THE UNIVERSITY OF ZAMBIA

IN ASSOCIATION WITH

NKRUMAH UNIVERSITY COLLEGE

DEGREE PROGRAMME
IN
CIVIC EDUCATION.

CVE 310.

2012.
CVE 311: CONSTITUTION AND HUMAN RIGHTS.

AIM.

To equip students with the knowledge of the constitution and human rights in Zambia, and the
process of constitution making and review in a historical perspective.

OBJECTIVES.

At the end of the course, students should be able to:

1. Trace the history of constitutionalism

2. Discuss the supremacy of the constitution and the rule of law
3. Describe the Zambian constitution
4. Explain the functions of Zambia’s Human Rights Commission
5. Discuss the Universal Declaration of Human Rights
6. Analyse International Human Rights Instruments and supervisory mechanisms.
Contents.

1. History of Constitutionalism
2. Supremacy of the Constitution and the Rule of law
3. The Zambian Constitution
 Structure of the Zambian Constitution (c)
 History of the Zambian Constitution (a)
 Adoption of the Zambian Constitution(b)
 Constitutional Reviews in Zambia(d)
 Zambia’s Bill of Rights
 Political parties and National Constitutions
4. The Functions of Zambia’s Human Rights Commission
5. The Universal Declaration of Human Rights
 Historical background
 Characteristics of Human Rights
 Categories of Human Rights: Civil and Political; Economic, Social and Cultural
Rights
6. The major International Human Rights Instruments and Supervisory Mechanisms
 The International Convention on the Elimination of all Forms of Racial
Discrimination
 The International Convention on Civil and Political Rights
 The International Covenant on Economic, Social and Cultural Rights
 Convention Against Torture and Cruel, Inhuman or Degrading Treatment or
Punishment
  Convention on the Elimination of all forms of Discrimination Against Women
 International Convention on the Rights of the Child.
 Supervisory Mechanisms.

CHAPTER ONE.

HISTORY OF CONSTITUTIONALISM.

Introduction.

This unit discusses the constitution and constitutional government. The first part of the unit
provides for definitions of key terminologies in the unit.

Objectives:

Students should be able to:

 Define the constitution

 Discuss constitutional government.
 Discuss constitutional state

Definitions

What is a Constitution and Constitutional government?

There are a number of definitions of what a constitution is. One such a definition is that the term
‘constitution’ refers to a frame of political society organized through and by means of law and in
which law has established permanent institutions with recognized functions and definite rights. It
is collection of principles according to which the powers of the government, rights of the
governed, and the relation between are adjusted according to Woolsey. Aristotle looks at the
constitution as the way of life the state has chosen for itself. While Bourier defines it as the
fundamental law of the state, directing the principles upon which the government is founded and
regulating the exercise of the sovereign power, directing to what bodies or person these powers
shall be confined and manner of their exercise.

From the definitions given above a number of aspects comes out as what makes the constitution.
Among these are:

i. The constitution is the frame of political society

ii. It stipulates how this political society is organized.
iii. This should be done by the law.
iv. The law establishes permanent institutions with recognized functions and definite
rights.
v. It distributes powers of the government.
vi. Provides for the rights of the governed.
vii. Regulates the relationship between the government and the governed.
viii. It is the foundation of the government.
ix. Directs to what bodies or person these powers should be confined and be exercised.

A state with the constitution is a constitution state. A constitutional state ‘is one in which the
powers of government, the rights of the governed and the relations between the two are
adjusted.’ 1 A constitutional government therefore means something more than a government
according to the terms of the constitution. It means government according to the rule of law as
opposed to arbitrary government; it means government limited by the terms of the constitution

1
Johari. p.415
constitutional law, not a government limited only by the desires and capacities of those who
exercise power2.

In very simple terms, the constitution of a state or a body of rules and regulations, written as well
as unwritten, whereby the government is organized and it functions.3 A constitution provides a
framework of principles that creates the structure and purposes of a human organisation e.g. a
club. A political party or a state all require a constitution in order to function effectively. The
constitution is also concerned with how power is divided between different institutions, groups,
persons and regions. Many constitutions contain a list of basic rights of the citizen and
sometimes duties and liabilities (obligations). In many cases, laws that violate these rights can be
overturned either by a curt or a special body.

Broad or abstract meaning of a constitution.

A constitution in this context refers to the collection of a number of written rules, customs,
practices and traditions of constitutional significance which will give the constitution value once
they are combined. In other words, a constitution in this sense is a system of laws, customs and
conventions which defines the composition and powers of the organs of the state, and regulates
the relations of the various state organs to one another and to the private individual. Countries
with such constitution include the United Kingdom, Israel and New Zealand. For example, there
is a practice in the United Kingdom that the Prime Minister must be leader of his party and he
must win the majority of seats in Parliament. He is then chosen by his fellow members of
Parliament. Also there is a tradition that before the Prime Minister assumes the office, he must
get permission from the Queen to form a government. Therefore, to study the constitution of the
United Kingdom, One must study the statutes, traditions, customs and practices observed in the
United Kingdom.

The other category in the broad sense is that a constitution is the rules relating to the rules which
are written but not a single document. One must read the variety of legislation. For instance,
Israel has a variety of constitutional legislation which together forms the basic law of the state.

Narrow or concrete sense.

2
http//: answer.com
3
Johari p.406
It is a document in which the most important laws of the country are authoritatively ordained,
e.g. the Zambian constitution. However, the Zambian constitution was made up of various
elements before 1924. There were three basic documents that made up the constitution of
Northern Rhodesia namely the Northern Rhodesia Order-in-Council 1924, the Northern
Rhodesia Legislative Council 1924, and the Northern Rhodesia Royal Instrument to the
Government of Northern Rhodesia.

Constitutional law, therefore, deals with the distribution and exercise of the functions of
government and the relation of the government organs to each other and to the individual citizen.
There is one basic characteristic of all constitutions. They provide the foundation or the basis for
the very existence of governments. Constitutions provide for the main or key institutions of
government, and stipulate the powers the organs of the government have. The constitution comes
before the government, as government is borne out of the constitution. It establishes the organs
of government i.e. the legislature, the judiciary and the executive. These characteristics also
serve to highlight the functions of a constitution. In other words, the constitution creates the
organs of government and vests each organ with powers.

The Status of the Constitution.

Most constitutions enjoy a very high status. The constitution is the foundation of all laws in the
state; it is the supreme law of the land. The constitution reflects the will and aspirations of the
people of a particular state. It is the most important document in the nation, and it’s the highest.
In other words, in a country with a written constitution, no other law is above the law of the
constitution. Thus, Article 1(3) of the Zambian Constitution reflects the status of our
constitution. The Article provides that “This Constitution is the supreme law of Zambia and if
any other law is inconsistent with this Constitution that other law shall, to the extent of the
inconsistency, be void.” It sets the tone, the spirit and the framework from which all other laws and
the form of government draws its legitimacy. The constitution guarantees the political and legal
system and its fundamental features. It determines and regulates the powers of and relationship
between the presidency, the legislature and the judiciary. Where government is decentralized, the
constitution also regulates the relationship between the central government and the regions, and
between governments at the regional and local levels. It is the constitution that can provide and
secure a framework for democracy, decentralization and deregulation and for the development of
the country. Being difficult to amend, it gives security and reassurance to the community. By
restating common aspirations, it also provides a basis for national identity.
It is the constitution that can provide and secure a framework for The description of the
constitution as the supreme law of the land does not mean that all rule of the organization or
country, are found in the constitution for there are usually there are many other rules such as by-laws
and customs. Invariably, by definition, the rules spelled out in the constitution are considered to be
basic, in that all other rules must conform to its provision. By implicit in the concept of a constitution is
higher law that is operative, a law that takes precedence4.

The Classification of the Constitution.

This is the method of bringing out certain basic features of a constitution. Every constitution has
its characteristics and the purpose of classification is to bring out these classifications.

Characteristics of a Constitution.

In its broadest sense, a constitution represents the basic structure of any organised society.
Formal or informal, written or unwritten, its existence is inevitable. When speaks of a modern
constitution, notions of formality emerge and in post-colonial Africa, this is a single document, a
charter for the exercise of political power. As elsewhere, the basic assumption in Zambia is that
there is and should be a written constitution. Despite the frequency of constitutional changes,
some common characteristics appear.

With all the difficulties of definition and determination of detail, there is a stated commitment to
democracy and to government with the consent of the governed. The aim of the constitution
making process is the achievement of a constitution that is legitimate, credible, and enduring.
That guarantees rights and freedoms perceived to be fundamental and that provides a structure
for the effective conduct of the nation’s business and governance. Vital to such a constitution is
the recognition of the essential condition of free elections at regular intervals with the guarantee
of the full participation by all the citizens of any country. In short, a mechanism for the orderly

4
http://www.vunuato.usp
transfer of political power, 5 the protection of human rights, an independent judiciary and the
accountability of the political leaders is also a necessary prerequisite.

