate reproductive health and the appurtenant rights. For example, at a regional level, the African Regional Strategy on Reproductive Health was devised in September 1997.23 In the Strategy, African member countries committed themselves to “implement the reproductive health concept for the next twenty five years.”24 The hope is that within
20.Art. 16 (1)(e) [emphasis added].
21.The Rio De Janeiro Declaration and Agenda 21, United Nations Conference on Environment and Development, Rio De Janeiro, June 1992.
22.U.N. Doc.A/CONF.157/23 (1993) (emphasis added).
23.African Regional Strategy on Reproductive Health, part 1, 1997.
24.Id.
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this period, “all people in the region should enjoy an improved quality of life through a significant reduction of maternal and neonatal morbidity, unwanted pregnancy and sexually transmitted infections including HIV/AIDS, and the elimination of harmful practices and sexual violence.”25
IV. LEGAL FRAMEWORK OF REPRODUCTIVE HEALTH RIGHTS—
NIGERIA AS AN ILLUSTRATION
Generally, rights to reproductive health can
be set in and would fit into the well established and
internationally accepted framework of human rights. Reproductive
rights in various respects are
The legal framework of reproductive health
rights can be illustrated with specific reference to the
Nigerian legal structure. Having noted earlier that reproductive
health is a branch of the broad concept of health, analysis of
the legal framework in Nigeria would proceed primarily from the
point whether health as a whole is
an enforceable human right in Nigeria. The
Prima facie, the right to health, and by same token, reproductive health, is not a justiciable fundamental right in Nigeria, as it is not listed among the constitutionally guaranteed rights.30 The ‘right’ only finds expression in the constitution as a non-
25.Id., part 2(1) a.
26.N.I. Aniekwu, Before Beijing and Beyond: A Reflection on the Emergence of Women’s Rights as Human Rights, KNUST L. J. (2005).
27.Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as ‘Nigerian Constitution’).
28.Supra note 5.
29.Id.
30.See
generally, Chapter IV (sections
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justiciable ‘fundamental objective and
directive principle of state policy’.31 Along
that axis, reproductive health in Nigeria, at best would stand
as a fundamental objective and directive principle of state
policy that cannot be legally enforced in the country. Inferring
from cases such as Festus Odafe & Ors v.
However, the fact that the right to health is not a guaranteed or enforceable right under the Nigerian Constitution does not conclusively establish that the right has absolutely no legal basis in Nigeria. The right to health is guaranteed and can be claimed under pertinent international human rights treaties to which Nigeria is signatory. For example, article 12 of International Covenant on Economic, Social and Cultural Rights provides:
1.The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2.The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: …
(3) The prevention, treatment and control of epidemic, endemic, occupational and other diseases…
One limitation to the operation of the
Economic Covenant as a basis for the right to health claim in
Nigeria is that the treaty is yet to be domesticated in the
country.33 The issue of
31.See Chapter II, section 17(3) c & d of the 1999 Constitution: “The State shall direct its policy towards ensuring that (c) the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused; (d) there are adequate medical and health facilities for all persons.
32.Suit No. FHC/PH/CS/680/2003
33.That is, it has not been incorporated into Nigerian legal system as a part of the country’s domestic laws.
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under the contract.34 In that light, inasmuch as Nigerian citizens in their capacities as individual citizens are not parties to the Economic Covenant, they are hindered from enforcing the treaty obligation of the Nigerian government with regard to the right to health.
While appreciating the above reasoning, the
issue of
Apart from the Economic Covenant, Nigerians can also assert the right to health under the African Charter on Human and Peoples’ Rights. This Charter, as earlier noted, has been domesticated as a Nigerian legislation by means of the African Charter Act.36 The African Charter Act stands on a level higher and above other statutes in the Nigerian legal system, being subject to only the constitution.37 This legal arrangement puts the right to health on a formidable legal footing in Nigeria and creates a legitimate pedestal to assert a claim to reproductive health rights in Nigeria. The relationship between the African Charter Act and the Nigerian Constitution raises a fundamental legal issue that needs to be flagged. Being an Act of the legislature, the African Charter Act remains subordinate to the Nigerian Constitution. The Nigerian Constitution is supreme and if any other law including an Act of the National Assembly is inconsistent with the constitution, the constitution would prevail and the other law shall be void to the extent of the inconsistency.38
Applying this principle to the context of
discourse, in situations of conflict between the African
Charter Act and the Constitution
34.In simple terms, the doctrine of privity of
contract connotes that generally no one would be entitled to
or be bound by the terms of a contract to which he is not a
party. See, Price v. Easton (1833)
4B & Ad. 433, and Tweedle v. Atkinson
(1861) 1B&S 393. For a further reading on the
doctrine of privity of contract, see M. FURMSTON,
CHESHIRE AND FIFOOT’S LAW OF CONTRACT (1981), at
35.(1880) 16 Ch.D 290.
36.See supra note 5.
37. See generally, Abaribe v. Abia state House of Assembly [2000] 9 W.R.N 1 together with Abacha v. Fawehinmi, 2 SCQR 489.
38. NIGERIA CONST., supra note 5, § 1(1) & (3).
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right to health, the Constitution would prevail over the African Charter Act. Put simply, the Constitution can override or neutralize the right to health guaranteed under the African Charter Act. This suggests that the government may legitimately escape the burden to protect, respect and fulfill the right to health or reproductive health of the people. However, the issue of right to health in Nigeria cannot be summarily foreclosed on the jurisprudential ground of supremacy of the constitution without careful scrutiny of some other facts. Primarily, it needs to be considered whether there is even a conflict between the Nigerian Constitution and the African Charter Act on the issue of right to health. It is the view of these writers that there is no conflict. Rather, there is a case of complementarity between the Act and the Constitution with regard to health rights. This issue is further addressed below.
In the ‘fundamental objective’ provisions, the Nigerian Constitution has expressed a strong intent to ensure the overall good health of citizens with an aspiration that “there are adequate medical and health facilities for all persons.” Through policy declarations, the Nigerian government has reaffirmed the desire to facilitate this intention. For example, the Nigerian HIV/AIDS Policy (2003) declares: “Nigeria recognizes its responsibility to provide access to health care for all its citizens.”39 Along this axis, the domestication of the African Charter in Nigeria without removal or curtailing of the health right provision in it must be perceived as a statutory affirmation of Nigeria’s aspiration to make access to healthcare a right instead of a mere privilege. Therefore, the African Charter Act provision on health is simply putting in statutorily enforceable terms an aspiration that has been expressed in the Constitution. In this light, the issue of conflict cannot arise. Put simply, the Act and the Constitution share and complement each other on a common positive ground that the health of the people is of utmost importance.
Summing up, there is ample legal ground to support the validity of the right to health including reproductive health in Nigeria. Apart from the foregoing, the right to reproductive health in Nigeria can be further sustained by placing the right in the structure of some basic rights that are constitutionally guaranteed and therefore justiciable in Nigeria. Analysis of reproductive health in the context of some established rights is undertaken in the following section.
39. NIGERIAN HIV/AIDS POLICY (2003), at 19.
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V. REPRODUCTIVE HEALTH RIGHTS IN THE SCOPE OF ESTABLISHED CONSTITUTIONAL RIGHTS IN NIGERIA
To recap briefly, reproductive health
encompasses all measures relating to the mental, physical and
social
It is widely accepted that condoms are among,
if not the least complicated means of preventing unwanted
pregnancies and
The right to terminate unwanted pregnancies remains a controversial issue in reproductive health right discourse, even in places like the United States of America where, many years back, the popular case of R v. Wade40 has held that the right to abort falls within the frame of a woman’s right to privacy.41 The ‘Right to abort’ in Nigeria remains within the restricted scope of R v. Edgal,42 which followed on the heel of then binding43 English case of R v. Bourne.44 In that vein, the relevance of R v. Wade’s perception of reproductive right to Nigeria may appear debateable. Moreover, the Nigerian constitutional provision on the right to privacy does not seem to have the elastic ability to accommodate the revolutionary dimension of R v. Wade. This is because the constitution sets out in itemized form the situations in which the right to privacy is constitutionally guaranteed.45 Notwithstanding, the claim to reproductive
40.(1973) 410 US 113.
41.See, LAW STUDENTS FOR REPRODUCTIVE JUSTICE, supra note 11, at 1.
42.(1938) 4 WACA 133.
43.The case of R v. Edgal was decided when Nigeria was still a colony of Britain. Cases decided in English Courts then applied as binding precedents as against persuasive precedents in Nigeria.
44.[1938] 3 All E.R 195.
45.See, NIGERIAN CONST., supra note 5, ss. 33 on the Right to Life and 37 on Privacy and
Family Life.
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health rights to terminate an unwanted pregnancy can be set within the structure of some other constitutional rights. Pertinent in this respect are the right to life and the right not to be subjected to inhuman and degrading treatment.46
Despite the criminalization of abortion by the Nigerian Criminal Code,47 abortions occur on a large scale. However, due to the criminal law barrier, people are compelled to recourse to unsafe abortion with dire consequences in terms of huge losses of human life and horrendous injuries and trauma that usually accompany unsafe abortion procedures.48 It is arguable that erection of criminal law barrier which impedes access to safe abortion in Nigeria creates a situation where women who inevitably seek abortion are railroaded to loss or deprivation of their lives or subjected to inhuman and degrading treatment due to injuries resulting from unsafe abortions. Put differently, the criminal law provisions criminalizing abortion indirectly infringe on (or cause to be created a situation where) the constitutional rights to preservation of lives and non- subjection to inhuman and degrading treatment.
VI. THE COURTS AND REPRODUCTIVE HEALTH RIGHTS AT
NATIONAL LEVELS
To reiterate, there is a strong body of legal
instruments to sustain the protection, fulfillment and respect
of reproductive health rights across the world. This consists
mainly of international human rights treaties reinforced with
consensus decisions of various international conferences and
other assemblies.49 The international
human rights instruments constitute very useful resources of
advocacy by activists and basis for adjudication of reproductive
health issues by the courts.50 However,
the impact of these international human rights laws on the
promotion of reproductive health rights, especially in the
developing countries of Africa, is debatable. One can therefore
reasonably question the manifest inertia of these laws
One reason that can be adduced for the inertia is that courts are creations of laws and hence have to operate within defined scope of powers granted by the enabling laws. Flowing from this is that the courts can only apply ‘valid laws’ that constitute
46.Id., s. 34 relating to the Right to Dignity of Human Person.
47.Criminal Code Act Cap. C38, Laws of the
Federation of Nigeria 2004, ss.
48.See, W.O. Chukudebelu & P.C. Nweke, Abortion and the Law, in MEDICAL PRACTICE AND
THE LAW IN NIGERIA (B.B. Umerah ed., 1989), at
49.UNFPA, STATE OF THE WORLD POPULATION 2 (1997).
50.Id. See also, Easton, supra note 11.
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parts of the country’s legal system, having
been made by the designated legislative bodies. It needs to be
remembered too that it is not the primary duty of the courts to
make or reform laws51 but to apply
valid and subsisting laws. With undomesticated
Another factor that may account for the
lethargy of the international human rights laws in domestic
courts is that aggrieved or affected persons lack the basic
legal capacity to litigate on account of the laws. As noted
earlier, international treaties operate between State parties.
It is only such State parties that can take legal measures to
enforce obligations under such treaties or to hold
While the above noted constraints on the part
of the courts are germane concerning upholding of international
human rights law, they do not connote that the courts can
maintain a
Through systematic and pragmatic utilization of these resources by the courts, a strong jurisprudential basis for enforcing reproductive health rights can evolve or be entrenched. In one respect, by pragmatic application and interpretation of pertinent laws, rights to [reproductive] health in Nigeria can be firmly created based on settled
51.Through the application and interpretation of existing laws which at times define the exact scope of the laws (which may even be different from the anticipation of the lawmakers) courts are said to make laws through the process of ‘judicial lawmaking.’ This is however within very narrow limits and does not amount to vesting legislative functions in the courts.
52.See A.
PERSPECTIVES (R. J. Cook ed., 1994).
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human rights principles. To sum up, the courts can create an infallible body of reproductive health rights laws from the ‘hard laws’ enshrined in the Constitution and the African Charter. In the course of this, the seemingly inconsistent positions of the Constitution and the African Charter Act with regard to health rights can be resolved. It is very much within the powers of the courts to expand the frontiers of law in Nigeria by the application of relevant established rules to the nascent issues of reproductive health rights. As Lord Lloyd of Hampstead noted,
[T]he general consensus of opinion at the present day is that, within certain narrow and clearly defined limits, new law is created by the judiciary…Thus it is realized that in a sense whenever a court applies an established rule or principle to a new situation or set of facts (or withholds it from these new facts) new law is being created.53
As illustrated in some cases considered above, it is along this line that courts in some countries have played prominent and historic roles in making legal reforms that facilitated the transformation of reproductive health rights into enforceable human rights.54
VII. COURTS AND REPRODUCTIVE HEALTH RIGHTS REFORMS: A
GLANCE AT LEGAL HISTORY
The promotion of reproductive health rights requires a firm legal foundation on which the people can proceed to make the government or any other transgressor accountable. However, in many respects, the required firm legal foundation may be lacking due to factors that include existence of laws that do not support the promotion of reproductive health rights or laws that are uncertain in content and thus relatively unhelpful.
Over time, in exercise of their limited but
potent
53.Lord Lloyd of Hampstead, Introduction to Jurisprudence (4th ed., 1979), at 850.
54.See
generally, Sanda Rodgers, The
Legal Regulation of Women’s Reproductive Capacity in Canada, in
CANADIAN HEALTH LAW AND POLICY (Jocelyn Downie, Timothy Caulfield & Colleen
Flood eds, 2002), at
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it is one reproductive health issue that has attracted continual agitation for reforms in Nigeria55 while also remaining an emotive and contentious issue in other countries judging by the spate of litigations.56 All the same, other reproductive health issues such as access to contraception, artificial reproductive technologies are also important and there have also been significant judicial intervention in those areas too.57
Leaving aside the conflicting moral positions
on the practice, abortion is essentially a family planning or
population control option and is readily resorted to in
situations where people are confronted with unwanted pregnancies
due to failure of preventive measures or other factors. In the
context of reproductive health rights, abortion amounts to an
exercise of the “freedom to decide if, when and how often” to
reproduce.58 However in Nigeria and
other places, access to abortion has been made unlawful by
operation of the criminal laws.59 An
inferable effect of criminal law prohibition is that people
faced with unwanted pregnancies are compelled by threat of
sanctions to carry such pregnancies to term against their will.
The criminalization thus amounts to an infringement on the
rights of such people to decide whether or not to reproduce. In
different parts of the world the courts have courageously
intervened to strike down such
Roe v. Wade is the historic Supreme Court decision which overturned Texas state abortion law thereby making abortion legal in the United States. The alias “Jane Roe” was used for Norma McCorvey on whose behalf the suit was originally filed, contending that the abortion law in Texas (which proscribed procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life) violated her constitutional rights and the rights of other women. The defendant was the District Attorney of Dallas County, Texas, Henry B. Wade. The U.S Supreme Court held among others, in the case that a woman with her doctor could choose abortion in
55.Chukudebelu & Nweke, supra note 48, at 67; Sonnie Ekwowusi, Nigeria: The Defeat of Imo Abortion Bill, THIS DAY, June 9, 2009.
56.See
e.g., LAW STUDENTS
FOR REPRODUCTIVE JUSTICE, supra note 11, at
57.See, Roxanne Mykitiuk & Albert Wallrap, Regulating Reproductive Technologies in Canada, in Downie, Caulfield & Flood eds, supra note 54; and ACLU, supra note 1.
58.See supra note 15.
59.See, Criminal Code Act, Cap. C38, Laws of
the Federation of Nigeria 2004, ss.
60.See supra note 40.
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earlier months of pregnancy without any
restriction. The decision was based on the
The major impact of the case was that all state laws in the U.S limiting women's access to abortions during the first trimester of pregnancy were invalidated and a new legal ground was created permitting abortion. Through Roe v. Wade, the U.S Supreme Court legalized abortion in the United States which was not legal at all in many states and was limited by law in others prior to the decision. With the revolutionary R v. Wade decision, U.S courts set a strong legal platform on which stakeholders have stood to safeguard reproductive health rights in different ramifications over the ages.61
Another significant and
Prior to this ruling, section 251 of the Canadian Criminal Code allowed for abortions to be performed at only accredited hospitals with the proper certification of approval from the hospital’s Therapeutic Abortion Committee. This made it possible to indict a physician providing abortion services, or a woman seeking an abortion without complying with the provision of the Code. Three doctors, Henry Morgentaler, Leslie Frank Smoling and Robert Scott set up an abortion clinic in Toronto for the purpose of performing abortions on women who had not received certification from the Therapeutic Abortion Committee as required under subsection 251(4) of the Criminal Code. In so doing, they were creating a basis to challenge the constitutionality of section 251 of the Criminal Code being convinced that a woman should have complete control over the decision on whether to have an abortion. Following a conviction for violating the Criminal Code provision pertaining to unlawful abortion, an appeal was lodged. The Court of Appeal for Ontario found in favour of the government. On further appeal to the Canadian Supreme Court, the main issue for resolution was whether section 251 of the Criminal Code violated section 7 of the Charter relating to
61. See, ACLU, supra note 1; LAW STUDENTS FOR REPRODUCTIVE JUSTICE, supra note 11, at
63.R. v. Morgentaler, available online at <http://en.wikipedia.org.wiki/R._v._Morgentaler> (accessed 19 October 2009).
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right to security of the person. The Court ruled 5 to 2 that the law violated section 7. The law was struck down as unconstitutional and Morgentaler's conviction was overturned.
The case of R v. Edgal,64 offers an insight into the role which Nigerian courts can also play in the promotion of reproductive health rights in Nigeria especially with regard to reforming the country’s restrictive abortion laws. It was courtesy of R v. Edgal that it became legal to commit abortion where the pregnancy poses a threat to the health or life of the mother. Prior to the case, abortion was absolutely unlawful and not permissible on any ground whatsoever. In the case some people were charged with conspiracy to commit abortion under the Nigerian Criminal Code Nigeria. Their contention was that the attempted abortion was undertaken to preserve the life of the mother. Following the English case of R v. Bourne,65 the West African Court of Appeal held that it was permissible to carry out abortion for the preservation of life or health of the mother. In that vein, WACA whittled down the strict provisions of the Nigerian Criminal Code and created an exception for abortion done for the preservation of life or health. To put R v. Edgal in reproductive health context, a woman who wishes to terminate a pregnancy for the reason of her health can legitimately do so instead of being forced to keep the pregnancy because of the previous criminal law position.
R v. Edgal and the
other abortion law reforming cases are instructive to
reproductive health right activists and other groups in Nigeria
and elsewhere who have continually agitated for the
liberalization of restrictive abortion laws. The typical
approach of the protagonists of liberalization is pursuit of
direct amendment of the Criminal Code provisions on abortion66 or the enactment of a
64.(1938) 4 WACA 133.
65.[1938] 3 All E.R 195.
66.Chukudebelu & Nweke, supra note 48, at 67.
67.Ekwowusi, supra note 55.
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VIII. THE PROMOTION OF REPRODUCTIVE HEALTH RIGHTS
WITHIN AND BEYOND THE COURTS
Courts, no doubt have crucial roles to play in the promotion of reproductive health rights by dynamic application and adaptation of relevant domestic and international human rights laws, as this article has strived to show. But before the courts can productively perform their roles, some structures must exist. Reproductive health rights cannot be enjoyed or effectively enforced in an environment where there is lack of other basic economic and social rights and facilities that are important in the lives of the people. Of particular importance in the promotion drive is the right of access to court68 by citizens to enforce reproductive health rights. Where people do not have access to the courts for enforcement of reproductive rights, the courts would not have the opportunity of performing their roles in facilitating changes.69 As a prominent Nigerian Jurist, Hon. Justice Oputa put it, “he who cannot even reach the courts cannot talk of justice from the courts.”70
Section 36 of the Nigerian Constitution
guarantees access to court for citizens. But the issue of access
to court goes beyond the theoretical constitutional guarantee.
There must be practical access to court
To sum up the foregoing analysis, for the
courts to effectively assist the promotion of reproductive
health rights, there must be realistic access to and
unassailable
68.For a discussion of ‘right of access to court’ see Babafemi Odunsi, Unfair Fair Hearing and Unequal Religious Equality: The Facts and Fictions of Constitutional Guarantee of Equality in Nigeria,
35 INDIAN
69.D.A. Ijalaye, Justice as Administered by the Nigerian Courts (Justice Idigbe Memorial Lecture Series Five, University of Benin, 1992), at 9.
70.Attorney General of Kaduna State v. Hassan (1985) 2 N.W.L.R 483, at 522.
71.See,
Ijalaye, supra note 69, at
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Judicial officials too should strive to be
above board in adjudication of reproductive health matters.
Principally, judicial officers must exercise restraint and
tolerance to advocates of reproductive health rights issues in
courts. True, reproductive health rights cases, due to the
nature of issues involved may be dramatic, emotive, unusual
and may even seem to be an affront to the religious and
Generally, judicial officers can play positive as well as negative roles in the promotion of reproductive health rights or other rights. The negative roles naturally would frustrate safeguarding of rights, and in addition impose extra burden on aggrieved persons. The case of Ahamefule v Imperial Medical Centre and Molokwu72 illustrates how the negative roles of a court can compound the woes of aggrieved persons whose rights have been transgressed.
In the case, the plaintiff, Georgina
Ahamefule, an HIV positive person had instituted action
against the defendants for the termination of her employment
on grounds of her HIV status. Before trial in the case
commenced, lawyer for the defendants asked for assurances that
other persons in court would not be infected with HIV if the
plaintiff was allowed to come into the court room to give
evidence. The defendants’ lawyer further urged the court to
require the plaintiff to produce a medical expert who would
testify on oath that other occupants of the court would not be
infected with HIV if the appellant was allowed in. The learned
trial judge immediately ordered that an expert opinion be
heard on the
Having listened to the arguments of both
counsel on the issue of the risk of an H.I.V.
72. Suit No. ID/1627/2000 (Ikeja Judicial Division of the Lagos High Court, Nigeria).
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carried out.73
One impact of the judicial position in Ahamefule is that the aggrieved person who had faced one level of discrimination in being dismissed from work due to her health status was again judicially subjected to another level of discrimination in terms of being deprived of unencumbered access to court.
The first Nigerian incident of HIV infection was officially recognized in 1986.74 In 2000 (about 14 years after), when the Ahamefule case came up, through public awareness campaigns and government policies, there was sufficient information on the modes of transmission of HIV. Someone of the calibre of a High Court Judge can thus be reasonably presumed to have rudimentary information on the modes of transmission as to be able to conclude that HIV could not summarily “jump at” people in the courtroom. It is thus arguable that the position of the court was motivated more by personal prejudices than empirical knowledge.
Unfortunately, the unwarranted judicial emasculation of rights displayed at the High Court was not redressed, but rather tacitly approved at the Court of Appeal which elected to scuttle the matter by means of forensic technicality. Ahamefule remains an uncomfortable reminder that the courts can take positions that have adverse effects on the promotion of human rights, including reproductive health rights.
HIV positive status touches on reproductive and sexual rights. An area where HIV positive status touches on reproductive health rights is the increasingly controversial issue of the right of HIV positive women to bear children.75 In the shadow of Ahamefule, if a HIV positive woman’s right to bear children is transgressed by forceful sterilization or a prohibitive legislation, there is the possibility that such a woman may still have to confront other burdens at the court level. Happily, many courts in different parts of the world have not taken the Ahamefule route. In cases of similar nature, the courts have taken stances beneficial to the promotion of
73.Adapted from the Court of Appeal Ruling in Ahamefule v. Imperial Medical Centre & Molokwu, CA/L/514/2001 delivered on 21 April, 2004.
74.UNGASS, NIGERIA:
PROGRESS REPORT (January
31, 2008), at
75.See, David Smith, African Women with HIV
‘Coerced into Sterilisation,’ THE GUARDIAN, Monday 22 June
2009, online at
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reproductive, sexual and other rights of
people living with HIV.76 Hopefully,
Nigerian courts will associate with the
IX. CONCLUSION
Realization of reproductive health rights remains a continuous struggle across the world. There are many fronts to prosecution of the struggle with different stakeholders having roles to play. This article has attempted to show the judicial front in the struggle, identifying the vanguard position of courts in the promotion of rights equation. Courts generally have played and will always have crucial roles to play in the promotion of reproductive health rights. Equally, as shown by Ahamefule, courts can complicate or frustrate the drive to promote reproductive health rights through unfavourable decisions.
There are various legal instruments by which courts can carry out their tasks. Also, through policy declarations77 and the ratification of international human rights instruments Nigeria and other countries have shown increasing willingness to promote reproductive health rights. In light of this development, it should be relatively easy for the courts to perform their roles. All the same, there is the requirement of the will power to perform the required roles. Remarkably, various court decisions in different parts of the world indicate that courts are more willing to stand on the side of protection, fulfillment and respect of human rights, including reproductive health rights. This poignantly explains why the court remains an attractive avenue for agitators of reproductive health rights in different parts of the world.
76.See .e.g., Diau v. Botswana Building Society (BBS), Case No. IC 50/2003 (Industrial Court of Botswana, 2003); Hoffmann v. South African Airways (2000) 11 BCLR 1235 (CC); Nymbani Children’s Home v. The Ministry for Education and The Attorney General, Kenya High Court at Nairobi, Application No. 1521 of 2003 (OS); Van Biljon & Ors v. Minister of Correctional Services & Ors (1997) 50 BMLR 206, High Court of Cape of Good Hope Provincial Division, para 51.
77.Some examples of such policies in Nigeria are the Nigerian National Health Policy and Strategy 1988, 1998, the Nigerian National Reproductive Health Policy and Strategy 2001, and the Maternal and Child Health Policy 1994. Other Federal Agencies and parastatals associated with strengthening reproductive health are the National Primary Health Care Development Agency (NPHCDA) Act 1992 , the Population Activities Fund Agency (PAFA), the Department of Community Development and Activities (DCDPA), and the National Health Insurance Scheme Act 1991.
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THE QUEST FOR POVERTY ALLEVIATION IN NIGERIA:
THE NEED FOR A
O.A. Orifowomo*
ABSTRACT
The article closely examines the concept and meaning of poverty, being inclusive though not restricted to income poverty, but embracing the wider construct of human poverty, finding expression in the requirements of human development. It situates the fight against poverty across the globe within the Millennium Declaration and the Millennium Development Goals of the United Nations. In particular, Nigeria appears to be fighting a losing battle against poverty, over the last three decades, despite committal of considerable resources, due to insidious failure to engage beyond mere programmes and strategies. It advocates a shift in conception and implementation on the entire platform of household, civil society, development partners and the apparatus of governance.
I. INTRODUCTION
We will spare no effort to free our fellow
men, women and children from the abject and dehumanizing
conditions of extreme poverty, to which more than a billion of
them are currently subjected. We are committed to making the
right to development a reality for everyone and to freeing the
entire human race from want. We resolve therefore to create an
Poverty has its origin in human existence and it has been with society in various degrees from time immemorial. Its meaning and extent has changed over time with civilization, economic development and human perception of things. For instance, most people in ancient societies were poor, and this was accepted as natural and unavoidable. The current understanding, on the contrary, is that the condition of poverty is unacceptable, and should therefore be eradicated. This is based on the human rights
* Senior Lecturer, Department of Jurisprudence & Private Law, Faculty of Law, Obafemi Awolowo University. Email: <orifowomo@oauife.edu.ng> or <oorifowo2003@yahoo.co.uk>.
1. United Nations Millennium Declaration, General Assembly Resolution 55/2 of 8 September 2000, available at <http://www.un.org/millennium/declaration/ares552e.htm> (accessed 19 June 2008).
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notion that all human beings are equal, and should be entitled not only to civil and political rights, but also to social, economic and cultural rights such as food, shelter, education and personal security.2
There appears to be a bewildering ambiguity in the use of the term “poverty.” The term poverty is susceptible to various meanings which may cover a wide range of issues such as lack of adequate income, or human resources, sustainable livelihood, social inclusion, current consumption or future security. Different concepts imply different interventions. Poverty means more than the condition or quality of being poor, in need, indigent, or lacking means of subsistence. The meaning of poverty extends to “deficiency in necessary properties or desirable qualities or in a specific quality, inferiority, or inadequacy.”3 The pertinent questions, therefore, are these: is poverty simply about the level of income obtained by households or individuals? Is it about lack of access to social services? Or, better still, is it more correctly understood as the inability to participate in society, economically, socially, culturally or politically?4 These issues are analyzed in this article.
II. THE CONCEPTUALIZATION OF POVERTY
It is widely accepted among scholars that the word “poverty” may be defined in many ways; in fact, experts in the field are yet to agree upon a single definition of the term.5 Poverty can be defined as an inability to meet basic needs due to lack of resources. It is a condition in which resources are not adequate to meet basic needs.6 Poverty is the substantive lack of means or resources.7 Broadly speaking, poverty may be conceived both in the sense of income poverty and in the sense of human poverty. Earlier, poverty was understood largely in terms of income poverty. In recent times, however, its scope
2.S. Schwartzman, The Statistical Measurement of Poverty (Summary of the work of the Expert Group on Poverty Statistics, set up by the UN Statistical Commission in 1995), available at <http://unstats.un.org/unsd/statcom/doc99/rio.pdf>, (accessed 21 June 2008).
3.Culled from Mission Statement of Journal of Poverty: Innovations on Social, Political & Economic Inequalities, School of Social Work, Loyola University Chicago, Illinois.
4.Simon Maxwell, The Meaning and Measurement of Poverty (Odi Poverty Briefing No. 3, 1999), available at <http://www.odi.org.uk/publications/briefing/pov3.html> (accessed 21 June 2008).
5.M. Mowafi, The Meaning and Measurement of Poverty: A Look into the Global Debate, available at <http://www.sas.upenn.edu/~dludden/Mowafi_Poverty_Measurement_Debate.pdf> (accessed 19 June 2008).
6.P. Saunders, Towards a Credible Poverty Framework: From Income Poverty to Deprivation (SPRC Discussion Paper No. 131, January 2004), available online at <http://www.sprc.unsw.edu.au/media/File/DP131.pdf>, (accessed 26 February 2011).
7.G.
Fajth & K. Holland, Poverty and Children: A Perspective
(UNICEF Working Paper, July 2007), at
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has extended to some other forms beyond lack and deprivation to include inadequate human resources referred to as human poverty. Poverty was treated as a lack of income; this could be on household or individual basis, engendering a failure to meet minimum nutrition or subsistence levels. However, the concept of poverty has broadened to accommodate a wider set of “basic needs”, extending beyond lack of income, to lack of access to health, education and other services.8
Human poverty refers to a multidimensional
concept of poverty going beyond income poverty and including
deprivations in areas of health, knowledge, child mortality,
malnutrition, and so on. The United Nations Development
Programme (UNDP) defined poverty in its
The UNDP Human Development Report, 1997
introduced the concept of human poverty. It argued that if
income is not the sum total of
A. Absolute and Relative Poverty
Contemporarily and in universal terms, income poverty is treated under two broad heads. One is the concept of absolute poverty understood as the minimum set of resources a person needs to survive. The other is the concept of relative poverty, that is, a measurement of the resources and living conditions of parts of the population in relation to others.12 According to the World Bank, absolute poverty relates to the ability of the individual to provide himself with the basic needs such as food, clothing, shelter, portable water, health service, education, public transport, and so on. This type of
8.Maxwell, supra note 4.
9.UNDP, OVERCOMING HUMAN POVERTY (2000).
10.Id.
11.UNDP, HUMAN DEVELOPMENT REPORT (1997).
12.G.M. Fisher, Is There Such a Thing as an Absolute Poverty Line Over Time? <http://www.census.gov/hhes/povmeas/publications/povthres/fisher3.html> (accessed 23 February 2011).
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poverty leads to deprivation,
be difficult to measure it in a consistent way, since the dividing line between acceptable and unacceptable deprivation is not just biological, and can change from society to society. The consensual understanding, however, is that absolute poverty is an intolerable situation requiring prompt corrective action.14 In other words, absolute poverty refers to lack of the set of resources a person should acquire in order to maintain a “minimum standard of living.”
Relative poverty, on the other hand, is concerned with how well off an individual is with respect to others in the same society. Relative poverty relates to the inability of a certain section of the community or individuals to satisfy their basic needs.15 In theory, therefore, while an absolute poverty line is a measure that could, adjusting for price fluxes, remain stable over time, a relative poverty line is one that could be expected to shift with the overall standard of living in a given society.16
B. Characterization of Poverty
Poverty is “a multifaceted, dynamic and contextualized form of adversity in which material lack interacts with and is mediated and compounded by social exclusion, inequity and powerlessness, with multiple effects.”17 Poverty is hunger, lack of shelter, a state of being sick and not being able to see a doctor, not having access to school and not knowing how to read, not having a job. Poverty is powerlessness, lack of representation and freedom.18 Poverty erodes or nullifies economic and social rights such as the right to health, adequate housing, food and safe water, and the right to education. The same is also true of civil and political rights, such as the right to a fair trial, political participation and security of the person.19 It is clear from the above that poverty is widely understood today as a multidimensional phenomenon, where income
13.WORLD BANK, POVERTY: WORLD DEVELOPMENT REPORT (1990).
14.Schwartzman, supra note 2.
15.B. Bulama, Economic Growth, Inequality and Poverty in Nigeria, at 19, available online at <http://www.lulu.com/items/volume_27/429000/429916/1/print/429916.pdf> (accessed 26 July 2008).
16.Mowafi, supra note 5.
17.Fajth & Holland, supra note 7.
18.See, World Bank reports on poverty, available online at <http://www.worldbank.org/> (accessed 13 June 2008).
