HUMAN RIGHTS LAW BLAW 1400

By “Human Rights” or “Fundamental Rights” or “Civil Liberties”; we mean the
recognition, protection of rights and their enforcement. Many of these so-called rights or
liberties are neither rights or liberties at all, but are merely aspirations and standards to be
applied and followed.
The definition of Human Rights is a bit difficult because one’s judgment is different from
another; depending on the position where the person is. This concept came about after
1945. Before then, it was known as “The Rights Of Man””Natural Rights” “Human
Rights”. It has been suggested that the term “Human Rights” refers to the fact that these
rights are possessed by all human beings irrespective of their social, economic and
political circumstances and regardless of degree of merit. It does not depend on whether
you are rich or poor; in Europe or in Botswana.
There are different schools of thought on the issue of the historical origin of the human
rights movement as follows:
              One school regards human rights as having a Western European bias
                because of the concept’s origin from that geographical region. It opines
                that the first concrete political statement on human rights occurred as a
                result of the French Revolution of 1789. Its Declaration of “The Rights of
                Man and the Citizen”, stated that “the aim of all political association is the
                conservation of the natural and inalienable rights of man”. Most of the
                rights including liberty, property, security and resistance to oppression
                came to be included in what is now Civil and Political Rights. The fact
                that such demands became the major agenda of the revolution meant that
                rights before the revolution were not available to all individuals. This is
                the case against the claim that the civil and political rights are “western”.
                Those who enjoyed these rights were the privileged few.

               The other school of thought says that the modern human rights movement
                is largely the product of the horrors of the mainly European wars of 1939-
                45. Its rise is mostly as a direct result of the abominations committed by
                the Third Reich during that war. Drawing on the Western liberal tradition,
                the human rights movement arose primarily to control and contain State
                action against the individual. The two principal documents of the
                movement- the 1948 Universal Declaration on Human Rights (UDHR)
                and the 1966 International Covenant on Civil and Political Rights
                (ICCPR)- largely establish negative rights that either limit or prohibit
                altogether government intrusion into the so-called “private realm”. It is
                ironic to say the least, that it was the victors of the war, most of whom
                held colonies in Africa, who determined and prevailed upon the United
                Nations to give form and content to the Human Rights movement.
In Africa, just before the advent of independence, that is before the 1960s, nobody
bothered about Human rights, meanwhile the fundamentals of human rights in Europe
were being developed. In 1955, some human rights provisions were included in the
Ethiopian Constitution of 1955. However in 1953, the British Government had made a
Declaration extending the scope of the application of the European Convention on
Human Rights to Basutoland ( now Lesotho); Bechuanaland ( now Botswana); The
Gambia; Gold Coast (now Ghana); Kenya; Mauritius; Nigeria; Northern Rhodesia ( now
Zambia); Nyasaland (now Malawi); Seychelles; Sierra Leone; Somali land; Swaziland;
Tanganyika; Uganda; and Zanzibar. Most of these countries included Bills of Rights in
their independence Constitutions. These Bills of Rights also provided for judicial review.
Today only Botswana and Kenya retain the original Bill o Rights as inherited from the
European Convention.
It is noteworthy that the European Convention on Human Rights was signed at Rome in
1950 and came into force amongst those States which had ratified it in 1953.
The Convention is a treaty under international law and its authority derives solely from
the consent of those States who have become parties to it. It was a direct result of the
movement for cooperation in western Europe which in 1949 created the Council of
Europe. Inspiration for the Convention came from the wide principles declared in the
United Nations Universal Declaration of Human Rights in 1948. The Convention
declares certain human rights which are or should be protected by law in each state. It
also provides political and judicial procedures by which alleged infringements of these
rights may be examined at an international level.