It is submitted that the forgoing are widely accepted in principle. Their realization is another
matter and the gap between articulated goals and their achievement is wide. There are many
reasons for this and they are worth exploring, most effectively through an examination of the
making, alteration and unmaking of Zambia’s constitutions since independence and the
establishment of the Republic in 1964. There is compelling evidence that the constitutional
process is under great stress, that the constitutional change has been effected without widespread
participation of the people, and that the changes serve and are untended to serve the short-term
political interests of those in power.

Constitutionalism.

The word ‘constitutionalism’ means a limited government that is a government that operates
within the confinement of the constitution. Government is universally accepted to be a necessity
since man cannot fully realise himself except within an ordered society. Yet the necessity for
government creates its own problem for man, the problem of how to limit the arbitrariness
inherent in government and to ensure that its powers are to be used for the good of society. It is
this limiting of the arbitrariness of political power that is expressed in the concept of
constitutionalism.

Constitutionalism recognizes the necessity for government, but insists upon a limitation being
placed upon its powers. It connotes in essence, a “limitation on government; it is the antithesis of
arbitrary rule. Its opposite to despotic government; the government of will instead of law”.
Arbitrary rule is government rule conducted not according to the momentary whims and caprices
of the rulers. It is important to note two things which obscure the concept of constitutionalism
which concern its relationship with the constitution and with democracy.

Constitutionalism is a modern concept that desires a political order governed by laws and
regulations. It stands for the supremacy of the law and not of individuals; it imbibes the
principles of nationalism, democracy and limited government. 6 Johari quoting Carl Friedrich7

5
ibid
6
Johari J.C. 2009. Principles of Modern Political Science. Sterling Publishers Private Limited. New Delhi. pp415-422
states that “constitutionalism by dividing power provides a system of effective restraints upon
governmental action. In studying it (constitutionalism), one has to explore the methods and
techniques by which such restraints are established and maintained. It is a body of rules ensuring
fairplay, thus rendering the government responsible.” In other words, constitutionalism stands
for the existence of a constitution in the state as it is the instrument of government, or the
fundamental law of the land, whose objects “ are to limit the arbitrary action of government, to
guarantee the rights of the governed and to define the operation of the sovereign power (of the
state).”

The Growth of the Concept of Constitutionalism.

According to Johari, the rise of a constitutional state is essentially an historical process whose
chief material is contained in the history of western political ideas right from ancient to modern
times. The history of the development of constitutionalism is therefore a history of the growth of
political institutions that had their first important manifestation in the soils of ancient Greece and
Rome and thereafter they witnessed their rise and growth in the middle and modern ages.8 In line
with this, reference should be made to the ideas of great political thinkers who either drew
stimulus from the development of political institutions, or who thought in terms of having a
particular form of polity under the ideal or obtainable conditions.

The history of constitutionalism began with the Greeks and their ideas of the democracy in the
city-states. The Romans expanded on the idea of constitutionalism with their evolved
constitutions used as a determinate instrument of government. The Romans codified their law
and laid down the principle of representative government. Christianity introduced the element of
theology to the conception of the right to rule. This resulted into the fact henceforth that the laws
of the state were made subservient to the authorities of the church as the ultimate law-provider
through their connection to the divine authority of God. In this way, the observance of religious
injunctions became an essential part of the idea of a constitutional state.9

After some time, a new consciousness developed which resulted into the termination of papal
authority and the emergence of the sovereign and secular nation-states. The idea of

7
Friedrich Carl, J. Authority.1958. Harvard University Press. Cambridge, Mass.
8
Johari p.417.
9
Johari p.417
constitutionalism witnessed a rejection of theological propositions, and justification of the
absolute authority of the state emerged. In the early phase of the modern period, the concept of
constitutionalism appreciated the absolute authority of the king over and above the authority of
the religious and feudal chiefs. However, after a number of centuries, the people fought and
could impose restraints on the power of the sovereign. Examples of this include the Glorious
Revolution in England in 1688, the Declaration of American Independence in 1776 and the
ultimate revolution of the French in 1789. Therefore, by the end of the eighteen century, the
concept of constitutionalism had acquired a different character from that evident previously.

A constitutional government now came to be identified with a democratic government. 10

Therefore, the agitation of the People in England, France and the United States for more
democratic systems of government caused a simultaneous change in the concept of
constitutionalism. For example, in the United States, the founding fathers ensured that their new
country came with a written constitution to provide a power map for the allocation of
governmental powers and functions. Therefore, a written constitution was enacted in 1787 and
this set a precedent for many other emergent nations as practically every nation has followed the
example provided by the United States. A result of this, a new feature of constitutionalism
developed that had its universal appreciation in the years to follow. However, even though
England did not put its constitution in writing, the people of England continued their movement
for the democratization of the system of government that is evident from various Reform Acts.11

With emergence of nationalism and the redefinition of the boundaries of countries in Europe and
the rest of the world e.g. through colonialism, people around the world were becoming more
aware of the need for constitutional government and an end to such systems as colonialism. The
two world wars also contributed to the development of the concept of constitutionalism. As a
result of these wars, a new dimension was added to constitutionalism-internationalism which
found expression in International law which refers to the laws governing relations between
countries. Traditionally, subjects of international law were exclusively state entities as individual
human beings were treated as objects of international law . Therefore, the fundamental law of
the land (i.e. the constitution) should specify commitment of the state to the principles of

10
Ibid p.418
11
Highlight some of these specific Acts and make reference as to their contents.
internationalism like faith in the settlement of disputes by peaceful means and the observance of
the norms of international law and obligations.12 Thus, constitutionalism has taken a new turn in
the twenty-first century.13 Expand and focus how constitutionalism has become an important part
of any developing countries political dispensation since the 10970s with the West’s emphasis on
good governance to secure donor funding and bilateral and multilateral support.14 See
Anyangwe. This is important for any developing African country especially with the tying of aid
to such concepts by the West.

The Challenges faced by Constitutionalism.

Constitutionalism faces certain challenges and these might include the following problems. The
first is the rise of totalitarianism, the second is the emergence of war and war-like conditions and
the third is the socio-economic distress and conditions of the people.15 The problem is how to
deal with and solve these problems through the action of a constitutional state.

Revision Questions.

References.

Alder J. 2007. Constitutional and Administrative Law. Palgrave MacMillan. Houndmills.

Anyangwe Carlson.

Johari J.C. 2009. Principles of Modern Political Science. Sterling Publishers Private Limited.
New Delhi.

12
Examples here include the Universal Declaration of Human Rights (UDHR) and the Convention against Torture
and all Forms of inhumane and Degrading Treatment (CAT).
13
Also bring out aspects of this in the discussion of the module.
14
This has to be the major focus of the module from this point on.
15
Johari p.420
UNIT TWO

Introduction

This unit discusses the supremacy of the constitution as well as the rule of law.

Learning Objectives

Discuss the supremacy of the constitution

Define of rule of law

Discuss the importance of rule of law.

Article 1(3) of the constitution of Zambia states that the constitution of Zambia is the supreme
law of Zambia. Any other law inconsistent with this constitution that other law shall to the extent
of the inconsistency be void (See article 1(3) of the 1996 constitution of Zambia). Article 1(1)
(2) of the draft constitution also upholds the supremacy of the constitution and further states that
any act or omission that contravenes any provisions of this constitution is illegal; (See article
1(1) (2) of the report of the Technical Committee on Drafting the Constitution of Zambia of 2012
as well the First Draft Constitution of the Republic of Zambia of 2012.

Meaning of Supremacy of the Constitution (see the first draft constitution p of 2012)

SUPREMACY OF THE CONSTITUTION AND THE RULE OF LAW.

Supremacy of the Constitution

The link between the legitimacy of the constitution and its supremacy can at once be seen, since
the rationale of this supremacy is that it is an emanation from the will of a body superior to the
legislature i.e. the people. A constitution is, or is supposed to be, the product of the exercise of
the constituent power inherent in any people. It is an original constituent act from which all other
legislative acts derive their power.16Since the constitution in nearly all emergent states did not
emanate from the people directly, what then is the source and rationale of its supremacy? Before
independence, a colonial constitution could claim supremacy because it emanated from the
superior authority of the suzerain power which in this case was the power of the United
Kingdom. This superiority disappeared immediately after independence. 17 What followed this
then? The constitution started being made by the people through submission of views during the
constitution making process or what is referred to as constitution review process.

Supremacy of the constitution

a. Constitution is supreme over the institutions it creates. It cannot just be an ordinary law
but functions to regulate institutions. This means it cannot be construed as ordinary law.
b. It is a product of the body which has power to make supreme law from which supreme
ordinary law are made. Therefore, it commands obedience because it is not ordinary law
but supreme law.
c. It is the will of the people; therefore it is abiding upon every individual. This is why it
commands obligation18.

The Legitimacy of the Constitution.

The legitimacy of the constitution is concerned with how to make it command the loyalty,
obedience and confidence of the people. It cannot be disputed that a major cause of the collapse
of constitutional government in many of the new states was the general lack of respect for the
constitution among the populace and even among the politicians themselves. The alien character
of the system of government instituted by the constitutions of new states and of the ideas
underlying it made it necessary that something should have been done to legitimize them in the

16
JP.
17
Ibid.
18
http://iibnotes.bloyspot.com.
eyes of the people. What is means is that a constitution should be generally understood by the
people and be acceptable to them.