19.Office of the United Nations High Commissioner for Human Rights, available at <http://www.ohchr.org/english/issues/poverty/index.htm> (accessed 12 June 2008).
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or material
C. Determining the Poverty Line
“Poverty line” indicates the income level below which poverty exists, thus defining those who are in income (or primary) poverty.21 A person is considered poor if his or her consumption or income level falls below some minimum level necessary to meet basic needs.22 This minimum level is usually called the “poverty line”; the most formally recognized being the “Henderson Poverty Line.”23 Put differently, poverty line is the income level beneath which a person cannot buy goods and services that constitute a socially acceptable minimum standard of living.24 Benjamin Rowntree, who popularized the concept of poverty line, defines it as “a standard of bare subsistence rather than a living.”25 What is necessary to satisfy basic needs varies across time and societies. Therefore, poverty lines vary in time and place, and each country uses lines which are appropriate to its level of development, societal norms and values.26
The concept of a poverty line depicting a global minimum standard for a socially acceptable minimum standard of living for the whole world came into existence only after 1945 when, for the first time, the concept became an object of policy attention.27 In an effort to measure global poverty by the standards of what poverty means in poor countries, the World Bank has adopted a method whereby all persons could be evaluated equally based on a single threshold of real consumption. Rather than accepting national poverty lines that would treat poverty as a relative concept, and
20.Fajth & Holland, supra note 7.
21.Saunders, supra note 6, at 2.
22.Id., at 7.
23.The Henderson Poverty Line is a measure developed in the early 1970s by Professor Ronald Henderson, while undertaking the Australian Government Commission of Inquiry into Poverty. The poverty line estimates the amount of money people need in order to cover their basic costs and maintain a minimum standard of living. See, Poverty Line Update, available at <http://www.bsl.org.au/pdfs/poverty_line_update_Aug07.pdf> (accessed 26 February 2011); The Poor in Australia: Who Are They and How Many Are There? available online at <http://www.aph.gov.au/library/intguide/sp/poverty.htm> (accessed 26 February 2011).
24.Saunders, supra note 6, at 5.
25. See, C.L.P. Nunes, The Evolution of the Economic Thought about Poverty Measurement, available online at <http://www.hull.ac.uk/php/ecskrb/GDP2007/Celso.22647.1177930319/>, (accessed 13 June 2008).
26.Poverty Net, Overview: Understanding Poverty, available at <http://web.worldbank.org/...> (accessed 19 June 2008).
27.Poverty: Elements of Historical Definition, available online at <www.sas.upenn.edu/>, (accessed 5 June 2008).
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recognizing the merits of establishing a common measure to evaluate consumption poverty across countries, the Bank devised what is known as the “$1/day poverty line” in 1990,28 denoting the common international poverty line.
The $1/day definition reflects what is known
as “purchasing power parities” (PPPs), essentially basing the
poverty line as the equivalent of what a person could buy with
one dollar in the United States. It is important to note,
therefore, that the $1/day definition does not reflect “how far
a dollar could go” in local currency, but rather, is an
indication of what a dollar could purchase in the United States
adjusted for differences in domestic price levels.29 However, in 2008, the World Bank came
out with a revised figure of $1.25 at 2005
III. THE FACE OF POVERTY IN NIGERIA
The national incidence of relative poverty
increased sharply, both between 1980 - 1985, and 1992 - 96 in
Nigeria. The national incidence of relative poverty dropped from
65.6 per cent in 1996 to 54.4 per cent in 2004 representing 11.2
per cent decline over the period.31 The
dollar per day gave a national poverty incidence of 51.6 per
cent. The urban poverty incidence was 40.1 per cent compared
with rural poverty incidence of 60.6 per cent. The subjective
measure of poverty, which is a
In clear terms, the National Economic Empowerment and Development Strategy (NEEDS)33 stated that “although Nigeria is rich in natural and human
28.Mowafi, supra note 5.
29.Id.
30.WORLD BANK, 2008 WORLD DEVELOPMENT INDICATORS, POVERTY DATA: A SUPPLEMENT TO WORLD DEVELOPMENT INDICATORS (2008); New Data Show 1.4 Billion Live on Less than US$1.25 a Day, But Progress Against Poverty Remains Strong, available at <http://web.worldbank.org/> (accessed 26 February 2011).
31.NATIONAL BUREAU OF STATISTICS, POVERTY PROFILE FOR NIGERIA (2006). The findings of the report cover the magnitude, nature, character and dimensions of poverty in Nigeria in 2004. Noticeably, the report failed to distinguish between absolute poverty and relative poverty. It rather generalized poverty in Nigeria during the period under review as relative poverty. This would be inappropriate considering that during this period, the income of some proportion of Nigerians fell below the “poverty line” of $1 a day.
32.Id.
33.NATIONALPLANNING COMMISSION OF NIGERIA,NATIONAL ECONOMIC EMPOWERMENT AND DEVELOPMENT STRATEGY (NEEDS) (2004).
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resources, 7 out of every 10 Nigerians live
on less than $1 a day.”34 Furthermore,
“more than
Since 1990, the UNDP in its Human Development
Report has been publishing the Human Development Index (HDI)
which looks beyond Gross Domestic Product (GDP) to a broader
definition of
A. Causes of Poverty
The fundamental question about poverty has always been who or what causes it. The Western thinking on this question has oscillated between placing the responsibility for poverty squarely on poor people and locating it in systemic conditions beyond the control of individuals. Poor people are in their unfortunate condition due to circumstances beyond their control. Due to the fact that the source of poverty lies in
34.Id., at ix
35.Id., at xiii.
36.WORLD BANK, JIS (2004), at
37.See, UNDP, HUMAN DEVELOPMENT REPORT 2007/2008 (2008).
38.Id.
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the socioeconomic system, the solution to it
must also be at the societal level: large- scale interventions
to rectify systemic inequities. On the other hand, some have
insisted that poverty is an individual problem. It is argued
that
Suggestively, the Nigerian thought seems to
align with the attributes of a systemic failure as provocateur
for poverty in the land. According to the NEEDS,40 one source of poverty is the lack of
basic services, such as clean water, education, and health care.
Another is the lack of assets, such as land, tools, credit, and
supportive networks of friends and family. A third one is the
lack of income to enable one access food, shelter, clothing, and
empowerment (political power, confidence, dignity, etc).
Discrimination on the grounds of gender, race, disability, age,
or ill health increases vulnerability to poverty; so do natural
or
It would then appear that the nature of
poverty in Nigeria is a combination of income and human poverty.
The poor in Nigeria is destitute of virtually every utility for
human capabilities, though it could be conceded that there may
not necessarily be an aggregation of all the factors in one
particular case. Considering that the majority of Nigerians were
categorized as living in abject poverty, at that time,42 despite the country’s great natural
wealth, it would not be
1.
39.F.A. Hanson, How
Poverty Lost Its Meaning, 17 CATO J.
(1997), at
40.See supra note 33.
41.Id., at xiv.
42.The period until the inception of the NEEDS and thereafter, though there has been gradual amelioration of the situation. By then, about 70 percent of the population had income of less than $1 a day. See, NATIONAL PLANNING COMMISSION OF NIGERIA, supra note 33, at xiii.
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others, have continued to show negative trends, which ultimately translated to worsening poverty incidence.
2.Weak Productive
3.Bad
4.
43.DFID,
Nigeria, available at
44.World Bank Vice President Praises Nigerian Government for Reforms, available at <http://web.worldbank.org/wbsite/external/countries/africaext/nigeriaextn/0,,contentmdk:21648598~pa gepk:141137~pipk:141127~thesitepk:368896,00.html> (accessed 21 July 2008).
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Delta which is lagging far behind having gone through a number of civil unrest.45
5.Policies of International
6.Debt
The servicing of the debt had encroached on
the volume of resources needed for socioeconomic development.
Productive sectors of the economy like agriculture, industry,
manufacturing and so on were equally constrained leading to low
productivity, low capacity utilization,
45.Id.
46.A. Shah, Structural
47.Nigerian Debt Management Office.
48.
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country was US$3.3 billion at the end 2007,
this is largely to multilateral creditors, but external reserves
exceeded US$54 billion at the end of January 2008.49 Also, the nation’s domestic debt
profile increased from N4, 229
trillion in September to N4.55
trillion in December 2010. However, according to a statement
credited to the Director- General, Debt Management Office (DMO),
Dr Abraham Nwankwo, the debt to gross domestic product (GDP) of
19 per cent was quite in order when compared with the global
acceptable standard of 40 per cent for countries in the same
peer group with Nigeria.50 Fears have
been expressed over the country’s rising debt portfolio,51 with its potential of soon becoming a
debt
7.
8.Poor Human Resources
49.IMF Executive Board Concludes 2007 Article IV Consultation with Nigeria, Public Information Notice (PIN) No. 08/16, February 15, 2008, at 2.
50.Nigeria’s Debt Profile Healthy – DMO &. Nigeria Not Utilizing
Opportunities in AfDB, NIGERIAN TRIBUNE, January 28,
2011, available at
51.Id.
52.See, G. Buwai, The Role of the Public Service in Poverty Reduction Strategies: Challenges and the Way Forward (Country Paper Presentation at the 25th Annual African Association for Public Administration and Management (AAPAM) Round Table Conference, Banjul, Gambia, April 2004), available at <http://unpan1.un.org/intradoc/groups/public/documents/AAPAM/UNPAN025671.pdf> (accessed 22 June 2008). See also, Anup Shah, Causes of Poverty, available online at <http://www.globalissues.org/TradeRelated/Poverty/Corruption.asp> (accessed 3 June 2008).
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IV. POVERTY AND THE MILLENNIUM DEVELOPMENT GOALS
In September 2000, 189 countries signed the Millennium Declaration which led to the adoption of the Millennium Development Goals (MDGs). The MDGs are a set of eight goals for which 18 numerical targets have been set and over 40 quantifiable indicators have been identified. The goals are: eradicating extreme poverty and hunger; achieving universal primary education; promoting gender equality and empower women; reducing child mortality; improve maternal health; combating HIV/AIDS, malaria, and other diseases; ensuring environmental sustainability; and developing a global partnership for development. The first MGD calls for halving the proportion of people living in extreme poverty, and those suffering from hunger, between 1990 and 2015. Coinciding with this commitment, the World Bank focused its 2000/01 World Development Report on exploring best practices for reaching this goal, repositioning poverty alleviation as the single greatest mission guiding the Bank’s policies and programs.
There had been various programmes and
strategies aimed at poverty alleviation in Nigeria. It is
remarkable to note that the budget for Nigeria in 2000 was
dubbed as one “to relieve poverty.” Indeed, before the National
Assembly even passed the 2000 budget, the government got an
approval to commit N10 billion to
poverty alleviation programme. In the 2001 budget, the
government had increased the allocation to poverty alleviation
programme by 150%.53 The first
poverty eradication programme in Nigeria was the National
Accelerated Food Production Programme and the Nigerian
Agricultural and
General Ibrahim Babangida took over the reign of government in 1986 and established the Directorate of Food, Roads and Rural Infrastructure (DFRRI). The Peoples’ Bank of Nigeria and the Community Bank of Nigeria (which were part of the programme) were set up to give out small loans to the rural poor. The wife of the President, Mrs Maryam Babangida came up with her own poverty reduction program, “Better Life Programme,” to improve the lives of rural women. General Sani Abacha who took over power from the interim administration of Chief Ernest Shonekan in 1993
53.F.O. Ogwumike, An Appraisal of Poverty Reduction Strategies in Nigeria, 39 CBN ECON.
&FIN. REV. (2002).
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set up the Family Support Programme and the
Family Economic Advancement Programme.54 The
Obasanjo regime also established the National Poverty
Eradication Programme (NAPEP) in 2001 with a
A. Poverty Reduction Strategy Papers (PRSPs)
Since the late 1970s, Structural Adjustment Programmes (SAPs) have become an integral part of the conditionalities imposed by the rich donor governments of the West and the International Financial Institutions (IFIs), in particular, the World Bank and the International Monetary Fund (IMF) for lending to borrowing nations. SAPs require recipient countries to change their economic policies, generally to encourage greater economic deregulation (“liberalization”) of trade, investment and finances. In 1986, the IMF established its own structural adjustment lending programme.
Usually, SAPs include several basic economic stabilization components geared towards bringing an economy into balance through reducing inflation and decreasing budget deficits while meeting debt payment schedules. They also contain structural and sectoral policies aimed at integrating countries into the global economy by promoting exports, reducing state activity, and liberalizing trade, investment and finance. They
54.Nigeria also had Free and Compulsory Primary
Education (FCPE), Low Cost Housing, River Basin Development
Authorities (RBDA), National Agricultural Land Development
Authority (NALDA), Agricultural Development Programmes (ADP),
Agricultural Credit Guarantee Scheme (ACGS), Strategic Grains
Reserves Program (SGRP), Rural Electrification Scheme (RES),
and Rural Banking Programme (RBP). These were programmes
mostly designed to take care of objectives such as employment
generation, enhancing agricultural output and income, and
stemming the
55.See generally, V.E. Dike, The Global
Economy and Poverty in Nigeria, available online at <http://www.nigerdeltacongress.com/garticles/global_economy_and_poverty_in_ni.htm>
(accessed 16 June 2008); N. Jonah, Alleviating Poverty in
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generally entail reductions in government spending and employment, higher interest rates, currency devaluation, sale of government enterprises, reduction of tariffs and other trade barriers, and liberalization of foreign investment regulations and labour laws.56
The IMF had been variously criticized for its SAPs, which allegedly worsened the poverty profile in many countries. Supposedly, in response, the IMF renamed its structural adjustment facility as the Poverty Reduction and Growth Facility (PRGF). In 2000, borrowing countries began preparing Poverty Reduction Strategy Papers (PRSPs) as a prerequisite for a World Bank/IMF adjustment loan. These PRSPs could then serve as a framework for all IFIs and bilateral donor lending. Poverty Reduction Strategy Papers (PRSPs) are prepared by member countries in broad consultation with stakeholders and development partners, including the staffs of the World Bank and the IMF. Updated every three years with annual progress reports, they describe the country’s macroeconomic, structural, and social policies in support of growth and poverty reduction, as well as associated external financing needs and major sources of financing.57 Governments across the continent have developed Poverty Reduction Strategy Papers (PRSP), which attempt to comprehensively address the problem of poverty, through close collaboration with development partners.58
B. National Economic Empowerment and Development Strategy (NEEDS)
The NEEDS document, which is the bedrock of the reform programmes of the Federal Government of Nigeria, was launched on May 29, 2002.59 NEEDS is Nigeria’s plan for prosperity, its development plan inspired by current challenges for change and vigorous growth. Functionally, NEEDS is Nigeria’s Poverty Reduction Strategy Papers
56.C. Welch, Structural Adjustment Programs and Poverty Reduction Strategy, available online at <http://www.fpif.org/>, (accessed 3 June 2008).
57.IMF,NIGERIA:POVERTY
REDUCTION STRATEGY
58.F.
Pamacheche & B. Koma, Privatization in
59.Thereafter, the 36 States of the Nigerian
federation, including the Federal Capital Territory, were
invited to develop a broad,
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(PRSP).60 It is the
people’s way of letting the government know what kind of Nigeria
they wish to live in, now and in the future. It is also the
government’s way of letting the people know how it plans to
overcome the deep and pervasive obstacles to progress that the
government and the people have identified. It is also seen as a
way of letting the international community know where Nigeria
stands in the West African
The National Economic Empowerment and
Development Strategy (NEEDS)
From the onset, NEEDS was conceived as a
living document that may continue to be modified as lessons of
implementation emerge. In particular, the document will be
reviewed and updated after every presidential election,62 hence
60.See,C.C. Soludo, Preface to NATIONAL PLANNING COMMISSION OF NIGERIA, supra note 33.
61.See, supra note 57.
62.NATIONAL PLANNING COMMISSION OF NIGERIA, supra note 33, at vi – vii
63.Controversy
over NEEDS 2 Status, THE GUARDIAN, July 8, 2008 at
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V. NEED FOR A PARADIGM SHIFT?
Admittedly, programmes and strategies for poverty reduction and alleviation implemented by various governments in Nigeria had accomplished very little, if anything at all. The NEEDS document professes that “despite great natural wealth, Nigeria [and by extension, Nigerians] is poor and social development is limited. If present trends continue, the country is not likely to meet the Millennium Development Goals.”64 It identified three main problems: not all of the people enjoy the same chance of prosperity; past governments in Nigeria, instead of focusing on delivering essential public services, assumed control of major sources of national income, thereby precipitating and facilitating corruption; and existence of many challenges in the way of private enterprise.65
No doubt, appreciable progress seemed to have
been made in fostering economic development under the aegis of
NEEDS. Regrettably, this has not seemingly translated into
prosperity and
A. Adoption of a Human
The strategy that has been most traditionally
used as a tool in the fight against poverty has not proved to be
effective. There is the need to develop a much broader vision
more closely tied to human rights so as to acquire a
64.NATIONAL PLANNING COMMISSION OF NIGERIA, supra note 33, at xiii.
65.Id.
66.E.G.
Salmon, The Long Road in the Fight Against Poverty and
Its Promising Encounter with Human Rights, 4
SUR INT’L J. HUM. RTS (2007), at
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It is contended that successful poverty
reduction depends on providing opportunities for the poor people
to contest their rights through normative changes, including
through legal frameworks. Civil and political rights empower
poor people not only to claim their economic and social rights
but also to demand accountability for good public services,
On the other hand, the poor must not only be heard but must be empowered. In recognition of giving the poor a voice and its potential in the fight against poverty, the World Bank at the outset of this millennium initiated the Voices of the Poor project. In that study, the World Bank collected the voices of more than 60,000 poor men and women from around the world in an unprecedented effort to understand poverty from the perspective of the poor themselves. This work was to form the fulcrum of the 2000/2001 World Development Report entitled: Attacking Poverty. Advisedly, each country ought to build on the revelations in the Report, in formulating strategies to alleviate poverty and promoting the empowerment and capabilities of the poor.70
B. Integration of Freedom from Poverty into Fundamental Rights
Under the Constitution of the Federal Republic of Nigeria, 199971 certain rights are designated as fundamental rights. These rights are regarded as sacrosanct. Derogation from them, or an attempt to do so, except where justified under the Constitution itself, is amenable to judicial action.72 These rights include: right to life; right to dignity of
67.C. Luttrell & S. Quiroz, Linkages Between
Human
68.S. Jahan, Human
69.UNDP, HUMAN DEVELOPMENT REPORT 8 (2000).
70.See e.g., WORLD DEVELOPMENT REPORT 2000/2001,NIGERIA:VOICEOF THEPOOR (Country Synthesis Report on Consultation with the Poor: Nigeria, 2000/2001).
71.Cap. C23, Laws of the Federation of Nigeria, 2004.
72.Id., § 46.
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human person; right to personal liberty; right to fair hearing; right to freedom of thought, conscience and religion; right to freedom of expression, right to property and so on.73
It is submitted that the freedom from
poverty is inexorably linked with the aforementioned rights.
Indeed, in real terms, the
C. Rigorous Observance of the Fundamental Objectives and Directive Principles of State Policy in the Constitution
A symbiotic component of assimilation of
freedom from poverty into fundamental rights is the rigorous
observance of the fundamental objectives and directive
principles of State policy which are contained in Chapter II
of the 1999 Nigerian Constitution.74 The
Constitution provides, inter alia,
that the State shall harness the resources of the nation and
promote national prosperity and an efficient, a dynamic and
In addition, the Constitution states that the State shall direct its policy towards ensuring that all citizens, without discrimination whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment; that there are adequate medical and health facilities for all persons; children, young persons and the aged are protected against any exploitation whatsoever, and against moral and material neglect; and that there are equal and
73.Id., §§
74.Id., Ch. II & §§
75.Id., § 16 (1) & (2).
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adequate educational opportunities at all levels. Government shall strive to eradicate illiteracy.76
Without more, the foregoing provisions of the Constitution impose positive duties on the government and its agencies to seek the utmost good of the generality of the populace. In consonance with poverty eradication, the State is to make provision to ensure that a citizen lives a meaningful life by guaranteeing avenues for his/her self realization and actualization. In support of this position, section 13 of the Constitution declares: “it shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution.” It is, therefore, submitted that it will amount to a breach of the Constitution for a State to actively or perceptibly derogate from the citizens’ freedom from poverty or failing to do enough to alleviate poverty in the country.
D. Requirements of a
Under the 1999 Nigerian Constitution, the
judicial powers of the federation are vested in the courts,77 covering the whole gamut of inherent
powers and sanctions of a court of law.78 The
Constitution also guarantees access to courts as well as the
independence, impartiality and integrity of the judiciary.79 It states, however, the judicial
powers of the courts shall not extend to matters contained in
the Fundamental Objectives and Directive Principles of State
Policy set out in Chapter II of the Constitution.80 Thus, the courts may not inquire into
whether or not the act or omission by any authority or person or
whether any law or any judicial decision is in conformity with
the fundamental objectives. On the basis of this provision, it
is contended that the provisions of the Constitution under its
Chapter II is
Historically, the Nigerian provisions on the
Fundamental Objectives and Directive Principles of State Policy
were borrowed from the Indian experience in
76.Id., §§ 17 (3) & 18 (1) & (3).
77.Id., § 6.
78.Id., § 6 (6) (a).
79.Id., § 17 (2) (e).
80.Id., § 6 (6) (c).
81.It is not within the purview of this article to go into any details on the dialectics surrounding the non justiciability of the provisions in the Fundamental Objectives and Directive Principles of State Policy.
82.Upendra Baxi, The Rule of Law in India, 4 SUR INT’L J. HUM. RTS 16 (2007).
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in the making of law and policy to ensure the justiciability of the fundamental objectives on the government.83 In this regard, the Indian judiciary has successfully used the power of constitutional interpretation to favour interpretation that fosters, rather than frustrates the directives principles and fundamental objectives. This “indirect” justiciability has contributed a great deal towards fructification of the substantive “thick” versions of the Indian Rule of Law.84
As a corollary, and quite significant too, the
Indian Supreme Court has begun to translate
some Directives into rights. An example is the judicial
insistence that the Directive prescribing free and compulsory
education for young persons in the age group
E.
In its over fifty years of existence as an independent State, Nigeria has witnessed for the larger part of its history, military rule, bearing rule by prescriptive imperatives of decrees and fiats. There had been little tolerance of moderating contributions of the civil society. In 1999, the country returned to democratic governance. Despite this, there has been very little improvement in the life of the common man given the government’s insensitivity to the needs of its citizenry. The concept of checks and balances, a concomitant of the doctrine of separation of powers, is lacking in view of the overly powerful and overbearing executive with a controlling influence over other arms of government. This is the pattern with which Nigeria has been governed for the larger part of its nascent democracy.
However, the National Assembly has begun to
play a more constructive role, while the media, policy
83. See in particular s. 13 of the Constitution of the Federal Republic of Nigeria, 1999, supra
note 71.
84.Baxi, supra note 82.
85.§ 18, CONST. FEDERAL REP. NIGERIA (1999), supra note 69 For a comparable provision, see s. 18 of the Constitution of the Federal Republic of Nigeria, 1999, supra note 71.
86.Baxi, supra note 82; Constitution of the Federal Republic of Nigeria, 1999, supra note 71,
§§33 & 35.
87.Nigeria’s
Poverty Reduction
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lead to creating a better environment for the people, particularly the poor. For a nation that parades credence for lack of accountability and responsiveness of government, misallocation of state resources, corruption related to weak governance and patronage- based politics, among others, it is desirable to have an aware, virile and active civil society.
F. Legal Status of the NEEDS Document
NEEDS is conceived as a kind of pact between the people and the government of Nigeria. According to the NEEDS document,
NEEDS is ... the people’s way of letting the government know what kind of Nigeria they wish to live in, now and in the future. It is the government’s way of letting the people know how it plans to overcome the deep and pervasive obstacles to progress that the government and the people have identified.88
It is submitted that this declaration sounds grandiose; it does not portend stronger than a social pact. It is not a legal pact. At the highest, NEEDS is only a policy declaration: a policy directive indicating the direction and aptitude of a willing government. Its implementation is at the pleasure of the government. NEEDS is not a legally enforceable document. No judicial action can be taken against the government on it. In view of this, it is suggested that the government should enact or adapt the NEEDS document into law. After all, “NEEDS is a feasible plan ... the targets for progress are realistic, not ‘pie in the sky’ objectives that will never be achieved.”89
G. Poverty Reduction beyond Programmatic Agenda and Strategies
The government and all stakeholders in the fight against poverty must realize that the contest goes beyond mere conceptualization of programmes, agenda and strategies. If this is the case, the poverty fact sheets of Nigeria would have by now looked very promising and positive in view of the huge sums of money which had been committed to eradicating poverty in the country. There is a need for sincerity, transparency, political will, doggedness, focus and sustained genuine interest, among others, by the Nigerian government in its determination to reduce poverty and redress inequality in the polity.
88.NATIONAL PLANNING COMMISSION OF NIGERIA, supra note 33, at viii.
89.Id., at xiii.
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It is observed that past administrations in
the country have engaged in glorifying poverty alleviation on
the pages of newspapers and news conferences without any
meaningful impact on the poor and downtrodden in Nigeria. The
story has been the same: empty promises of poverty alleviation
through accelerated and improved practices, which only ended up
in making the policy formulators richer and the poor masses
poorer.90 In most cases, poverty
alleviation programmes are geared towards scoring cheap
political points or as a populist programme designed to confuse
the existing situation. For example, the Green Revolution of the
Second Republic turned out to be a ploy to favour politicians of
the ruling party. Fertilizer procurement and distribution became
political patronage with beneficiaries being mainly politicians
of the ruling party. The actual farmers were left to depend on
the emergency
In the same vein, the Better Life Programme,
ostensibly designed to enhance the quality of life of rural
women, among other objectives, ended up a caricature of itself,
as “Better Life for Better Women.” Direct beneficiaries were the
wives of the office holders,
90.Jonah, supra note 55.
91.A. Garuba, Adult Education and Poverty
Alleviation Programmes in Nigeria: A Case for Harmonisation,
92.According to Erapi, the “Better Life for Rural Women” programme was hijacked by the urban female elite. The programme created a few urban women millionaires but had no impact on the lives of the rural women for which it was meant. In the same category today, are the various programmes being run by first ladies and wives of political leaders, across Nigeria. Without exception, these programmes are better known to urban television viewers than to the poor for whom they are meant. See, G. Erapi,
P o v e r t y A l l e v i a t i o n o r P o v e r t y P r o p a g a t i o n , a v a i l a b l e o n l i n e a t <http://www.businessdayonline.co/analysis/ comments/1418.html> (accessed 22 March 2008).
93. K.V. Mofuoa, Poverty Reduction Through
Wealth Creation: A Business Ethics Approach (Paper delivered at
the 26th African Association for Public Administration and
Management Annual Round Table Conference, Whitesands Hotel,
Mombasa, Kenya,
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H. Poverty and Household Size
Poverty incidence, gap and severity seem to be positively correlated to the size of households,94 seemingly validating the conception among the Yoruba (one of the indigenous tribes in Nigeria) that “omo beere, osi beere,” meaning literally, “many children, much poverty.95 The population of Nigeria is currently put at about 140 million people.96 Nigeria is essentially a polygamous state, cutting across the entire tribes and peoples as well as the entire social strata. Arguably, the country is over populated; an average household size ranging between 8 and 12. The total fertility rate in Nigeria is as high as 6 per woman with teenage mothers contributing 10% of the births.97 The thrust here is that there is the need for individual responsibility in the efforts to curb the spiraling effects of poverty in the land. Despite that the nature of poverty in Nigeria appears to be systemic, the inordinate procreation tendencies have only exacerbated the condition.
Of course, the proclivity to have large families is steeped in cultural and social behaviours. Among the Yorubas of the Southern part of Nigeria, for example, large family size is treated as an asset, as the wives and many children contribute significantly to the labour force, for the purposes of farming. Also, the size of the family accentuates the social status of the family head. A saying goes: “Olomo lo l’aye,” that is, “the world belongs to those who have children.” Another is: “Olomola,” meaning, “the one with children is wealthy.” Another says: “Omo eni laso eni,” loosely translated, “one’s children are his covering, even as clothes cover a person’s nakedness or frailties.” Similar conceptions prevail amongst other groups in the country.
This cultural conception partly explains the reluctance or the lack of political will of successive governments to legislate on the family size. Previous attempts to do so failed. Various regulations pay only a lip service to any legal family size. For example, under the income tax law, tax deductions of N2, 500 per child are allowed a tax payer subject to a maximum of four children; such children must be receiving some form of educational instruction and be below 16 years.98 Also, under the National
2008).
94.Ogwumike, supra note 55.
95.O. Obilade & O. Mejiuni, Poverty Alleviation
through Reproductive Health in Nigeria: Exploring Other
96.National Population Commission Census, 2006.
97.Obilade & Mejiuni, supra note 95.
98.See, Personal Income Tax Act, Cap. P8, Laws of the Federation of Nigeria 2004, § 33 (3)
(b)(i).
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Health Insurance Scheme,99 the health insurance cover is limited to “the spouse and four biological children of the participant,” provided that such children are below the age of 18.100 The participant would be required to make additional contributions if more children are to benefit under the scheme.101 However, there are no compellations not to have more than four children. When the debate was on, as to the prescription of four children per family, jocularly it was asked if this meant the prescribed number of children per woman. This implies that the man is at liberty to father as many children as he desires from his many wives. In other words, the family size could hardly be prescribed, as a matter of law.
I. Correlation of Human Poverty and Human Development
On one hand, human poverty is the lack of
basic human capabilities, a deprivation in the most essential
capabilities of life, including leading a long and healthy life,
being knowledgeable, having adequate economic provisioning and
participating fully in the life of the community.102 On the other hand, human development
is a process of enhancing human capabilities, to expand choices
and opportunities so that each person can lead a life of respect
and value.103 However, the realm of
human development extends further: other areas of choice highly
valued by people include participation, security,
sustainability, guaranteed human
In other words, human development is about
creating an environment in which people can develop their full
potential and lead productive, and creative lives in accordance
with their needs and interests. People are the real wealth of
nations. Development thus, is expanding the choices people have
to lead the lives they value. Fundamental to enlarging these
choices is building human
99.Cap. N42, Laws of the Federation of Nigeria, 2004.
100.Operational Guidelines of the National Health Insurance Scheme, 2005, at 8.
101.Id.
102.UNDP, OVERCOMING HUMAN POVERTY (2000); UNDP, HUMAN DEVELOPMENT REPORT
(2000), at 17.
103.Id., at 2.
104.Id., at 17.
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opportunities in life remain inaccessible.105
It is not surprising, therefore, that the efforts by successive Nigerian governments to alleviate or eradicate poverty had failed. Pockets of programmes targeted at the poor, in the form of loan here and there, provision of some kind of skeletal facilities now and then, serials of activities, and so on, failed to address the core issues namely, the development of the person; removal of barriers to self realization and actualization; deficiencies in infrastructure; hostile economic environment; pre- disposition to systemic inequalities and lopsided reward system and so on. The propensity for failure was further compounded by gross inefficiencies in the implementation of those programmes.
The goal of poverty alleviation mechanics, particularly in the Nigerian context, should not merely to be to improve the nutrition, medical care and sanitary conditions of the poor (even though they are desirable), but also to make it possible that the citizens can as well effectively defend and realize their basic interests. This capacity presupposes that they are free from bondage and dependence; that they are able to read and write and to learn a profession or vocation; that they can participate as equals in politics and in the labour market; and that their status is protected by appropriate legal rights which are enforceable through an open and fair legal system.106 Thus, there is the need for a holistic approach to poverty alleviation in Nigeria. This should not be by a selective policy intervention, but as well targeted at empowering the entire citizenry. Specifically, the poor should be empowered to get out of poverty. It is only when this is done that Nigeria can stand up tall to say that poverty is reduced in the country.
VI. CONCLUSION
In Nigeria, the poverty trend has continued to
decline progressively from 70 per cent in 1999 to 54 percent in
2005. The outcome of the 2004 Core Welfare Indicators Survey
(NBS) shows that the proportion of the population living in
relative poverty reduced to 54 per cent, while 35 percent out of
the 54 per cent of the poor people are considered extremely
poor.107 Eradicating poverty is
regarded as the most important goal of human development.
Indeed, it is widely believed that at its core, development must
be about improvement of human
105. The Human Development Concept, <http://hdr.undp.org/en/humandev/> (accessed 3 June
2008).
106.T.W. Pogge, Eradicating Systemic Poverty:
Brief for a Global Resources Dividend, 4 SUR
INT’L J. HUM. RTS (2007), at
107.IMF, supra note 57, at 34.
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development should be the eradication of poverty. Government as a matter of priority should strive to end poverty and get its priority right by ensuring that all its citizenry are not jeopardized in terms of achieving the MGDs on schedule.
Certainly, NEEDS is an important road map not only in the bid to eradicate poverty, but also as a manifesto for political, social, cultural and economic turnaround of the Nigerian nation. In itself, NEEDS is transparently honest and appealing. It is no more a question of strategy but downright implementation. Given a redoubling of genuine and well directed efforts, the Millennium Goal 1 of halving the proportion of people living in extreme poverty and those suffering from hunger between 1990 and 2015 is still achievable if government is sincere in its efforts in eradicating poverty and commits adequate economic resources and the required political will to the various poverty alleviation programmes in the country. The task of minimizing the poverty level in Nigeria is a task that all and sundry must be ready to perform if we are to have a just society.