               Certain Human Rights Organizations rose up in the late 1960s- 1970s,
                with the foundations and groups that supported them, set up the agenda for
                the human rights movement.. Interestingly the traditional human rights
                movement did not discover Africa until the 1970s well after the
                establishment of post colonial States. Quite often, the Amnesty
                International would adopt a prisoner of Conscience in Kenya or Zaire and
                document and publicize the massacre of innocent civilians by security
                forces in Uganda or Ghana. Amnesty International, the New York based
                Lawyers Committee for Human Rights (LCHR) and the international
                Commission of Jurists (ICJ) exposed the denials of civil liberties by sub
                Saharan regimes of the right and the left. This was Africa’s first contact
                with the traditional human rights movement: as foreign and distant voices
                were decrying the denials of civil and political rights by African
The Common wealth countries which did not include a Bill of Rights in their
independence Constitutions, such as Ghana and Tanzania have all included Bills of
Rights in their Constitutions. Before the 1960s, Ghana had about five provisions on
human rights but the white colonialists asked that they should be removed, but were re-
introduced by the Post Independence Constitution of 1990. Similarly in the Botswana
Constitution, the scope was narrowed and limited to the first generation rights. In the
English-speaking (Anglophone) African countries such as Botswana, the Human rights
provisions were found in the body while in the French-speaking (Francophone) African
countries such as Cameroon, the Human Rights provisions are mentioned in passing and
are found in the Preamble.
        After 1990, almost all African Constitutions now contain human rights provisions
in the substantive provisions. However it is noteworthy that Cameroon is still the
exception to this, which mentions it in the Preamble.
        Chapter II of the Botswana Constitution enshrines a Bill of Rights fashioned
on the Universal Declaration of Human Rights (UDHR) and the European Convention of
Human Rights (ECHR).

        Constitutional Supremacy
        The principle of Constitutional supremacy in terms of which the Constitution is
the highest law is recognized in Botswana. The concept of popular sovereignty, that is a
concept in which the people are the source of political power, is also recognized in
practice in Botswana. Remarkably the phrase “the government of the people, by the
people and for the people”, which originated from Abraham Lincoln’s Gettysburg
Address in 1863 is a reality in Botswana.
        According to Aguda JA in Attorney-General v. Unity Dow (1992) BLR 119 at
166; “ The Constitution is the supreme law of the land and it is meant to serve not only
this generation but also generations yet unborn. It cannot be allowed to be a lifeless
museum piece, on the other hand, the courts must continue to breathe life into it from
time to time as the occasion may arise to ensure the healthy growth and development of
the State through it.”

         Roles of Courts (Independent Judiciary)
         In protecting and enhancing people’s rights in a democratic State, the role of the
Judiciary (courts) is certainly paramount. The Constitution of Botswana provides for an
independent judiciary. It is imperative to note here that the essence of judicial
independence is not the segregation from other branches of government but the
preservation of a separate institution that can adjudicate cases or controversies impartially
or without fear or favor.
         Botswana’s human rights record has been universally praised as one of the best in
the world (See Molokmme A., “Political Rights in Botswana: Regression or
Development,” paper presented to the Symposium on Democracy in Botswana, 3 August
         Section 18 of Botswana Constitution entrusts the High Court with original
jurisdiction to enforce the protective provisions enumerated under Sections 3 to 16.
Besides its subsection (3) further provides that when in any subordinate court, any
question arises as to the contravention of Sections 3 to 16 (inclusive) of the Constitution;
the presiding judge in the court may (and shall if the party to the proceedings so requests)
refer the matter to the High Court.
Cox A., in his book; The Court and the Constitution (New Delhi Asian Books (Pvt)
Ltd, 1987 at p. 15); has observed that a perfect Constitution is not an adequate protection
of civil liberties. Constitutional guarantees are in any case a mere guide to statements of
principle to which adherence can be assured only when political culture engenders
respect for the Constitution and there are institutionalized means for forcing the
government to respect it. In Botswana, there are public organizational structures in place
for the protection of human rights such as Ombudsman, Ditshwanelo.
The courts in Botswana have power of judicial review so as to ensure executive
compliance with the Constitution and laws enacted in accordance with the Constitution.
See the following cases:
             Clover Petrus & Modganedi Selaolo v. The State Crim.Appeal No
                34/1983 unreported)
             Desai & Modi v. The State Crim Appeal No 90/ 1986 (unreported)
             Mooi, Mbali & Mbulam v. The State Crim. Appeal No25 of 1986
             Kgomenyane v. The State Crim. Appeal No 25/1986 (unreported)

Note that courts are not a substitute for administrative authorities, and their value
judgments , but rather an advisory, pointing out methods of proper operation.
            Alfred C. Mokgoeng v. The Att-Gen Crim. Appeal No8/ 1987
            Mtetwa v. O. C. State Prison Lobatse (1988) BLR 1
            University of Botswana &ors, Misc No 22/ 1989 and Appeal No 1/1989