A constitution cannot hope to command the loyalty, respect and confidence of the people
otherwise. To achieve this understanding and acceptance, a constitution needs to be put through a
process of popularisation.19 This is with a view to generating public interest in it and an attitude
that everybody has a stake in it, that it is the common property of all. The people must be made
to identify themselves with the constitution. Without this sense of identification, of attachment
and involvement, a constitution would always remain remote, artificial object.20

The question of legitimacy has been viewed from the standpoint of the rules, that is, whether
they have an accepted title to rule and according to Max Webber, title to rule may be acquired in
three ways

i. Through authority sanctioned either by tradition

ii. By a faith in the leader i.e. charismatic authority
iii. Through popular acceptance of the appropriateness of the system of government.

It is in relation to the question of legitimacy that the practical importance of a constitution’s

method of adoption mainly lies. In order that a constitution should have legitimacy in the public
eye, the people should be involved in the process of its making. Its form and content should be
subjected to public discussion.21However, a constitution need not necessarily have been enacted
by the people to have legitimacy. What is important is that the people should be involved in the
process of its making.

It is another matter that in order to meet the requirements of a democratic order, a constitution
embodies some more principles specifying the relationship between the people and their state in
the form of a specific charter of their fundamental rights and obligations.22

The Constitution as Supreme Law.

19
JP class notes.
20
Ibid. this needs to be supplemented by data from the various law books.
21
Ibid.
22
Johari p.406
Judicial review of parliamentary legislation is predicated on the notion of a ‘higher law’ or on
constitutionalism. The concept of the constitution entails the subordination of all persons, organs
and legislation in the country to the constitution of the state. The principle of constitutional
supremacy also implies the existence of some independent and impartial organ that ensures
respect of the constitution and the of the constitutional order.23

The subordination of all persons and organs.

Constitutions express positive attitudes enshrining higher values. They create, define and confine
the various organs or institutions of the state. It follows that every individual and every organ of
government is subordinate to the constitution.

1. The People.

The Zambian constitution declares that all power resides in the people. This means the source of
all legal authority is the people of Zambia. Acting through the representatives ‘assembled in their
Parliament, they enacted the constitution and gave it to themselves. Since the people are
sovereign, they do not stand in a subordinate position in relation to the constitution. The
sovereignty of the people means that they recognise no higher earthly authority above them. The
supreme authority in the state is the people and not the constitution. This is because the people
are not a creation of the constitution!

2. Parliament.

Parliament is a creation of the constitution. It is the constitution which says there shall be a
parliament and that legislative power shall vest in it(quote article in the constitution). It is the
constitution that establishes Parliament and delineates the scope and manner of its law-making
powers. The principle of the separation of power which permeates the constitution forbids one
arm of government to trespass on the sphere of another. Parliament my not therefore usurp
executive or judicial powers. The powers exercisable by Parliament are not self-vested, and such
limitations as are imposed upon it are not self-imposed.(relevance?)

3. The President.

23
JP notes
Constitutionally, the powers of the African President are so tremendous that the office of the
president has the appearance of a fourth governmental organ. The president is head of state, head
of government, head of the political party in power and the command-in-chief of the defence
forces; he has war powers, emergency powers ant treaty-making powers. The president also has
power to initiate laws, to appoint and terminate appointments to major public offices, to
constitute and abolish offices et cetera.

With such enormous powers, checked only by judicial review timidly undertaken by a timid
judiciary, by the political control device of impeachment and by the uncertain adherence to the
democratic value of periodical free and fair elections.(rephrase the sentence.) It comes as no
surprise that some presidents tend to see themselves as the source of all authority in the state and
as standing above the constitution which they regard as their personal product to be used only
when it suits them to do so. However, the president is necessarily subordinate to the constitution.
It is the constitution that creates the office of the president, makes the occupant of that office
President and vests him/her with executive powers. Therefore, the President is expected to
govern according to the letter and spirit of the constitution.24

The Subordination of all Legislation to the Constitution.

The other limb to the concept of constitutional supremacy is that the constitution is the initial,
omnipotent and paramount norm from which all other internal norms derive their validity.25 The
constitution is the highest law in the hierarchy of domestic norms and prevails in the event of a
clash with any other domestic legislation. In fact, the actions and activities of all state
institutions and authorities and of all individuals must conform to the constitution or else be
nullified by the courts on the grounds of unconstitutionality.26

Since a constitution creates, defines and confines the institutions of state, its provisions rank
higher than those of any internal legislation. In order to make the principle of constitutional
supremacy meaningful in practice, guardianship of the constitution and constitutional order is
entrusted to the judiciary.}}}

24
JP notes. Paraphrase all these statements and substantiate with other textbooks.
25
Is a discussion of Kelsen relevant at this juncture?
26
JP Notes
The Rule of Law.

i. As a Concept.
ii. The development of the Rule of Law
iii. The rule of law and Zambia.

The Rule of Law.

Rule of law is an inherently vague term. Because of this, it is important that before it can be
defined, a question should be asked “what is the purpose of law?” Though there are some
philosophical disagreements about why we have law, there is wide acceptance that the rule of
law has essentially three purposes according to Fallen which are:

a. It should protect against anarchy and the Hobbesian war of all against all
b. It should allow people to plan their affairs with reasonable confidence that they can know
in advance the legal consequences of various actions.
c. It should guarantee against at least some types of official arbitrariness.

The purpose is served by five elements which are listed below:

a. Capacity of legal rules, standards, or principles to guide people in the conduct of their affairs.
People must be able to understand the law and comply with it.
b. Efficacy:-The law should actually guide people, at least for the most part. In Joseph Raz’s
phrase, “people should be ruled by the law and obey it.”
c. Stability: - The law should be reasonably stable, in order to facilitate planning and coordinated
action over time.
d. Supremacy of legal authority: - The law should rule officials, including judges, as well as
ordinary citizens.
e. Instrumentalities of impartial justice: - Courts should be available to enforce the law and
6
should employ fair procedures.
Another approach to the definition of ROL is offered by Rachel Kleinfeld, who defines the
concept in terms of five (different) “goals” of the ROL:

a. making the state abide by the law

b. ensuring equality before the law
 c. supplying law and order
d. providing efficient and impartial justice
7
e. upholding human rights.

Countless other individuals and agencies have offered their own definitions of the ROL, each reflecting their own institutional goals.

Deployed JAs participating in ROL operations will more than likely do so either during or in the immediate wake of high intensity conflicts.

As a result, some aspects of the ROL will be particularly salient, such as those emphasizing physical security.5

The various approaches to the definition of ROL suggest that there is no universally accepted
definition of what the rule of law is. Some definitions you will find in literature is that the “rule
of law” is nothing more or less than the principle that public authorities holds and derives their
powers and exercise those on the basis of specific provisions of the constitution or the law
thereunder, and that every person occupying elective or appointive office is done under the
authority of the law. All such acts are subject to judgment and control by appropriate legal
authority as to whether they were justified by law. Furthermore, those who act on behalf of the
government are personally answerable for any illegal act and are liable to trial or civil action for
any wrong they may do. No servant of the state can claim special privileges or immunities27.

The Ideas of Dicey.

The rule of law means three things according to Dicey. It means in the first instance, the absolute
supremacy of law. There should be nothing which may be characterised as an arbitrary power
and every action of government must be authorized by law. Then, there should be the supremacy
of law and no one may be punished except for definite breach of law which must be proves in a
duly constituted court of law. In the third instance, the rule of law means equality before the law,
that is, every citizen is subject to the ordinary law of the land and has to stand trial in the same
courts of law whatever his or her status or position in society.28

All manner of governments have embraced the concept of the rule of law. It has been so
popularized in the twenty-first century, but there is no consensus as to the meaning of the
concept of the rule of law. At the beginning of the 1950’s, one requirement for receiving aid was

27
Kapur, A.C. Principles of Political Science2007.592. S.Chand. New Delhi.
28
Kapur A.C. Principles of Political Science. 2007. p.251. S. Chand. New Delhi.
for the receiving country to demonstrate that it upheld the rule of law. There is a basic meaning
of the rule of law which may be used as a guide to determine if a particular country can be said
to be upholding the rule of law. At the core of the concept is the idea of the supremacy of the
law. This means that whatever government does must be subject to the law and be based on the
law. It also means that citizens of any country should not be subjected to the arbitrariness of their
rulers.

1. The rule of law implies the principles of equality before the law. It excludes autocratic and
authoritarian approaches to governance which creates a privileged class that is exempt from legal
obligations that are borne by every citizen. Therefore under the rule of law, the government
cannot apply to a privileged class.

2. The rule of law means the absolute supremacy of the law that is the pre-eminence of the law
or the regular laws of the land as opposed to the presence of arbitrary power. Every government
action should be subject to the law. This ensures that there is predictability in the actions of the
state whether it is the judiciary, the executive or the legislature. For there to be the rule of law,
there ought not be to arbitrary power on the part of the government as there should be a
limitation on the discretionary power of the government. This discretionary power entails the
power to select from given options and this power should be based on law. For example, a
citizen can only be punished for an express breach of the law. Therefore, the rule of law should
apply to every activity in the country.