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FEDERALISM AND LEGAL PLURALISM IN ETHIOPIA: PRELIMINARY OBSERVATIONS ON THEIR IMPACTS ON THE PROTECTION OF HUMAN RIGHTS
Getachew Assefa*
ABSTRACT
Through its 1995 Constitution, Ethiopia
created a devolutionary federal state structure that is
devised as a means of holding together the polity. The new
political system combines federalism, self determination (up
to and including secession) and legal pluralism as solutions
to the erstwhile unequal relationships among
I. INTRODUCTION
Both federalism and legal pluralism are
mechanisms of promoting respect for
* Assistant Professor & Associate Dean,
Faculty of Law,
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II. FEDERALISM: GENERAL BACKGROUND
Federalism can be defined in various ways and
therefore different identifying features can be listed. Graham
Smith for example defines federalism as ‘an ideology which holds
that the ideal organization of human affairs is best reflected
in the celebration of diversity through unity.’1 Federalism is also identified with the
idea of distributing powers among different centers within a
given polity on the basis of predetermined legal arrangements.
Inherent in the idea of federalism is the desire to keep
equilibrium between forces of centralization and
decentralization, and as Smith succinctly puts it: “the federal
idea, in short, is generally conceived as a compromise, conveyed
by the image of checks and balances between unity and diversity,
autonomy and sovereignty, the national and the regional.”2 Constitutional distribution of powers
between the center and the
In a federal arrangement, the center cannot
unilaterally change, abolish or modify the covenant that creates
the federal polity. In that sense,
While remarking about the basic requirements of federalism and federations, one should not however lose sight of the important practical (and also legal) variations that render certain federations dysfunctional. Federal systems would be distinguished from one another on whether they demonstrate commitment to constitutionalism, respect for rights (individual as well as group) and democracy. True and functional federations are those that entrench the basic requirements of a federal arrangement along with democratic principles in their basic laws and at the same time practice those
1.FEDERALISM: THE
2.Id., at 5.
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requirements and principles.3 Conversely, those that fail to entrench
the
The ways how federal polities arise, the
justifications that propel federal forms of government and
mechanisms of organizing the territorial federal units have been
subjects of great theoretical and academic writings. Federalism
in
When ethnically based federations are rendered
‘false federations,’ the socio- political consequences to the
polity would be doubtlessly fatal. Such a situation will breed
all sorts of
One of the natural consequences of
3.It has to be noted that most of the federations known to history including the socialist ones, have had nice principles and clauses in their constitutions about rights and democracy. The problem regarding the pseudo federations remained largely to be implementation of those rules and principles.
4.Some
authors call the latter type of federations
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depending on how it is attended to, of either
resolving the
III. THE ETHIOPIAN FEDERAL SYSTEM: AN OVERVIEW
Since 1995, Ethiopia has been
constitutionally a federal state.5 The
1995 Federal Constitution of Ethiopia (hereinafter the 1995
Constitution or the Constitution) proclaims in its very first
Article that “the Constitution establishes a Federal and
Democratic State structure....” When we look at the states of
the Federation, it is tempting to say that the Ethiopian
Federation is, to use the terms of Kartashkin and Abashidze,
5.In fact the process of federalization started in
1991 with the forceful change of government and subsequent
enactment of a Charter for the Transitional Period Government
that recognized the rights of the
6.V.A. Kartashkin & A.K.H. Abashidze, Autonomy in the Russian Federation: Theory and Practice, in 10 INT’L J. MINORITY & GROUP RTS 203 (2003).
7.See, e.g., arts 8, 39 and 47 of the Ethiopian Constitution (1995).
8.Id., art. 8 & the Preamble.
9.Id., arts 39(1) & (4) and 47(2).
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The Constitution divides the territory of the
country into nine federating states and one federal territory.10 The nine states are the State of
Tigray, Afar, Amhara, Oromia, Somalia, Beneshangul/Gumuz,
Southern Nations, Nationalities and Peoples, Gambella Peoples
and the state of Harari People.11 Of
these states, Tigray, Afar, Amhara, Oromia and Somalia carry the
names of the numerically majority and dominant autochthonous
ethnic groups in the respective states. The state of
Beneshangul/Gumuz carries the names of the two dominant (and
competing) autochthonous ethnic groups, i.e., Benshangul (also
known as Berta or Jebelawi) and Gumuz. The State of Gambella
peoples is a kind of anomalous nomenclature. Gambella is the
name of the Ethiopian territory bordering the Sudan. It is not
therefore a name of a people. But the autochthonous
The State that adds a geographical aspect of
federalization to the Ethiopian federalism is the Southern
Nations, Nationalities and Peoples State. Several ethno-
linguistic groups inhabiting the geographical southern and
southwestern parts of the country are subsumed under this State.
There are about 59 autochthonous ethno- linguistic groups that
inhabit this State. It is interesting to note here that before
the 1995 Constitution (and after 1991), the
The ninth member of the Ethiopian federation is the State of the Harari People. This is a city state named after the Harar city found in eastern part of Ethiopia. Harar
10.Another City, Dire Dawa became a federal territory later by federal law although it was not designated as such in the Constitution. The reason for making the latter city a federal territory was the fact that it has been claimed by both the Somali and Oromia Regional States.
11.Art. 47 of the 1995 Constitution.
12.See, Dereje Feyissa, Ethnic Federalism in
Ethiopia: The Experience of Gambella Regional State (Paper
presented at the Seminar on Ethnic Federalism: The Challenge for
Ethiopia, Addis Ababa University, April
13.These are Nuer, Anywaa, Mejengir, Opo and Komo.
14.Proclamation
No. 7/1992, A Proclamation to Provide for the
Establishment of National/Regional
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was historically a prominent Muslim emirate conquered and formally incorporated into the Ethiopian state by Emperor Menelik II in 1889. It is believed to have existed as a kingdom since the 9th century and its civilization reached its zenith during the 16th century under Amir Ahmed Ibn Al Ghazi who was able to conquer most of the Christian highland part of Ethiopia.15 Its glory started to decline with the latter’s death in 1543 in the war he fought for more than a decade.16 Since then, Harar became just a historical city serving as a capital of a local administration until 1991. In 1991, with the change of government and the move towards federal system in the Ethiopian State, Harar’s political importance started to significantly change.
According to the population census of 2007,
the population of ethnic Hararis (the people after which the
state is named) stands at 15,858. The Harari people constitute
less than 9% of the population of the Harari People’s Regional
State. The Harari people have political dominance in that
Regional State where over 91% of the population constitute
mainly the Oromos (56.4%), the Amharas (22.77%) and people of
other ethnic groups (about 12%). Therefore, the standard used
for the formation of the State of the Harari People under the
above prevailing facts is unclear. One might of course say, as
briefly stated above that the arithmetic notwithstanding,
historical, cultural and
IV. FEDERALISM AND HUMAN RIGHTS
Generalizations are impossible about the structure of human rights in all federations and could be misleading if attempted. This is because there are a lot of variations in the human rights set up of federations. The grounds for variations among federal systems in the structure of human rights may include, as Yash Ghai notes, whether the federation is of a ‘coming together’ or ‘a holding together’ type.17
When we see the history of federations in
terms of the competence for the enforcement of rights, the
general tendency is that
15.Richard Caulk, Harar in the 19th Century and
the Loss of its Independence, 1968 (Seminar Paper available
at the Archives, Institute of Ethiopia Studies, Addis Ababa
University), at
16.Id.
17.Yash P. Ghai, The Structure of Human Rights in Federations, in HUMAN RIGHTS
COMMISSIONS AND OMBUDSMAN OFFICES: NATIONAL EXPERIENCES THROUGHOUT THE WORLD (Kemal Hussien et al eds, 2000), at 41.
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the decisions of the American Supreme Court).18 In fact it is good to note that in the
case of the United States, the Federal Constitution as enacted
in 1787 did not have a bill of rights while most of the
constitutions of the 13
However, in a paradoxical way, the US states
did not respect the equal citizenship rights of all members of
their community and had to be instructed by the federal
government on the basis of the
In the Canadian federation, the protection of human rights began with a situation in which both the provinces and the federal government did not have bills of rights in their respective laws.20 It was not clear for example whether the provinces or the federal government or both had the primary jurisdiction to enforce rights. The legal regime started to progressively improve with the enactment of the Canadian Bill of Rights.
In the case of Ethiopia which is the
principal concern of this article, new issues and concerns
directly related to the post 1995 federal system have arisen
with respect to the protection and promotion of the rights and
freedoms of individuals and minorities. Some of the most serious
human rights concerns arose in relation to minorities and
persons belonging to exogenous
In the case of Ethiopia as well, this demographic factor has happened. But more than this normal demographic factor, there was a major event that took place in Ethiopia during the turn of the 19th century, and that was the southward expansion of the Ethiopian state by incorporating most of today’s eastern, southern and southwestern part of the country that were hitherto only loosely connected to it as for example
18.FEDERALISM AND RIGHTS (Ellis Katz & G. Alan Tarr eds, 1997), at xiv.
19.Id.
20.Id., at
21.I use the terms ‘endogenous (indigenous)’ and ‘exogenous’ very loosely here. For the purpose of this article, and in the Ethiopian context, indigenous groups are those groups that are currently believed both legally and politically to be the owners of the territories in which they are found.
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vassals.22 A
fundamental concomitant state of fact was that the people who
served in expanding the state of Ethiopia (as soldiers and other
servants) were predominantly the Amharas. The descendants of the
Amhara settled in the newly incorporated areas and have since
flocked in large numbers to these areas in search of better
opportunities.23 Primarily because of
this historical fact, the Amhara are now the largest group that
live in states other than the state of Amhara. The majority of
the Amhara people live in the state of Oromia and according to
the 2007 national Census, about 2 million (over 7 % of the total
population of the Regional State) live in that state. A Large
number of Amharas (over 22%) also live in the Harari Regional
State. Similarly, 22% of the population of the
It is my contention that while the 1995
Constitution so generously recognizes the right to
Political legitimacy has been linked to the
legitimacy of one’s territorial existence. So other than in the
Amhara Regional State, the Amharas cannot be recognized as a
people with cultural and linguistic rights of their
22.See generally, BAHIRU
ZEWDE, A HISTORY
OF MODERN ETHIOPIA:
23.The movement of people from the north to the
south was not only associated with the history of modern state
formation. Another major factor, as will be later mentioned,
was the resettlement program of the 1980s undertaken by the
military government of Mengistu Hailemariam
24.As per the 2007 Census, Ethiopia’s population tops 74 million.
25.There are in fact some practical positive developments over the last 5 years or so such as schools that use the Amharic Language in urban areas of Oromia State. But these are not clearly put in laws or policy known to the public. These are political decisions that may be withdrawn any time.
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policy gaps in this area that make the
preservation and maintenance of self identity, and much less
self administration of
In the Oromia State, a law (Proclamation
No.116/2006) provides that if the number of ethnic Oromos are
less than the number of
The lopsided attention to the territorially
based
The
26.GAY MCDOUGALL, REPORT OF THE INDEPENDENT EXPERT ON MINORITY ISSUES: ADDENDUM; MISSION TO ETHIOPIA (2006), A/HRC/4/9/Add.3.
27.Id.
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in the Beneshangul/Gumuz Regional State and
was brought to the Council of Constitutional Inquiry (CCI).28 It was filed by the representatives of
Almost all members of the petitioning
(a)The decision of the regional state administration and the National Election Board that required the knowledge of the vernacular of one of the five endogenous groups was preposterous and unconstitutional. Therefore, it
28.The Council of Constitutional Inquiry (CCI) is a
constitutional body established as an advisory body to the
House of the Federation (HoF) of
29.According to the 1994 Housing and Population Census, about 42% of the population of the Regional State consists of Amharas, Oromos and Tigres.
30.The National Election Board is a body in charge of all periodic elections in Ethiopia.
31.There are five endogenous groups in the Region: Berta/Beneshangul, Gumuz, Sinasha, Mao
and Komo.
32.Art. 2 of the 2001 Constitution of the
33.Proclamation No. 111/1995.
34.Data based on the 1994 Housing and Population Census of Ethiopia.
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should be quashed or nullified. They argued that this decision tramples upon Art. 38 of the Federal Constitution which states among other things that every citizen has a right to be elected without discrimination on ethnic, national or language grounds;
(b)The fair and equitable representation in the
regional and national administrative organs and hierarchies.
It is interesting also to note that the petitioners demanded
to be recognized as distinct
(c)That they be given a special administrative
status in the region so that they will be able to exercise
(d)Alternatively, they be repatriated to the regions or places where they can have their rights respected and be able to preserve and develop their culture and language;
(e)That those officials in the Regional State who have blackmailed them be brought to justice; and
(f)That the economic discrimination going on
against them, including confiscation of land and the denial
of access to grazing land as well as to the use of acacia
trees for
The above demands and claims raise
important issues that may also be applicable to
The above case was entertained by the CCI. It is however very sad to see that only one of the relief sought, i.e., the right to be elected and the removal of the discriminatory language requirement put in place by the regional government and the
35. Translation from the original Amharic by the author.
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National Election Board, was dealt with in
the recommendation of the CCI. The HoF in fact attempted, in a
Coming to the recommendation of the CCI in the case under consideration, in an eight member deliberation, the CCI arrived at a decision by a majority of six members. The majority dealt with one major issue: whether Article 38 of Proclamation No. 111/95 (which requires the knowledge of the vernacular of the regional state for candidacy) violates Article 38 of the Federal Constitution that prohibits discrimination on the basis of national, ethnic or language grounds. It accordingly found that Art. 38 of the Proclamation imports a restriction not intended in the Federal Constitution and therefore was unconstitutional. It also further stated that the National Election Board’s decision should also be set aside as it was based on an unconstitutional legislation.
In a relatively more elaborately reasoned opinion, the minority of 2 members concluded that there was no incongruity between the Federal Constitution and Proclamation 111/95. The crux of the opinion of the minority was that Article 38 of the Proclamation could have had a discriminatory disposition if it did merge language and ethnic origin to be the requirement for candidacy. The logic of their argument was that if a person who comes from one of the five endogenous groups of Beneshanbul/Gumuz regional state does not speak the vernacular of the regional state, she/he would be excluded from candidacy just like any member of the exogenous groups. And since exclusion on the basis of ethnic origin was not the intention of both the regional government and the National Election Board, a person is not discriminated against because of his/her ethnic identity and therefore neither the decisions of the National Election Board nor Article 38 of the Proclamation violate Article 38 of the Federal Constitution.
The House of the Federation with whom the ultimate power of constitutional interpretation lies, however, did not accept the opinion of both the majority and the minority of the CCI summarized above. It rather worked out a sort of compromise solution. It did not venture on deciding on the constitutionality or otherwise of Article 38 of Proclamation No. 111/95 in clear terms but said that if the vernacular of the regional state (i.e., the working language of the state) is spoken by the intending
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candidate, s/he has the right to be a candidate. But if the candidate cannot speak the language of the regional state, he does not have the right for candidacy.36 As indicated earlier, the petition put forward by the petitioners were not squarely addressed by the CCI as well as by the HoF. It seems to me that on a broader policy level the kinds of issues and claims raised by the petitioners need to be addressed.
Turning to other issues of human rights in
federal Ethiopia, the author also contends that violations of
rights have occurred in various parts of the country. We see
that these serious violations of human rights have also occurred
due to one or the other reasons. It is contended that timely
actions by the regional governments and/or their local
authorities could have made positive differences. Several
examples of such violations can be cited as having occurred
since the inception of the federal arrangement in 1991. The
cases of Arba Gugu locality of the Oromia Region (occurred in
1991/2) where many civilians massacred each other in an
At about the same time as above, in what is
today’s Beneshangul/Gumuz Regional State, many members of the
‘exogenous’ groups such as the Amhara in the area of Metekel
were massacred. 38 The case of
violence among the
Similarly, individual citizens’ rights including the right to life were violated and constantly put under high risks as a result of the lack of preparedness and statesmanship by the regional states following the federalization of the state structure. An important case in point here is that of Somali and Oromo border claims and conflicts. The
36.In the Beneshangul/Gumuz regional state, the working language was (and still is) Amharic. The petitioners, as indicated above were required to know the language of one of the groups (owners of the region) for no purpose at all.
37.ETHIOPIAN HUMAN
RIGHTS COUNCIL, DEMOCRACY, RULE
OF LAW AND HUMAN
RIGHTS IN ETHIOPIA: RHETORIC AND PRACTICE
(1995), at
38.Id., at 128.
39.See, Getachew Assefa, Protection of Fundamental Rights and Freedoms in the Ethiopian Federation, in PROCEEDINGS OF THE FIRST NATIONALCONFERENCEON FEDERALISM,CONFLICTAND PEACE
BUILDING (2003).
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overlapping claims for certain flashpoint places such as Miésso has engendered conflicts that claimed the lives of innocent persons and displaced thousands. The problem of wrangles over boundaries has in fact been dragging on since 1994/5 between the Somali and the Oromia regions. The problem however reached an acute stage after the referendum that took place in October 2005 in order to determine the administrative status of certain disputed localities between the Somali and Oromia regions.
Setting aside the dispute on the irregularities surrounding the conduct of the referendum, problems ensued even in areas where clear majority came out in favour of a given side, by the very side that became victorious. This was the case for example in the Bikkie, Afdem, Yerer and Mulu localities of the Miésso Woreda. The victims expressed their grievances that after the referendum, the localities fell under the Somali regional government’s administration, but soon after its conclusion, with the Somali local administration’s tacit consent, conflict arose and an act of ethnic cleansing against the Oromos was perpetrated resulting in the exodus of thousands and the murder of many.40 Some angrily expressed their views saying that all the evils resulted from the referendum. One refugee in the Miésso town said, the government “saw its poison among us by its act of referendum”.41
The elders of both the Somalis and the Oromos expressed their deep resentments that all of their misery happens because of lack of farsighted, genuine and neutral administration by the authorities. A statement of a Somali elder involved in resolving the conflict perhaps catches the feeling of the people:
There is a problem here. You know, children
normally do what they see their father doing. The government
administering us did not tell
40.An interview with the Voice of America (Amharic Service) broadcast on 17 December 2005.
41.Id.
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to do any more.42
A very consistent claim of the affected people is that the two regional governments did not make adequate efforts to solve the problems. The problems are said to be predominantly permeated by the lack of good governance. Similar conflicts have besieged several areas in the SNNPS (e.g. conflict between Shecko and Mejangir)43 and the Gambella regional State.44
As the above brief account of the situation of
rights in the Ethiopian states show, there are some matters of
fact that Ethiopians, as citizens of a promising multi- nation
state, should be concerned about. As the above examples and
facts show, the problems are not unsolvable. They are capable of
being solved with the right policy and legal framework that is
targeted at building a
V. LEGAL PLURALISM AND HUMAN RIGHTS
Another aspect of the Ethiopian ethnically based federal system that needs to be looked into (from the viewpoint of human rights) is its official recognition of religious and customary laws and courts in family and personal matters. According to Vanderlinden, Ethiopia is an aspect of official legal pluralism or pluralism within the state law.45 The Federal Constitution gives formal recognition to religious and customary laws and courts to operate side by side with the state legal system in the areas of family and personal matters.
This of course is an official recognition of the social pluralism of the Ethiopian society in those limited areas. The traditional norms and ways of life of the various Ethiopian peoples have survived the modern state and its legal and administrative institutions, since the latter was superimposed on it beginning from the turn of the 19th Century, and continued to exist side by side with it. The penetration of the modern state
42.Id., (translation by the author).
43.See generally, Sara Vaughan, Responses to Ethnic Federalism in Ethiopia’s Southern Region, in ETHNIC FEDERALISM: THE ETHIOPIAN EXPERIENCE IN COMPARATIVE PERSPECTIVES (David Turton ed., 2006).
44.See generally, Dereje Feyissa, The Experience of Gambella Regional State, in PROCEEDINGS
OF THE FIRST NATIONAL CONFERENCE ON FEDERALISM, CONFLICT AND PEACE BUILDING (2003).
45. J. Vanderlinden, cited in G.R. Woodman, Ideological Combat and social Observation: Recent Debate about Legal Pluralism, 42 J. LEG. PLURALISM & UNOFFICIAL L. (1998), at 24. For a clear and succinct discussion of legal pluralism, see J. Griffiths, What is Legal Pluralism? in 24 J. LEG. PLURALISM & UNOFFICIAL L. (1986).
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apparatus and its laws into the traditional
societies of the country has been indeed a very slow process and
it has not been achieved. This has been the case even in the
face of official policies of most of the 20th Century Ethiopia
(during the regimes of Haile- Selassie I and a
It suffices to cite a legal provision in the 1960 Ethiopian Civil Code regarding the position of the government policy: “Unless otherwise expressly provided, all rules whether written or customary previously in force concerning matters provided for in this code shall be replaced by this code and are hereby repealed.”46 There was an attempt at total replacement of the traditional with the ‘modern’ in all of the areas of the civil law.47 This was the case also in criminal matters as evidenced by the enactment of the 1957 Penal Code which did not leave any room for customary criminal justice administration.
In spite of the attempts made by the state to
centralize the law and legal institutions, the reality in
Ethiopia today is that customary systems and institutions remain
very active in most of the various Ethiopian societies.48 The current federal legal order of
Ethiopia makes some changes in this regard. The Federal
Constitution of Ethiopia has created a limited space for
(i)This Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious or customary laws, with the consent of the parties to the dispute. Particulars shall be determined by law.49
(ii)Pursuant to
46.Art. 3347.
47.See also, G. Krzeczunowicz, A New Legislative Approach to Customary Law: The "Repeals" Provision of the Ethiopian Civil Code of 1960, 1 J. ETHIOPIAN STUD. (1963).
48.See
generally,
DISPUTE RESOLUTION (Alula Pankhurst & Getachew Assefa eds, 2008).
49.Art. 34(5).
50.Art. 78(5). State Councils are legislative assemblies of regional states.
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Article 34(5) of the Federal Constitution
quoted above takes a permissive stance in relation to both
religious and customary laws and courts in the areas of family
and personal disputes as regards consenting disputants. A close
reading of Article 34(5) shows first that only a few of the
areas of adjudication are carved out and given to the customary
and religious laws and courts. In other words, in what are
normally known as civil and commercial matters, the
In principle, by giving their consent, the
disputants would be willing to absorb any kind of decisions
weather they are repugnant to constitutional rights or ordinary
sense of justice or not. Of course, one may argue that by virtue
of Article 9(1) of the Constitution, decisions or religious and
customary laws will have to yield to the Constitution in the
event of their contradiction with the latter. But since the
recognition accorded to customary courts and laws is given by
the Constitution itself, again a possible
In spite of the imitative stance taken by the
state, the empirical reality regarding the traditional or
customary laws (including those with some ritual practices) in
the country provides for a completely different picture.
Although the state tries to gloss over the traditional laws in
the country as
51. The following are just a few examples of such studies: Ayehu Legesse Teferra, Customary Contention: The Power and Authority of Partially Despised Waata Oromo in Dispute Settlement (M.A. Thesis, Addis Ababa University, 2005) (discussing how the traditional institutions of the Waata (Arsi) sub- group of Oromo settle disputes involving murder and other serious bodily injury to a person raping an unmarried girl, amputating one’s legs or hands, tooth breaking, arson, etc, through the traditional institution that consists of one man conciliator (the Waata) at first instance to a body of two to three elders
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traditional laws and courts are not restricted to just family and personal matters, but rather encompass all kinds of civil and criminal matters.52
Whether the decision taken by the Constitution in relation to customary and religious laws of the country is well advised or not; whether it is comprehensive or not; and importantly, whether it is fully cognizant of the societal reality and is capable of addressing basic concerns of those interested or not, etc, are issues worth separate consideration. These however are not the areas of interest of this article. This article rather attempts to focus on the gaps in the law (including in the federal Constitution) in regulating the relationship between the formal courts and laws and traditional or religious courts and their impact on the enjoyment of constitutional rights by citizens.53
One of the main challenges of legal pluralism in Ethiopia today is the determination of which body should be the highest judicial body that could give a conclusive end to claims that have been submitted to the customary and religious courts. For example, should the final decision of the highest religious or customary court be subject to review by the ordinary courts, or for that matter by the highest ordinary court? This issue has been a battle ground between the liberal outlook and that of the supporters of more autonomy for cultural or self determination rights of ethno-
and Challenges of Indigenous Institutions for
Good Governance: The Case of Gada among the Gedeo (M.A. Thesis,
Addis Ababa University, 2005) (discussing the customary judicial
institution of the Gedoe people of the SNNP State. The author
describes how the traditional
52.See, Pankhurst & Assefa, supra note 48.
53.See, the Kedija Beshir case, file No. 394/92 (of the 3rd Naieba [First Instance Sharia] Court of the City Administration of Addis Ababa).
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national or religious groups. For example, in general the latter group opposes that the ordinary court of any level be allowed to review the judicial determination made by customary or religious courts.
In a related issue, Kymlicka notes that many American Indians oppose the idea that the US Supreme Court reviews their internal decisions as per the Bill of Rights. He observes that both the American Indians and Canadian Bands in relation to the Canadian Charter of Rights and Freedoms opposed to the Supreme Courts’ ability to review the decision of their local councils, and that they do not want members of their respective communities to challenge their decisions in the ordinary courts.54 The demand for exemption of decisions of the tribal bodies, Kymlicka notes, is opposed by liberal thoughts obviously because in the name and under the guise of group interest and ‘cultural purity,’ individuals or subgroups, such as women, may be subjugated, and therefore that tribal judicial or executive or legislative decisions must be subject to review by the nation’s highest court in the event of report of grievance and after the exhaustion of remedies available at the level of tribal institutions.
The reasons for the traditional institutions’ resistance of the review from the state institutions are many.55 But, the most overriding consideration can be said to be the concern that the modern institutions such as supreme courts may not be impartial in cases involving tribal cultural matters due to the ethnocentric bias the former would have against traditional institutions. When it comes to the review of religious institutions’ decisions by the modern state institutions, the suspicion of bias would be all the more pronounced. The Kedija Beshir case is illustrative of this situation.
This case involved a dispute on inheritance of a house among grand children of a Muslim family. In 1999, the plaintiffs (four persons) opened a case before the first instance Sharia Court56 claiming that they should be given their share which was under possession of the defendants (four persons). The Sharia Court received a response from the defendants who asserted basically that they did not consent to be adjudicated before
54.See generally, Will Kymlicka, Liberal Culturalism: An Emerging Consensus, in 1 ETHICAL
THEORY AND MORAL PRACTICE (1988).
55.Id., at 85. Kymlicka for example explains that in the case of the Indian tribes, they are opposed to the US Supreme Court’s power to review their institutions’ decisions because, among other things, the Supreme Court historically legalized the acts of colonization and conquest that dispossessed the Indians of their property and political power.
56.Based on the Constitutional recognition of
religious laws and courts discussed earlier in the article,
the Federal Parliament enacted a law, entitled “Federal Courts
of Sharia Consolidation,”
Proclamation No. 188/1999, which established a
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a religious/Sharia court, and secondly that the case was pending before the regular court with jurisdiction. They made it clear in their reply to the Court that as per Article 34(5) of the Federal Constitution, the religious/Sharia court will have jurisdiction on this case only if they consent to be bound and since they made it unequivocally clear that they do not consent to have their case adjudicated here, the case should be closed for want of jurisdiction.
The first instance Sharia Court (Naíeba court), set aside the preliminary objection of the defendants and went on to see the merits in which it found the applications of the plaintiffs founded and decided that the property be partitioned among the defendants and the plaintiffs. The court even imprisoned one of the defendants for 15 days (for court contempt) for having said during oral hearings that the court did not have jurisdiction. The defendants appealed to the High Sharia Court and the Cassation Division of the Supreme Sharia Court one after the other, both of which affirmed the first instance Sharia court’s decision.57
As per the procedural laws of the country,
the defendants submitted an application for review to the
cassation division of the Federal Supreme Court of Ethiopia,
claiming that the decisions of the courts of Sharia committed a grave error of law.
However, to the dismay of the petitioners, Federal Supreme
Court’s cassation division stated that there is no error of
law committed by the courts of Sharia and
rendered the case inadmissible.58 The
defendants, through the Ethiopian Women Lawyers’
Several interesting points of analysis can
emerge from this case. One is the possible
57.File No. 7/95.
58.Cassation File No. 12400/1995.
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In the case, Kedija Beshir and other
defendants were made to undergo serious difficulty, financially
and emotionally for more than three years in a matter that
should have ended at the first or so hearing. It is interesting
to note also that the cassation division of the federal supreme
court of Ethiopia refused to admit the Kedija
Beshir case stating that there was no error of law
committed by the courts of Sharia. It
said this while a clear constitutional provision was set aside
by the decision of the latter. One therefore has to look beyond
the black letter decision of the Federal Supreme Court. I
believe that the Supreme Court’s Cassation division could
clearly see that a fundamental error of law took place in the
This, no doubt will be the case in customary legal regimes of the multitudes of the cultural communities of Ethiopia. Their norms have discriminatory treatment regarding especially women.59 Also, important is that the process for justice administration used by the customary institutions does not in most cases afford fair play for the parties, especially the defendants. The problem is exacerbated in the case particularly of customary courts and laws by the absence of clear legal regime guiding the citizens through the dispute settlement processes and the remedies available to them. To begin with, to date, there is no law both at federal and regional levels regulating the state of affairs of customary law and courts.60 As a result a lot of very important matters remain unregulated. For example, it is not clear as to what kind of procedural requirements should be observed by the customary courts; who should be a judge in customary courts; whether they should observe any constitutional limitation about the body of rules they could use regarding rights of disputants, etc., are not at all known.
59.See e.g.,
60.Note that Art. 34(5) of the Constitution states that the details on customary courts and laws shall be enacted in statute. The constitutions of the Regional States also state the same thing.
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VI. CONCLUDING REMARKS
Attempts have been made in this article to
highlight some of the human rights concerns at the
There are undoubtedly many positive things
that have been brought with federalism in Ethiopia. I am
inclined to believe that federalism is a better suited form of
organizing state power in Ethiopia. I also equally believe
that if federalism in Ethiopia is not well
While it is extremely important to ensure
genuine
As regards the recognition of customary and
religious institutions for settlement of disputes in the
country, there is no doubt about the fact that it is an
excellent step forward and perhaps is simply a must given the
nature of state structures established in response to the
61. See, Donovan & Assefa, supra note 59, at 507.
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THE RIGHT TO LEAVE AND ITS RAMIFICATIONS IN
ERITREA
Simon M. Weldehaimanot*
ABSTRACT
As part of the massive and serious human rights violations prevalent in Eritrea, the right to leave their country of many Eritreans between 10 to 50 years old is severely curtailed; giving rise to the apt designation of Eritrea as an “open air prison”. However, fraught by the overall repression of human rights, in spite of the draconian restrictions on the right to leave such as deadly measures of blocking the borders of the country and severely punishing apprehended attempters and deportees with no reference to due process of law, thousands of Eritrean youth are fleeing Eritrea every year in a manner the Government of Eritrea (GoE) calls “illegal”. This article analyzes the related rights to leave and to return to one’s own country as provided in three human rights treaties which bind Eritrea and in the 1997 Constitution of Eritrea. A depiction of glaring violations is made and consequences discussed.
I. INTRODUCTION
I made four failed attempts to cross the border, three times to Ethiopia and once to the Sudan. But I never gave up and succeeded with the fifth one. After six days of exhausting walk, I managed to get in to the Sudan on 17 November, 2007 via Sawa military training camp, along two other colleagues. It was very risky ... Had it not to be for one Sudanese nomad to rescue our life, we could all have vanished without trace in the deserts of eastern Sudan.1
An early expression of the right to leave one’s birthplace appeared in the Crito, where Plato quotes Socrates proudly explain: “we further proclaim to any Athenian by the
* JSD candidate, Notre Dame Law School, Indiana. Email: <sweldeha@nd.edu> The author thanks Dr Daniel R. Mekonnen for his valuable comments and Yohannes Teclemichael (LLM) for sharing his experience. The usual disclaimer applies. Certain parts of this article were presented at the 1st Human Rights Symposium of the Eritrean Global Solidarity (EGS) held in Washington, DC on 20 June 2009.
1. T. Abraham, A Refugee at Last (11
September 2009)
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liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him.”2 Early formal acknowledgment of the right to freedom of movement in national law can be found in the Magna Carta, a document dated 1215. The Magna Carta provided that “it shall be lawful in the future for anyone ... to leave our Kingdom and to return, safe and secure by land and water.”3 A general right to free movement is also reflected in the writings of 16th century publicists of international law. According to the Spaniard Francisco de Vitoria, “it was permissible from the beginning of the world for anyone to set forth and travel wheresoever he would.”4 During the 17th century Hugo Grotius postulated the principle that “every nation is free to travel to every other nation.”5
Some writers have indeed found justification for the contemporary rights to leave and to return to one’s country in ancient human history and have thus concluded the rights are innate to human beings.6 Nevertheless, as Hannum7 has rightly observed, whatever theory one adopts to explain the original source, the right to movement has now acquired the status of positive law through the widespread acceptance of the international covenants and numerous other international agreements.8
In its modern sense, freedom of movement contains internal and external aspects: freedom of movement within a country and between states respectively.9 The latter aspect is usually referred to as the rights to leave and to return to one’s country. It is the external aspect which is the focus of this article. While the rights to leave and to return are closely connected, in that the existence of one allows for the effective
2.J. Barist et al, Who May Leave: A Review of Soviet Practice Restricting Emigration on Grounds of Knowledge of “State Secrets” in Comparison with Standards of International Law and the Policies of Other States, 15 HOFSTRA L. REV. 381 (1987), at 384.
3.Magna Carta, Ch 42, quoted in S.E. THORNE ET AL, THE GREAT CHARTER: FOUR ESSAYS ON MAGNA CARTA AND THE HISTORY OF OUR LIBERTY 133 (1965).
4.Quoted in J.D. INGLÉS, STUDY OF DISCRIMINATION IN RESPECT OF THE RIGHT OF EVERYONE
TO LEAVE ANY COUNTRY, INCLUDING HIS OWN, AND TO RETURN TO HIS COUNTRY 2 (1963).