Several laws have been passed by the Parliament, over the years for protecting people’s
rights and for prohibiting practices that curtail the enjoyment of constitutional rights and
for the establishment of a civilized society. The Constitution bestows broad powers on
the judiciary, and in appropriate cases, the High Court or the Court of Appeal has used
them to strike down legislative fiats, too invalidate wrongful actions that run counter to
the human rights provisions of the constitution.
His Lordship, Justice Nsereko (2001) of the International Criminal Court of Justice
Hague, observed that the High court’s powers to review executive, legislative and even
private person’s actions derived under the Constitution run parallel and sometimes
overlap with its powers to review administrative action derived from the common law.

The role of the courts in the protection of human rights also depends on interpreting the
human rights provisions of the Constitution. By its nature, the Constitution often
formulates human rights in general, imprecise or even in indefinite terms. It leaves it to
the courts when an opportunity shows itself to fill in the gaps. In so doing, the courts help
the Constitution to develop and grow, for it is indeed a live and organic instrument.
119 at 166; on the role of courts, he states:
“…the primary duty of the judges is to make the Constitution grow and develop in order
to meet the just demands and aspirations of an ever developing society which is part of
the wider and larger human society governed by some acceptable concepts of human
For example Section 7 of Botswana Constitution prohibits “torture and inhuman and
degrading punishment,” but it does not define these terms. It is then the task of the courts
to define the terms and to determine what forms of punishment or treatment would fall a
foul with the Constitution.
In the case of CLOVER PETRUS v. STATE (1984) BLR 679; the Court of Appeal had
to determine whether corporal punishment constituted “inhuman and degrading
punishment”. It defined “inhuman and degrading treatment” as treatment that was
“devoid of human kindness or barbaric”. It held that corporal punishment per se was not
inhuman, but became inhuman if it was administered in installments.

Similarly Section 10 of the Botswana Constitution provides that an independent and
impartial court must try an accused person “within a reasonable time”. It however does
not define what “reasonable” or “unreasonable time” is. Therefore it is the task of the
courts to define these terms in the context of a given situation.
In STATE v. MERRIWEATHER SEBONI (1968-70) BLR 153; the High Court held
that the question whether there has been unreasonable delay in bringing the accused to
trial is one which depends on the circumstances of each case. The court also suggested
the possible remedies available to a person whose right to trial within a reasonable time
has been violated.

In STATE v. MAKWEKWE (1981) BLR 196; the court held that unreasonable delay
must be a factor to be considered when sentencing. Going further, being a court of
unlimited jurisdiction, the High court in DITSHWANELO – THE BOTSWANA
quashed a conviction and set aside a death sentence that was already upheld by the Court
of Appeal.

A privilege is a special entitlement or immunity granted to a specific individual by a
government or other authority. It could also be granted to a restricted group, either by
virtue of birth or on a conditional basis.
In a broader sense, privilege can refer to special powers or de facto immunities held as a
consequence of political power or wealth.

By contrast, a right is an inherent, irrevocable entitlement held by all citizens or all
human beings from birth.

Immunity is an exemption (sort of legal protection) from a duty or liability that is granted
by law to a person or class of persons . There are various types of immunity:
     diplomatic immunity, that is, immunity from taxes or prosecution granted to a
     Executive immunity, that is, immunity granted to officers of the executive branch
       of government from personal liability for tortuous act or omissions done in the
       course of carrying out their duties.
     Judicial immunity, that is, absolute immunity from civil liability that is granted to
       judges and other court officers (as prosecutors and grand juries) and quasi-judicial
       officials for tortuous acts or omissions done within the scope of their jurisdiction
       or authority.
      legislative immunity, that is, absolute immunity from civil liability that is granted
       to legislators for tortuous acts or omissions done in the course of legislative

There are two forms of immunity:
    absolute; and
    qualified.

Absolute immunity is immunity from all personal civil liability without limits or
conditions (as a requirement of good faith).

The protection of fundamental Human Rights and Freedoms was first recognized and
accepted internationally before it became recognized in Africa. Infact in Africa, a
concerted approach to human rights issues is largely a post independence phenomenon.