3. The separation of the judiciary from the executive is a corollary of the rule of law. The
judiciary should apply the law evenly to all citizens. If they are not separated, equality before the
law suffers because there is no one to implement it. This creates a privileged class as the
executive becomes a judge in its own case, and will have the influence to determine the outcome
of any case that comes before the judiciary.

4. The rule of law also implies individual responsibility. The rule of law balances an individual’s
rights with the corresponding legal obligations or responsibilities. For example, any damage
done by official acts to individual citizens must be accounted for individually (a police who
commits an assault while on police duty must account for that assault individually and cannot
claim that he was acting on official duty.) however, there are exceptions to every rule and one
exception in Zambia is Art. 43 of the Constitution which confers immunity on the President
when acting in his or her official capacity.

5. The rule of law stands for the view that decisions should be made by the application of known
principles of law. In general, such decisions should be predictable and the citizen should know
where he or she stands in relation to the law. On the other hand, an arbitrary decision may be
made without principle. Thus, a decision should be made on some known principles or laws
which are known to the citizen and these decisions when so made become predictable. Without
principles the decisions become arbitrary and unpredictable.

Reference should also be made to Alder J on the conception of the rule of law by Dicey.

The development of the rule of law.

The Rule of Law and Zambia.

Zambian constitution is the highest law of the land and provides for, essentially, the structure of
government and the protection of the Zambian people’s rights. _e constitution is broken into
parts and articles. Article five provides for citizenship, while articles 12 through 21 provide for
the rights to life, personal liberty, a fair hearing, freedom of conscience and religion, expression,
assembly, and protections from slavery, inhuman treatment, deprivation of property, against
arbitrary search.
Rule of law and constitutionalism

Meaning of constitutionalism
Depending on how constitutionalism and the rule of law are defined, different writers have
different interpretations on the relationship between constitutionalism and the rule of law. Some
scholars in China argue that the rule of law is merely one part of constitutionalism, and that the
rule of law alone does not establish a constitutional system. Other Chinese scholars think that the
rule of law is equivalent to constitutionalism, and that the supremacy of law is first and foremost
the supremacy of the constitution. (See, Chen, 1999, p. 149.) A. V. Dicey, the noted English
jurist, viewed "the universal rule or supremacy ... of ordinary law" as one element of English
constitutionalism (Dicey, 1982, cxlviii).
The rule of law is the deepest and strongest tradition of constitutionalism. It has been the central
theme in constitutional reforms in all lands29.The rule of law is a cornerstone of contemporary
constitutional democracy as was underscored by its role in cementing the recent transitions from
authoritarian or totalitarian regimes to constitutional democracy in Eastern Europe and
elsewhere. In the broadest terms, the rule of law requires that the state only subject the citizenry
to publicly promulgated laws, that the state’s legislative function be separate from the
adjudicative function, and that no one within the polity be above the law30.
The three essential characteristics of modern constitutionalism are:-
a. limiting the powers of government,
b. adherence to the rule of law, and
c. Protection of fundamental rights.

The relationship between constitutionalism and the rule of law is a four-fold connection.

i. Constitutionalism is a necessary foundation for the rule of law since one core
meaning of the rule of law is "limitation”. That is, the law has placed certain limits
on what the government can do and prescribe how the government conducts its
business. The limits are placed on the government through a constitutional structure
that includes separation of powers, checks and balances and judicial independence.
Constitutionalism, as a system of institutional arrangements designed to empower and
limit the government at the same time, forms an institutional foundation for the rule
of law. In particular, the constitutional mandates of separation of powers, checks and
balances, independent constitutional review and an independent judiciary provide the
institutional basis for judges to find and articulate laws independently, for laws to
place meaningful constraints on government behavior, and for established procedures
to be followed.

One caveat is necessary here. It is unproductive, and even dangerous, to postulate that liberal
constitutionalism is only about limiting the government. In general, there is a popular misconception in
some circles that liberalism implies a weak government. This is not correct. Introducing liberalism and
liberal constitutionalism does not weaken the government. To the contrary, the liberal constitutional

29
Kapur, A.C 2001
30
Rosenfeld, Michael 2001.The rule of law and the Legitimacy of constitutional democracy
package makes the government stronger and more stable. Liberal constitutional ideas and practices
(such as separation of powers, checks and balances, civil rights, etc.) make the government more
responsible, more consistent, more predictable, more just, and more respected. In addition, although the
liberal constitutional package is not perfect, it provides one of the better frameworks for competing
demands of individuals and society to reconcile and to play out. For example, liberal constitutional
government recognizes different interests without pre-determining their legitimacy, thereby avoiding the
buildup of unresolved conflicts.

According to Stephen Holmes, a prominent political theorist at Princeton University, there are two kinds of
constitutionalism: positive constitutionalism and negative constitutionalism. We find positive
constitutionalism in the American Constitution, which not only aims at limiting the coercive power of the
government, but also tries to empower and enable the government. In other words, the American
Constitution is an attempt to prevent both tyranny and anarchy. In fact, the desire to strengthen the
federal government, not the desire to limit it, was the motive for calling the Philadelphia Constitutional
Convention in 1787. In the Federalist Papers, we find that Hamilton, Madison and Jay were mainly
concerned about the weakness or "imbecility" of the national government. The federalists believed that
without a strong national or federal government, there would be no liberty. Compared to tyranny, said the
federalists, anarchy was an even bigger threat to the liberty of the American people in the 1780s. The
federalists argued that the American Constitution served the twin goals of establishing checks and
balances within the government and enabling the federal government to make the United States a strong
union and protect citizens' life, liberty and property. As such, positive constitutionalism shows that liberal
constitutional government can be, and often is, a strong government. This point is also argued forcefully
by Niccolo Machiavelli in his famous (or perhaps infamous) work, The Prince. Machiavelli argues that if
the prince has arbitrary power, he may not be powerful because he can be assassinated. However, if the
prince can commit himself to not taking people's wives and property, then he will not be assassinated,
can remain powerful, and will have the support of his citizens in times of war. Machiavelli, in this oblique
sense, is liberal and democratic. There is a strong sense in liberalism that a liberal government can get
more support from its citizens by interfering less with their private lives, and that liberal government is
therefore strong government. Examples of strong liberal constitutional governments include the United
Kingdom and the United States.

In contrast, argues Holmes, we find negative constitutionalism in a French Constitution that was instituted
at about the same time as the American Constitution. The French were so concerned about the coercive
power of the government that they wrote their 1790 Constitution to solve only the problem of tyranny, not
the problem of anarchy. When crisis came, the French Constitution did not effectively enable the
government, and the French people overthrew the government. It was not long before Napoleon ruled
France as a dictator.

The lesson is simple. A liberal constitutional government, although limited, is a strong government.
Liberalism and liberal constitutionalism are not only about limiting the government's power, but also about
empowering the government. A liberal constitutional government cannot arbitrarily deprive citizens' of life,
liberty or property, but it must also be powerful enough to maintain peace and social order, to supply
national defense and other public goods, to establish rule of law and other social and economic
infrastructures (including a system of property rights), and to provide criminal and civil justice. Otherwise,
there will be no basic protection of citizens' life, liberty and property, and the liberal ideals will not be
realized. In addition, a liberal government is strong also in the sense that by not meddling with citizens'
private lives, a liberal government can command more support from the people. As such, liberty both
constrains and empowers government.

The second aspect of the relationship between constitutionalism and the rule of law lies in the fact that
constitutionalism provides a minimal guarantee of the justice of both the content and the form of law. As I
mentioned in one of my previous essays, western jurisprudence in the last one hundred years has
focused exclusively on the form of law; it has concentrated its efforts on finding those procedural devices
and safeguards that make law more just and more rational. Western jurisprudence can afford to do so
because there has been constitutional democracy in the West for more than two hundred years.
Constitutional democracy provides a guarantee that the content of the laws will be just. A large number of
constitutional devices, including representative democracy, competitive and periodic elections, and a free
press, are designed to ensure the just content of laws. Giovanni Sartori, one of the most prominent
political philosophers of our time, writes that "the existence of the Rechtsstaat (constitutional garantisme)
appears to eliminate the very possibility of the unjust law and thereby allows the problem of law to be
reduced to a problem of form, not of content" (Sartori, 1987, p. 323).

Constitutional government, at the same time, provides a minimal safeguard for the form of law to be just.
In order to have procedural justice, specific procedures have to be either written into statutes by
legislators or articulated by independent judges in case law. A constitutional mandate and culture of rights
protection is necessary for the establishment of fair and transparent procedures. In addition, there must
be independent judges dedicated to legal reasoning to see to it that well-established procedures are
complied with. A constitutional structure of separation of powers, checks and balances and independent
judiciary is necessary for the effective and consistent implementation and enforcement of well-established
procedures.