5.Id.
6.G. Liu, The Right to Leave and Return and Chinese
Migration Law (PhD Thesis, University of Technology, 2005), at
MIGRATION LAW (2007).
7.H. HANNUM, THE RIGHT TO LEAVE AND RETURN IN INTERNATIONAL LAW AND PRACTICE 5
(1987).
8.For a discussion of the right to freedom of
movement in general, see B. Frelick, The Right of Return, 2
INT’L J.REFUGEE
L. 442 (1990), at
RECOMMENDATIONS OF
THE INTERNATIONAL COLLOQUIUM
HELD IN UPPSALA, SWEDEN,
9. S.A. Jagerskiold, The
Freedom of Movement, in THE INTERNATIONAL BILL OF RIGHTS (L. Henkin ed., 1981), at
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exercise of the other, they respectively respond to different needs of the individuals exercising them. The person leaving his or her country may be doing so out of a desire to travel, to emigrate, or to seek refuge; while the person seeking to return to his or her country is usually motivated by a desire to return home, to the place where he or she belongs, to his or her roots.10 This “natural desire for a base or homeland” has been said to demonstrate “the logical connection” of freedom of movement with the right to a nationality and the right to property.11 These and other factors could therefore lead to different standards applicable to the right to leave and the right to return.
The right to leave one’s country does not, for example, grant an automatic right to enter other alien countries.12 This fact coupled with the growing proportion of economic migrants to the west which the west has not been welcoming, and that illegal migrants face deportation and numerous violations of their rights, could tempt a third world state to, for example, make exit visa dependent upon securing entry. Regardless of this scenario, Harvey and Barnidge however argue that “the right to leave one’s own country remains significant in international human rights law.”13
II. THE RIGHTS TO LEAVE AND TO RETURN UNDER
INTERNATIONAL LAW
A. The Rights under Treaty Law
Out of the many treaties14 and soft laws which provide for the rights to leave and to return, this article focuses on two treaties Eritrea has ratified.15 These are the African Charter on Human and Peoples’ Rights (ACHPR),16 the International Covenant on Civil
10.D.N. Nseroko, The Right to Return Home, 21 INDIAN J. INT’L L. 335 (1981), at 336.
11.S. Agterhuis, The Right to Return and its Practical Application (LL.M Thesis, Aristotle University of Thessaloniki, 2004 ), at 4.
12.C. Harvey & R.P. Barnidge, The Right to Leave One’s Own Country under International Law (paper prepared for the Policy Analysis and Research Program of the Global Commission on International Migration, 2005), at 1.
13.Id., at 16.
14.A few examples are Article VIII of the American
Declaration of the Rights and Duties of Man, Article 22 of the
American Convention on Human Rights and Article 2 of the
Fourth Protocol of the European Convention for the Protection
of Human Rights and Fundamental Freedoms. See also, INGLÉS,
supra note 4, at
15.On 31 July 2001 and 3 August 1994 respectively. Eritrea has also acceded to the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of the Child. Both instruments provide for the rights to leave and return. See, arts 5(d) (ii)
&10 respectively.
16.Eritrea acceded to the ACHPR on 14 January 1999.
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and Political Rights (ICCPR)17 and the Universal Declaration of Human Rights (Universal Declaration). The latter, even though a mere declaration, is binding on Eritrea because it has arguably attained the status of customary international law.18
Article 12(2) of the ACHPR provides that “every individual shall have the right to leave any country including his own and to return to his country.” Article 13 of the Universal Declaration provides that “everyone has the right to leave any country, including his own and to return to his country.” Article 12(2) of the ICCPR provides, in relevant part that “everyone shall be free to leave any country, including his own”; and article 12(4) provides that “no one shall be arbitrarily deprived of the right to enter his own country.”
B. The Boundaries of the Rights
In this world which often experiences worst dictatorial governments taking terms such as democracy and justice as their names, and in the context of such governments often claiming to be respectful of the rights to leave and to return, it is indeed important to discuss the permissible limitations of these rights.
Generally, three approaches of limiting rights
can be identified. In some constitutions, there are no expressed
limitation clauses on rights. Nevertheless, as all rights are
not absolute, courts have
17.Eritrea acceded to the ICCPR on 22 January 2002.
18.See generally, H. Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 GA. J. INT’L & COMP. L. 287 (1995/96).
19.The United States of America’s constitutional jurisprudence is the best example.
20.German Basic Law is one example.
21.Best examples are article 36 of the 1996 South African Constitution and article 26 of the 1997 Eritrean Constitution.
22.For more discussion of the notion of derogation, see generally D. McGoldrick, The Interface between Public Emergency Powers and International Law, 2 INT’L J. CONST. L. 380 (2004).
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different constitutions.23 Although there could be certain procedural implications,24 it seems however that the distinctions are more theoretical and all approaches tend to meet at the end result.
Under the Universal Declaration, the twin rights to leave and to return are subject to general limitation provided in article 29:
(i)Everyone has duties to the community in which alone the free and full development of his personality is possible.
(ii)In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(iii)These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Although the ACHPR is known for its trademark of not allowing derogation from its rights even during state of emergency, Heyns has convincingly argued that article 27(2) of the ACHPR which states the “rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest” will increasingly be used by states as a general limitation in addition to the internal limitations.25 Article 12(2) of the ACHPR contains internal limitation by subjecting the rights to leave and to return to “restrictions, provided for by law for the protection of national security, law and order, public health or morality.”
The only limitation to the right to return contained in the ICCPR is that the right is not absolute but subject to derogation.26 Article 4 of the ICCPR allows state parties to, in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, take measures derogating from their
23.See, e.g., art. 27 of the Eritrean Constitution (1997).
24.As a result the so called “two stage analysis” of a limitation of a right has been developed in recent South African constitutional jurisprudence. See generally, I. CURRIE & J. WAAL, THE BILL OF RIGHTS HANDBOOK (2005); R.J. Goldston, The South African Bill of Rights, 32 TEX.INT’L L.J. 451 (1997).
25.C. Heyns, Civil and Political Rights in the African Charter, in THE AFRICAN CHARTER ON
HUMAN AND PEOPLES’ RIGHTS:
THE SYSTEM IN PRACTICE,
26.Not all rights are subject to derogation. Article 4(2) of the ICCPR states that no derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made.
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obligations to the extent strictly required
by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations
under international law and do not involve discrimination
solely on the ground of race, colour, sex, language, religion
or social origin. However, any state party to the ICCPR which
desires to avail itself of the right of derogation is required
to immediately inform the other parties to the ICCPR, through
the intermediary of the
On top of the possibility of derogation in accordance to article 4, article 12(3) indicates that the right to leave is subjected to additional restrictions insofar as such restrictions are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the ICCPR. Thus, under the ACHPR, the two rights to leave and to return; and under the ICCPR, the right to leave are subjected to limitations at two stages.27
The Eritrean Constitution that was ratified
on 23 May 1997 also provides under article 19(9) that “every
citizen shall have the right to leave and return to Eritrea
and to be provided with passport or any other travel
document.” Article 26 of the Constitution provides for almost
an identical limitation clause to those in the three
instruments discussed above. According to article 26 which
applies to article 19(9), the fundamental rights and freedoms
guaranteed under the Constitution may be limited only in so
far as limitation is in the interests of national security,
public safety or the economic
(b) be of general application and not negate the essential content of the right or freedom in question and (c) specify the ascertainable extent of such limitation and identify the article or articles hereof on which authority to enact such limitation is claimed to rest.
In addition, under article 27 of the
Constitution, at a time when public safety or the security or
stability of the state is threatened by war, external
invasion, civil disorder or natural disorder or natural
disaster, by a resolution passed by a
27. For more on the “two stage analysis” to violation (limitation) of a right, see CURRIE & WAAL, supra note 24.
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Generally, two requirements a permissible limitation has to meet can thus be identified with the ACHPR, the ICCPR, the Universal Declaration and the Eritrean Constitution: (1) the procedural (provided for by law) and (2) the substantive requirement (the purposes for which limitation is permitted). The discussion below looks at the meaning of both the procedural and substantive requirements and explores the preparatory works of the above instruments, other interpretative guides and interpretation of the rights by relevant bodies in the form of General Comments and cases.
1. Procedural
When the Universal Declaration was debated in the General Assembly, the Union of Soviet Socialist Republics (USSR) proposed an amendment to Article 13(2) that would have added after the phrase “to leave any country, including his own” the words “in accordance with the procedure laid down in the laws of that country.”30 The USSR and Eastern bloc delegates defended the amendment as an accurate statement of “existing realities,” as “movement within a given country or across its frontiers” was a matter of domestic law.31 The USSR’s proposal for amendment, however, was strongly opposed by many nations and was defeated, and the USSR was subsequently the only nation to vote against the final wording of Article 13.32
The drafting history of Article 12 of the ICCPR also establishes the intent of the member states to recognize and protect the right to emigrate. As submitted to the General Assembly by the Commission on Human Rights, the right to emigrate, set out in Article 12, was preceded by a limiting paragraph:
28.Heyns, supra note 25, at 142; U. Essien, The African Commission on Human and Peoples’ Rights: Eleven Years After, 6 BUFF. HUM. RTS. L. REV. 93 (2000), at 95.
29.Communication 105/93, 128/94, 130/94 and 152/96,
Media Rights Agenda and Constitutional
Rights Project v. Nigeria, (12th Activity Report of
the ACHPR
30.Barist et al, supra note 2, at 386.
31.Id.
32.Id., at 387.
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Subject to any general law of the State concerned which provides for such reasonable restrictions as may be necessary to protect national security, public safety, health or morals or the rights and freedoms of others, consistent with the other rights recognized in this Covenant...33
Although the delegates generally agreed with the substance of the proposed Article 12, they also felt that the drafting needed revision to make the principles of freedom to emigrate clear and paramount.34 Thus, the initial order of the provisions of Article 12 was amended so as to stress the principle rather than the exceptions and article 12 took its current shape. The amendment was immediately supported by many delegations, and was especially praised for its revised form which stressed the rights of the individual.35 The drafting history of the ICCPR also shows that the requirement that a limitation must be provided by law is necessary to curb executive discretion.36
There are also numerous guidelines showing the boundaries of permissible limitations and the procedures states should follow in limiting the rights to leave and to return. These include General Comment No. 27, the Siracusa Principles,37 the Uppsala Colloquium’s Declaration,38 Draft Principles on Freedom and Non- Discrimination in respect of the Right of Everyone to Leave Any Country, including His Own39 and the Strasbourg Declaration.40
In order to give content to the drafters’ intent to prohibit arbitrary restrictions on the two rights, the above principles and declarations further provide that laws shall guarantee procedural safeguards. In his seminal 1963 study on the implementation of
33.INGLÉS, supra note 4, at 89 (citing U.N. Doc. E/2573, annex I B (1959)).
34.In this regard the Italian representative was quoted to have said: “there was one fundamental objection to the text of Article 12 as it stood: instead of first proclaiming the right concerned, it began by giving a long list of restrictions. That was, to say the least, an inauspicious opening.” Quoted in Barist et al, supra note 2, at 388.
35.According to the Yugoslavian delegate, the amendment’s primary merit was that it listed restrictions only after stating the right. Quoted in Barist et al, id.
36.Id., at 398.
37.Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984), available online at <http://hei.unige.ch/~clapham/hrdoc/docs/siracusa.html> (accessed on 12 December 2007).
38.Declaration on the Right to Leave and the Right to Return, adopted by the Uppsala Colloquium, Sweden, June 1972, reprinted in HANNUM, supra note 7, at 150 (hereinafter Uppsala Colloquium).
39.Draft Principles on Freedom and
40.Strasbourg Declaration on the Right to Leave and Return, reprinted in 81 AM. J. INT’L L.
434 (1987).
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the ICCPR’s statement on the rights to leave
and to return, Judge Ingles, whose position is also supported by
the Uppsala Colloquium’s Declaration,41 the
Draft Principles on Freedom and
(a) Everyone denied a travel document or permission to leave the country or to return to his country is entitled to a fair hearing. In particular, he shall have the possibility of presenting evidence on his own behalf, of disputing evidence against him and of having witnesses examined. The hearing shall be public except when compelling reasons of national security or the personal interests of the applicant require otherwise. (b) The decision of the competent authorities to grant, deny, withdraw or cancel the required permission or travel document shall be made and communicated to the individual concerned within a reasonable and specified period of time. (c) If the required travel document or permission is denied, withdrawn or cancelled, the reasons for the decision shall be clearly stated to the individual concerned. (d) In case of denial, withdrawal or cancellation of the required permission or travel document, the aggrieved individual shall have the right of appeal to an independent and impartial tribunal.44
2. Substantive
(a) Drafting history (travaux préparatoires)
There is no much information on the drafting history of the ACHPR on the particular rights to leave and to return. There is, however, substantial information on article 12
41.Uppsala Colloquium, supra note 38, art. 6.
42.See supra note 39.
43.Strasbourg Declaration, supra note 40, arts. 2, 4(a)(1), 4(b), 10 & 11.
44.INGLÉS, supra note 4, at 67.
45.These are the grounds mentioned in the three instruments.
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of the ICCPR. After agreeing on an acceptable
form, the General Assembly focused on the specific terms of
Article 12(3) of the ICCPR, especially on those terms that in
some way limited the rights established. As originally drafted
by the UN Commission on Human Rights, Article 12 contained a
long list of limitations on the right to emigrate than it has
now; but the formula was eventually rejected, in part, because
the restrictions were “too broad and required further
qualification while providing no real protection against the
enactment of arbitrary legislation.46 Concern
was voiced that
(b) General Comment No. 27
In the course of its life, the monitoring body of the ICCPR, the United Nations Human Rights Committee (the Committee), has issued commentaries (commonly referred as General Comments) on the interpretation of the rights contained in the ICCPR.48 General Comment No. 27 adopted in 1999 specifically provides detailed principles to guide states in securing the freedom of movement generally. Paragraphs 1 and 2 affirm that “liberty of movement is an indispensable condition for the free development of a person” and the “permissible limitations which may be imposed … must not nullify the principle of liberty of movement, and are governed by the requirement of necessity … and by the need for consistency with the other rights recognized in the Covenant.”
Paragraph 8 explains that freedom to leave the territory of a state may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country or the state of destination. Since international travel usually requires appropriate documents, in particular a passport, paragraph 9 requires that the right to leave a country must include the right to obtain the necessary travel documents from the state of nationality of the individual; and the refusal by a state to issue a passport or prolong its validity for a national residing abroad may deprive a person his or her right to leave and to travel elsewhere.
46.INGLÉS, supra note 4, at 89.
47.Barist et al, supra note 2, at 389.
48.UNITED NATIONS, COMPILATION OF GENERAL
COMMENTS AND GENERAL
RECOMMENDATIONS ADOPTED BY HUMAN RIGHTS TREATY BODIES, UN Doc., HRI/GEN/1/Rev.7, 12 May 2004, at
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Paragraph 13 clearly requires states to always be guided by the principle that the restrictions must not impair the essence of the right; the relation between right and restriction, between norm and exception, must not be reversed and the laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution.
Paragraph 14 and 15 further stress that it
is not sufficient that the restrictions serve the permissible
Paragraph 18 clearly requires that, to be
permissible, restrictions need to be consistent with the
fundamental principles of equality and
(c) Other Interpretative Guides
A limitation is “necessary” when it, assessed objectively, responds to a pressing public or social need, pursues a legitimate aim and is proportionate to that aim.49 “National security, public order, public health or morals or the rights and freedoms of others” are the most fluid justifications states often rely on to shield their actions.50 Responding to this concern, the Siracusa Conference stresses that national security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force and cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order or as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exists adequate safeguards and effective remedies against abuse.51 Judge Ingles observed that a “general policy of not permitting anyone to leave the country is never justifiable except in time of war or
49.Strasbourg Declaration, supra note 40, art. 4(c).
50.INGLÉS, supra note 4, at
51.Siracusa Principles, supra note 37.
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national emergency.”52
Article 6 of the Uppsala Colloquium’s Declaration further provides that a “person’s right to leave a country shall be subject only to such reasonable limitations as are necessary to prevent a clear and present danger to the national security or public order, or to comply with international health regulations; and only if such limitations are provided for by law, are clear and specific, are not subject to arbitrary application and do not destroy the substance of the rights.”53 The kinds of limitations considered permissible under this view of national security would include those necessary to prevent espionage, to protect military secrets, and to regulate the movement of members of the military.54
3. Cases Before the ICCPR’s Human Rights
In Lauri Peltonen, Finland notes that Section 7, paragraph 1, of the Constitution Act (94/1919) provides for the right of a Finnish citizen to leave his/her own country which is further spelt out in the Passport Act (642/1986) and Passport Decree (643/86), which regulate the right to travel abroad. Furthermore, Section 75 paragraph 1 of the Constitution Act regulates the obligation of Finnish citizens to participate in the defence of the country; this is spelt out in the Military Service Act (452/50) and the Non- Military Service Act (1723/91).
Section 3, paragraph 1, of the Passport Act provides that a Finnish citizen shall obtain a passport, unless otherwise stipulated in the Act. In addition, a passport “may be denied to persons aged 17 to 30 if the requesting citizen cannot show its issuance (by implication leaving Finland) would not be used to evade military service.”56 In such cases, a request for a passport should be accompanied by various documents that show
52.INGLÉS, supra note 4, at 40 & 59.
53.Uppsala Colloquium, supra note 38, at 127.
54.Jagerskiold, supra note 9, at 172; Strasbourg Declaration, supra note 40.
55.Communication No. 492/1992, Peltonen v. Finland, U.N. Doc.CCPR/C/51/D/492/1992
(1994) ¶
56.Citing § 9(1)(6), ¶ 6.2 of the Committee’s decision which reads: “passport may be denied to persons aged 17 to 30 if they are unable to demonstrate that the performance of military service is not an obstacle to the issuance of a passport.” However, the quoted provision can only be construed as meaning the same as the italicized text above.
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either the requesting individual is exempted or has completed or can be trusted to honour his/her duty to complete the service.57 A Finnish citizen living abroad, and falling into the category of Section 9(1)(6) must obtain a statement from the police of his last place of residence in Finland, showing that he is not liable for military service.
As to the authorities’ discretion to give or deny a person a passport, Finland points out that, when considering a passport application from a person falling within the category of Section 9(1), consideration must be given to “the significance of travel related to the applicant’s family relations, state of health, subsistence, profession and other circumstances,” in accordance with Section 10 of the Act. In this context, Finland refers to the ratio legis of the Passport Act as explained in Parliament, where it was noted that the decision to grant a passport is taken by legal discretion, based on acceptable objective grounds. Furthermore, according to a circular of the Legal Office of the Ministry for Foreign Affairs of 22 June 1992,58 an Embassy must consider its decisions in Section 9(1) cases on the basis of the statement obtained from the police of the applicant’s last residence in Finland, and must take into account the circumstances of the case and the grounds referred to in Section 10. Thus, Finland contended, the Embassy’s discretion to grant a passport is not unlimited, since the Passport Act contains clearly specified grounds for rejecting a request for a passport.
As regards to the time dimension, it is
submitted by Finland that the denial of a passport cannot be
limited solely to the period of a person’s actual military
service, but it necessarily covers a more extensive period
before and after such service, in order to secure that a
conscript really performs his military service.59 Finland explained that, for a person
who has participated in his
The complainant, Mr Lauri Peltonen, is a Finnish citizen born in 1968, residing in Stockholm, Sweden, since 1986. In June 1990, the complainant applied for a passport at the Finnish Embassy in Stockholm and he was denied on the ground that he had failed to report for his military service in Finland on a specified date. The
57.Section 4 of the Passport Decree.
58.No.
59.Application of § 9(1)(6) of the Passport Act.
60.The length of the service is 8 to11 months. Thus 28 years is arguably selected because it provides two years (until a person reaches 30) within which a reluctant citizen can be forced and thus denial of passport can be applied.
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complainant appealed against the Embassy’s decision but the appellate court upheld the Embassy’s decision. The complainant then appealed to a higher court which confirmed the previous decisions. Subsequently the complainant filed a communication with the Human Rights Committee. The complainant noted that the administrative and judicial instances seized of his case did not justify the denial of a passport.
In its decision, the complainant contended the last appellate court merely observed that the Embassy had the right not to issue a passport to the complainant because he was subject to conscription and had failed to prove that by getting a passport he was not planning to evade.61 The complainant also contended that the interpretation by the court means that Finnish Embassies around the world have full discretion to deny passports to Finnish citizens until they reach the age of 30. The duration of the denial of a passport is likely to exceed by far the period of “eight to eleven months,” as it did in this case.62
The complainant acknowledged that failure to report for military service is an offence under the Finnish Military Service Act. The complainant did not challenge Finland’s position that a state must have some means at its disposal to secure that conscripts actually perform their military service. He observed, however, that the Finnish authorities could have instituted criminal or disciplinary proceedings against him; failure to do so is said to further underline that the denial of a passport was and continues to be used as a de facto punishment. Thus the complainant submitted that the denial of a passport is a disproportionate punishment in relation to the offence of failure to report for military service and thus amounts to a violation of his right under article 12 of the ICCPR. The complainant argued that Finland cannot use denial of passport as legal means of forcing citizens to carry out the military service which is 8 to 11 months. The contention of the complainant is that the ramification of denial of a passport is too disproportional to the interest that is intended to be served.
Finland further noted that when requesting
for a passport, the complainant did not show he was not trying
to evade his liability for military service. Finland noted the
complainant did not react to his military
61.Citing one document (CCPR/C/SR.1016, ¶ 21), the Committee quotes what Finland submitted to contextualize the complainant’s contention: “there might have been some misunderstanding concerning the question of obligation of military service. A passport could be issued to a person under duty of performing his military service and conscription, but its validity must temporarily expire during the period of military service. There is no de facto possibility for a conscript to leave the country during his military service … which is only ... 8 to 11 months.” See, Peltonen v. Finland, supra note 55, ¶ 2.3.
62.Indeed in the case at hand it is 11 years. A 19 year old can be denied passport for 11 years in so far as the individual did not report to the military service.
63.Born in 1968, Mr Peltonen, the complainant, was only 19 years old in 1987 and he has 11 years within which he can respond to the service. See, Peltonen v. Finland, supra note 55, ¶ 1.
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all subsequent
In paragraph 8.3, the Committee concluded that pursuant to the requirements of article 12(3), states could “impose reasonable restrictions on the rights of individuals who have not yet performed such [mandatory national] service to leave the country until service is completed.” Thus, national service obligation laws that “reasonably restrict” the right to leave will not be held to violate article 12. At the same time, national service obligation laws that undermine the essence of the right to leave, or exceptions that violate the rule, will be contrary to article 12.
There are scholars who agree and differ from the Committee’s conclusion. Jagerskiold noted that “if there is a mandatory national service requirement, individuals who have not yet served may be prohibited from leaving until service is completed.”64 On the other hand Nowak asserted that “[o]nly in special cases may persons who have not fulfilled their military service be prohibited from leaving the country.”65 Comparing with certain concluding observations66 in which the Committee stated that it “is further regretted that all individuals who have not yet performed their national service are excluded in principle from enjoying their right to leave the country,” Harvey and Barnidge noted contradictions with the Committee’s conclusion.67
Uncontested contention of Finland shows that if the significance of the desired travel is explained and found to be convincing, it seems that a passport can be granted even to a citizen subject to conscription. It also appears that if the desired travel is for visiting family members or health, subsistence, profession and other circumstances of the traveller, passport (permission to leave) can be granted. Assuming that the complainant failed to mention any of such significance of his travel, it is sound to conclude that the Committee was right to find the proportionality equation in favour of limiting the right of the complainant.
64.Jagerskiold, supra note 9, at 178.
65.M. NOWAK, UN COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY 212
(1993).
66.Concluding Observations, Russian Federation,
ICCPR, A/50/40 vol. I (1995) 65, ¶ 381, <http://www.bayefsky.com/themes/leave_
67.C. Harvey & R.P. Barnidge, Human Rights, Free Movement, and the Right to Leave in International Law, 19 INT’L J. REFUGEE L. 1 (2007), at 10, fn 58.
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III. CURTAILMENT OF THE RIGHTS TO LEAVE AND TO RETURN IN
ERITREA
Eritrea got independence on 24 May 1991 from Ethiopian domination that lasted almost for four decades. The de facto independence achieved in 1991 was consummated to de jure status in 1993 after a referendum in which the Eritrean people overwhelmingly supported Eritrea to be an autonomous state. The Eritrean struggle for independence was led to final victory by the Eritrean People’s Liberation Front (EPLF). Since 24 May 1991, the EPLF took charge of the administration of the whole country and on 22 May 1992 ultimately established by law68 a transitional government called Provisional Government of Eritrea (PGE). On 19 May 1993 the PGE slightly restructured itself by law69 and was renamed “Government of Eritrea” (GoE). The EPLF, renamed as Peoples’ Front for Democracy and Justice (PFDJ) has since 1994 remained the only political party in Eritrea.
As of May 1991, the PGE and later the GoE
started to take important decisions and actions that gave rise
to hopes for a better future of the country. Imminent of these
were that the GoE took the initiative to promulgate a
democratic constitution and during the transitional time
prepare the country to constitutional governance. After a
three
The Eritrean youth were the main driving forces of the Eritrean independence struggle (1950s to 1991).72 The hope the Independence Day brought also aroused great enthusiasm in the Eritrean youth to serve their country. After independence, thousands
68.See, Proclamation 23/1992: A Proclamation to Provide for the Structures, Powers and Responsibilities of the Provisional Government of Eritrea. In Eritrea, a legislation that in other jurisdictions is commonly referred to as an “Act” is called a Proclamation. What other jurisdictions refer to as a “Regulation” is called a “Legal Notice.” For more on the lawmaking process in Eritrea, see S.M. Weldehaimanot & D.R. Mekonnen, The Nebulous Lawmaking Process in Eritrea, 53J.AFR.L.171(2009).
69.See, Proclamation 37/1993: A Proclamation to Provide for the Structures, Powers and Responsibilities of the Provisional Government of Eritrea. Proclamation 23/1992 was repealed by Proclamation 37/1993 and certain provisions of the latter are amended by Proclamation 52/1994. The three proclamations make the interim constitution of Eritrea.
70.Proclamation 37/1993, art. 3.
71.Id., art. 3(2).
72.For the role of the youth, see D. CONNELL, AGAINST ALL ODDS: A CHRONICLE OF THE
ERITREAN REVOLUTION (1997).
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of Eritrean youth who did not take part in
the independence struggle mainly because of their age expressed
their readiness to the PGE to contribute to the rehabilitation
of the
Although the implementation strategies of the National Service Program were not the result of a democratic process, after the Program was declared, it was however highly supported. Many youth volunteered to enroll in the first rounds. At first, the youth who were unemployed or who planned to discharge their duty earlier were the only participants. Students and employed youngsters were not compelled to enroll in the National Service until they finished their studies or made arrangements to enroll at a particular time.75
During the early rounds, there were incidents of young children of less than 14 years and Diaspora Eritrean youth, with high enthusiasm, enrolling to the National Service.76 In the first rounds, although the participants who experienced and witnessed the unconstructive implementation of the Program soon rightly started to question the real but hidden motives of the GoE in launching the National Service,77 the Program
73.Proclamation 11/1991, National Service Proclamation.
74.This was clarified by Proclamation 82/1995.
75.Proclamation 11/1991, art. 5(1). See also, Proclamation 82/1995, art. 14(2).
76.See, Eritrea: Conscientious Objection and
Desertion (a documentation by Connection of Germany War
Resisters’ International and the Eritrean
77.The declared objectives of the National Service
include (1) the establishment of a strong defence force based
on the people to ensure a free and sovereign Eritrea; (2) to
preserve and entrust future generations the courage,
resoluteness heroic episode shown by Eritrean people in the
past thirty years; (3) to create a new generation
characterized by love of work, discipline, ready to
participate and serve in the reconstruction of the nation; (4)
to develop and enforce the economy of the nation by investing
in development work of the Eritrean people as a potential
wealth; (5) to develop professional capacity and physical
fitness by giving regular military training and continuous
practice to participants in training centres, and (6) to
foster national unity among the Eritrean people by eliminating
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was not entirely unpopular until 1998 when Eritrea and Ethiopia went to war due to a border conflict.78 In spite of their reservation on the manner of the implementation of the National Service, thousands of Eritrean youth again presented themselves to the GoE in defence of their country. The war with Ethiopia lasted from May 1998 to June 2000 in destructive rounds. All the time, the Eritrean youth remained committed to the defence of their country until both countries agreed to submit the contentious issue to international arbitration.79 Figures of the UNHCR and refugee hosting countries clearly show that the number of Eritreans seeking asylum started to grow after the war was over.
A. Legal Limitations on the Rights to Leave and to Return of Eritrean Youth
The seeds of the violation of the right to movement of the Eritrean youth, particularly to and from Eritrea were, however, planted within the implementation strategies of the National Service. In 1991, when the National Service was first proclaimed, it was provided that unless authorised by the Secretary of Defence (now Ministry of Defence), or provided certificate of completion or exemption from the National Service, no person between the age of 18 to 40 can travel outside of Eritrea.80 A proclamation enacted in 1995 further reinforced the above restriction. It provided that any person who has the obligation to do the National Service (18 to 50 years old) can only travel outside Eritrea upon (1) producing certificate of exemption or completion of the National Service or
(2) showing registration card for the National Service that shows that the card bearer is registered to enroll to the National Service at a certain round and the bearer deposits
is to hear and decide appeals against decisions made by the Home Office in matters of asylum, immigration and nationality. Reported determinations receive a neutral citation number of the form [2003] UKIAT 00001. They are anonymized and are to be cited by the neutral citation number. Starred determinations (indicated as such with STARRED being the first word in the title of the determination) have a special status. They are to be treated as binding by all Adjudicators and the Tribunal unless inconsistent with authority binding on the Appellate Authorities.
78.
ERITREA
79.The border conflict is settled by law. See the Eritrea/Ethiopia Boundary Commission’s Decision Regarding Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia (13 April 2002).
80.Proclamation 11/1991 art. 12. Emphasis added.
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60,000 Birr81 to guarantee his or her enrolment.82
The restrictions are supported by the immigration laws of Eritrea. No person is allowed to leave Eritrea except through the exit gates83 that the Secretary (now Department) of Immigration from time to time specifies and proclaims by Legal Notices.84 No person is permitted to exit from Eritrea without holding a valid immigration document (mainly a passport) and a valid exit visa.85 Citizens who ask for exit visa shall provide (1) those who seek to exit for any kind of education, a supporting letter from the concerned body; (2) those for different governmental activities or activities of a private body, a supporting letter from such body; (3) those for employment on contract basis, a supporting letter from the labour office (Ministry of Labour and Human Welfare) and (4) those for medical reasons, a supporting letter from the department of health (Ministry of Health).
Article 25 of the Eritrean Constitution that was ratified on 23 May 1997 provides that citizens shall have the duty to (1) owe allegiance to Eritrea, strive for its development and promote its prosperity; (2) be ready to defend the country; (3) complete one’s duty in national service; (4) advance national unity; (5) respect and defend the Constitution; (6) respect the rights of others; and (7) comply with the requirements of the law. On the other hand, article 19(9) provides that “every citizen shall have the right to leave and return to Eritrea and to be provided with a passport or any other travel document.”
Article 26 of the Constitution provides for
almost an identical limitation clause to those in the three
treaties discussed in part one of this article. According to
article 26 which applies to article 19(9), the fundamental
rights and freedoms guaranteed under the Constitution may be
limited only in so far as limitation is in the interests of
national security, public safety or the economic
81.Birr is the legal tender of Ethiopia which Eritrea was using until 1997. In 1995, the exchange rate of the Birr against the US Dollar was about 7 to 1.
82.Proclamation 82/1995, art. 17.
83.Legal Notice 4/1992: Travel and Immigration Regulations, provide for the list of entry/exit gates. See, art. 3.
84.Proclamation 24/1992: Proclamation to Regulate the Issuance of Immigration Documents, Entry to and/or Exit from Eritrea and Residence of Aliens in Eritrea, art. 10(1). See also, art. 17(11) of Legal Notice 4/1992.
85.Proclamation 24/1992 art. 11. Emphasis added.
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extent of such limitation and identify the article or articles hereof on which authority to enact such limitation is claimed to rest.
In addition, under article 27 of the
Constitution, at a time when public safety or the security or
stability of the state is threatened by war, external invasion,
civil disorder or natural disorder or natural disaster, by a
resolution passed by a
However, the Constitution has never been
respected in whatever form or shape and thus the GoE has not
applied its relevant parts even to justify in its favour the
massive human rights violations it has been perpetrating.86 Thus, the statutes that were
promulgated before the Constitution were ratified (1997) and
Eritrea acceded to the ACHPR and the ICCPR (1999 and 2002
respectively) have not been revised to be brought in line with
the Constitution and the two human rights instruments. The GoE’s
B. Practical Limitations
Whereas the statutes are severely restrictive, their implementation has been by far prohibitive.88 The authorities that are empowered to give letters of support that allow getting exit visa for the permitted limited grounds are tied by the policy of the GoE that has not been largely in support of many youth to leave Eritrea for whatever reason. In a country where fear of higher authorities as opposed to fear of the law governs, lower officers tend to err on the side of denying than permitting. As a matter of fact, the
86.For more on the fate of the Constitution, see generally S.M. Weldehaimanot, The Status and Fate of the Eritrean Constitution, 8 AFR. HUM. RTS. L. J. 108 (2008).
87.D.R. Mekonnen, A Rejoinder to Sophia Tesfamariam’s Crude Allegations (September 2007), available online at <http://zete9.asmarino.com/ftHiynges.php?itemid=1019>, (accessed 8 January 2008).