Considering that all African countries especially Botswana hold their Constitutions as the
“supreme law of the land”, and therefore prevailing over national laws conflicting with it.
The constitutional Commissions set up in African countries a duty to set their legal
framework in such a way that they will be consistent with international Human Rights.

A general principle of International law is that a State has to fulfill its international
obligations (under a treaty or customary international law) in good faith. A State cannot
invoke its domestic laws or Constitution or national authorities including the judiciary, to
evade its commitments under international law.
However in defining when provisions of an international convention can apply, most of
these African countries are required to incorporate such international treaties into their
national laws through an Act of Parliament. Thus in some African countries (even in
Botswana) international instruments require enabling legislation before being applicable
in national law. Note that generally international treaty provisions do not take precedence
over national laws.

The best foundation to the universal approach to human rights is laid down in the
Universal Declaration of Human Rights (UDHR) of 1948. This was subsequently
supplemented by the International Covenant on Civil and Political Rights (ICCPR)of
1966 and International Covenant on Economic, Social and Cultural Rights (ICESCR) of
1966. The African Charter on Human and Peoples Rights (ACHPR) of 1981 which is the
main regional instrument on Human Rights has been ratified by all African countries;
including Botswana which is also a member of the African Union.
ACHPR has as its main advantage that it incorporates all the so-called three generations
of rights. Other international instruments include the Convention against Torture, the
Convention on the Rights of the Child and the Convention on the Elimination of all forms
of discrimination against women (Women’s Convention).

In considering the order of precedence between international instruments and national
laws; note that some African Constitutions expressly provide that where ratified and
published, international treaty provisions assume a superior position to national laws
while in some of the African countries, international treaty provisions do not take
precedence over national laws(see Botswana, Ghana, Kenya Constitutions.)
Several Constitutions also contain provisions relating to the incorporation of treaties into
domestic law through the enactment laws (as in the Constitutions of Botswana and
Ghana) while some others do not (as in Algeria and Namibian Constitutions).

In Botswana the following international instruments have been signed and ratified:
     The African Charter on Human and Peoples Rights (ACHPR);
     The International Covenant on Civil and Political Rights 1966 (ICCPR);
     The Covenant Against Torture;
     The Covenant on the Rights of the Child;
     The Convention on the Elimination of All Forms of Discrimination Against
       Women (Women’s Convention).

In Botswana, the provisions on protection of Fundamental Rights and Freedoms are
found in CHAPTER II of the Botswana Constitution. Botswana protects the first
generation rights including:-
     Fundamental rights and freedoms of the individual- Section 3
     Protection of right to life- Section 4
     Protection of the right to personal liberty - Section 5
     Protection from slavery and forced labor- Section 6
     Protection from inhuman treatment- Section 7
     Protection from deprivation of property- Section 8
     Protection for privacy of home and other property- Section 9
     Provisions to secure protection of law- Section 10
     Protection of freedom of conscience- Section 11
     Protection of freedom of expression- Section 12
     Protection of freedom of assembly and association- Section 13
     Protection of freedom of movement- Section 14
     Protection from discrimination on grounds of race, etc - Section 15
     Derogation from Fundamental Rights and Freedoms-Section 16

Note the general provisions of the law and following exceptions in each provisions.

These rights are classified into three (3) generations of Fundamental Human Rights. It is
important to note that the first- generation rights are usually referred to as Civil and
Political Rights. The first- generation rights correspond with what is often strictly
referred to in the western world as Fundamental Rights and Freedoms. These are
generally called “negative rights” because they impose a negative duty on States to
refrain from violating them, but do not require them to take any pro active or positive
steps to ensure that their citizens actually enjoy them.

The Civil and Political Rights are on the whole significantly more widely protected than
Socio- economic rights in African Constitutions. Of the Civil and Political Rights, the
most prominent rights include the right to life, freedom from torture and inhuman
treatment, right to liberty and security, equality before the law, and freedom of thought.
In all there are (27) twenty- seven Civil and Political Rights protected and nineteen (19)
of the same guaranteed under the Covenant on Civil and Political Rights. The Covenant
on Civil and Political Rights is present in the Universal Declaration as one of the
“common standards of achievement for all peoples and all nations.”

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