The third aspect of the relationship between constitutionalism and the rule of law is that constitutionalism
strikes a proper balance between rule of law and rule of person. To Sartori, either the rule of law or the
rule of person, left alone by itself, can be problematic. In a representative democracy, the rule of person
means the rule of legislators. Under the rule of person in a representative democracy, law is the product
of the "sheer will" of the legislators (Sartori, 1987, p. 308). The rule of person, left unchecked, presents
the danger of tyranny. In contrast, under the rule of law, law is the product of judges' "legal reasoning."
The rule of law, by itself, can be inadequate for three reasons. First, the rule of law can be too static;
secondly, the rule of law can result in the tyranny of (unelected) judges; and finally, the rule of law, by
itself, may not address the problem of political freedom (Sartori, 1987, p. 308). As such, the ideal
representative democracy needs to strike a proper balance between the rule of legislators and the rule of
law. This is done through liberal constitutionalism. The following quote from Sartori's 1987 book is
illuminating:

"Liberal constitutionalism is the technique of retaining the advantages of [the rule of legislators and the
rule of law] while lessening their respective shortcomings. On the one hand, the constitutional solution
adopts rule by legislators, but with two limitations: one concerning the method of lawmaking, which is
checked by a severe iter legis; and one concerning the range of lawmaking, which is restricted by a
higher law and thereby prevented from tampering with the fundamental rights affecting the liberty of the
citizen. On the other hand, the constitutional solution also sees to it that the rule of law is retained within
the system. Even though this latter component of the constitutional rule has been gradually displaced by
the former, it is well to remind ourselves that the framers of liberal constitutions did not conceive of the
state as being a machine a faire lois, a lawmaking machine, but conceived of the role of the legislators as
a complementary role according to which parliament was supposed to integrate, not to replace, judicial
law finding" (Sartori, 1987, p. 308).

Fourthly and finally, constitutionalism is safeguarded by the rule of law. Without the rule of law, there is no
constitutionalism. In other words, if laws are exclusively the results of the "sheer will" of the legislators,
there can be no constitutionalism. For a constitutional structure of separation of powers, checks and
balances and rights protection to exist, there must be some limits on what the legislators can do. This limit
is imposed by the rule of law and implemented through an independent judiciary, the process of judicial
review, and the notion that law is, at least in part, the product of independent legal reasoning by judges.
"Even though our constitutions are becoming more and more unbalanced on the side of statutory
lawmaking, as long as [constitutions] are considered a higher law, as long as we have judicial review,
independent judges dedicated to legal reasoning, and, possibly, the due process of law, and as long as a
binding procedure establishing the method of lawmaking remains an effective brake on the bare-will
conception of law -- as long as these conditions prevail, we are still depending on the liberal-constitutional
solution of the problem of political power" (Sartori, 1987, p. 309).
Constitutionalism is also safeguarded by the rule of law in another sense. The letters of the constitution,
by themselves, are neither enabling nor constraining. For constitutional provisions to be meaningfully and
effectively operative, there must be an institutional and cultural apparatus, which is partially created by
the constitution itself, to implement, enforce and safeguard the constitution. The rule of law is one key
component in the constitution-implementing and -safeguarding apparatus. An independent judiciary,
independent constitutional review, and the notion of the supremacy of law all work together to ensure that
the letter and spirit of the constitution are complied with in the working of a constitutional

Revision Questions

References

Kapur A.C. Principles of Political Science. 2007. S. Chand. New Delhi.

CHAPTER THREE.

ZAMBIAN CONSTITUTIONS.

1. The History of the Zambian Constitution.

a. The Colonial Period.

European contact with Zambia dates from the fifteenth century with the coming of the
Portuguese traders.31The colonial period had its effective start with the 19th century journeys of
European explorers: missionaries, visionaries and adventurers. In constitutional terms, the first
significant development was the charter incorporating the British South African Company
(BSAC) and according it broad fiscal and administrative powers in Central Africa. This was the
product of pressure upon the British government from the missionaries and imperialists.

Acquisition of power followed different routes in different parts of what is now Zambia, but by
1900, British rule had been formalised by two Orders, the North-Western Rhodesia-Barosteland
Order in Council 1899and the North-eastern Rhodesia Order-in-Council. The two territories were
31
Corroborate with any widely used history book. Mvunga PM. Land Law Thesis.
joined in 1911 as Northern Rhodesia by the Northern Rhodesia Proclamation No. 1 of 1911.
Barosteland enjoyed a different constitutional position. In 1899, it was granted British
protectorate status, on its conceding to the BSAC a monopoly over mining and trading rights in
the territory.32. This came to an end following the formation of Rhodesia and Nyasaland which
was created through order (constitution) in council of 1953. This constitution defined the power
of the federal government and those of the territorial government.

This was followed by the 1962 constitution which was designed to accommodate the
participation of both the white settlers and Africans in the legislative Council though ensuring
that the formal had electoral advantage over the latter. Election conducted under this constitution
resulted in a coalition African Government consisting of United National Independence Party
(UNIP) and the African National Congress (ANC). However, this development did not satisfy
the both UNIP and ANC because the process was entirely colonial executive-driven. Both parties
desired to a constitution that would guarantee universal adult suffrage and independence of
Northern Rhodesia outside the federation. 33 The federation was dissolved in 1963, after
Nyasaland was allowed to secede.

The collapse of the federation of Nyasaland and Rhodesia led to the enactment of the 1963
constitution. Similarly the constitution was executive driven. It was under this constitution that
Kaunda become prime Minister of the local government and later on become the first prime
minister under the self-governing Northern Rhodesia. 34 This saw the drafting of another
constitution following the 1964 January elections. This constitution was designed to address the
impending handover of the power by colonial administration. It was under this constitution that
Zambia gained its independence. The constitution was also not people driven because it was a
product of negotiation at the high level.

BSAC rule lasted until 1st February 1924 when the Northern Rhodesia Order-in-Council of that
year established Colonial Office rule under a governor. The central African federation came into
being in 1953 and was seen by the British as a means of disentanglement from direct
responsibility for the territories of the Rhodesia’s and Nyasaland. However, it was viewed by the

32
ibid
33
Report of the Constitution Review Commission. 2005. The Secretariat Constitution Review Commission , Lusaka.
34
Paper presented by Mr C. Chilufya during the Kabwe District Consultative Forum on constitution making process,
Kabwe.
settlers as a step toward white settler control and the amalgamation of the three territories only
served to increase the growth of African nationalism, which caused its collapse in 1963. On 24th
October, 1964, Northern Rhodesia became the independent Republic of Zambia, under the
Zambia Independence Order of 1964 and the Zambia Independence Act of 1964. 35

Constitution Development from Independence.

Introduction

Since independence Zambia have had a number of constitution reviews, starting with the 1964
constitution its self. This has been necessitated by a number of factors. Among these are changes
in political environment as well as development in the regional and global context.

b. The 1964 Independence Constitution.

The final Order-in-Council came later in 1964- the Zambia Independence Order following
negotiation in London. This Order –in-Council was accompanied by an Act of Independence by
the British parliament. The Order’s Schedule II set forth the Constitution of Zambia. Cap 1 is
entitled “The Republic.” Section 1 of the 1964 Constitution reads “ Zambia is a sovereign
Republic,” and the effective date was 24th October 1964. Like the colonial constitutions, the
1964 document detailed the structure of government so minutely that it had about it the look of
ordinary legislation. It was a very flexible document providing for its amendment a similar
process to the enactment of ordinary legislation, even with its requirement of a two-thirds
majority. Provisions concerning the alteration of the constitution were contained in sec. 72.
Section 72 provided that a bill amending the constitution shall not be passed unless ‘the bill is
supported on second and third reading by the votes of not less than two-thirds of all the members
of the Assembly.’

This sowed the seeds of futures changes sufficiently and drastic as to undermine a needed
constitutional stability and to negate broadly-based participation by citizens in the alteration of
their fundamental law. In most cases, independence constitutions in British colonial Africa have
borne the imprint of the Westminster model of representative parliamentary government.
However in some, a non-executive president substituted for the Queen as head of state. In others,

35
ibid
the president became, in addition, the chief executive. The tri-partite structure had in some ways
the look of a Washington model rather than a Westminster model, but its degree of detail
reflected its colonial ancestry. 36 This is because the powers of the colonial governor passed
largely intact to the executive president.

Section 32 of the 1964 Constitution stated that “the first President shall be Kenneth David
Kaunda.” However, Kaunda was not the hand-picked choice of the British government. The final
constitution of Northern Rhodesia had conferred effective self-government upon the country
with the election machinery based on universal suffrage. Kaunda’s elevation to the post of prime
minister was as a result of his party’s triumph at the polls. All political parties saw no need for
another election later in the same year, and an agreement was reached that the Independence
Order should name him (Kaunda) as the first President.

The Executive President.

The qualifications for the presidency were straightforward: the candidate had to be a Zambian
citizen, who should have attained the age of thirty and be qualified as a voter in elections to the
National Assembly under Art. 33(1), (2)(a)(b)(c). Subsequent presidential elections were part of
the process of election of the members to the National Assembly. Every parliamentary candidate
was required to declare which of the Presidential candidates he or she supported. Every vote cast
in favour of a parliamentary candidate was considered a vote for the candidate for the presidency
which that parliamentary candidate supported (Art. 33 (4)(c).