88.See
the testimonies of Dr Pool in the MA
Case, supra note 77, at ¶¶
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entire process of getting a passport and exit visa was complicated by the fluctuation of directives from the Office of the President; from time to time making the requirements more restrictive. As a result many youth could not get exit visas in spite of fulfilling the requirements provided by the relevant statutes.89 The low respect for the rule of law coupled with the GoE’s conception of rights as state privileges makes the provisions of the laws that were unduly restrictive in the first place, very illusory. The yearly reports of the State Department of United States have reflected the situation accurately:90
Men under the age of 50, regardless of whether they had completed national service; women of ages 18 to 27; members of Jehovah’s Witnesses … and others who were out of favour with or seen as critical of the government were routinely denied exit visas. In addition, the government often refused to issue exit visas to adolescents and children as young as 5 years of age, either on the grounds that they were approaching the age of eligibility for national service or because their diasporal parents had not paid the 2 percent income tax required of all citizens residing abroad. Some citizens were given exit visas only after posting bonds of approximately $7,300 (100 thousand nakfa).
C. Lack of Procedural Safeguards
Contrary to the international and domestic legal standards mentioned in part one of this article, the statutes related to immigration provide no judicial means of reviewing a decision refusing to grant a passport or a visa by immigration authorities. Although the ordinary courts can, in theory, review immigration abuses, so far the courts have played no role.91 The judiciary is not only weak and unindependent, but also the case of travel restriction is politically very sensitive as it is linked to the repressive governance that no citizen dares to take it to court. In this regard in his written testimony to the African Commission, Mekonnen laments:
89.Email written by the author on 27 August 2005 to Margaret Arach Orech, the organizer of the Regional Training Programme. The email is attached as evidence 2.1 to the Communication filed, supra note 1.
90.USA DEPARTMENT OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES, 2005: ERITREA (2005).
91.For the general lack of the practice of judicial review of administrative actions in Eritrea, see generally D.R. Mekonnen, The Judicial Review of Administrative Action in Eritrea: The Prevailing Practice (Part I), (2007) (draft article on file with the author).
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As a court clerk, assistant prosecutor, magistrate and provincial court judge who served in different parts of Eritrea between 1998 and 2001, I am well informed about the Eritrean legal system and judiciary. In terms of human rights protection, the Eritrean judiciary has played no role since the country’s independence in 1991. Practically, the Eritrean judiciary adjudicates mainly on civil and criminal matters involving individual citizens. To my knowledge, no successful case has been brought before any Eritrean court where the government was challenged for violation of human rights.92
D. Human Rights Violations, Travel Restrictions and the Desire to Emigrate
The aftermath of the border conflict between Eritrea and Ethiopia exposed the severe maladministration of the GoE more than any time before. The way the National Service was implemented was one point of focus. The Constitution prepared after popular participation and which remained unimplemented three years after its ratification in spite of popular expectation for speedy implementation was another point of focus. Equally, the little or no progress made by the transitional government to prepare Eritrea for constitutional governance became a subject of scrutiny. The overall undemocratic nature of the transitional government was also exposed to heavy criticism and comprehensive reform was called for.93 Contrary to what the reformers demanded, the GoE declined to implement the Constitution and ignored the other reform proposals. Instead, unprecedented repression of fundamental rights and freedoms have prevailed in Eritrea since then.94
Specifically, the GoE declared a new form of National Service called Warsai- Ykaalo Campaign. The campaign was declared by the President alone and it has no legal backing. To the contrary, the new campaign eroded the minimum compliance with the law the National Service had when it started. Particularly, the campaign condemned the Eritrean youth to indefinite duty under the government in the pretext
92.Written testimony to the African Commission, attached as evidence 3.2 to the Communication filed, supra note 1.
93.For these developments, see generally D. CONNELL, CONVERSATION WITH ERITREAN POLITICAL PRISONERS (2005). See also, Awate Team, The Chronology of the Reform Movement (2 December 2002), <http://www.awate.com/portal/content/view/72/9/> (accessed on 26 January 2011).
94.See
e.g., Annual Reports (2000 to 2006) of the USA
Department of State, Bureau of Democracy, Human Rights and
Labour, on Human Rights Practices of Eritrea. See,
A. BARIAGABER, ERITREA:
CHALLENGES AND CRISES
OF A NEW STATE (a Writenet report commissioned by
United Nations High Commissioner for Refugees, Status
Determination and Protection Information Section – DIPS, 2006),
at
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of national development and the alleged threat to national security in the context of unresolved boarder conflict. The severe restriction of the right to leave of Eritrean youth under the pretext of forcing the youth to first discharge their duty to National Service or defending the country, presupposes that the youth would flee the country in order to avoid the two obligations. This supposition is, however, unfounded and directly contradictory to the historical role of the Eritrean youth who, as explained above, have dedicated decades of their life for the liberation of their country at the cost of their lives.
As stated above, the youth were enrolling
voluntarily when the program started. Rather, it is the nature
of the National
With regard to the right to get a passport and exit visa, the indefinite Warsai- Ykaalo Campaign virtually means thousands of the youth cannot travel out of Eritrea. The relevant statutes mentioned above require completion of the National Service, which is supposed to be 18 months long, as a condition for getting exit visa.99 The
95.In this regard, before the Asylum and Immigration
Tribunal, Dr Kibreab has testified: “In Eritrea it is slavery
not National Service and it is misnomer to quote National
Service. For me it is a violation of the basic human rights
principle.” See, MA Case, supra note
77, at ¶ 185. In its recent guidelines, the United Nations High
Commissioner for Refugees (UNHCR) has noted that according to
“analysis of the claims lodged by Eritreans and information
provided by the States concerned, three main trends in the
claims can be identified. First, a significant number of
Eritrean nationals are fleeing military conscription. Secondly,
there are Eritreans fleeing the country on account of religious
persecution. The third typology in the asylum claims can be
grouped together under the broad category of human rights
violations owing to, inter alia,
political opinion, freedom of speech/press and association. In
addition, potential claims by women with specific profiles and
homosexuals are also considered.” See,
UNHCR, Eligibility Guidelines for Assessing the International
Protection Needs of
96.Quoted in, Findings of the Asylum and
Immigration Tribunal in IN (Draft
97.Testimony of Dr Amanuel Gebremedhin, quoted in the MA Case, supra note 77, at ¶ 249.
98.Testimony of Dr Kibreab, quoted in id., at ¶ 150. See also, Dr Gebremedhin’s affidavit as quoted in id., at ¶ 185.
99.Exceptional circumstance can cause the extension of the 18 months period.
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indefinite
The unhappy retreat of the country from its
expected march to constitutional governance, followed by severe
violation of rights and freedoms in every walk of life and the
exploitation of the youth under the
100.HUMAN RIGHTS WATCH, SERVICE FOR LIFE: STATE REPRESSION AND INDEFINITE CONSCRIPTION IN ERITREA (2009), at 63 & 64.
101.A.M. Dias, War and State Formation: Outcomes of
an Interstate War in the
102.Many Young Eritreans Seek Exile at All Costs, SUDAN TRIBUNE, 31 August 2007, attached as evidence 11 to the Communication filed, supra note 1.
103.This is supported, for example, by the number of applications received from Eritrean asylum seekers in the UK (excluding dependants) from 1998 to 2007 which was 345, 565, 505, 620, 1,180, 950, 1,105, 1,760, 2,585 & 1,810 (the last figure is provisional). The nationalities accounting for the highest numbers of applicants were Afghan, Iranian, Chinese, Iraqi and Eritrean. The top ten applicant nationalities in 2007 were Afghan 2,500 (11%), Iranian 2,210 (9%), Chinese 2,100 (9%), Iraqi 1,825 (8%), Eritrean 1,810 (8%), Zimbabwean 1,800 (8%), Somali 1,615 (7%), Pakistani 1,030 (4%), Sri Lankan 990 (4%) and Nigerian 780 (3%). The main nationalities to be granted asylum in 2007 were Eritreans (31%), Somali (23%) and Zimbabwean (7%). See, Home Office, Asylum Statistics: United Kingdom 2007, 11 HOME OFFICE STATISTICAL BULLETIN 1 (2008), at 1, 3, 6 & 29.
104.HUMAN RIGHTS WATCH, WORLD REPORT 2006: ERITREA (2006).
105.Application form for Official Travel Abroad for Government Employees Only (on file with the author). Using this form, governmental institutions request the Office of the President to grant permission for their staff/s to get exit visa for exclusively governmental travel.
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E. Leaving “Illegally:” The Only Option
As a result of these restrictions on the
rights to leave and to return to Eritrea and acquire a passport,
many youth have been severely affected. Many missed scholarship
opportunities and other academic benefits that were offered to
them because they could not undertake them as they were denied
permission to leave Eritrea.106 In
totality, the youth are denied exposure to the outside world and
the benefits they could get in this highly globalized world.
Many youth, however, could not see such opportunities simply
pass. Rather, they have taken a high risk of fleeing Eritrea by
crossing to neighbouring countries through complicated
The National Service requires the youth to be
always around the areas where they “serve.” Nevertheless, the
rate of “deserters” at any given time is very high. As a result,
the GoE has severely curtailed the right to movement of the
youth within Eritrea too. One needs a permit to move from one
place to another. Main roads are intercepted by roadblock check
points where security forces board buses and any other public
transport and make sure every person has a permit. Periodic
In a similar way, some Eritrean youth also
cross to Djibouti, Yemen and Saudi Arabia. The figures of
fleeing youth, when compared to the total Eritrean population,
are alarmingly high. According to the UNHCR, in 2009 only, there
were 43,400 asylum seekers from Eritrea, majority of whom were
youth.108 The highest concentration
of Eritrean
106.Out of the 31 students of the Faculty of Law of the University of Asmara (a 98 batch graduated in 2005), for example, 11 are already out of Eritrea for further studies and 5 had to leave Eritrea “illegally” to Sudan while the rest could not be considered to have obtained their visas in accordance with the due process of law.
107.Interview with recently fled Eritrean youth in Khartoum, Sudan, conducted by the author via yahoo messenger chat (on file with the author). See also, Findings of the Asylum and Immigration Tribunal, in AH (Failed Asylum Seekers – Involuntary Returns) Eritrea CG [2006] UKAIT 00078 ¶ 5 (hereinafter the AH Case).
108.UNHCR, STAT. Y.B. 2009 (2010), at 8.
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(10,200).109 In 2009 the UNHCR had 209,200 Eritreans refugees.110
F.Ramifications of Leaving “Illegally”
1.Risk to
The number of people so far killed while trying to flee Eritrea or after being apprehended while trying to escape is not precisely known. However, the GoE does not even care to hide the fact that it shoots to kill anyone found at the borderline. In some instances, the GoE brought some apprehended youth nearby towns and shot them in front of the public eye or left them dead to deter others. Diaspora Eritrean websites are full of reports of Eritreans dying at the borderline or in the Mediterranean Sea.115 Human Rights Watch gives a glimpse of the situation.116
2.Harsh
109.Id., at 47.
110.Id., at 23.
111.HUMAN RIGHTS WATCH, supra note 104, at 65 (noting that
“leaving Eritrea is not an easy undertaking … heavily patrolled
borders,
112.See, e.g., Dr Kibreab’s testimony in the MA Case, supra note 77, at ¶ 138. See also, SUDAN TRIBUNE, supra note 102.
113.See,
supra note 76, at
114.MA Case, supra note 77, ¶ 353. Emphasis in the original.
115.See, e.g., Eritrea’s Killing Fields, EVENTS MONITOR, 22 September 2007, available online at <http://www.awate.com/portal/content/view/4623/5/> (accessed on 8 September 2009).
116.HUMAN RIGHTS WATCH, supra note
104, at
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or 3,000 Birr fine or both. However, both statutes have never been respected nor were the entire criminal justice system used. The status of rule of law in Eritrea is aptly described as “annihilated” by one Eritrean lawyer and human rights activist.117 Alleged offenders are thus punished administratively by local commanders without any form of trial, legal recourse or opportunity for appeal or redress. The forms of punishment consist of torture and arbitrary detention for an indefinite period.118 Several hundreds of these fleeing youth who managed to get into other countries were deported back to Eritrea in the face of incessant appeals by international human rights organizations.119
In 2002, several hundred Eritreans leaving
Libya (via Sudan) landed on the island of Malta, mainly as a
result of shipwreck or sea rescue, and were detained. In
September and October 2002, Malta forcibly deported some 220
Eritreans back to Eritrea, where they were all immediately
detained on arrival in Asmara and sent to the nearby Adi Abeto military detention centre.
Since then, they have been languishing in prison for years
without facing trial and several opposition websites have been
indicating that 160 of them were summarily executed by
presidential order.120 Between 12 and
19 June 2008, up to 1,200 Eritrean
3. Harassment as
Undocumented
117.D.R. Mekonnen, Annihilation of the Rule of Law: Cause for all Pitfalls in Eritrea (articles series in Tigrinya, part 1 to part 6, 2007) <www.awate.come> (accessed on 22 November 2007).
118.See, AMNESTY INTERNATIONAL, “YOU HAVE NO RIGHT TO ASK” – GOVERNMENT RESISTS
SCRUTINY ON HUMAN RIGHTS (19 May 2004), AI Index: AFR 64/003/2004.
119.Human Rights Watch, Eritrean Refugees in Danger
of Deportation from Libya: Letter to Mu’ammar
120.AMNESTY INTERNATIONAL,THE STATE OF THE WORLD’S HUMAN RIGHTS:ERITREA (2007). See also, AMNESTY INTERNATIONAL, supra note 118.
121.Amnesty International, Eritrean
122.HUMAN RIGHTS WATCH, supra note 104, at 40.
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Eritrean youth that they often, if they have it,123 mail it in advance to where they feel is a safe place. Thus when they successfully reach neighbouring countries, such youth are undocumented aliens and they are exposed to corrupt security officers who obtain money by arbitrarily arresting and releasing asylum seekers. The appalling predicament of such youth in Egypt, for example, is well documented:
Eritreans and Ethiopians complain of being
hassled, laughed at, and mocked by Egyptians on a
4. Unable to
123.In the past five years, requirements for getting a passport have been restrictive. The Eritrean passport serves for five years (renewable). This implies that even those youth who secured passports when the restrictions were not severe could only have expired passports.
124.N.R. Brown, S. Riordan & M. Sharpe, The Insecurity of Eritreans and Ethiopians in Cairo, 16 INT’L J. REFUGEE L. 661 (2004), at 680.
125.In NM (Eritrea) [2005] UKIAT 00073, it has been rightly stated that “the situation is not normal in Eritrea so far as the Government’s attitude towards military service is concerned. Being perceived as a draft evader does carry political connotations in the eyes of the authorities to the extent that the appellant would be at risk of serious harm for a convention reason: her perceived opposition to the government.”
126.Submissions of Mr M. Jackson, Counsel for the applicant in AH Case, supra note 107, at
¶20.
127.Brown, Riordan & Sharpe, supra note 124, at 677.
128.Interview with some youth in Sudan (on file with the author).
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and actual or perceived evasion of military service is regarded by the Eritrean authorities as an expression of political opinion.”129 The same tribunal eventually concluded:
A person who is reasonably likely to have
left Eritrea illegally will in general be at real risk on return
if he or she is of draft age, even if the evidence shows that he
or she has completed Active National Service … By leaving
illegally while still subject to National Service, (which
liability in general continues until the person ceases to be of
draft age), that person is reasonably likely to be regarded by
the authorities of Eritrea as a deserter and subjected to
punishment which is persecutory and amounts to serious harm and
In Said v. The Netherlands,131 the European Court of Human Rights considered that substantial grounds had been shown for believing that, if expelled at the present time, the applicant, who is a typical representative of the fleeing youth, would be exposed to a real risk of being subjected to torture or to inhuman or degrading treatment or punishment. Accordingly, the Court found that the expulsion of the applicant to Eritrea would be in violation of Article 3 of the European Convention on Human Rights. The risk at stake when such youth get deported is also clearly indicated by the public outcry recently echoed in opposition to perceived act of deportation of around 1,200 Eritreans from Egypt.132
Since 2007, thousands of Eritreans and others have signed a petition opposing deportation of the said youth from Libya.133 In 2002, Amnesty International concluded
129.MA Case, supra note 77, ¶ 227 & IN Case, supra note 96, ¶ 44(v).
130.MA Case, supra note 77, ¶ 1. The UNHCR also agreed: “UNHCR considers that most Eritreans fleeing their country should be considered as refugees according to the criteria contained in the 1951 Convention relating to the Status of Refugees (1951 Convention) and its 1967 Protocol, and/or the 1969 Convention governing the Specific Aspects of Refugee Problems in Africa (OAU Convention), particularly on the grounds of ‘political opinion’ (both real and imputed) and ‘religion.’ In this respect, the groups considered to have a presumption of eligibility include, but are not limited to, draft evaders/deserters, political opponents or dissidents (real or perceived), journalists and other media professionals, trade unionists and labour rights activists, members of religious minorities, women with particular profiles and homosexuals.” See, UNHCR supra note 95, at 10.
131.ECHR Application No. 2345/02, Chamber Judgment, ¶ 46.
132.UN News Centre, UN Human Rights Chief Urges Egypt
to Stop Deporting Eritrean
133.Petition against forced deportation of Eritreans from Libya. The petition to the United Nations High Commissioner for Refugees was created and written by BH Selassie and had a feature that enabled many Eritreans to sign it. The petition is available at <www.PetitionOnline.com> as a public
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that “Eritrea cannot be regarded as a ‘safe’
country with regard to national service deserters who would be
at risk of serious human rights violations including arbitrary
detention, torture or
For these reasons, those who successfully escaped from Eritrea, despite the deplorable life they live in neighbouring countries and despite their willingness to return to their country, they do not feel safe to do so.136 Many students who have finished their studies and who would like to return to their country and serve their communities do not feel safe to do so.137 For the same reasons (severe repression of human rights) it has been noted that the older generation of Eritrean refugees in Sudan and Ethiopia in particular are not keen to return to Eritrea.138
5. Punishing
document. More than 2,000 people have signed it. See also, Letter of appeal by Dr B.H. Selassie, Distinguished Professor of African Studies, and Professor of Law at the University of North Carolina at Chapel Hill, to Mr Antonio Guterres, Commissioner, United Nations High Commission for Refugees, dated 16 July 2007.
134.Amnesty International, Malta: Open Letter to the Government of Malta, (27 September 2002) AI Index: EUR 33/002/2002.
135.Brown, Riordan & Sharpe, supra note 124, at 699; and UNHCR, Position on Return of Rejected Asylum Seekers to Eritrea (January 2004), <http://www.unhcr.se/Pdf/Position_countryinfo_ papers_06/eritrea04.pdf> (accessed 7 September 2009).
136.Expert
testimony of Dr June Rock in AH
Case, supra note 107, ¶¶
137.D.R. Mekonnen & S.B. Abraha, The Plight of Eritrean Students in South Africa, <http://emdhr.civiblog.org/blog/_archives/2004/4/2/1020940.html> (accessed on 4 June 2007).
138.BARIAGABER, supra note 94, at 5. For more on the return and reintegration of the old generation refugees, see generally J. Bascom, The Long, “Last Step” Reintegration of Repatriates in Eritrea, 18 J. REFUGEE STUD. 165 (2005).
139.AMNESTY INTERNATIONAL, ERITREA: OVER 500 PARENTS OF CONSCRIPTS ARRESTED
(2006), AI Index: AFR 64/015/2006 (Public). See also, AMNESTY INTERNATIONAL, supra note 118.
140.MA Case, supra note 77, ¶ 388.
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In summary, the Asylum and Immigration Tribunal has aptly described the whole chain of the violation of the right to leave and to return in the following paragraph:
The evidence of a “shoot to
kill” policy in respect of deserters, the imprisoning
of parents and the process known as “the
giffa,”141 together with the
more general objective evidence regarding the oppressive nature
of the Eritrean regime, confirms that any such punishment is
likely to be both
IV. CONCLUSION
The rights to leave and to return of Eritrean youth to their country have been rampantly violated together with the overall repression of human rights in Eritrea. The rights have been treated as mere “state privileges” as was the case with the former USSR and its satellites143and China.144 The curtailment of the two rights in the pretext of forcing Eritrean youth to perform their duty to the National Service is different from Lauri Peltonen v. Finland in terms of the restriction being unnecessary having regard to the history of the Eritrean youth; unlimited in terms of time; unlimited in terms of the aims which have been alleged to serve (often used as a means to control the Eritrean youth); and the destruction of the rule of law and the emasculation of the Eritrean judiciary that has offered no protection. The Eritrean case is also different in terms of the draconian steps the GoE took to close the country’s borders, harsh punishment imposed on apprehended “offenders” and collateral denial of the right to return for those who successfully escaped but wish to return. Punishing parents for the “sin” of their adult sons and daughters without establishing criminal complicity is unjustified in any sense.
However, besieged by the repression in Eritrea, tens of thousands of youth have managed to flee Eritrea. Ironic as it may seem, the restrictions on the right to emigrate have given rise to new generation of refugees. Those who managed to leak through the tight border control of the GoE cannot return to their country for well founded fear of persecution or ill treatment. As a result, there are thousands of Eritrean youth refugees
141.In Tigrinya (one of the dialects in Eritrea), this is the frequent periodic and indiscriminate searches for and round ups of “draft evaders.”
142.MA Case, supra note 77, ¶ 445.
143.Barist et al, supra note
2, at
144.LIU, supra note
6, at
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in Sudan and Ethiopia.
This article recommends that the GoE swiftly and unconditionally return its focus towards democratization and respecting human rights. Only drastic improvement in the human rights situation and democratization of Eritrea can solve the prevalent exodus of the Eritrean youth. Such improvement can solve the mass emigration in two ways. One, it can remove the main expelling element; thus remedy the problem from its roots. And second, such improvement can avoid the camouflage the Eritrean youth who migrate for economic reasons, albeit very few, have been getting. In the meantime this article recommends to the international community to lend assistance to such Eritrean youth. Documenting the severe violations the youth are facing is also an important engagement Eritreans and the international community should give attention.
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POLITICIZATION OF LAND LAW AND GENDER RELATIONS IN UGANDA: A CASE STUDY
Godard Busingye*
ABSTRACT
This article explores the impact of custom
on the right of women to effectively participate in land
I. INTRODUCTION
Issues of access, ownership, usability and control of land by women in Uganda, which traditionally were determined by making reference to customary norms of each group of people, were politicized at the time the country became a British colony in 1900 by virtue of signing the Buganda agreement. Ibanda Town Council, which was part of Ankole Kingdom did not become part of the British territory until 1901 when the Ankole agreement was signed.
The politicization of land in the country came up as a result of requiring that land which was a subject of customary land tenure before the advent of colonial rule in the country be subjected to statutory law and be administered in accordance with the whims and wishes of the colonial political administrators. Colonial administration in Uganda was entrenched through a number of agreements between the representatives of the Monarch of England and Ugandans, who were not, at that time literate or even aware of the potential value of the land they superintended over before the signing of
* LL.D Candidate, Makerere University;
Advocate of Courts of Judicature of Uganda.
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the colonial agreements. The salient, and probably the most essential features of all the colonial agreements referred to was the appropriation of land, making it subject to the Registration of land titles and divesting the customary owners of their rights they hitherto enjoyed over such land. Women in Uganda were adversely affected by the registration and politicization of land under both the colonial administration and even during the post colonial period.
At the time of writing this article, many
Ugandans were grappling with how to redress the historical
imbalances created by colonial history in the law and gender
relations sector. Women in particular had not yet attained the
In the case of Uganda, and for purposes of this study, specific attention was paid to aspects of land law and gender relations, which as asserted were politicized and rendered problematic to women and the enjoyment of their rights of access, ownership, usability and control of land. It was understood that land in Uganda forms the basis for livelihoods of the majority of Ugandans, and that most women are engaged in livelihood activities related directly to harnessing of the land resource. In order to come up with a clear understanding of the imbalanced relationship between land law and gender relations in Uganda, a case study method based on Ibanda Town Council (ITC) was adopted for this study.
II. THE POLITICS OF ACCESS, OWNERSHIP, CONTROL AND USABILITY OF LAND IN IBANDA TOWN COUNCIL
In this article, issues of access, ownership, control and usability of land in ITC are informed by the feminist perspective. This perspective, as internalized and expounded
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upon by Freeman, would be understood as:
... a range of committed inquiry and
activity dedicated first, to describing women’s
The feminist perspective is imperative in analyzing the concept of patriarchy, which is informed by custom among other aspects such as colonial history that can be discerned from imported English law into the juridical norms of Uganda. In its politicized form, patriarchy is upheld in social settings where men are the organizers of society. An understanding of the patriarchal hegemony would then be important in articulating the impact of patriarchy on women’s right of access, ownership, control and usability of land in ITC and also in other parts of Uganda.
Available literature indicates that
customary law was the norm in the pre- colonial Uganda and as
such in ITC.2 Before colonialism,
there were a few variations in the overall principle of access
to land rights; these were based on occupancy acquired through
lineage and inheritance.3 The
occupancy of land during the
The land tenurial systems in the
1.M.D.A FREEMAN, LLOYD’S INTRODUCTION TO JURISPRUDENCE 1028 (1994). Freeman cited the views of other feminist proponents such as Clare Dalton and H. Wishik. See, e.g, C. Dalton, Where We Stand: Observations on the Situation of Feminist Legal Thought, 3 BERKELEY WOMEN'S L. J. 1 (1987- 1988) (delineating historical stages of feminist theory).
2.See, S.R KARUGIRE, A HISTORY OF THE KINGDOM OF NKORE IN WESTERN UGANDA TO 1896 (1971). See also, E.ISTEINHART,CONFLICT AND COLLABORATION:THE KINGDOMS OF WESTERN UGANDA
(1977).
3.J.M.B. TUKAHIRWA, POLICIES, PEOPLE AND LAND USE CHANGE IN UGANDA: A CASE STUDY
OF NTUNGAMO, LAKE MBURO AND SANGO BAY SITES (2002).
4. Interview with James Kahigiriza on the 16 July, 2007 at Kyamugorani, Kakiika, Mbarara. Kahigiriza, was the Enganzi (Prime Minister) of Ankole Kingdom from 1963 to 1967.
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family land was vested in the clan or family, the latter holding it in trust for the whole clan or family. The clan and family institutions were crafted under the male figurehead.5 Relics of clan or communal land holding systems in Uganda can be traced in the northern region of the country, where the traditional leaders such as the Rwot in Acholi region still has a say on how land could be accessed, owned, used or controlled. That type of land tenurial system would not accommodate individual appropriation of interest in such land. Community or tribal interests took precedence over individual interests in any piece of land. Such clan or community interests could then be interpreted as male interests basing on the fact that the society of ITC was crafted on a politicized male figurehead, the Omugabe.
From the observation made, the relics of such tenurial systems in ITC could be identified in areas of communal interests in land such as water sources, clay and sand extraction points and in some cases hilly areas still reserved as communal agricultural and grazing land. In a few cases, road reserves were used as communal grazing land for domestic animals such as cows, goats and sheep. Some families still preserved family burial grounds for the burial of all their dead family members. However, to date, there are few families that keep communal burial parcels of land. Individual households have their own burial grounds. According to Godfrey Mwitani,6 in ITC, Kibubura’s burial grounds (ekituuro kya Kibubura),7 could probably be the equivalent of clan land because some family members in Kibubura’s lineage, since she did not beget a child of her own, wherever they live bring their dead to be buried at the same place. Ekituuro kya Kibubura is also regarded as communal land because most people in ITC regard it as their cultural heritage property and respect it as such. The graveyard is cared for by a male heir to Kibubura, much as the latter did not have any children. However, the initial area demarcated as Kibubura’s burial grounds have been encroached upon by developers and no deliberate attempts have been put in place to maintain the place. It is asserted that if Kibubura had a son or a child at all, her estate would have been protected by that child and could not have been encroached upon as if it had no owner.
According to Mwitani, another communally revered piece of land in ITC was that upon which is located amabare ga Galt (Galt’s memorial heap of stones) at
5.F.I. Kindi, Challenges and Opportunities for
Women’s Land rights in
6.Interview with Godfrey Mwitani, a retired Clerical Officer in his early sixties and son to the late Yairo Mujonjo, who was the Treasurer for the late Kibubura; Mwitani occupies part of Kibubura’s mailo land, just a few metres from the spot where Kibubura was buried.
7.Kibubura was a Gomborora (subcounty) Chief of Ibanda at the time colonial administration was extended to the place.
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Kamukuri on
From the study, it can be noted that under the customs of the people in ITC, women would not be regarded as able bodied persons when activities considered as hard tasks such as collecting of heavy stones in the case mentioned would have to be undertaken. They would also not be expected to participate in discussions relating to access to land, its ownership, use and control. That is why for instance, when Kibubura died, her land was taken care of by a man. This indicates how customary norms of the people of ITC placed women in a subordinate position compared to men in respect to land matters.
It can further be noted that the subordinate position women in ITC found themselves in followed them to the grave as illustrated in the case of Kibubura whose former male attendants and relatives shared her property and neglected to maintain her grave yard. In the kinyankore custom,9 when a woman died while a spinster or had no children, her death would mark the end of her legacy, since there would be no customary heir to her estate as is the case in the kiganda culture, where each person, irrespective of gender considerations, would have an heir.10 It can be observed that because Kibubura did not have an heir, her prominence would fade in the memories of the people of ITC after her death and that her grave yard would become of less significance to individual developers who would encroach on it. In fact what keeps Kibubura’s name in the minds of the people of ITC is Kibubura Girls’ Secondary School which was named after her in commemoration of her great contribution towards upholding the values of gender equality in the area.11
It can thus be concluded that the kinyankore custom, which is the same custom for most people of ITC, women would not be permitted to own land in their sole capacities. They would access, own, control and use land via male members of their
8.This term is literally used to refer to a white person possibly from the western world.
9.This is a custom practiced by the Banyankore, one of the ethnic tribes of western Uganda.
10.This is a custom practiced by the biggest ethnic tribe in Central Uganda known as the
Baganda.
11. Interview with Naume Bishaka, a retired Chairperson of Mothers Union in Ankole at her home, Bubare Ward, ITC on 26 July 2008.
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society. In that regard, custom impacted
negatively on the right of women to effectively participate in
land
In respect to the land law, the colonial administration in Uganda subjected the people of ITC to the same laws and regulations as were generally in force throughout Ankole Kingdom law.12 The Ankole agreement made fundamental changes in the land tenurial systems in ITC. Prior to 1901, land in ITC was held under customary tenure systems and documentary evidence of occupancy to land was unknown.13 The 1901 Ankole agreement formed the core of the land tenurial systems that hitherto did not exist in ITC, namely mailo, freehold and leasehold. The land tenurial systems introduced in ITC disadvantaged women who were not allocated any land at the time of land redistribution under the colonial administration. Under the Ankole agreement, the omugabe and his notables (chiefs) who were all men were the only persons allocated mailo land in the kingdom.
Under the traditional communal tenure system
that existed in ITC before the introduction of colonial land
law, each household was entitled to claim use rights to any
piece of land he or she would find available and not in use by
others at that particular moment in time. According to Kigula,
such a requirement provided some limited degree of gender
equality.14 The introduction of the
colonial land law further politicized land and gender relations
which resulted into limited, and consequently diminished the
right of access, ownership, control and usability of land by
women in ITC. This was largely as a result of the introduction
of the requirement of registering the hitherto customary
interest in land by those persons who would be in position to do
12.Ankole agreement, 1901, art. 7.
13.Interview with Patrick Nathan Kirindi, a retired Lay Magistrate, on 30 December, 2006 at Omukatongole, Kikyenkye, Ibanda district and Michael Kibeiherere in ITC on 28 & 29 July, 2008.
14.J.
Kigula, Land Disputes in Uganda: An Overview of the Types of
Land Disputes and Dispute Settlement for Access to Land and
Other Natural Resources in Uganda (Makerere Institute of
Social Research and the Land Tenure Centre,
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III. BROADER ASPECTS OF LAND LAW AND GENDER RELATIONS IN
IBANDA TOWN COUNCIL
An exploratory review of a number of studies
on African gender relations and decision- making processes
indicate that women’s plight and gender discrimination,
particularly during the colonial and
Mamdani for instance, stated that the system
referred to in Common Law Africa as ‘Customary Law’ was in fact
a collection of rules, norms and institutions of dubious
province, including
15. See, INTRODUCTION: PERSPECTIVE OF GENDER IN AFRICA (A. Cornwall ed., 2005); BARGAINING WITH PATRIARCHY (D. Kandiyoti ed., 1997); GENDER, POWER AND CONTESTATIONS: ‘RETHINKING BARGAINING WITH PATRIARCHY (D. Kandiyoti ed., 1998); and C. OBBO, AFRICAN WOMEN:
THEIR STRUGGLE FOR ECONOMIC INDEPENDENCE (1980).
16.UNITED REPUBLIC OF TANZANIA, REPORT OF THE PRESIDENTIAL COMMISSION OF INQUIRY INTO LAND MATTERS 124 (1994).
17.M.MAMDANI,CITIZENS AND SUBJECTS:CONTEMPORARY AFRICA AND THE LEGACY OF LATE COLONIALISM (1996).
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law and gender relations in Africa and thus
prevented women from equally participating in land
In Ibanda Town Council, clan leaders, who were hierarchically below the omugabe played a big role in the adjudication of land disputes. Land disputes were, however, rare in ITC, which was occupied by two groups of people; abahima (cattle keepers), and abairu (peasants). The abairu’s main economic activity was crop farming while for the abahima it was livestock keeping. The abahima lived a nomadic lifestyle, in search of water and pasture for their animals, while the abairu practiced shifting cultivation. None of those groups required permanent places of settlement and rarely did they engage in land wrangles.
In general terms, land in ITC during the
Clause (1) of this Article shall not apply to any law so far as that law makes provision…(d) with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law; (e) for the imposition of restrictions on the acquisition or use by
18. M. MATEMBE, GENDER, POLITICS, AND CONSTITUTION MAKING IN UGANDA 125 (2002).
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any person of land or other property in Uganda.
According to Matembe’s discussion, it can rightly be asserted that the above constitutional provisions of the 1967 Constitution expressly allowed enactment of discriminatory laws in respect to among others access, ownership, control and usability of land in any part in Uganda. It can be observed that the continuum of unbalanced gender relations led to the maintenance of women in ITC in a subordinate and marginalized position in respect to the rights of access, ownership, control and usability of land. In support of that view, Kahigiriza stated that:
it is not a debatable issue that in Ankole women are subordinate to men; women derive their social prestige from their husbands. Even when Uganda was colonized, the British had no means of changing that situation. Women did not own land before colonialism, and could not own land after the British had colonized Uganda. The British, however, made it rather difficult for women to access land when they introduced a system of titling interests in land. Before Uganda was colonized, even men in general terms did not own land, land was for every person. A few notables such as the omugabe and his chiefs superintended over land for the benefit of all their subjects, who in turn paid tribute to them, these were not owners of land. I think the British gave land to men under the colonial agreements so that those men could be their allies in fighting wars. It was not because land had any special value to men by then, but the exercise of land redistribution turned out to limit women’s rights of access to the same land later.19
Kahigiriza’s narration indicates that the British colonial masters in Uganda having been informed by custom entrenched and augmented the position of men that was supported by the patriarchal and patrilineal nature and already problematic to women in respect to rights of access, ownership, control and usability of land. This was done by introducing land titling, which to date has remained problematic and disadvantageous to women because it was never intended to benefit them.
Women marginalization in ITC, like in any other parts of the Protectorate was a function of both Custom and colonial history.20 In political terms, ITC became a British colony in 1901 by virtue of the Ankole agreement of 1901. At its advent,
19.Interview with Kahigiriza, supra note 4.
20.KARUGIRE, supra note 2; Matembe, supra note 18.
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colonialism improved some men’s gendered positions in ITC by according them more privileges than women in political, judicial, economic and social domains. For instance, the Ankole agreement awarded registered interest in land to men but none to women. Under the agreement, the omugabe and most of his notable subjects, who were largely men, acquired registered interests in land in addition to political and judicial offices.21 For example, Abdula Aziz, then Gomborora Chief of Ibanda at the time the British colonial administrator of Ibanda, Bwana Galt was assassinated in 1905 wielded both political and judicial powers. Abdula Aziz executed those powers ruthlessly against the natives of Ibanda while investigating the murder of Bwana.22
The subordinate and marginalized position of
women in ITC was strengthened through the active silencing of
women’s voices by the patriarchal structures constructed by
custom and maintained throughout the colonial and
“a munyankore woman had limited rights in respect to decisions concerning access, ownership, control and usability of land. A woman’s rights in that respect depended on her relationship with a man. When she behaved well, she enjoyed all those rights. When she asked for independent rights in land, she created problems for herself and even her parents. Asking for such rights would be interpreted by her husband and the whole family as an insult and a woman who dared a man in that respect would be brought before the family ‘court’ and would be adjudged an undisciplined wife. She would then be ordered to publicly apologize to her husband and the whole family, and pay a fine. The fine would be paid by her parents; if she refused, the sentence was automatic; she would be divorced by her husband’s family. Such a woman would face further penalties at her parents’ home. In fact very few women, if any, would dare men by demanding for rights in land. A munyankore woman would be instructed by her ishenkazi (father’s sister) before her marriage not to bring shame to her parents by crossing the line that separated men from women; it was a red line and every munyankore knew it. Women were married into the family not only by their husbands alone. The husband’s whole family observed their behaviour and determined whether they were good wives or not.”23
21.Ankole Agreement, 1901, arts 5, 6 &7.
22.K.K. NGANWA, ABAKOZIRE EBY’OKUTANGAZA OMURI ANKOLE (1948).
23.See supra note 13.
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It was not until the promulgation of the 1995
Constitution of Uganda and later the Land Act of 199824 that women, just like during the
land registration in ITC was a fairly new venture; however, men were registering land in unprecedented manner and very few women had come up to register their interest in land. That move was due to the rapid urbanization that was taking place in ITC. Some people, particularly men, would register land and eventually sell it when prices for land in particular areas of the Town Council went up. There was no specific law that prevented men from registering land in their sole capacities, what was in place under the Land Act was a requirement for obtaining consent of spouses, but that was not specifically enforced.25
Dr. Gamurorwa’s narration about land registration in ITC was a continuation of the legacy of patriarchy that was rarely interrogated when women’s rights were at stake. Colonial land tenurial systems were let to operate alongside existing systems of customary law.26 During the colonial era, the British administration introduced land titling in Uganda, under which system men were recognized as the heads of households. In Ankole, land titling was followed closely by land redistribution programme based on the 1901 agreement, only men were allocated land much as it was a fact that women needed land to continue their lifestyles started long before colonization.
The disadvantageous and problematic position of women in respect to enjoyment of rights of access, ownership, control and usability of land and in general
24.Cap. 227.
25.Interview with Dr. Gamurorwa, the Chairperson of Ibanda District Land Board at Ibanda District Headquarters on 28 July, 2008.
26.G. Gopal,
OPTION: IS IT DESIRABLE? IS IT DOABLE? (2006).
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terms was also affected by other instruments of the colonial legacy including education, religion in addition to law.27 On this point, Obbo wrote that:
But the vast of the majority of women who
survived training, fieldwork,
Still on the impact of colonial education on women in Uganda, Nakanyike Musisi stated that:
Missionaries sincerely attempted to raise the
status of women through education. The education they offered,
however, first
On his part and in support of the views expressed by Obbo and Musisi on the impact of colonial education and religion, Rodney asserted that:
The Christian church has always been a major instrument for cultural penetration and cultural dominance. Equally important has been the role of education in producing Africans to service the capitalist system and to subscribe to its values.30
The views held by Obbo, Musisi and Rodney on
the relationship between
27.G. Mianda, Colonialism,
education, and Gender relations in the Beligian Congo: The
`Evolue` Case, in WOMEN IN AFRICAN COLONIAL
HISTORIES (2002);
N.B. Musisi, Morality as Identity:
The Missionary Moral Agenda in
28.Id., at 1.
29.N.B. Musisi, Colonial and Missionary
Education: Women and Domesticity in Uganda,
30.W. RODNEY, HOW EUROPE UNDERDEVELOPED AFRICA 26 (1972).
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other and not easy to overcome. The views
expressed by Rodney were in particular informative on how
christianity and western education were the major instruments
for entrenching western systems including capitalism into
African social fabric. These factors greatly contributed towards
the imposition of western patriarchy onto Africans. The imposed
western
Women’s problems in ITC in respect to access, ownership, control and usability started from the time land titling was introduced in Ankole under the 1901 agreement.31 According to her, mailo grants and individual freehold titles were acquired by a few prominent men in ITC. This meant that men had been deliberately empowered by the land law to have leverage over women in order to keep the latter in a subordinate position. It can also be observed that social forces prevented women from being participants in land transactions. According to Buruhwari, the land tenurial systems introduced by the colonial government escalated the already disadvantaged situation for women in ITC. She stated that:
The introduced land tenurial systems in ITC induced the acquisition of interests in land as a commodity, yet previously all land belonged to all members of the family in equal terms. Women never bothered about rights of access, ownership, control and usability of land because there was no contention about these issues. Everyone was an owner of land, I only learnt about registered land ownership when I went to school in the 1930s.32
Available literature indicated that only one woman, Julia Kibubura, owned land in ITC and probably in the whole of Ankole Kingdom in her sole capacity. Kibubura was a female chief appointed by the British Administration in ITC.33 Kibubura enjoyed the same respect as men; she was allotted land, though without a land title by the colonial administration.34 Kibubura’s mailo covered much of the Wards of Bubaare, Kyaruhanga and Kyabugaija in the present day ITC.
31.Interview with Dorothy Buruhwari in ITC at her home, Kagongo Ward, Ibanda Town Council on 27 December, 2009.
32.Id.
33.See NGANWA, supra note 22.
34.Interview with Eriseeba Kyamulesire at her home, Bubare Ward, ITC on 22 June, 2008; Michael Kibeiherere, nephew to Julia Kibubura, at his shop premises, ITC, on 26 July, 2008; and Godfrey Mwitani, a retired Clerical Officer and son to Yairo Mujonjo, who was the Treasurer for Kibubura, at his home, Bufunda Ward, ITC on 28 December, 2009.
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It was observed that women in Ankole Kingdom were traditionally renowned for their diviner role; they provided divine guidance to male rulers.35 Prominent women diviners in the kingdom included Murogo, Nyabuzaana, Kishokye, and Kibubura, the last in the lineage of diviners whose origin is traced from Bunyoro Kingdom.36 This indicates that women in ITC were never regarded with the same esteem as men in respect to land rights under the kinyankore custom. Women’s prominence would be attributed to their “divine” powers. As diviners, for instance, women had an obligation to ensure that men, the rulers, remained in political power by giving them information which enabled them to conquer their enemies.37
Political power in Ankole Kingdom was the basis upon which one accessed, owned, controlled and used land. Customary and later statutory land ownership legislation, were functions of gender power relations that were more favourable to men than women. According to Kibeiherere, land law and gender relations in ITC were maintained through a continuous and active system of denial of women’s rights in broad terms. Kibeiherere stated that:
Women were never given an opportunity to air their views when decisions concerning access, ownership, control and usability of land were to be taken. Men knew that women were a strong pressure group, which would over power them when given opportunity to articulate their demands in respect to land rights. As such, men manipulated and continuously denied them the right to participate in any fora that would be discussing serious matters concerning land. That was intended to maintain them in a subordinated position.38
In general terms, women in ITC were disadvantaged by custom and colonial history in respect to their rights of access, ownership, control and usability and that their views were systematically suppressed by the patriarchal society they lived in. That disadvantaged situation continued up to the time of undertaking this study albeit, in a modified form to impact on women’s rights of access, ownership and usability of land in ITC.
35.Id.
36.See supra note 22.
37.Id.
38.Interview with Kibeiherere, supra note 34.
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IV. LAND LAW AND GENDER RELATIONS IN ITC IN THE BROADER
POLITICAL SETTING OF ANKOLE KINGDOM
The indigenous inhabitants of ITC, the Batagwenda, belonged to the larger community of the Banyankore, who traditionally owed their allegiance to the omugabe. Due to immigrations into the area, however, the composition of the people of ITC has changed; in addition to the Batagwenda, it consists of Bakiga, a few Bahima and many other ethnic groupings, the latter largely consisting of employees and business communities.39 The omugabe was the traditional leader of the Banyankore. Symbolically, the omugabe was the owner of all land in his kingdom. His eminence was prominent in the period before the promulgation of the 1967 Republican Constitution of Uganda which abolished the institution of traditional rulers in the country.
The revival of traditional institutions in
Uganda under the 1995 Constitution did not revive the glory of
Kingdoms and particularly for Ankole Kingdom. Historically, the
omugabe was referred to as the
‘leading bull.’ That attribute signified his status in the
tribe, not only as a supreme ruler but also as the leader of all
the heads of families and the richest
Ankole and other Kingdoms existed in Uganda long before the country was colonized. These were, however, abolished by the 1967 Constitution of the Republic of Uganda, which formerly replaced the 1962 Independence Constitution. The 1962 Constitution had been temporarily interrupted by the 1966 Interim Constitution of 15 April, 1966; the pronouncements in the 1966 Interim Constitution were formalized when the 1967 Republican Constitution was promulgated on 8 September, 1967. The abolition of kingdoms was effected under the provisions of Article 118 (1) of the 1967 repealed Republican Constitution, which provided that:
The institution of King or Ruler of a Kingdom or Constitutional Head of a District, by whatever name called, existing immediately before the commencement of this Constitution under the law then in force, is hereby abolished.
Such institution was restored by the 1995 Constitution under Article 246 but with a number of restrictions imposed on such leaders. Unlike the period before the abolition
39. IBANDA TOWN COUNCIL, THREE YEAR DEVELOPMENT ROLLING PLAN, 2004/5 - 2006/7
(2004).
40. See KARUGIRE, supra note 2.
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of the institution in 1967, after 1995
traditional leaders would not enjoy administrative, legislative
or executive powers of government or local government. A person
would not, while remaining a traditional leader or a cultural
leader, join or participate in partisan politics and no person
would be compelled to pay allegiance or contribute to the cost
of maintaining a traditional or cultural leader. It is important
to note that since 1967, some of the institutions referred to
under Article 118 (1) of the 1967 repealed Republican
Constitution of Uganda have not been legally recognized by the
Government. Some sections of the people in those abolished
institutions such as Ankole Kingdom, however, continue to owe
their traditional allegiance to the heads of such institutions,
their
Ankole Kingdom is one such kingdom that existed immediately before the promulgation of the 1995 Constitution of Uganda. Currently, however, Ankole kingdom is not legally recognized by the Government of the Republic of Uganda and other sections among the Ankole community on the basis of ethnic differences among the Banyankore and land ownership in the kingdom.41 On the whole, neither the issue of ethnic differences among the Banyankore nor the land question could be held to be the sole cause of the disagreement on whether or not the obugabe in Ankole should be restored and that none could simply be brushed off. The issue of ethnic differences among the Banyankore was as paramount as the land question because each of them is related to the institution of obugabe in a special way. The institution of obugabe, which was the preserve of the Bahima, discriminated against the Bairu; in addition, the obugabe as a dominant institution owned all land in the Ankole kingdom, while the Bairu were predominantly servants of the Bahima under the obugabe. It was, therefore, not a surprise that some sections of the Banyankore, particularly those with information about the institution of obugabe would come up to oppose its restoration and subsequent recognition by the Government.
However, the fear among some people in Ankole to resurrect the ethnic divide between the Bahima and Bairu created by history was a general reason advanced for the lack of unanimity among the Banyankore over the restoration of the institution of omugabe. According to Kate, this was a compounded issue.42 Furthermore, the Bahima
41.Interview with James Kahigiriza, supra note 4. See also, J.J. Barya, Democracy and Culture in Uganda: Reflections on the (Non) Restoration of the Ankole Monarchy, 4 EAST AFR. J. PEACE HUM. RIGHTS 14 (1998); STEINHART, supra note 2.
42.J. KATE, A HISTORY OF ETHNIC RELATIONS IN ANKOLE, UGANDA, DURING THE COLONIAL
PERIOD
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section of the Banyankore
asserted itself as the superior section in Ankole and
generally despised the Bairu ethnic
group;43 and the latter were looked
down upon because they did not own cows, which in Ankole were
regarded as a symbol of prestige and wealth.44
It can be observed that that relationship was not only
problematic to the Bairu as a
who would be despised by both Bahima men and women; it was also problematic to the overall concept of land law and gender relations in Ankole. The fact that all Bairu were held to be subordinate to all Bahima in the kingdom meant that all Bairu women were subordinate to all Bahima, women and men equally. It also meant that because before the advent of colonialism all land in Ankole belonged to the omugabe, who was a Muhima, all Bairu women and men never owned land in the kingdom. That meant that all Bairu women in Ankole could not participate in decisions relating to access, ownership, control and usability of land because even their husbands could not.
According to Karugire, when a Mwiru acquired cows or ascended to a
position of political leadership in Ankole, he ceased to
belong to the category of Bairu although
he never became a Muhima at all.
Such a relationship between the Bairu and
Bahima could be one of the possible
reasons that might be hinged upon by the current Government to
refuse to restore the monarchy in Ankole. That could largely
be for fear of resurrecting the old ethnic divide between the
two groups of Banyankore, which has
currently been at low. According to Barya, the disagreement
among the people of Ankole kingdom on the issue of the
restoration of obugabe is due to
the unresolved land question in the country as a whole.45 He sums up the issue of land
ownership in Ankole in relation to the
The return of the lands and properties to a controversial king in the case of Ankole, however, would deprive those settled on them of their property rights otherwise enjoyed by other people directly holding from the state either as customary tenants or title owners. A resolution of the monarchy question in Ankole thus also requires a democratic resolution of the land question.
By proposing a democratic resolution of the land question in Uganda, Barya probably was contemplating setting in motion the provisions of Article 246 (2) of the Constitution. Article 246 (2) provides that:
43.Interview with Kibeiherere, supra note 34 and Kirindi, supra note 13.
44.See supra note 2.
45.Barya, supra note 41.
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In any community, where the issue of traditional or cultural leader has not been resolved, the issue shall be resolved by the community concerned using a method prescribed by Parliament.
According to Kahigiriza, the Government lacked the will to have the problem resolved in a manner that might be contrary to the stand it had already taken about the kingdom in light of the vivid division among the Banyankore on the matter. The land question in relation to omugabe’s land in Ankole had its roots in the long history of the kingdom, but it was magnified at the time when Kingdoms were abolished and their properties all over the country appropriated to the State.
Prior to the abolition of kingdoms in Uganda in 1967, a number of persons oppressed by the obugabe as a patriarchal institution lived on omugabe’s land as tenants and paid tribute to him. After the abolition of the Kingdoms and all the rights attached to them, persons who had previously been tenants on omugabe’s land were ‘liberated’ from the oppression of the obugabe, ceased to be tenants of that institution and remained on such land deriving their interest from the State. Their position was probably better because under the 1967 Republican Constitution, all land in the country was taken over by the Uganda Land Commission, which was empowered under Article 108 (3) to hold and manage any land vested in it by the Constitution or any law or acquired in Uganda by the Government of Uganda and had such powers as could be conferred upon it by Parliament. This could be interpreted as holding land in trust of all Ugandans since the Commission was the one that granted, on application, interests in land of any sort to Ugandans.
Article 118 (4) of the 1967 repealed
Constitution empowered Parliament to make revision for the
devolution of any property held by any person by virtue of his
or her office or by any other person or authority, being
property connected with or attaching to the institution of the
King or Ruler or Constitutional Head. Parliament never made
such a revision until 1995 when the 1967 Constitution was
repealed. On the face of it, it would appear that the
abolition of the Kingdoms was inter alia intended
to redress the land law and gender relations problems whose
origins could be traced to the
46. This is the title given to the traditional king of Buganda kingdom.
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As mentioned earlier, the controversy surrounding the institution of obugabe in Ankole Kingdom notwithstanding, some of the people in Ankole region still regard themselves as subjects of the omugabe, much as they do not uniformly agree that the institution should be restored in the present era.47 As pointed out by Barya, it would be important for the Government of Uganda to resolve the current land tenurial problems in the country so that all Ugandans are assured of their rights in respect to the land they occupy before the people of ‘Ankole Kingdom’ can resolve the obugabe issue.
In other words, the land question in Uganda
cannot be resolved in a piecemeal manner; it requires a
holistic approach for instance, by promulgating a
comprehensive land policy for the country and then revisiting
the specific provisions of the existing land legislation
concerning access, ownership and general rights in land to
align them with the policy. Uganda is in advanced stages of
promulgating a comprehensive land policy for the country, the
draft policy document has been revised four times; the fifth
revision was still
In order to address the issue on the restoration of the obugabe, there is need to first address the land question, the political question, and the relationship between the Central Government and the Kingdoms. Persons who have settled on the omugabe’s land since 1967 and claimed interest in it or have made developments on it would also have to be compensated first before they vacate such land. Their interest in such land would be recognized by law by virtue of Article 237(8) of the Constitution, which provides that:
upon the coming into force of this Constitution and until Parliament enacts an appropriate law (sic), the lawful or bonafide occupants of mailo land, freehold or leasehold land shall enjoy security of occupancy on the land.
The omugabe’s land was registered under the mailo tenure system. Owners of mailo tenure interests in Uganda today hold it subject to the rights of customary interests’ holders in the same land as long as the latter interests inhered over it before the coming into force of the 1995 Constitution. After the abolition of kingdoms in Uganda in 1967 and prior to 1995, there were people who occupied the Omugabe’s land, they either became lawful or bonafide occupants of that land after the promulgation of the 1995 Constitution. Therefore, the argument of resolving the land question before restoring
47. Interview with Patrick Nathan Kirindi, supra note 13.
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the Obugabe becomes valid.48 This is because once the obugabe is restored basing on the experience of other Kingdoms such as Buganda, Toro and Bunyoro, demands to regain the obugabe land would arise which could also result into demands for compensation by the current occupants in accordance with the provisions of Article 26 of the Constitution. The Article provides:
No person shall be compulsorily deprived of any interest in or over property of any description except where:
(a)the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health; and
(b)the compulsory taking of possession or acquisition of property is made under a law which makes provision for:
(i)Prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property; and
(ii)a right of access to a court of law by any person who has an interest or right over the property.
According to some people currently occupying land that belonged to the omugabe before 1967, restoring the obugabe before the Government putting in place a clear land policy and law on their future status, would be rendered precarious since they derived their land rights from the 1967 constitutional reforms.49
In the case of ITC, much of the current Kyaruhanga, Bubaare and Kyabugaija, which constitute much of
Ibanda Township fall under the “mailo land”
that was allocated to Julia Kibubura when she became the Omukru w’ekyanga kya Ibanda (equivalent
of a
48.See, Barya, supra note 41.
49.Interview with the people occupying the Obugabe land in ITC, who were mainly from Bubare and Bufunda Wards of ITC.
50.Interview with Godfrey Mwitani, supra note 34. Mr Mwitani, who occupies part of Kibubura’s mailo land, just a few metres from the spot where Kibubura was buried, acknowledged not knowing the boundaries of Kibubura’s mailo.
51.Id.
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Another informant, Kibeiherere, who was a nephew to the late Kibubura, was, however, not aware of Mwitani’s allegations of petitioning the Government to gazette Kibubura’s burial grounds and her whole palace as a cultural heritage for Uganda.
On the whole, it seems that gazetting
Kibubura’s burial grounds as a cultural heritage for the whole
country would be an important step towards recognizing the
role of women in the overall
It was observed that laying claims by the omugabe for his properties in Ankole would mean that many people in ITC and even Government establishments such as Ibanda police station and all Ibanda district local government structures would be claimed.52 The claims would probably be advanced by Kibubura’s relatives on behalf of the omugabe. However, according to Mwitani, the claims by Kibubura’s relatives would only be confined to the burial grounds, which are identifiable and known by people in ITC, and that extending the claims to the whole mailo would be contested and probably defeated even in courts of law. Kibubura did not have registered interest in her mailo and that today, most of the occupants of that land are not only in the category of bonafide occupants, but largely in the category of registered owners because they had land tittles issued to them by Government in respect of the land they occupy.53 It was noted that women’s agenda in Uganda today is considered with high respect. That came out clearly from President Museveni’s averments in one of his books, Sowing the Mustard Seed. According to Museveni:
One of the principles the NRM is proud to have initiated is that of bringing women into the mainstream of the country’s governance. Women constitute more than half of the country’s population and carry out most work in the major economic sector that is agriculture. In spite of this, however, for a long time, they were relegated to the periphery…. The NRM has created opportunities for women which
52.Id.
53.Id.
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were aimed at redressing this historical imbalance.54
It can be observed that President Museveni’s statement was an acknowledgement of the global awareness that women’s rights should be respected by all governments, and not necessarily an invention of his Government.
Unlike the colonial period, when land was
largely a means of subsistence production and prestige to the
kings, land in Uganda, during the
It can thus be observed that during the period 1986 to 1995, land in Uganda became a key resource for production and often the only capital available to the majority of Ugandans, particularly women. Consequently, access, ownership, control and usability of land in Uganda were the basis for livelihoods of most Ugandans and thus played a pivotal role in the provision of shelter, food and income to them, particularly the rural poor and women. That required secure rights in land, particularly for women, not only guaranteed, but also to have incentives and opportunities for household food security and investment created for them if they were to utilize the land sustainably. That meant that alongside the basic survival necessities, secure rights to land could act as a catalyst to sustainable land management and also improve access to capital by women.
V. CONCLUSION
Deriving from the analysis on the
politicization of land law and gender relation in ITC in
relation to access, ownership, control and usability of land
in any part in Uganda, it can rightly be argued that the
continuum of unbalanced gender relations led to the
maintenance of women in ITC in a subordinate and marginalized
position in respect to the rights of
54. Y.K MUSEVENI, SOWING THE MUSTARD SEED: THE STRUGGLES FOR FREEDOM AND
DEMOCRACY IN UGANDA (1997), at
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It can also be observed that the disadvantageous and problematic position of women in respect to enjoyment of rights of access, ownership, control and usability of land in general terms was also affected by other instruments of the colonial legacy including education, religion in addition to law. Furthermore, the land law and gender relations in ITC were maintained through a continuous and active system of denial of women’s rights in broad terms. It can therefore be noted that in ITC, all land belonged to the omugabe, who was a Muhima, and therefore, all Bairu, women and men never owned land in that part of the country. That meant that all Bairu women in Ankole could not participate in decisions relating to access, ownership, control and usability of land because even the Bairu men could not.
Basing on the observations, it comes to the fore that the feminist perspective provides key tools necessary for the interpretation of locations of gender imbalances and women’s oppression in society. That in the kinyankore custom, women would not be permitted to own land in their sole capacities; and as such underpinning the problem of gender discrimination and women’s marginalization and exclusion in ITC were the complex economic, social, cultural and political issues were expressed through social institutions including the family, community, custom, religion, and the market and State ideologies. Lastly, that no single factor such as custom or colonial history could be blamed for the lack of a gender balanced society when it comes to understanding the politicized matters of access, ownership, control and usability of land in ITC.
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A HISTORICAL PERSPECTIVE ON LAND TRANSFER:
“SHOWING THE LAND,” SURVEY, AND REGISTRATION IN (B)UGANDA FROM
Holly E. Hanson*
ABSTRACT
Analyzing court cases from 1900 to 1950, this article documents the incomplete creation of a land market in Buganda, despite the legal possibility of land sale following the creation of mailo land in 1900. Survey, titling and registration of land became combined with mechanisms for land transfer which had already existed in Buganda, and the melding together of two sets of forms - and meanings- for land transfer led, inevitably, not only to ineffective transfer of land in individual cases, but also to the incomplete creation of a market in land. The buyers and sellers of land rarely, if ever, treated land as a commodity stripped of social obligations. The article describes the mechanisms for land transfer before the creation of private property in land, provides evidence of the hybrid mechanisms for land transfer which evolved, and documents the potential for fraud inherent in titling and registration and the potential for ambiguity inherent in “showing the land.” The difficulty in implementing private land ownership in Buganda between 1900 and 1950 suggests some challenges that will be faced in the implementation of the Land Act.
I. INTRODUCTION
Access to productive land assures subsistence as well as the ability to create wealth, and the land laws of the Uganda Protectorate sought to balance the interests of both mailo land owners and the people living on that land. A careful examination of litigation over land suggests that the intention of the law to protect the concerns of both land owners and land occupiers (tenants) were not always successful.
As the 2009 Land Act begins to take effect, a century of accumulated history regarding private land ownership in Buganda gains new relevance.1 Mechanisms for
* Associate Professor of History, Mount Holyoke College, South Hadley MA USA. Email: <hhanson@mtholyoke.edu>
1. See, S.L.LUNYIIGO,THESTRUGGLEFORLAND IN BUGANDA
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land transfer are one arena in which the
accumulated evidence from Buganda suggests the long term
consequences of tenure innovation may be different than those
we anticipate. This paper argues that survey, titling and
registration became combined with mechanisms for land transfer
which had already existed in Buganda and the melding together
of the two sets of
The argument proceeds in four sections. First, the article describes the mechanisms for land transfer. Before the individualization of tenure, there were the social drama of “showing the land,” and the ceremony for succession on death called olumbe. Surveying, titling and the registration of titles were instituted to support individual land ownership. It is important to note that quite different expectations regarding the use of land were embedded in these forms of land transfer. The second section outlines the ways that mechanisms for land transfer became enmeshed with each other: the act of surveying, independent of the map produced for title became equated with “showing the land” and documentation related to Ganda succession upon death became part of the process of registration of title. Court cases show that the various logics of land use were also combined. The third section examines how these hybrid mechanisms complicated land transfer in Buganda: the tendency for sale to occur at the time of inheritance led to land sale failures. The potential for fraud inherent in titling and registration and the potential for ambiguity inherent in “showing the land” were also sources of land sale failures. The concluding section of the article identifies aspects of the history of land transfer in Buganda that may be useful in contemplating land titling and registration schemes at present.
II. LAND TRANSFER BEFORE MAILO
Over the centuries, probably beginning sometime around 900 A.D, permanently cropped bananas became the staple food of the Baganda, which developed clearly defined means of transferring land.2 Land scarcity was not an aspect of the tenure situation before the middle of the 20th century.3 Before the individualization of land tenure in 1900, land was allocated by the local political authorities, acting in the name of the kabaka, who was in theory the owner of all land. A person who received land was committed to use it, and to express allegiance to the allocating authority.
Dissertation, University of Wisconsin, 1994).
2.HANSON, id., at
3.WEST, supra note 1, at 5.
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In 1900, private property was created at the
level of large estates: the people who had been chiefs became
owners of junks of land purportedly equivalent to what they had
controlled and continued to allocate plots to peasant farmers on
their lands. The specific mechanism for transferring
We were three attestors to the scene of giving the plaintiff the new plot. If the giver and the given are added, then the number becomes five. ... The giver took round the plaintiff showing him where the plot takes limits. ... After the inspection of the plot, the plaintiff was told to start cultivating; he needed not give first a gift of gratitude to the giver.4
All the people present at “showing the land” were obligated to remember and passed down the memory of land exchanges for generations. In the 1920s, when Ganda chiefs were arguing about how specific lands had been allocated in the past, each person backed up their claim by reference to the messenger of the King who had been sent to divide the land. Where a messenger had been sent by the Kabaka and could be named, a land exchange had taken place; if no messenger had been sent, that was proof that no land had been exchanged.5 Legitimacy in land transfer rested in people's memory of the person responsible for taking land from one person and giving it to another, as is evident in this testimony by a clan elder:
I was at my place at Kavumiro and I have never seen any one who came to turn me out of it, if I have ever been turned out, let that person who turned me out come forward.6
In addition to “showing the land,” Ganda facilitated the transfer of land through a succession ceremony called olumbe, which took place some months after a death. At
4.Principal Court at Mengo, Civil Case 401 of 1959; High Court of Uganda at Kampala, Civil Appeal 107 of 1960.
5.Archives of the Uganda Protectorate, Secretariat Minute Paper No. 6902, “Bataka Land Commission” at 390, 391, 425 & 453.
6.Id., at 425.
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this event, attended by all the significant
relatives of the deceased person, his or her successor was named
and all the deceased’s property was delineated and distributed.
The leaders of the clan or
Once authority over land had been transferred from one person to another in the social drama of “showing the land” or olumbe; the new controller of the land continually asserted his or her authority in relationships with other people. The land controller received tribute from the people who lived on the land and acted as their patron. A person who stopped receiving tribute and dispensing protection to the people who lived on land was no longer in control of that land.
In Ganda thought, control of land implied control of people on the land. Ganda chiefs and the British Protectorate authorities developed new mechanisms for land transfer in order to allocate individually owned land. Documents replaced memory as the means of demonstrating people’s claims to land. At the time of the original allocation of mailo, which happened between 1900 and 1911, each new land owner received a “Preliminary Certificate” which included the typewritten name of the estate and a sketch map.7 As teams of surveyors passed from county to county from 1904 onwards, these claims were solidified in “Final Certificates” which demarcated estates in maps that conformed to the cadastral survey: the surveying teams and local chiefs adjudicated boundary disputes between rival claimants.8
Land registration began in 1909, using the Torrens system, although the form of the law was modified in 1922.9 In theory, sellers, buyers, and heirs of land registered ownership by arranging for survey of the parcel, if necessary, and then paying a fee to file the appropriate documents at the Land Registry in Entebbe. However, by 1925 it was estimated that 8,000 changes in ownership which had not been surveyed were waiting to be registered; by 1946 it was estimated there were 150,000 unregistered transactions.10
The authority implied by a certificate of title was absolute; owners of registered land originally had no obligations to the people living on their land: in fact, the assumption of the British colonial officers in creating means of documenting individual ownership of land was that titles would allow owners to commercialize their relationships with people on the land and use it to create wealth for themselves.
7.Transcription of the Records of the Buganda Lukiko.
8.H.B. THOMAS & A.E. SPENCER, A HISTORY OF UGANDA LAND SURVEYS 73 (1938), at 75.
9.WEST, supra note 1, at 165.
10.Id.,
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III. HYBRID FORMS OF LAND TRANSFER
An examination of records of conflicts over
land suggests that new forms for land transfer did not replace
older forms, nor did they simply
In Buganda, land survey took on the meaning of
the social drama of “showing the land.” Instead of being the
technical preliminary step that would allow the accurate marking
of boundaries on the title of land to be transferred, survey
became an event that demonstrated ownership. In contrast to
“showing the land,” however, survey was a social drama that did
not require the participation of neighbours, witnesses and local
authorities. People whose claims to land were not acknowledged
in the community hired one of the two independent surveyors in
Buganda to give their claims credibility and keeping the
surveyor off the
Olumbe became an integral part of land registration and sale. The most obvious aspect of this is that the Buganda “Book of Inheritance” served (and continued to serve in the 1990s) as the first reference point regarding land ownership. Succession to land involved entering the distribution of property in the “Book of Inheritance” and also changing the title deed. Both systems operated simultaneously, but the “Book of
11.Principal Court Civil Case 141/1953; E.S. HAYDON
& I.S. LULE , KINGDOM
OF BUGANDA CUSTOMARY
LAW REPORTS
12.E.g, Kalule v. Bwaniko, High Court Civil Case 401 of 1959, Civil Appeal 107 of 1960; Walusimbi v. Kironde, Civil Case 104 of 1941, Civil Appeal 10 of 1942.