The tenure of the president corresponded with that of Parliament, being five years unless the
president sooner dissolved parliament. The president could be removed from office on the
grounds of mental or physical incapacity, for violation of the constitution or for gross
misconduct under Art. 36(1), (a)(b),(2),(3)(a)(b)(c),(4) and (5)

The 1964 Constitution vested broad executive powers in the President under Art. 48(1)(2)(4).
The ministries were created by Parliament, but appointment of the ministers from among the
members of the National assembly was vested in the president, and ministers served at the
President’s pleasure, the ministers’ role was to advise the president on government policy and

36
Mwanakatwe J.
such matters as were referred to it by Parliament. Throughout the first twenty-six of
independence, the presidency grew in stature at the expense of the other organs of the state vis-à-
vis the National assembly and the Judiciary. The cabinet in particular appeared unable to
influence the decisions of the president.37

The powers of the President under the 1964 Constitution were enormous. In addition to those
powers already discussed the constitution empowered the president to appoint the vice-president
from among members of the National assembly, including the five members of parliament that
the president was empowered to nominate. Under Art. 41 (1). Therefore the president effectively
controlled the succession to the presidency in the event of death, disability or removal from
office. He also acquired great power as Commander-in-Chief of the armed forces including the
Police.

The President’s veto power over legislation was also considerable. Even if a measure was re-
passed by a two-thirds majority in Parliament, the President could prevent it becoming law by
dissolving Parliament. The President’s power of detention had great impact on the protection of
fundament rights. This was another carryover from the considerable powers wielded by the
colonial governor before independence which were simply passed n the president. His de facto
powers were greatly enhanced by his personal popularity and his control over the apparatus of
the United National Independence Party (UNIP), which had decisive majorities in Parliament..

The 1964 Constitution vested all legislative powers in Parliament which consisted of the
President and the National Assembly, the latter with 75 elected members, plus up to five
nominated members under Articles 57 and 58. To be elected to Parliament. A person had to be a
Zambian citizen who had attained the age of 21 years. Parliament was presided over by a
Speaker elected by the National Assembly from its membership or from those qualified to be
elected to that body under Art. 63(1). The legislative power was exercised through Bills passed
by the National assembly and assented to by the President as provided by Art.71 (1). In most
circumstances, the President could withhold assent thereby in effect vetoing it. When the
President withheld assent, under most circumstances, the Bill could be returned to the National
Assembly and be re-enacted, provided it had the support of two-thirds of the members of

37
Mwanakatwe.
Parliament. If such a Bill was again presented to the President, the Constitution required the
President to sign it, or to dissolve Parliament.

c. The 1973 One-Party Constitution.

The 1964 constitution was reviewed in 1973 following weakness of the idea of liberal democracy
as enshrined in it. The new constitution introduced the concept of one party state under the UNIP
government. The reasons for the change was to eliminate political conflicts, build a united
political order, the need for political self-preservation and the socialist influence from Eastern
Europe Block.

d. The 1991 Multi-Party Constitution.

 The 1980s saw the demise of the socialist movement in Eastern Europe and the re-
emergency of new democracy in its place. This change culminated into the sweeping
ideological re-alignments across the world. This change led to crumble of the One Rule
Party. Further, the economic difficulties Some Zambians never accepted the introduction
of one party state. Hence, they never supported it.
 Elections for prestigious, high positions in UNIP’s (MCC) were a mere plebiscite as
delegates were only required to choose from a list presented to them by the president.
This made many people with political ambitions to get disillusioned.
 People were not allowed to contest the post s of Party (UNIP) and Republican President
for it was reserved for Kaunda who was always declared sole candidate by the UNIP
National Conference.
 Press freedom was lacking in the country. Newspapers, radios, T.V. and print media
could not air everything from ordinary citizens.
 Dissenting views were not entertained. Once identified, people with such views were
treated as enemies of the state and consequently got detained without trial.
 People were put under surveillance. Secret intelligence officers were all over, listening
and spying on Zambians.
 The president used the state emergency and the Presidential Preservation Act to detain
perceived enemies for long periods of time.
  The authority of courts was weakened. For example, individuals who at times were found
innocent could still be arrested and be detained under Presidential Preservation Act.
 The economy grew from worse to worst resulting in the country incurring about USA
dollars 7.146 billion. This was partly due to mismanagement by the ill-qualified but loyal
party members appointed to various positions. Besides there was an economic recession
in the world and this worsened the situation.
 Misusing of government money to run the blotted party structures also contributed to
poor economy of the country. Eventually, shortages of essential goods became prevalent.
 Social services also deteriorated. Medicines ran out in public hospitals and clinics.
Schools had no textbooks and desks. Towns were littered with heaps and heaps of
uncollected garbage and cholera outbreak was an annual event.
 Outside pressure e.g. from World Bank and donors who demanded for democratic
governance for the countries to be able get aid.
 Wind of change - fall of cone party system in Eastern Europe encouraged Zambians to
demand for a return to multi partyism.
Because of these and many other reasons, there was overwhelming public support in favour of
th
the move towards multi-party democracy, President Kunda on the 24 September 1990, in an
th
address to the 25 National Council of the United National Independence Party (UNIP),
informed the Nation that the party and its government had decided that the country should revert
to a multi-party democracy. The president also announced that a commission of inquiry would be
th
appointed to recommend the constitution for the Third Republic. Subsequently, on the 8 of
October 1990, His Excellency the president appointed the Constitution Commission of Inquiry,
hereinafter referred to as the Commission. The commission, which was appointed under the
th
Inquiries Act (volume 4 Cap.181 of the laws of Zambia), was dated 8 October 1990. In the
Government’s view, the following issues were the major areas raised and covered by the
Constitution Commission (hereinafter referred to as the commission).

A) Bill of Rights ; The commission recommends the extension of the current Bill of Rights
so as to include, specifically, the freedom of the press, freedom from discrimination
based on sex or marital status, freedom of movement to leave and settle outside
 Zambia, the right to be issued with a passport, the right of the unborn child to life and
protection of young persons from exploitative labour and further that the Bill of Rights
should include the principle fundamental human rights reflected in international treaties
and conventions to which Zambia is a state party or signatory.
B) Inclusion of Directive Principles of State Policy: The commission was of the view that
the new Zambian Constitution should introduce Directive Principles of State Policy to
deal with matters relating to issues such as rights to, and provision of facilities in areas
such as economic, social security and welfare, a living wage for workers, right to
education and recognition of the family unit. The commission was emphatic that these
rights or the Directive Principles would be there to serve as a constant reminder to the
government of its wider obligations to its people.
C) Republican President: The commission recommends that the executive President be
elected by popular vote arguing that allowing the president of the party which wins a
majority to automatically become the Republican President or leaving the choice of
president to be made by the National Assembly from amongst elected Members of
Parliament would deprive the people of their right to elect a Republican President of
their choice.
D) Composition of Cabinet: The government noted that the commission did not make any
preference for any one of the three options available for constituting the cabinet,
namely appointment from within parliament, appointment entirely from outside
parliament and a combination of appointment from within and without parliament. The
commission left these for determination by individual presidents.
E) Cabinet-Whether it should function within or outside Parliament: This subject was
th
initially raised in His Excellency the President’s opening address to the 25 UNIP
National council. He proposed that the Cabinet should be constituted and function
outside Parliament. The commission did not make a specific recommendation on this.
As in the case of the composition of the Cabinet it left the choice to be made by the
President, conceding however, that a cabinet whether appointed from within or outside
parliament would be acceptable.
 F) Abolition of the office of Prime Minister and re-introduction of office of vice-
president. The commission recommends the abolition of the office of Prime Minister
and re-introduction of the office of office of Vice President in its place.
G) Ratification of appointment of constitutional Office holders and other Public Officers:
An innovation introduced by the commission is the recommendation to have the
appointment of certain holders of constitutional offices such as the Attorney-General,
Chie Justice, Secretary to the Cabinet, Judges of the Supreme Court and High Court,
Auditor-General, Director of Public Prosecutions etc ratified by the National Assembly.
The rationale for this proposed change being that the public should be serviced by
public officers of integrity, proven ability and experience.
H) Recognition of leader of the Opposition
I) Establishment of Constitutional Court: The commission recommends the
establishment of a constitutional Court to deal expeditiously and finally with cases of
alleged violation of human rights as well as any other constitutional problems that may
arise between the executive, legislature and the judiciary.
J) Funding of Political Parties from Government Resources: The commission
recommends that as a way of strengthening democracy through the promotion of viable
political parties, the government should fund all the political parties which secure seats
in parliament and that all such parties be eligible to receive the same amount in the
form of a grant.
K) Two-tier Parliamentary System: The commission recommends the introduction of a
second House of Parliament namely the Chamber of Representatives whose members
should be elected directly from the provinces by all registered voters in the respective
provinces and chiefs elected by the provincial councils of chiefs.
L) Participation of Public Officers in Politics: The commission recommends that public
officers should not take an active part in party politics and should devote their time in
38
assisting the government of the day to implement its programmes . These
recommendations culminated in the 1991 constitution though the thrust of this

38
Summary of the recommendation of the constitution commission of the inquiry together with the government
reactions to the recommendation.
 constitution was the re-introduction of the plural politics. However, this constitution
was seen more as a transitional instrument to answer immediate pressures of the time.39
e. The 1996 Constitution.