13.Nsingisira v. Nabamba, Principal Court of Buganda at Mengo, Civil Case 55 of 1942; High Court of Uganda at Kampala, Civil Appeal 3 of 1943.
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Inheritance” was considered primary. People who wished to transfer title to land in Buganda had take to the Registry Office a document indicating that evidence regarding their authority over the land could be found in “The Book of Inheritance;” this involved searching through the volumes in which the succession decisions of clans were recorded.
A more subtle integration of olumbe and land sale is that the death of a land owner was the moment at which most land sales occurred. Undoubtedly some inheritors of land sold immediately because they felt they had no need for land, but a further explanation is that, in Ganda thought, the death of someone who controls land is the time when control of that land will shift in significant ways. Colonial judges and land officers considered hasty sales of land immediately following the death of a land owner to be one of the main causes of land conflicts in Buganda. They criticized clan elders who sold land because they were “craving to eat meat at the funeral” and people rushed to buy land from heirs before the new owners understood the value of their property.14
A. Hybrid Land Transfer: A Case Study
The hybridization of the means of land
transfer is evident in the case of Yozefu Damulira and
Alixondere Katende, whose conflict over 100 acres of land lasted
from 1934 to 1951.15 The dispute
arose because Damulira immediately sold his portion of
inheritance before his
Six years after the initial sale, Damulira promised Katende 100 acres from his mailo in Bubwa village in Sabagabo, Kyaggwe. However, he refused to designate the specific 100 acres which belonged to Katende. After waiting thirteen years to be shown his land, Katende took Damulira to the Principal Court and obtained an order for representatives of the provincial and district authorities, and the local chief in person, to observe Damulira showing the land to Katende in January, 1947. This event took
14.See generally, HAYDON & LULE, supra note 11.
15.Katende v. Damulira, Principal Court of Buganda at Mengo, Civil Case 109 of 1947, Civil Case 174 of 1948; High Court of Uganda at Kampala, Civil Appeal 81 of 1951.
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place in front of the appropriate authorities and neighbours designated as witnesses. A short while later, however, one of the witnesses observed Damulira allowing “Mr Sa,” an Indian tree cutter, to cut the trees on the land that had been shown to Katende. He challenged Damulira, but “when I asked the defendant why he had sold trees in the land of the plaintiff, he said he sold land to him and not trees.” Katende sued Damulira for shs 4,900/= for the value of the trees in 1948. Katende lost the case, even though the Principal Court and High Court judges agreed that the trees had belonged to him. The first step in his failure was the court's decision to ask him for evidence of a survey. The trees that had been cut down were within the area marked for him in the showing of the land; if he had been allowed to bring as witnesses the people who were present at the showing of the land, or if the court had travelled to observe the dispute on the land in the presence of representatives of the chiefs, Katende would have won. Katende makes this clear in his appeal:
Notwithstanding that the defendant does not deny having cut down the said trees complained of him in this case, even this being so still the court of the Omulamuzi refused to call those witnesses, the very representatives who handed the said land to me as above explained, nor did the court send its representatives or arising itself to reach at the land in dispute to make certain what part of the land from which the defendant did cut the trees. My lord, the trees complained of from the defendant were cut from the very part handed over to me by the said representatives and in consequence of which I would request this Court to direct or send out representatives to the scene and make sure.16
Katende got Mr. Boazman, one of the
independent surveyors, to survey his land, as he had been
instructed by the court and brought with him receipts to prove
that he had accomplished that expensive task. The court then
failed to take the next logical step - travelling to the land
to see whether the felled trees were inside the cairns marking
Katende’s land. The British judge who heard the case at the
High Court level ridiculed Katende for failing to bring a
survey map to the court; but Katende had taken the normal
course of
16. Id.
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Perhaps Katende failed to make his case because he could not afford to pay for the court to travel to Kyaggwe; perhaps Damulira, who was clearly adept at managing court cases to his advantage, intervened in a way that caused the case to be heard by a judge who was particularly ignorant of Ganda land issues. The risks of taking land matters to court are apparent in this example: Katende stated in his appeal that he had “already pledged the land in this case,” that is, he had borrowed money to finance the survey of the land by Boazman so that his efforts to obtain compensation for his lost trees does not cost him the land itself.
IV. THE CONSEQUENCES OF HYBRID LAND TRANSFER
MECHANISMS
The mingling of forms for land transfer made
individual land ownership logical in Buganda and sometimes
protected people from unscrupulous land dealings, but the
complicated forms of transfer also led to essentially
irresolvable conflicts over land ownership. “Showing the
land,” olumbe, survey and title all
had validity in the courts. Furthermore, the logic that people
who control land are obliged to take care of the people who
live on that land
Land cases are the thickest files in the
record rooms of the High Court because the same cases got
heard over and over again. Among the conflicts that
A. Muhamadu Kakembo v. Zakaliya Mubi
The potential for fraud in land sale and frustration of commercial intentions for land use are apparent in the case of Muhamadu Kakembo v. Zakaliya Mubi.17 Kakembo had sold his two mailos to Mubi for Shs 10,000/- in one hasty transaction on February 7, 1947. He claimed that he thought he was pledging the land in return for a Shs 5,000 loan with Shs 5,000 interest, but he signed over the title documents that day, and the loan
17. Principal Court at Mengo, Civil Case 126 of 1947; Appealed to the High Court.
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document he produced in court was considered to be a forgery.
In February, 1947, Muhamadu Kakembo was
looking for money. According to his statement (in December
1949), he went to the shop of the “Indian Merali” where John
Wangi and his friend John Lutaya told Kakembo that they could
take him to someone who would lend him any amount of money at
a moderate amount of interest. Lutaya was one of the men who
worked for Mubi as a
In court he produced the sale document,
written on February 7, 1947 and a loan document, which the
court considered to be a forgery, dated February 25, 1947.
Whether the initial transaction was understood to be a sale or
a loan, an agreement of sale was prepared in Mubi’s office and
Mubi, Kakembo, and Wangi— the broker, drove immediately to
Entebbe in Mubi’s car, where Kakembo signed the transfer of
title in front of the Registrar of Titles. Mubi had paid the
transfer fee of Shs 224/- and Kakembo signed a receipt for Shs
Kakembo made for me the transfer of the land into my names which he duly signed in the presence of the Registrar after having it read over to him and waived and then signed on it ... also the transfer was made on the 7th February, 1947, and that was the end of that.18 Kakembo claimed he did not know at the time that it was the end of his ownership on the two miles his grandfather had received half a century before.
“We lost our land to lawyers” is a common statement in people’s land histories in Buganda: buying land from people who needed cash immediately appears to have been one of the businesses of Hamisi Mukasa and Company. That the entire transaction was concluded immediately suggests that Mubi knew it was unfair and Kakembo would not consent to it if he had an opportunity to think about it: usually months elapsed before the several phases of the Entebbe Land Registry Office portion of a land transfer were completed.
The strongest evidence that Kakembo really had not perceived the transaction as a sale was his reported alarm when he discovered that Mubi had dismissed his land stewards. According to Kakembo, it was the sending away of his stewards which
18. Id.
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alerted him of Mubi’s “determinedly intention to deceive my land.” The power to control the people on the land demonstrated ownership more clearly than the procedures at the Land Registry office; it is conceivable that Kakembo only realized that all the formality in Entebbe implied he had given up his land when Mubi drove away his stewards and appointed new ones. When this happened, he tried to give Mubi back the money, but was unable to do so, and then he took the case to court for the first time.
Kakembo initiated a court action in July, 1947, after discovering his land stewards had been dismissed, some of his porters had been driven away from his coffee plantation and Mubi was harvesting his coffee. He withdrew this case two months later, perhaps because he realized he lacked sufficient evidence. When he initiated the case again, he had created the loan document and found witnesses to back up his loan story, but the forgery was obvious and the witnesses did not corroborate each other. When Kakembo failed to get his land back, he strategically changed the terms of the argument. Instead of claiming to be an owner of two miles which had been swindled out of his land, he claimed to be the producer of coffee on several plots on the land that had been sold and that a new owner could not deprive a peasant agricultural producer of the fruits of his labour. Mubi drove away Kakembo’s twelve porters who were working on the coffee and tried to harvest it “saying that he also bought that shamba in conjunction to the land.” Kakembo disagreed, admitting that he had sold the land (a switch from his earlier story), but he had never intended to sell his coffee trees.
The Principal Court met on the land in the presence of both parties and representatives of the provincial, district, and local chiefs. They measured the size of the coffee plantations and heard from witnesses who stated that it was Kakembo's coffee. Back in court, Kakembo questioned Mubi, “While buying this land was there any mention in the agreement that I also sell the coffees to you?” to which Mukasa replied, “There was no mention as regards the coffees that he had also sold the coffees at all.” Kakembo asked court to think of him as a tenant on the land that he had just sold. Perhaps because the sale had clear elements of a swindle, both the Principal Court and High Court complied with Kakembo’s view of the situation. He had lost two square miles of land in one afternoon transaction, but the new owner was not able to control the productive resources on the land.
B. Sonko v. Senkubuge
The first phase in Kresipo Senkubuge’s twenty two year struggle to control land involved a purchase he claimed to have made from Yoana Sonko in 1947.19 Sonko was
19. Sonko v. Senkubuge, Principal Court Criminal Case 202 of 1948, Civil Appeal 75 of 1951.
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a district chief who was the second generation owner of mailo land. He asserted his status as a chief, justifying his statements by referring to his followers, “my people all knew of this.”
Kresipo Senkubuge was a highly educated man with a town address, who complained of trouble with his labourers and carried out all his correspondences in formal English, challenged the Registrar of the High Court regarding his capacity to uphold the standards of British Justice, and referred to the clerks who could not find a file as “two Africans on your staff.” Senkubuge claimed to have bought 50 acres of land from Yoana Sonko in 1947 for Shs 350/=. This seemed to be an absurdly low price, particularly as Senkubuge also claimed that Sonko had received shs 2,886/= in rent that should have gone to Senkubuge in the five years the case had been disputed (i.e., the rent stood at shs 580/= per year). Senkubuge gave Sonko Shs 350/- in 1947, which Sonko maintained was a loan, but the loan document had gotten burnt in his house. (Houses did burn down often, however, Sonko also might have set the fire to get rid of the document.) G. K. Rock, a British solicitor, either gave Senkubuge a Shs350/- loan to buy the property, or according to Sonko, advised Senkubuge on how to legally cheat Sonko out of the land. In his appeal in 1951, Sonko wrote,
Your Honour, I have to disclose this to you, that it is through his (Rock’s) cunningness that he gives advices to other people to cheat, if not, what is his proper profession which he is doing there in his office if it is not for advising people to cheat other persons’ land?
Whatever the original agreement between the two men, Sonko refused to sign the official transfer document which meant that Senkubuge could not survey or control the land. Senkubuge apparently won the case which required Sonko to sign the transfer, but Sonko appealed against the ruling and avoided having it last for seven years. The Principal Court in Mengo and the High Court seem to have complied with Sonko in delaying Senkubuge's case: he eventually won in the lower court on a technicality which, given the opportunity, the Court might have overlooked, but Senkubuge would not allow them: his five letters to the High Court eventually succeeded in having Sonko’s appeal overturned.
Yoana Sonko, like Senkubuge, invoked the formal rules of British land administration, but he also used profoundly meaningful Ganda rules of rights to land in his effort to keep the land away from Senkubuge. He argued that the agreement made with Senkubuge and Rock could not be legitimate because “it is not made in the formal way... It neither contains his signature nor those of the witnesses like how valid agreements are usually made out.” The other component of Sonko's argument was that
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he had sold that land to another man whose ancestors were buried on the land. At some time, either before (according to Sonko) or after (according to Senkubuge) the 1947 Shs350/- transaction, Sonko sold the same land to Yozefu Kabogoza, who was entitled to it because;
in that place there is contained Kabogoza’s burials of his fathers and relatives a place which I should not have been able to sell to another person other than the respective owner of such burials to which he holds the ancestral rights.
Kabogoza’s graves gave his claim legitimacy in accordance with the Ganda land law. It is possible that Sonko sold to Kabogoza in order to invalidate his sale to Senkubuge; it is also possible that he intended to sell the two men different pieces. Although Senkubuge was eventually able to force Sonko to sign the document transferring control of the land to him, Kabogoza was already behaving like the owner of the land. Kabogoza had collected busuulu and nvujo since 1947, had surveyed the 354.60 acres of land he had bought and showed the court land tax receipts that he had paid. Senkubuge and Kabogoza pursued opposite strategies in their efforts to prove that the each had the rightful ownership over the disputed land. Kabogoza solidified his claim by welcoming tenants and collecting busuulu. Senkubuge made his claim by creating a plan for commercial use of the land and trying to dismiss tenants.
A second court case, between Senkubuge and
Muwanga, a tenant who had been paying busuulu
and nvujjo to Kabogoza,
placed that conflict in the location of the court. Senkubuge had
sent away two other tenants before he took Muwanga to court to
get rid of him. In 1948 he had sent away Mr. Kazimiri, “as I did
not like him to damage my land.” In January, 1953, he wrote to
the next tenant who had been rented in by Kabogoza, Stefano
Buyondo, saying that he had “reserved the land in question for
my own purposes,” that he would have gained Shs 2919/- from the
land through supplying food contracts during the year that
Buyondo had farmed it, and therefore Buyondo owed him Shs
However, in 1954, Kabogoza showed the land to Muwanga, and Muwanga became Kabogoza's tenant on the same land. Senkubuge then claimed that the commercial value of the land to him was Shs 50,000/- because he had intended to use it for grazing goats and cattle and as a rest camp for porters and Muwanga had to refund
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him the Shs 3750/- he had already paid to a
contractor to erect the labour camp. Senkubuge also made two
explicit denials of social responsibility for Muwanga: first,
that Muwanga lived on the land of another land
In 1955, I George Muwanga of Kayabwe in the Ggombolola of Sabawali, Mawokota became a tenant on Mr. Yozefu Kabogoza’s land situated in the above village. He took me round the boundaries of the kibanja.
Testifying in support of Muwanga, Kabogoza
described his fulfillment of the obligations of
The High Court notes on the case that it does not indicate how Senkubuge overcame Kabogoza regarding survey: both men had surveyed the same land. Somehow, Senkubuge won an acknowledgement that he was the owner of the land, but the Principal Court ordered Senkubuge to accept Muwanga as his tenant. This decision was framed in terms of when the survey was done: it was wrong for him to have sent eviction notices until after he had surveyed; and Muwanga had complied with the tenant’s law because he could not know before the survey had been done that he was paying rent to the wrong owner. The social means of establishing control of land were entirely absent in the court's reasoning, but its decision was that Senkubuge was obliged to accept social responsibility for Muwanga as a tenant.
For the next thirteen years, Senkubuge and Muwanga fought over this obligation. Senkubuge appealed to the High Court and won a determination that Muwanga should leave, but Senkubuge did not actually have the social power to evict a tenant and ten years later, Muwanga asked the High Court to reverse its decision, claiming he had repeatedly attempted to pay rent during that time. Senkubuge’s ability to make land law and court procedures work in his favour were limited to the courts: he got the decision he wanted, but he was unable to drive a tenant off the land.
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IV. LESSONS FROM A CENTURY OF LAND TRANSFER IN BUGANDA
The fraught history of land sale in Buganda provides lessons for Uganda as the consequences of the Land Act unfold. In Buganda, the forms of land transfer that had been useful before the creation of individualized tenure continued to exist. Survey, land title and registration were changed through their interaction with the forms of land transfer that were already in place.
The Ganda people who sold land, bought land and judged cases of land conflicts did not abandon the social logic that had characterized their use before the creation of individual tenure. The concept that people who controlled land were obligated to allow people to live on and use their land was challenged but not extinguished by the concept that land owners had complete rights over their land. Multiple and somewhat contradictory notions of land use interacted in the motivations and decisions of people who owned and used land. The one hundred year history of private property on land in Buganda draws attention to the importance of cultural variables in the transformation of tenure systems. In Buganda, “showing the land” became a component of court deliberations over land disputes and the social implications of death, as much as any economic factor, determined where and when land became available for sale. The buyers and sellers of land rarely, if ever, treated land as a commodity stripped of social obligations. Private land ownership in Buganda in the first half of the twentieth century provides a unique background against which current land policy decisions can be considered.
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WESTPHALIAN PROCEDURE,
Eric Engle*
In Mamani et al v.
Sánchez de Lozada/Mamani et al v. Sánchez Berzain1 the survivors of the
murderous suppression of a riot by the Bolivian government
bring suit in the U.S. under the Alien Torts Statute (ATS).2 The cases represent
a conflict between Westphalian and
This normative conflict is resolved by seeing it in terms of substance versus procedure: Procedurally, the Westphalian system’s rules condition the substantive post- Westphalian claims. So, issues such as comity (a discretionary doctrine),7 the act of
* Professor of Law,
1.The pleadings in Mamani are available at <http://ccrjustice.org/ourcases/current-
2.28 USC 1350, available at <http://www4.law.cornell.edu/uscode/28/1350.notes.html>
3.See, e.g., Mark Rothert, On Intervention in East Timor, 39 COLUM. J. TRANSNAT'L L. 257 (2000), at 262.
4.See,
S.S. Lotus (Fr. v. Turk), 1927 P.C.I.J.
(ser. A) No. 8, 4, 32 (Sept. 7) (Rejecting France’s
contention that the Turkish criminal proceedings against Lt.
Demons, the officer on watch on the Lotus during the collision
with the
5.A jus cogens norm is “a norm accepted and recognized by the international community of states as whole from which no derogation permitted can be modified only subsequent general law having same character.” See, Siderman de Blake v. Republic of Argentina, 965 f.2d 699, 714 (9th cir. 1992) (Quoting Vienna Convention on Treaties, art. 53, May 23, 1969, 1155 UNTS 332, 8 ILM 679).
6.See. E.A. Engle, The
Transformation of the International Legal System: The
7.Sabbatino,
376 U.S.
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state doctrine, and jurisdiction8 are governed by Westphalian concepts
such as the general principles of
In contrast to the realist Westphalian
procedural rules, the
Under the Westphalian system, the substantive
claims in Mamani would never have
been cognizable. First, the sovereign acted in his sovereign
capacity and thus would be immune. Second, the general principle
of
8.See generally, Eric Engle, The Alien Tort Statute and the Torture Victims' Protection Act: Jurisdictional Foundations and Procedural Obstacles, 14 WILLAMETTE J. INT'L L. & DISPUTE RES. 1 (2006), available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020512>.
9.No state may impose its will on any other sovereign state. See, S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7).
10.Prosecutor v. Blaskic, Appeals Judgment,
No.
11.Crimes against humanity have been recognized as
a violation of customary international law since the Nuremberg
Trials in 1944. See, Aldana v.
Fresh Del Monte Produce, Inc., 305
F. Supp. 2d 1285, 1299 (S.D. Fla.
2003); see also Mujica v. Occidental
Petroleum Corp., 381
F. Supp. 2d 1164,
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humanity depends on the facts of this case. Since the court could choose to adjudicate on the merits, we examine the legal rights at issue in detail.
International law and U.S. law alike12 recognize claims for crimes against humanity due to extrajudicial killings.13 A claim for a crime against humanity in the case of extrajudicial killings must prove two elements: first, “a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”14 A widespread attack is “conducted on a large scale against many people.”15 U.S. Courts have recognized crimes against humanity even with fewer than 100 victims.16 In Cabello, the Eleventh Circuit upheld a finding of crimes against humanity involving the killing of approximately 72 people.17 In Hurtado, this court issued a default judgment for crimes against humanity for an attack in which 60 people were killed.18 A systematic attack in contrast reflects “a high degree of orchestration and methodical planning.”19 The distinction appears to be: number of bodies (widespread) and whether an identifiable class of persons was deliberately targeted for killing (systematic). Notice also that it is in the alternative: either systematic or widespread extrajudicial killing is a violation of the fundamental human right to life. The facts in Mamani appear to meet either criterion.
(C.D. Cal. 2005).
12.Cabello, 402 F.3d at
13.<http://www.worldlii.org/int/cases/IACHR/2001/5.html>; Cabello, 402 F.3d at 1154; Almog
v.Arab Bank, PLC, 471
F. Supp. 2d 257, 278 (E.D.N.Y. 2007); Doe
v. Saravia, 348 F. Supp. 2d 1112,
14.Statute of the International Criminal Court, § 7(1)(a), available at <http://www.c- fam.org/docLib/20080625_Rome_Statutes_Criminal_Ct.pdf> ; See also, Cabello, 402 F.3d at 1161 (“To prove the claim of crimes against humanity, the Cabello survivors had to prove a widespread or systematic attack directed against any civilian population.”). Though the U.S. has not (yet) ratified its adhesion to the Rome Statute, that treaty is evidence of international customary law.
15.Presbyterian Church of Sudan v. Talisman Energy,
Inc., 226 F.R.D. 456,
16.
17.402 F.3d at 1152, 1161.
18.No. CA
19.Prosecutor
v. Limaj, No.
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Substantively then, the case presents a valid
claim of a violation of the right to life. However, even if the
litigants overcome the procedural obstacles (jurisdiction,
comity, the act of state doctrine, immunity) they must still
meet other U.S. prudential documents which could well preclude
liability for what is, in Westphalian terms is a “purely
internal affair” a “political” not “legal” issue. Since
Likewise, since Sosa it is clear that the requirement of exhaustion of local remedies is a strict one.24 Lower courts have made clear that exhaustion is a serious obstacle to ATS Claims: “Although we decline to impose an absolute requirement of exhaustion in ATS cases, we conclude that, as a threshold matter, certain ATS claims are appropriately considered for exhaustion under both domestic prudential standards and core principles of international law. Where the “nexus” to the United States is weak, courts should carefully consider the question of exhaustion, particularly, but not exclusively, with respect to claims that do not involve matters of “universal concern.” Matters of “universal concern” are offenses “for which a state has jurisdiction to punish without regard to territoriality or the nationality of the offenders.”25 ATS may be
20.See
generally, Eric Allen Engle,
v.Sosa: The Brooding Omnipresence of Natural Law, 13 WILLAMETTE J. INT'L L. & DISPUTE RES. (2005), available at SSRN: http://ssrn.com/abstract=1020514.
21.Kadic v. Karadzic, 70 F.3d 232, 248 (2d Cir.1995).
22.Flores v. Southern Peru Copper Corporation 414
F.3d 233,
23.Beanal v.
24.Sosa, 542 U.S. at 725, 124 S.Ct. 2739
(“[C]ourts should require any claim based on the
25. Sarei v. Rio Tinto, PLC 550 F.3d 822 C.A.9 (Cal.), 2008, available online at <http://ca.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CC09%5C2008%5C20081216_000 5649.C09.htm/> and citing 825 Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir.1995) (citing Restatement (Third) Foreign Relations Law of the United States § 404 (1987).
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invoked as to any tort, not merely jus cogens violations though the jus cogens torts have a procedural advantage with respect to the procedural limits on the ATS remedy.
Thus, in Mamani, I argue that plaintiffs should base their claim against extradjudicial killing on the Torture Victims Protection Act as well as the ATS. “A TVPA claim requires the following three elements: (1) an individual (2) committed torture or extrajudicial killing (3) under actual or apparent authority, or colour of law, of any foreign nation.”26 On the merits, a TVPA claim would likely succeed due to specific legislative enumeration of the substantive claim, as opposed to an uncertain claim on customary international law.
Mamani presents theoretically good substantive claims under international law which could be remedied under the ATS or TVPA.27 The question is, whether and how the U.S. government will react to these claims. I argue that a vigorous enforcement of international human rights, particularly of jus cogens rights, via the ATS and TVPA will prove key in restoring the U.S. to its rightful role as a leader in the struggle for human rights and freedoms.
26.Sinaltrainal v.
§1350 note § 2(a).
27.See, <http://www.haguejusticeportal.net/eCache/DEF/10/034.html> (for the legal papers on
Mamani).
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REVIEW OF MAJOR DECISIONS ON FUNDAMENTAL
RIGHTS AND FREEDOMS IN UGANDA,
Henry Onoria*
I. INTRODUCTION
The major decisions on fundamental rights
and freedoms in the years 2008 and 2009 are underpinned by
particular situations and circumstances obtaining in the
preceding
In that respect, decisions of the
Constitutional Court arising from petitions related to the
aforementioned
The other major decisions in 2008 and 2009
were in respect of the freedom of assembly (in the context of
the power of the police to prohibit assemblies); the right to
property
* Senior Lecturer, Department of Public & Comparative Law, Faculty of Law, Makerere University. Email: <honoria@law.mak.ac.ug>
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II. RIGHT TO LIFE |
|
The right to life is guaranteed under article
22 of the 1995 Constitution.1 However,
the right is not absolute and deprivation can inure as a result
of a
Additionally, while there has been debate on the constitutional or legal aspects of the penalty,4 this was never raised before the courts5 until 2003 when some 418 death row inmates petitioned the Constitutional Court to challenge the penalty and the conditions of their incarceration in Susan Kigula & 417 Ors v. Attorney General.6
Regarding it as an “exception to the
enjoyment of the right to life”,7 and
as not in contravention of the freedom from cruel, inhuman and
degrading treatment or punishment, the Constitutional Court
upheld the retention of the penalty (including the mode of its
execution by hanging),8 although, by
a majority of
1.UGANDA CONST. (1995), art. 22(1).
2.See, e.g. REPORT OF THE UGANDA CONSTITUTIONAL COMMISSION: ANALYSIS AND
RECOMMENDATIONS (1993),
¶¶
3.The
incidents include the execution of
4.See, e.g., G.P.
5.The constitutionality of the death penalty was alluded to by the Constitutional Court in an obiter dictum in Simon Kyamanywa v. Uganda, Const. Ref. No. 10/2000 (CC)(unreported), at 15.
6.Const. Petition No. 6/2003 [2005] 1 EALR 32 (CC).
7.Id.,
judgments of Okello, JA, at
8.Id., judgments of Okello, JA, at
208.
9.Id.,
judgments of Okello, JA, at
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petitioners
By and large, the Supreme Court upheld the
decision of the Constitutional Court. Firstly of all, while
recognizing that the “right to life is the most fundamental of
all rights”,11 the Court regarded the
retention of the penalty under article 22(1) of the Constitution
to be in conformity with international human rights law and, in
effect, Uganda’s obligations under the relevant treaty
instruments.12 Further, it regarded
the penalty under the constitution (and the international legal
regime) as buttressed by safeguards, in particular the right to
a fair hearing and the prerogative of mercy under articles 28
and 121 of the Constitution.13 Secondly,
the Court rejected the contention that the penalty constituted
cruel, inhuman and degrading treatment or punishment and is
therefore inconsistent with articles 24 and 44(a) of the
Constitution. It held that given the premise behind the drafting
of articles 22 and 24 provisions, there was no conflict between
the two provisions. It held that the
at
10.Const. Appeal No. 3/2006 (SC) (unreported).
11.Id., at 11.
12.Id., at
13.Id., at
14.Id.,
at 25,
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Court noted that:
The framers of the Constitution had in mind
the recent history of Uganda, characterized by gross abuses of
human rights … Article 22(1) is clearly meant to deal with and
do away with
On the other hand, the Court considered the
conceptual aspects of the right under article 22(1) and the
freedoms under article 24 to underpin the absence of a conflict
between the two provisions. It noted that while the freedoms in
article 24 pertained to the quality of
living as a process, the right in article 22 concerned
with the existence of life as a state.16 In the court’s view, this conceptual
discourse underpinned the higher value accorded to the freedoms
in article 24 (as to render them
15.Id.,
at
Uganda Constitutional
Commission: id., at
16.Id.,
at
17.Id. The Court pointed out that the conceptual premise on the right and the freedoms has resonance in the international human rights discourse.
18.Id., at 31.
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Thirdly, the Court did not regard hanging, as a manner of carrying out the penalty, to be inconsistent with article 24 and 44(a) of the Constitution.19 Deferring to the constitutional permissibility of the penalty, the Court held that the “difficulty must be to identify the method of carrying it out … without causing excessive pain and suffering.”20 The Court was inclined to view “pain and suffering” as inherent in the execution of a penalty that is constitutionally permissible and, in that respect, it was unable to regard the manner of its execution by hanging “unconstitutional in the context of article 24 of the Constitution”.21
Fourthly, the Court upheld the judgment of the majority of the Constitutional Court as regards mandatory death sentences in certain capital offences and delays in the execution of sentences of death. The Court viewed the mandatory death sentence as a contravention of a fair trial and equality rights. Observing that the “process of sentencing is part of the trial”, the Court considered mandatory death to be inconsistent with a court’s exercise of its function as “an impartial tribunal in trying and sentencing a person” and therefore “compromises the principle of fair trial”.22 In the Court’s view, the denial or removal of a court’s exercise of sentencing powers was inconsistent with the right to a fair trial guaranteed under article 28(1) of the Constitution.23 Further, the Court felt that the failure to avail a convict of a capital offence the opportunity to mitigate a sentence (as was the case with a convict of a lesser offence) was inconsistent with the right to equality before (and under) the law as guaranteed under article 21 of the Constitution.24
Additionally, the Court viewed mandatory death sentence as constraining the functioning of (and the administration of justice by) the courts, particularly in exercise of judicial discretion in sentencing. It held that by “fixing a mandatory death penalty, Parliament removed the power to determine sentence from the courts” in a manner inconsistent with articles 121(5) and 126 of the Constitution and in denigration of the principle of separation of powers.25
As regards delays in the execution of death sentences, the Court construed the “death row” syndrome as occasioned by inordinate delays in carrying out executions
19.Id.,
at
20.Id., at
21.Id., at 57.
22.Id., at 38, 41.
23.Id., at 38.
24.Id., at
25.Id.,
at 38,
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and the conditions of incarceration pending execution.26 The Court construed inordinate delay in the context of death row syndrome as a period of three years after confirmation of a death sentence by the highest appellate court,27 and it held that, upon the expiration of the three years, a “death sentence shall be deemed to be commuted to life imprisonment without remission”.28
Ultimately, the orders of the Supreme Court
are in respect of two key aspects of its
Except for a few divergences in judicial
reasoning and modification in the orders, the Supreme Court
arrived at the same decision on the issues framed as the
Constitutional Court. Nonetheless, the Court exhibited the same
reluctance that had hamstrung the Constitutional Court with
regards the interpretation of article 22(1)
A correct rendering of the decisions of the
Committee (and other human rights bodies) reveals a harmonious
reading of the permissibility of the penalty
26.Id., at 44.
27.Id., at
28.Id., at 53, 59.
29.Id., at 59. The Court indicated that the petitions for mercy “must be processed and determined within three years from the date of confirmation of the sentence” (italics mine).
30.Id.
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inhuman or degrading treatment or punishment.
The gist of the
The conceptualization of the right and the
freedom as pertaining to the state of being
and the process of living similarly
underscores the Court’s views on the penalty (and manner of its
execution by hanging) and the death row syndrome.
It explains the Court’s disinclination to regard the penalty and
hanging (as a manner of executing the
To view hanging in the context of the existence of life as a state in the
conceptual discourse is to simplify and diminish the realities
of the experiences that define hanging (or, for that matter, any
other method of executing the penalty). The factual realities of
hanging, as practiced in Uganda, are underpinned by acts of
brutality and barbarism in the
31. The relationship between the death
penalty and prohibition against torture and cruel, inhuman or
degrading treatment provisions in human rights treaty
instruments has been dealt with by the Human Rights Committee:
e.g. Earl Pratt & Another v. Jamaica,
Commn Nos 210/1986 and 225/1987, ¶¶ 13.7 and 14(a); Martin Howard v. Jamaica, Commn No.
317/1988, ¶ 12.2; Chitat Ng v. Canada,
Commn No. 469/1991, ¶¶
32.This
understanding of the gist of the decisions, in particular the
Ng and Soeting
cases underpins the dissenting judgment of
33.This is a criticism apparent in the dissenting
judgment of
74, 79.
34.See, Chitat Ng case, supra note 31, ¶ 16.1; Soering case, supra note 31, ¶ 111.
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under article 24.35 In effect, there is difficulty in accepting the Court’s finding on hanging; for the method as practiced in Uganda fails to satisfy the test of “causing the least possible physical and mental suffering.”36 In fact, it is to be noted that the Court uses the phrase “causing excessive pain and suffering” which is a higher threshold than that used by the UN Human Rights Committee in the Ng case (and in its other decisions).
Therefore, although the decision of the Court
might have been the right one, its reasoning on the pertinent
issues as regards the relationship between articles 22(1) and 24
was premised on a separate, rather than harmonious,
interpretation of the two provisions of the Constitution. It was
therefore to that extent unsatisfactory. The proper
III. THE RIGHT TO APPLY FOR GRANT OF BAIL
Bail is historically and traditionally associated with the administration of criminal justice. In that regard, applications for grant of bail are largely dealt with by the courts from the purview of criminal procedural law.38 In human rights discourse, it is a facet of the right to personal liberty.39 Since 1995 (particularly from 2004), the courts have in numerous decisions addressed the rationale for grant of bail in the context of other
35.The factual realities of hanging in
36.In the Ng case, the Human Rights Committee regarded asphyxiation by cyanide gas to constitute cruel and inhuman treatment in violation of article 7 of the Covenant, since it would not meet the test of “causing the least possible physical and mental suffering.” See supra note 31, ¶ 16.4.
37.See
supra note 10, dissenting judgment of
38.See, Magistrate Courts Act, Cap. 16, § 74; Trial on Indictments Act, § 14.
39.The right to apply for grant of bail is guaranteed under article 23(6) of the 1995 Constitution.
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rights, especially the right to a fair trial,40 as well as the character of the fundamental right as guaranteed under the constitution.41 The rationale and character of the right to grant of bail resurfaced in the decisions rendered in 2008 in Foundation for Human Rights Initiative v. Attorney General42 and Attorney General v. Joseph Tumushabe43 before the Constitutional Court and the Supreme Court respectively.