After the 1991 constitution, the MMD initiated another constitution review which was led by
John Mwanakatwe. The commission collected a number of recommendations. Prominent among
them is the strengthening of bill of rights and inclusion of number of new rights, restriction on
the declaration of state of emergency, appointment of ministers outside parliament, recall of non-
performing MPs, establishment of constitutional courts, qualification of president regarding to
citizenship. According to this recommendation, person qualifies to contest for the position of the
presidency, if he/she is a Zambian citizen, born in Zambia. Her/his parents were also required to
be Zambian citizens born in Zambia of Zambian citizens.

f. The Rejected Mung’omba Draft Constitution.

In 2007 President Mwanawasa created a National Constitutional Conference of more than 500
members to develop a new Constitution. The conference is currently receiving
recommendations from its 11 committees. It has announced plans for popular consultations and
has established a website to provide information to the public and receive comments and
suggestions. The final text resulting from the deliberations of the Conference will be submitted
to a popular referendum. It is widely expected that a new Constitution will be adopted prior to
the presidential and legislative election scheduled for 201140.5
B. Roots

g. The Technical Committee Draft Constitution 2012

2. The Structure of the Zambian Constitution.

The 1996 constitution or all the constitutions since 1964?

3. Constitution-making and the Adoption of the Constitution.

a. Constitution-Making Process.

The process of constitution-making is crucial. The constitution is no ordinary law to be modified

or replaced by ordinary legislation. It must be perceived as a higher law, authorising and

39
Report of the Constitution Review Commission of 2005.
40
Michel, J 2009
governing ordinary law, and commanding adherence to constitutional precepts. The adoption of a
constitution and its amendment require much more widespread participation by the citizenry and
the attainment of broad-based consensus.41

There are various processes through which a constitution can be made. Two vehicles are most
prominent. The first is through the Constituent Assembly and the second is through a
Commission of Inquiry. In Zambia, the executive wing of the government initiates the making of
the National Constitution via the Inquiries Act by appointing a Constitutional Review
Commission which goes round the country collecting different views from people through
scheduled sitting in different parts of the country. Citizens make submissions to the appointed
Constitutional Review Commission orally or in writing as individuals or as groups. After the
collection of these different views, the Constitutional Review Commission then produces a draft
constitution which is then presented to the President and Parliament for debate and adoption.

This method of appointing a Constitutional Review Commission has been criticised because
almost all the constitutional review commissions appointed in the past have had most of
recommendations rejected by the government even before they have been tabled before
Parliament. For example, the Chona Constitutional Review Commission had recommended the
reduction of the President’s powers by devolving this power to an executive Prime Minister. This
provision was rejected by the Kaunda government. This method is also criticised on the ground
that it gives the President too much power over the constitution-making process as the Inquiries
Act gives the President the power to accept or reject the recommendations of any constitution
review commission so constituted by the President.

In recent times, various other vehicles have been adopted to try and make a lasting constitution.
One method was the National Constitution Council constituted by President Levy Mwanawasa
after the failure of the Mung’omba Constitutional Review Commission in 2006.

b. Constitution Adoption Process.

The adoption of the constitution means the process of approving the copy or text of a draft
constitution such that it becomes an official document which will bind the whole country to its
provisions. Different countries have adopted different processes for the adoption of their
Constitutions. There are in this regard, two prominent methods for the adoption of the
constitution. One process for the adoption of a constitution is through Parliament. When a
Constitutional Review Commission is appointed by the President, it will submit its draft
constitution to the President who will accept or reject certain provisions and recommendations of
the Commission before submitting the draft constitution to Parliament for debate. Parliament
debates the draft constitution through the normal procedures of the House. If parliament is
satisfied with draft constitution, it will adopt it and send it back to the President for the

41
Ibid.
presidential assent. After this, the draft constitution becomes an official document binding all
segments of society to its provisions.

This method has been used in Zambia on three occasions viz. the Chona Commission(1972), the
Mvunga Commission (1991)and the Mwanakatwe Commission (1995). The Mung’omba
Constitutional Review Commission’s draft constitution was rejected by Parliament in 2006 as
was the National Constitutional Conference draft constitution.

4. Constitutional Reviews in Zambia.

i. A discussion of all the constitutional review commissions constituted by the Zambian

government from independence,
ii. The strengths and weaknesses of this process as a method for the adoption of the
constitution.
iii. The way forward and the method adopted by the current President with the constitution
of a technical committee. Are the contents of the various commissions of inquiry
necessary?

The History of Constitution-making in Zambia.

Since independence in 1964, Zambia has had several Constitutional Review Commissions to
improve upon her constitution. One reason for this desire in 1964 was that the provisions of the
1964 Northern Rhodesia Order-in-Council were meant to safeguard white settler interests while
denying the same rights to the majority African population. The first such Commission appointed
by President Kenneth Kaunda in 1972 was the Chona Constitutional Review Commission. The
main recommendation of this commission was the establishment of a one-party participatory
democracy as the resultant Constitution of 1973 outlawed and banned the formation and
existence of any other political party except for the United National Independence Party.

The second constitutional review was the Mvunga Constitutional Review Commission of 1991.

5. Zambia’s Bill of Rights.

History of the Bill of Rights.

Discussion of the content of the Bill of rights in the Zambian Constitution from
independence.

The 1964 Independence Constitution

The 1964 Constitution contained an extensive Bill of Rights provided for under Part III of the
Constitution. Under this constitution, every person in Zambia, regardless of race, sex, place of
origin, political opinion, colour or creed, was entitled to fundamental rights and freedoms of the
individual. The rights enumerated in the constitution were: life, liberty, security of the person
and the protection of the law, freedom of conscience, expression and assembly and association,
freedom for the privacy of the home and other property, and freedom from deprivation of
property without compensation.42

These rights were by no means absolute. They were subject to detailed limitations popularly
known as savings provisions contained in the very sections granting the individual rights.
Designed to ensure that the enjoyment of the rights and freedoms by any individual did not
prejudice the rights and freedoms of others or the public interest, in practice these limitations
were used by government to tamper individual rights. A significant limitation applied to
provisions outlawing discrimination on grounds of race, sex and place of origin.43

Whereas the constitution of 1964 outlawed any provisions of a law that was discriminatory,
either on its face or in its effect, it also provided that the protection would not govern
applications of customary law to the members of a particular race or tribe. This in effect
exempted from the Bill of Rights the root cause of much of the discrimination suffered by
women in Zambian society.

However, subject to these substantial limitations, the fundamental rights were judicially
enforceable as any person who alleged that any of his or her rights as protected by the
Constitution were being infringed could apply to the High Court for redress and the High Court
could issue orders or writs and give directions appropriate for the purpose of enforcing any of the
provisions protecting fundamental rights.44

The 1973 One Party Constitution.

By 1972, following the trend in most parts of Africa, the UNIP government of Dr. Kenneth
Kaunda decided on the introduction of a one party state. This was declared to be in the interest of
unity and economic development. In reality this move was seen as a response mounting divisions
within the ruling party, UNIP which were seen as a threat on its hold on power. Thus in 1973, a
Constitutional Review Commission was appointed to recommend the form and details of the one
party system.45 The Chona Commission made sweeping recommendations in the area of human
rights it had recommended the curtailment of the president’s powers of detentions, the
restriction of the presidential term to two five-year terms and a division of executive powers
between a Prime Minister and the President with the Prime Minister having the authority to

42
Mulembe Enoch The Constitutions of Zambia. Zambia Law Journal. p.10
43
Ibid p.10
44
Mulembe E. p.10
45
Ibid. p.12
appoint other ministers.46 The Commission also recommended for a Leader Code as a measure to
impose conditions of financial probity on political and other leaders as an example to the nation
and a control upon use of official power for the attainment of personal wealth.

The 1991 Multi-Party Constitution.

From the time of the enactment of the 1973 One-Party Constitution to the time of the demands
for the return to multi-partyism, the economy of Zambia continued to stagnate with the
continuing unhappiness of the people in the nation. The Party and its Government had become
increasingly unpopular and as the decade of the 1980’s came to an close, demands for an end to
the one-party system of government became ever more louder. Pro-democracy groups were
formed as the ‘wind of change’ originating in Eastern Europe came to Africa, and Zambia. The
Zambian government was initially resistant to the demands for change, but later announced a
referendum on whether to continue with the one-party state. The referendum was abandoned and
the Constitution was amended to permit the formation of other parties besides UNIP. The
government also announced an undertaking to introduce comprehensive amendments to the
Constitution.47

The Kaunda government appointed a Constitutional Commission chaired by MP Mvunga, known

as the Mvunga Constitutional Review Commission. The 1991 Constitution like the 1973
Constitution provided for the protection of fundamental rights and freedoms of the individual,
but retained the limitations contained in the 1973 Constitution. For example, freedom of
movement remained subject to detention laws with the only improvement relating to the fact that
a declaration of a state of emergency was made subject to the approval of Parliament.

The 1996 Constitution and the Future.

Human rights commission and other institutions mandated to ensure the enforcement of Human
Rights.

Locus Standi and Operational Provision touching on Human Rights.