In the FHRI case,
the issues concerned the constitutionality and legality of the
restrictions imposed on the grant of bail by specific provisions
of, inter alia, the criminal
procedural law and the military law.44 The
provisions of the said laws were challenged as inconsistent with
the provisions of, inter alia,
article 23(6) of the Constitution.45 Before
addressing the issues, the Constitutional Court reiterated an
aspect of bail it had previously pronounced upon; that is, that
bail is not an automatic right but is granted at the discretion
of the courts.46 In that regard, the
Court regarded the restrictions on grant of bail under sections
14(2) and
40.The courts have variedly addressed the grant of bail in light of the guarantees to the right to a fair trial under article 28 of the Constitution. On the right to presumption of innocence (art. 28(3)(a)): e.g. Emmanuel Katto v. Uganda, Crim. Misc. Appln No. 10/2005 (HC)(unreported); Aliphusadi Matovu
v.Uganda, Misc. Crim. Appln No. 15/2005 (HC)(unreported). On the right to a speedy trial (art. 28(1)): e.g. Joseph Tumushabe v. Attorney General, Const. Petition No. 6/2004 (CC)(unreported). On the right to be afforded adequate time and facilities for preparation of one’s defence (art. 28(3)(c)): e.g. Uganda v. Denis Obua, Crim. Appln No. 18/2005 (HC) (unreported).
41.The character of bail as a constitutional right
has been affirmed by the courts: see,
Col. (Rtd.) Dr.
v.Col. (Rtd.) Dr.
42.Const. Petition No. 20/2006 (CC)(unreported).
43.Const. Appeal No. 3/2005 (SC) (unreported).
44.The impugned provisions were §§ 14(2),
Tumushabe case, supra note 40, judgment of Twinomujuni,
JA, at
45.The other provisions of the Constitution that the provisions of the laws were regarded inconsistent with were articles 20, 23(1), 28(1) and 28(3).
46.Supra
note 43, at
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impose reasonable conditions on the applicant.”47
Additionally, the Court viewed the
restrictions as underscored by the object and effect of bail as
an important judicial instrument to ensure, on the one hand,
“individual liberty” and, on the other, “the accused person’s
appearance to answer charge or charges against him or her.”48 Further, it regarded the restrictions
under the impugned provisions of the criminal procedural laws as
not inimical to the right to presumption of innocence.49 Ultimately, the Court held that the
right to bail had to be “enjoyed within the confines of the law”
and, to that end, it declared that the provisions of sections
14(2) and
In the Tumushabe case, in an appeal from the decisions of the Constitutional Court by the Attorney General, the crucial issue, as rightly set out by the Supreme Court, concerned the constitutionality of the failure of the General Court Martial, as a military court, to release over 25 detained officers and men on bail.52 At the outset, the Court considered the genesis of the right to bail as the protection of the right to liberty: therefore while not questioning the relationship between the right to grant of bail and the right to a fair trial as underpinned the decisions of the Constitutional Court,53 the Supreme Court held that the rationale for the right was primarily to be founding the
47.Id., at 25. See
generally, id., at
48.Id.,
at
49.Id., at 26, 28. The Court rejected the
contention that the limitation in §75(2) of the Magistrate
Courts Act – restricting grant of bail by a magistrate court
with regards to certain offences – inferred guilt on part of the
accused for the offences preferred: id.,
at 28. It is to be noted that the High Court had held somewhat
in similar terms that “rejection of a bail application and
presumption of innocence can
50.Id., at 28.
51.These included § 16 of the Trial on Indictments Act, § 76 of the Magistrate Courts Act and
§§219,
231 and 248 of the Uganda Peoples Defence Forces Act: id., at
52.The Supreme Court felt that the arguments before (and decision of) the Constitutional Court had obscured the crucial issue in the petition: supra note 44, judgments of Mulenga, JSC, at 6 and Katureebe, JSC, at 9.
53.For an analysis of the decision of the Constitutional Court in 2004: see, H. Onoria, Review of Major Decisions on Fundamental Rights and Freedoms in Uganda in 2004, 11 EAST AFR.J.PEACE HUM
RIGHTS 323 (2005),
at
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right to personal liberty itself.54
Admitting that the right to liberty is not
absolute and is subject to limitation, the Court considered the
permissible derogations “not permanent or indefinite”, with
liberty reclaimable through specific judicial guarantees in the
right to an order of habeas corpus and
the right to bail.55 The Court
regarded the
More significantly, the Supreme Court
addressed the import of the provisions on mandatory bail in
light of the fact that much of the confusion before the
Constitutional Court stemmed from construing clauses (b) and (c)
of article 23(6) of the Constitution.58 The
Court held that the object of the two provisions was not to
identify or distinguish the courts empowered
to grant bail but rather to stipulate the maximum
periods of custody on remand.59 The
Court observed that the differentiation in the periods of
custody for purposes of mandatory release on bail obtains from
Ultimately, the Supreme Court held that article 23(6) of the Constitution applied to every person awaiting trial for criminal offence without exception61 and, in that regard, included persons awaiting trial before the General Court Martial as a military court. The Court viewed this as arising from a constitutional guarantee of rights to every person and a constitutional imposition of duties upon the State, its
54.Supra
note 43, at
55.Id.,
at
56.Id., at 9.
57.Id. In the FHRI case, the Constitutional Court stated somewhat similarly that “in … article 23(6)(b) and (c) [of the Constitution] the court has discretion to determine the conditions of bail.” See supra note 42, at 23.
58.The pertinent issue before the Constitutional
Court was in respect of the two clauses of article 23(6) of
the Constitution applied to proceedings before the General
Court Martial. For a review of the Court’s decision on this
issue. See, Onoria, supra note 53, at
59.See
supra note 43, at
60.Id., at 10.
61.Id. The Court stated: “The framers of the Constitution deliberately directed the provisions in Article 23(6) to everybody who happens to be on criminal charge and so had no reason to particularise any category.” See id., at 11.
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diverse agencies and organs and all persons to uphold the rights so guaranteed. It stated that:
[T]he Constitution guarantees to every person the enjoyment of the rights set out in Chapter 4 except only in the circumstances that are expressly stipulated in the Constitution. The Constitution also commands the Government, its agencies and all persons, without exception, to uphold those rights. The General Court Martial is not exempted from the constitutional command to comply with the provisions of Chapter 4 or of Article 23(6) in particular, nor is a person on trial before a military court deprived of the right to reclaim his/her liberty through … application for mandatory bail in appropriate circumstances.62
In the end, the Court held that the failure to release the detainees, remanded in custody for more than 120 days awaiting trial before the General Court Martial, was “inconsistent with Article 23(6)(b) of the Constitution.”63
IV. THE RIGHT TO A FAIR TRIAL
The right to a fair trial guaranteed under
article 28 of the Constitution was a crucial facet of several
decisions in 2008 and 2009. This included the decisions of the
Supreme Court on the death penalty and the right to grant of
bail in the Kigula and Tumushabe case respectively. The more
significant decision however was rendered by the Constitutional
Court in 2009 in respect of the guarantees that buttress the
right in the context of military courts and military justice in
Uganda Law Society & Anor v. Attorney
General.64 Filed in the wake
of the military execution of two
62.Id., at 11.
63.Id., at 15. The Court upheld the detainees’ right to mandatory bail under article 23(6) of the Constitution “irrespective of the provisions of the UPDF Act concerning bail.” In any event, the provisions on bail under the military law had been declared inconsistent with article 23(6) of the Constitution by the Constitutional Court in the FHRI case, supra notes 44 and 51 and accompanying text. The decision in the FHRI case was delivered three months prior to the decision of the Supreme Court in the Tumushabe case.
64.Const. Petition Nos 2 and 8/2002 (CC) (unreported).
65.For
a
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28 of the Constitution.66 Additionally, in light of that trial, the petitioners challenged the subsequent execution of the soldiers as a violation of the right to life under article 22 of the Constitution.
In terms of the right to a fair trial, the Court grudgingly regarded the Field Court Martial as satisfying the requirement of “independence” and “impartiality” in article 28(1) of the Constitution within the context of the existing laws under which it was constituted and the military structure in which it operated.67 Additionally, the Court found a “substantial compliance” with the right to language of the accused as guaranteed under article 28(3)(b) of the Constitution, except it opted to couch it as the “right to an interpreter.”68 However, the Court regarded the three hour trial to be a contravention of article 28(1) of the Constitution, noting that the requirement of a “speedy” trial had to “be measured against the requirement that the trial must be fair in all other aspects spelt out by the Constitution.”69
Further, the Court felt that, given the
circumstances surrounding the trial before the field military
66.The two petitions, filed separately by the Law Society and Jackson Karugaba, were consolidated by the Constitutional Court. It is to be noted that the decision of the Constitutional Court was rendered seven years after the petitions were filed in 2002 owing to several factors. Firstly, the petitioners sought a stay to further death penalty executions in the military (Uganda Law Society & Anor v. Attorney General, Const App. No. 7/2003 (CC) (unreported)) which application was unsuccessful before the Constitutional Court. Secondly, the petitioners appealed to the Supreme Court (Uganda Law Society & Another v. Attorney General, Const Appeal No. 4/2003) and, as occurred to several other appeals between 2004 and 2008, the appeal became victim to lack of quorum in the Supreme Court and it remained unfixed and unheard until 2008. Thirdly, when the appeal eventually came up for hearing, it was withdrawn by the petitioners (appellants) and the petition was thereupon heard on its merits before the Constitutional Court.
67.See supra note 64, at
68.Id., at
69.Id.,
at 17. The Court emphasized that haste in the trial process was
never intended to be at the expense of a proper investigation
and prosecution of the case. See,
however declaration of Kavuma, JA, arguing that speed is a facet
of administration and operations in the military: id., at
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of the Constitution had been contravened.70 The Court expressed particular disquiet over the right to legal representation since the soldiers were charged with capital offences.71 Ultimately, it held that the “gross contravention of article 28(3) (e) of the Constitution” was not “cured by the fact that there was a military legal officer present throughout the trial.”72 In the end, having construed article 28 of the Constitution as a “package of protections” (each constituting inexhaustively what the right to a fair trial comprises of),73 the Court concluded that, given the denial of certain of those protections, “the trial cannot be said to [have been] fair.”74 In light of the violation of the right to a fair trial, the Court additionally considered the execution of the soldiers to have been in contravention of article 22(1) of the Constitution.75
It is to be noted that the Court found a violation of the right to life within the purview of article 22(1) itself given that, apart from requiring a sentence of death to inure from a fair trial, the court handing down a death penalty conviction has to be competent and the conviction has to be confirmed by the highest appellate court. Although it considered a field Court Martial to be a competent court76 and a right of appeal to exist from decisions of the field military court,77 the Court felt that the condemned soldiers had been denied the right of appeal and the sentences had not been confirmed by the Supreme Court as the highest appellate court.78
The right to a fair trial in the context of trial before the military courts was also considered in an appeal before the Supreme Court involving the Law Society in Attorney General v. Uganda Law Society.79 The contentious issue on appeal, as had been the case before the Constitutional Court, concerned the trial of civilians for offences of terrorism before military courts as well as before the High Court. In
70.Id., at
71.The Court observed that “the proceedings of the [court] … reveal that the accused [were] not even informed that he had a right to legal representation;” id., at 18.
72.Id., at 20.
73.Id., at 13, 20.
74.Id., at 20.
75.Id., at 21,
76.Id., at
77.Id., at
78.Id., at
79.Const. Appeal No. 1/2006 (SC) (unreported).
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upholding the judgment of the lower court, the
Supreme Court considered the concurrent trials of the accused
persons in the two courts to be “inconsistent with the principle
underlying the provision in Article 28(9) of the Constitution.”80 The Court noted that prosecutorial
discretion as regards trial should entail recognition of the
principle that an accused person should be “subjected to trial
on the same facts only
The other major decision on the right to a
fair trial was in Soon Yeon Kim & Anor
v. Attorney General.82 The
matter before the Constitutional Court, coming as a reference
from a criminal trial before a magistrate court, concerned the
right of the applicants, as accused persons, to be availed
copies of prosecution witness statements and exhibits.
Reflecting on a history of
V. FREEDOM OF ASSEMBLY
The freedom of assembly is part of the quintet of freedoms guaranteed under article 29(1) of the 1995 Constitution.86 The freedom was the subject of a petition filed before the Constitutional Court in Muwanga Kivumbi v. Attorney General.87 The petition arose
80.Id., at 10. The lead judgment was delivered by Mulenga, JSC
81.Id., at
82.Const. Ref. No. 6/2007 (CC) (unreported).
83.The court noted that
84.Id., at
85.Id., at
86.See supra note 1, art. 29(1)(d).
87.Const. Petition No. 9/2005 (CC) (unreported).
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from several aborted efforts between March and May 2005 by the Popular Resistance against Life Presidency (PRALP), of which the petitioner was a member, to organize a rally, seminar and public dialogues in various places in Uganda. The PRALP’s efforts, through letters written seeking permission to hold the said assemblies, were thwarted by refusals to grant permission in light of the provisions of the police law. The contention before the Court pertained to the constitutionality of section 32 of the Police Act.
The Constitutional court declared the impugned
provision of the police law unconstitutional for being in
contravention of the freedom of assembly under article 29(1)(d)
of the Constitution. The decision of the court is premised on
several reasons. Firstly, the Court considered the freedom of
assembly to lie at the heart of public debates and discourse and
was therefore closely related to the other conscientious
freedoms under article 29(1) of the Constitution and, in that
regard, it was a vital aspect of a democratic society.
[T]he right of assembly is the aggregate of the individual liberty of the person and individual liberty of speech. The liberty to have personal opinions and the liberty to express them is one of the purposes of the right to assemble, which right or freedom constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and therefore each individual’s self- fulfillment.88
Secondly, in its examination of the nature of
the restrictions under the police law, the Court considered them
to be prohibitive than regulatory,89 particularly
in light of the availability of other powers exercisable by the
police to maintain law and
88.Id., at 7. See also
judgments of Kitumba, JA, at 9 and Byamugisha, JA, at
89.Id., judgments of
90.Id.,
judgments of
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junior officers, with the danger that it could be exercised arbitrarily and excessively.91 The decision of the Court addresses what has been a perennial situation in which peaceful processions and demonstrations have been forcibly dispersed by the
police and, in extreme cases, has involved
the use of
VI. THE RIGHT TO PROPERTY
ENVIRONMENT
The concern over the utilization of natural resources and preservation of the environment was dealt with by the Constitutional Court in Amooti Godfrey Nyakana v. National Environment Management Authority & 6 Ors.94 The petition was brought in the wake of the demolition of the petitioner’s incomplete house by the first respondent after inspections had revealed that the house was being constructed on a wetland and after the authority had served him with an environmental restoration order. The
91.Id., judgments of
92.For a critical analysis of the case, see R.
93.The courts in Tanzania, Ghana, Zimbabwe and
Zambia have struck down (and declared unconstitutional)
provisions of police (or public order) legislation requiring
the obtaining of a permit in order to hold a peaceful
assembly: see, Rev. Christopher
Mtikila v.
94.Const. Petition No. 3/2005 (CC) (unreported).
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issuance and service of the restoration order was made under the provisions of sections 67, 68 and 70 of the National Environment Act. The petitioner challenged the said provisions of the environmental law as inconsistent with articles 21, 22, 24, 26, 28, 43, 237 and 259 of the Constitution. In the end, the issues were narrowed down to whether the Act (and actions of the first respondent) were inconsistent with the petitioner’s rights to property and fair hearing under articles 26 and 28 of the Constitution.
In dismissing the petition, the Constitutional Court took cognisance of the fact that the National Environment Act conferred upon the first respondent “power to deal with and protect the environment for the benefit of all”.95 The Court noted that the Act imposed restrictions on the use of wetlands and, in that regard, vested in the first respondent the power to carry out inspection on the petitioner’s land to ascertain that its use was in compliance with the provisions of the law.96 Further, the Court regarded the environmental restoration order as drawing the attention of the petitioner to the misuse of land and his obligation to restore the environment.97 In the end, it rejected that there had been an infringement on the petitioner’s right to property under article 26 of the Constitution, given that “[w]hat was taken away from him was misuse of land and this was done to protect the environment.”98 Additionally, the Court held that, given the grace period accorded to the petitioner after being served with the environmental restoration order, the provisions of the Act has “in built mechanisms for fair hearing as is enshrined in Article 28 [of the Constitution].”99
The decision of the Court highlights the
growing concerns over the use (and misuse) of
95.Id., at 13.
96.Id., at
97.Id., at 13.
98.Id., at 14 (my italics).
99.Id., at 13. The Court noted that “upon receipt of the restoration order, the petitioner had 21 days within which to make a presentation to the first respondent for a review or variation of its order.”
100.Id., at 14.
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VII. PROCEDURAL ASPECTS IN ENFORCING HUMAN RIGHTS
For several years after the 1995 Constitution,
the enforcement of fundamental rights and freedoms has proceeded
in part on the basis of procedural rules that predate the
constitution. The relevant procedural
Over the years, while it was accepted that claims in respect of violations of human rights (in which no interpretation of the Constitution is called for) could be brought before a “competent court” other than the Constitutional Court, the manner of presentation of such claims was never clearly defined. In most instances, given the accepted practice, the claims were filed before the High Court by way of notice of motion. The procedure and manner of presentation of claims for violations of human rights was the subject of three decisions across the three tiers of the courts of record in 2008 and 2009. In Charles Harry Twagira v. Attorney General & 2 Ors,103 the appellant had filed before the High Court an application seeking several declarations of the court with respect of his criminal prosecution before a magistrate court. Before the High Court and on two appeals, the contention pertained to the appropriateness of the appellant presenting his application by way of notice of motion rather than as a petition (to the Constitutional Court).
Reaffirming the
101.SI No. 26/1992 (or SI
102.Const. Court (Petitions of Declarations under Article 137 of the Constitution) Direction, Legal Notice No. 4/1996. The Direction has since been replaced by the Constitutional Court (Petitions and References) Rules, SI 91/2005.
103.Civil App. No. 4/2007 (SC) (unreported).
104.Id., at 12, 15. For an examination of the
jurisprudence on jurisdiction of the Constitutional Court under
articles 50 and 137 of the Constitution, see, Onoria, supra note 53, at
105.Civil App. No. 4/2007, supra note 103, at 13.
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institution of an ordinary suit by way of a plaint.106 It held that in spite of the prevailing practice as regards the institution of proceedings under article 50 of the Constitution by notice of motion, this was not the only procedure for doing so.107 In the end, the Court held that the “[p]rocedure under Article 50 can be by plaint or by motion depending on the facts and nature of each case.”108 In the context of the ruling of the Court, it is implicit that a claim primarily for declarations as regards human rights could be brought by notice of motion while a claim that additionally sought damages could only be brought by way of a plaint.
The manner of instituting a claim in respect of human rights was also raised in
Hannington Mwesigwa & 3 Ors v. Attorney General,109 in which the appellants appealed against the dismissal of their application before the High Court seeking the enforcement of their human rights as well as damages. Their application, brought under article 50 of the Constitution, was by notice of motion. Although the Court of Appeal conceded that, in light of the Twagira case, the appellants’ claim in seeking additionally damages should have been brought by way of a plaint,110 it considered the Supreme Court decision as having been overtaken with the adoption of new procedural rules in 2008 requiring claims regarding human rights under article 50 of the Constitution to be brought by notice of motion.111 The Court further observed that the concerns of the Supreme Court as regards proof of damages by evidence had been addressed under the new rules.112
The 2008 rules were in issue before the High Court in Eng. J.S. Ghataura v. Uganda Telecom Ltd.,113 in which the plaintiff sued the defendant for the violation of his right to a clean and healthy environment under article 39 of the Constitution. The claim under article 50 of the Constitution, by plaint, was in respect of the defendant allegedly illegally erecting a mast in a residential area. Given that the suit had been
106.Id., at 13, 15.
107.Id., at
108.Id., at 16.
109.Civil Appeal No. 2/2008 (CA) (unreported).
110.Id., at 3. The appellants’ claim before the High Court was in respect of acts of mistreatment, torture and detention incommunicado committed against them by the military.
111.Id., at
112.Id., at 7. Reflecting on the possibility of calling evidence on any particular matter in an application (by notice of motion) under rule 6 of the 2008 Rules, the Court noted that “the Rules Committee has made an innovation for a simpler way of adducing evidence to prove anything including damages.”
113.Civil Suit No. 238/2008 (HC) (unreported).
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filed before the 2008 rules came into force, the Court considered the procedure to be that under the then prevailing specific procedural rules (the 1992 rules) “by way of notice of motion.”114 In the end, the Court regarded the procedure adopted by the plaintiff in instituting a plaint with respect to his human rights as “fundamentally flawed.”115
Although the decision of the Court is
largely correct in terms of the law, neither the court nor
counsel referred to the decisions of the Supreme Court and
Court of Appeal in respect of the Twagira
and Mwesigwa cases. The
correctness of the decision, given the context of its filing
prior to the 2008 rules, lies in the fact that the plaintiff
was primarily seeking a declaration as
to his human rights. In light of the decision in the Twagira case, the claim ought to have
been brought by notice of motion (rather than by plaint). In
effect, although the High Court observed that the
VIII. ADDITIONAL OBSERVATIONS AND CONCLUDING REMARKS
It was noted at the outset of this review,
the major decisions on fundamental rights and freedoms in 2008
and 2009 were in respect of petitions and appeals that had
been pending before the courts for several years. The passage
of the years during which the petitions and appeals were
pending had implications for decisions before the courts in
respect of the pertinent human rights issues underlying those
decisions. This was for instance the case with death penalty
convictions. Additionally, with appeals pending before the
Supreme Court, the status of provisions of specific laws
A. Death Penalty Convictions: Reasserting Judicial Discretion on Sentencing?
Although the constitutional permissibility of the death penalty was reaffirmed in the Kigula case, the Supreme Court importantly reasserted the discretion of the courts to hand down death penalty convictions. In real terms, it even took away the power of the executive to dither over death penalty executions in the context of the Court’s orders
114.Id., at 3,
115.Id., at 5.
116.Id., at 3.
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regarding inordinate delays and death row. The correctness of the overall
decision of the Supreme
More significantly, the decisions of the
Supreme Court addressed the sense of uncertainty over the
penalty that had bedeviled the three tiers of the higher
117.For this view see,
118.See, e.g. Uganda v. Bizimana, Crim. Case No. 122/2005 (HC) (unreported). The High Court sentenced the accused, convicted (with several others) of nine counts of murder, to 15 years imprisonment instead of death, noting that, in light of the Kigula case, “the [Constitutional] court ordered that in capital offence the trial court must, before sentencing the convict afford him/her a hearing on mitigation of sentence.” See, William Okwang v. Uganda, Crim. Appeal No. 69/2002 (CA) (unreported). The Court of Appeal noted that, given the decision of the Constitutional Court, it had to take “into account all the mitigating factors,” although in the end, it “found no mitigating factors deserving reduction of the sentence” given that it was of the “considered view that this was a brutal murder.” But see, Uganda v. Wepondi Robert alias Mutto, Crim. Case No. 3/2005 (HC) (unreported). The High Court, in sentencing the accused to death for convictions on three counts of murder, held that there was “only one sentence authorized by the law and that is that you shall suffer death in a manner authorised by the law.” The Wepondi case was decided just over a month after the Constitutional Court had declared mandatory death sentences to be unconstitutional in the Kigula case.
119.See, e.g., Henry Walugembe & Anor v. Uganda, Crim. Appeal No. 39/2003 (SC)(unreported); Susan Kigula Serembe & Anor v. Uganda, Crim. Appeal No. 1/2004 (SC) (unreported); Enock v. Uganda, Crim. Appeal No. 11/2004 (SC) (unreported); Philip Zahura v. Uganda, Crim. Appeal No. 16/2004 (SC) (unreported); Hasan Sekandi v. Uganda, Crim. Appeal No. 12/2005 (SC) (unreported); Peter Batagenda v. Uganda, Crim. Appeal No. 10/2006 (SC) (unreported).
120.In this regard, the Court of Appeal has for instance, in the appeals heard since 21 January 2009, mitigated the death sentence to life imprisonment with respect to aggravated robbery: e.g. Moses Kamaukama v. Uganda, Crim. Appeal No. 52/2002 (CA) (unreported); found no mitigating factors in respect of a conviction for murder: e.g. Santos Bongomin v. Uganda, Crim. Appeal No. 16/2007 (CA)
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B. Restoring Liberty: Reaffirming Discretion to Grant Bail?
In the FHRI and Tumushabe cases, the Constitutional Court
and the Supreme Court reiterated the discretionary nature of the
grant of bail. Further, both courts regarded the discretion
qualified to the imposition of reasonable conditions of bail
with respect to mandatory release on bail under article 23(6)(b)
and (c) of the Constitution. The constitutionality of certain
provisions of the criminal procedural laws and the military law
limiting or restricting the grant to bail was addressed by the
Constitutional Court in the FHRI case.
It is to be noted that the State’s concession as to
unconstitutionality of section 76 of the Magistrate Courts Act
and section 16 of the Trial on Indictment Act was essentially
premised on the fact admission that the period of
Invariably, in premising the rationale for the
right to grant of bail as primarily to
restore liberty through release from
lawful detention, the Supreme Court in the Tumushabe
case determined that the
(unreported); and upheld the death sentence as the maximum penalty for convictions in respect of brutal and heinous acts of murder: e.g. Lubega Musiitwa v. Uganda, Crim. Appeal No. 73/2003 (CA) (un- reported); Matayo Chesakit v. Uganda, Crim. Appeal No. 95/2004 (CA)(unreported); Jackline Atto v. Uganda, Crim. Appeal No. 146/2004 (CA) (unreported); Syson Muganga v. Uganda, Crim. Appeal No. 33/2005 (CA) (unreported).
121.The provisions of the two criminal procedural
laws provide for 240 and 480 days period of
122.See supra notes
123.For a discussion of this aspect of the decision of the Constitutional Court in the Tumushabe case, see Onoria, supra note 53, at 349 & supra note 120. See also, infra note 134 and accompanying text.
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C. Of Officers and Men: Constitutionalizing the Military?
The more significant implication of the
decisions rendered in 2008 and 2009 has perhaps been with
regards to the military in the context of constitutionalism. In
both the Uganda Law Society and Tumushabe cases, the Supreme Court
determined that the
In the Uganda Law Society
case before the Constitutional Court, the Court
rejected and departed from its previous position that article
22(1) of the Constitution was inapplicable to field military
courts, a position that was premised on the special status
accorded to the Field Court Martial under the provisions of
articles 121(6) and 137(5) of the Constitution.124 The concern of the Constitutional
Court at the
[T]his provision is intended to ensue that proceedings which start in Military Courts remain there until they are finalised in the Court Martial Appeal Court or in case of capital offences, until they are referred to the Court of Appeal. This is logical in that it minimizes delays which would otherwise occur if cases moved from Military Courts to civilian courts and then backwards to Military Courts. [We]
124.Supra note 64, at
125.Supra note 66 and accompanying text.
126.For an analysis and criticism of the Court’s ruling at the time in 2003, see H. Onoria,
Review of Major Decisions on Fundamental
Rights and Freedoms in Uganda in 2003, 11 EAST AFR. J. PEACE HUM. RIGHTS 137 (2005), at
127.See
supra note 64, at
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do not read this article as recognising that the Field Courts Martial as special courts that should be exempted from the application of article 22(1) of the Constitution.128
The Court similarly viewed the exemption under article 121(6) of the Constitution as only intended to expedite proceedings before a field military court but not as exempting it from the “mandatory application of article 22(1) of the Constitution” or affecting the “right of appeal.”129 In fact, the Court did not consider article 121(6) of the Constitution as taking away the prerogative of mercy in the President, since he could exercise the prerogative save at his own initiative and “without the intervention of the Advisory Committee on the Prerogative of Mercy.”130
In the Tumushabe case, the Supreme Court rejected what it construed as a disguised appeal to supremacy of military law over the Constitution,131 holding that the provisions of the Constitution on grant of bail applied to all persons awaiting trial, including those being tried under the military justice system.132 Further, the Court’s determination of the parallel status of the General Court Martial, as a military court, and the High Court was only intended to clarify on an issue that had underpinned the contention of the inapplicability of article 23(6) of the Constitution to military courts.
In explaining the status of the General Court
Martial as a “subordinate” court
128.Id., at 31
129.Id., at 32.
130.Id. In September 2003, a soldier
sentenced to death by a Field Court Martial for the offence of
cowardice and due for execution was saved by the President’s
exercise of the prerogative of mercy. See,
Uganda President Quashes Death Sentence for “Coward” Soldier,
CLARINEWS, September 18, 2003,
available online at
131.See supra note 43, at
132.See supra note 61 and accompanying text.
133.Supra note 43, at
134.Id.,
judgment of Katureebe, JSC, at 19. See also,
supra notes
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D. Fair Trial Guarantees: Expanding the Scope of Article 28?
The right to a fair trial (or its import in
other rights and freedoms) was
The scope of the right to a fair trial was considered in a number of several other minor decisions. In Dong Yun Kim v. Uganda,140 the Court of Appeal held that the appellant was entitled to a certified copy of the proceedings of the trial court since it was pertinent to the right to adequate preparation of one’s appeal in terms of article 28(3)(c) of the Constitution.141 Conversely, in Butamanya Kabaale v. Uganda,142 the denial to an advocate of the opportunity to make submissions on the appellant’s case was not considered a violation of the right to a fair trial.143 Although the Court of Appeal premised its decision on the fact that “the omission to make the submissions by the advocate of the appellant did not prejudice his case”,144 the right to address court
detainees under jurisdiction of military courts, it expressed reluctance to intervene to grant bail. See, Lt. Godfrey Kasangaki v. Uganda, Misc. Crim. App. No. 17/2002 (HC) (unreported).
135.See, Uganda Law
Society case, supra note 64, at
136.Supra note 10, at
137.Supra note 67, judgments of Okello, JA,
at
138.For an analysis of the right of appeal in this
context in light of the military law and the Kotido military
executions, see Onoria, supra note
65, at
139.Supra note 82, at
140.Crim. Appeal No. 86/2007 (CA) (unreported).
141.Id., at 4.
142.Crim. Appeal No. 16/2003 (CA) (unreported).
143.Id., at 5.
144.The Court observed that while submissions assist court, by the time they are made, evidence in a case has already been adduced (as was the case from the record of the court).
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and to make submissions is in fact implied in the right to legal representation.145
Finally, in Uganda Projects Implementation Management Centre v. Uganda Revenue Authority,146 although the Constitutional Court upheld the right of access to court as a facet of the right to a fair trial,147 it did not find a violation of the right to a fair trial given that the petitioner’s case, by a reference, was “based on discrimination under article 21 and not article 28 which provides for access to court.”148 Therefore, specific acts or situations can be construed as attributes of the right or read into the right as additional attributes beyond those specifically stipulated under article 28 of the Constitution. To that end, article 28 is indeed only a minimum of a package of protections with regards the right to a fair trial.
E. Decisions
The increased constitutional litigation of the
Bill of Rights since the inception of the 1995 Constitution has
meant that petitions are challenging not only acts or conduct of
the State (and
The decisions of 2008 and 2009 witnessed provisions of legislation such as the Penal Code Act, Magistrate Courts Act, the Trial on Indictment Act, the National Environment Act, the Police Act and the Uganda Peoples Defence Forces Act being challenged as inconsistent with provisions on fundamental rights and freedoms under the Constitution. With a few exceptions, most of the impugned provisions of the said laws were declared unconstitutional by the courts. In the corollary, in some of the decisions, changes in the previous legal framework were taken into account. Thus, in Tumushabe case, the Supreme Court took notice of the reduction of the period of pre- trial custody for purposes of mandatory bail under article 23(6) of the Constitution in light of the 2005 amendment to the constitution.149
In Mwesigwa and Ghataura cases, the Court of Appeal and High Court were cognizant of the adoption of the Judicature (Fundamental Rights and Freedoms
145.See, Bandaranaike v. Jagathsena & Ors [1985] LRC (Crim.) 776 (Sri Lanka, SC).
146.Const. Ref. No. 18/2007 (CC) (unreported).
147.Id., at 8. Referring to the decision of
the Court of Appeal of Tanzania in Ndyanabo
v. Attorney General, the Court regarded the right of
access to court (and to justice) as central to the rule of law,
fundamental rights and an independent, impartial and accessible
judiciary. See id., at
148.Id., at 8. The Court found no evidence of discrimination against the petitioner in terms of article 21 of the Constitution.
149.Supra note 121 and accompanying text.
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Enforcement Procedure) Rules.150 Notably, the rules adopted five months after the decision of the Supreme Court in the Twagira case are to be seen as a proactive response by the Rules Committee to address an area of procedure that had become a source of confusion. In fact, the need to revisit the procedure for the institution of claims on human rights had been voiced by the Chief Justice in the Twagira case as:
In view of the apparent uncertainty regarding
the proper procedure to be followed in making applications under
Article 50 of the Constitution, I would direct that copies of
this judgment in this appeal be forwarded to the Rules Committee
for the purposes of reviewing the Judicature (Fundamental Rights
and Freedoms) Enforcement Procedure Rules, SI
The
150.Mwesigwa case, supra
note 109, at
151.Supra note 103, judgment of Odoki, CJ, at 20.
152.In the Kigula case, the Supreme Court urged Parliament, as the legislature, to “reopen the debate on the desirability of the penalty in our Constitution.” See supra note 10, at 58. In Uganda Law Society case, Kavuma, JA made additional orders for the executive and legislative arms of government to “review and where necessary amend the laws relevant to the administration of justice by [Field] Martial Courts.” See supra note 64, at 55.