In terms of human rights, the relevant provisions are contained under Part III of the Constitution
i.e. the Bill of Rights. It is always necessary to ask some basic questions concerning these rights,
their operation and mechanisms of enforcement. These questions are firstly, to whom do the
benefits of Part III flow to and secondly, upon whom does the burden enforcement of Part III
fall? Part III of the Constitution identifies a number of person entitled to enjoy the rights and
freedoms contained under that part of the Constitution. It is important to note that not all

46
Mulembe E. p.12.
47
Ibid p.16
beneficiaries are entitled to all the benefits enunciated under Part III. Therefore in order to
identify the beneficiaries, it is important to consider the categories of beneficiaries.

The Categories of Beneficiaries.

Persons

Under Art. 11, the Constitution provides that “it is recognised and declared that every person in
Zambia has been and shall continue to be entitled to the fundamental rights and freedoms of the
individual, that is to say, the right, whatever his race, place of origin, political opinions, colour,
creed, sex or marital status, but subject to the limitations contained in the Part, to each and all
of the following, namely:

a. Life, liberty, security of the person and the protection of the law;
b. Freedom of conscience, expression, assembly, movement and association;
c. Protection of young persons from exploitation;
d. Protection for the privacy of his home and other property and from the deprivation of
property without compensation.”

The Constitution provides a definition of a person under Art. 139 when it states that a “person
includes any company or association or body of persons, corporate or unincorporated.”
Therefore, a person includes both human beings and official entities. Regardless of the above
definition, it does not follow that all rights guaranteed in the constitution will fall on all persons
as defined in Art. 11. Persons in this context, will also include immigrants as even prohibited
persons will still enjoy some of the benefits provided under the Constitution.

Controversy still abounds on whether a foetus is a person to be protected by the provision of the
constitution under Part III.48

Remedies provided by the Constitution for the protection of Human Rights.

The Zambian Constitution guarantees certain rights and freedoms. The drafters of the
constitution intended that these rights and freedoms should be enforceable or justiciable. It
follows naturally that there can be no rights without remedies or the mechanism for the
enforcements of the rights guaranteed by the constitution. The mechanisms for the protection of
rights and freedoms are numerous and diverse viz legislative, executive, judicial or private or
self-help mechanisms. In some countries, the constitution specifically provides for a range of
remedial agencies that provide remedies to certain individuals and which enjoy constitutional
status.

In Zambia, judicial remedies include the primary and secondary remedy clauses contained in the
Zambian Constitution. The primary remedy clauses include the supremacy clause under Art. 1

48
Inadequate!
(3) and (4). The primary remedy clause also includes the fundamental rights clause under Art.
28. The supremacy clause should be employed when it is believed that the law or a law is
unconstitutional and must be struck out to the extent of the inconsistencies. Where the law itself
is constitutional, but the action done in pursuance of the law is in violation of the constitution,
Art 28 is employed. In addition it must be stated that a law or legislation which goes against the
Bill of Rights goes against the supremacy clause, but not the other way round. The remedies
under Art.28 include the following:

 Declaration of rights
 Declaration of general invalidity
 Damages and;
 Injunctions.

Remedies under the secondary remedies clause includes Art. 94 which is said to be the
secondary remedy clause. This tells you the institutions one can go to for the determination of a
remedy. Art. 41(2) is the other secondary remedy clause and it deals with situations where a
person is alleged to have been invalidly elected as President such that an action may be brought
by way of a petition in the Supreme Court. There are various remedies under the supremacy
clause.

Revision Questions.

References.

Mulembe Enoch The Constitutions of Zambia. Zambia Law Journal. University of Zambia.
Lusaka.

Mvunga P.M.
CHAPTER FOUR.

THE FUNCTIONS OF THE HUMAN RIGHTS COMMISSION

In accordance with the Vienna Declaration and Programme of Action adopted by the 1993 World
Conference on Human Rights which specifically recognises that each State Party has the right to
choose the framework for a national human rights institution which is best suited to its needs, the
Zambian government in 1997 established the Permanent Human Rights Commission. It is
important to note from the onset that a national human rights institution, no matter how wide the
powers or efficient its operations , can never adequately substitute for a properly functioning
court system. In this regard, the national human rights institution, the courts and other agencies
should work together and ensure that human rights are fully and expeditiously observed and
protected.49

The Human Rights Commission.

The Human Rights Commission was established following a recommendation to the Government
by the Munyama Human Rights Commission of Inquiry which was appointed immediately after
the ushering in of the third republic to broadly investigate and report on the Human rights
situation during the Second Republic and after 31st October 1991. The Human Rights
Commission was established pursuant to Art. 125 of the Constitution of Zambia. Pursuant to the
Human Rights Commission Act No. 39 of 1996 as an autonomous body to investigate monitor
and report on human rights abuses in Zambia. It is not subject to the direction or control of any
person or authority in the performance of its duties (s. 3).

49
Permanent Human Rights Commission. National Plan of Action for Human Rights 1999-2009 p50.
The Commission consists of a Chairperson, Vice-Chairperson and not more than five other
Commissioners appointed by the President and subject to ratification by the National
Assembly(s.5). The commissioners hold office for three years which is subject to
renewal(s.7(1)). A Commissioner’s tenure of office may cease upon resignation or removal for
inability to perform the functions of the office, whether arising from infirmity of body or mind,
incompetence or for misbehaviour(s.7 (2)).

The Commission also has a Directorate which is tasked with the day-to-day operations of the
Commission. The Directorate consists of a Director, Deputy Director and such other staff as it
may consider necessary for the performance of the functions of the Commission(s.18
(1)(2)(a)(b)). The Director also acts as the Secretary to the Commission and is responsible for the
management and administration of the commission.

The Functions and Powers of the Human Rights Commission.

The functions and powers of the Human Rights Commission are provided for under s. 9 of the
Human Rights Commission Act No. 39 of 1996. The section provides that the functions of the
Commission shall be to:

a. investigate human rights violations;

b. investigate any mal-administration of justice;
c. propose effective measures to prevent human rights abuses;
d. visit prisons and places of detention or related facilities with a view to assessing and
inspecting conditions of persons held in such places and make recommendations to redress
existing problems;
e. establish a continuing programme of research, education, information and rehabilitation of
victims of human rights abuse to enhance the respect for and protection of human rights and;
f. do all such things as are incidental or conducive to the attainment of the functions of the
Commission.

Under section 10 of the Act, the Human Rights Commission has the power to investigate any
human rights abuses either on its own volition or on receipt of a complaint or allegation by:

i. an aggrieved person acting in such person’s own interest

ii. an association acting in the interest of its members
iii. a person acting on behalf of an aggrieved person or;
iv. a person acting on behalf of and in the interest of a group or class of persons.

In order to ensure that this is achieved, the Human Rights Commission can issue summons or
orders requiring the attendance of any authority before the commission and the production of any
document or record relevant to any investigation by the Commission. The Human Rights
Commission can also question any person in respect of any subject matter under investigation
and require the disclosure of any information within such person’s knowledge relevant to any
investigation by the Commission. The Commission may also recommend the punishment of any
person found to have perpetrated an abuse of human rights.

However, as the Human Rights Commission is not a Court but only performs its functions as an
on-going advisory authority through opinions or recommendations, its powers are limited,
generally, to making recommendations. Therefore, the Human Rights Commission may, where
it considers necessary, recommend:

a. the release of a person from detention

b. the payment of compensation to a victim of human rights abuse, or to such victim’s family;

that an aggrieved person seek redress in a court of law; or

c. such other action as it considers necessary to remedy the infringement of a right.

Complaints.

Complaints to the Human Rights Commission can be made under s.11 of the Human Rights Act.
A person may make a complaint under the Act orally or in writing addressed to the Secretary of
the Human Rights Commission. the complaint must be signed or thumb-printed by the
complainant and it should bear his/her name and address. The complaint or allegation must be
brought within two years of the date on which the facts giving rise to any such complaint or
allegation become known to the person complaining.

Committees.

In order to assist the Commission in discharging its functions under the Act, section 15 gives
power to the Commission to establish such committees and delegate to any of those committees
such functions as it considers necessary. The Human Rights Commission also has provincial
committees in all the provinces of Zambia. In addition to the above committees, there are five
other thematic committees established by the Commission. These include:

a) the Civil and Political Rights Committee

b) the Children’s Rights Committee
c) the Gender Equality Rights Committee
d) the Committee Against Torture and;
e) the Economic, Social, Cultural and Solidarity Committee.

The Annual Report.

Under section 25, the Commission must submit a report to the President concerning the activities
of the Commission during the past year. The report must include information on the financial
activities of the Commission. The President in turn is required to lay the report before the
National Assembly.

Criticism of the Human Rights Commission.

Weaknesses of the Human Rights Commission.

One of the strongest criticism leveled against the Human Rights Commission is that the
Commission does not have the power to compel observance of its decisions. Instead, the
Commission only has the power to recommend action to be taken by other authorities. If nothing
is done, the Act is silent on further action to be taken. Even where the appropriate authority does
not comply with the 30-day requirement to make a report to the Human Rights Commission, it is
not clear as to whether the Commission can prosecute or rely on other authorities to take up the
matter for prosecution.

The Human Rights Commission and the Court System.

As the courts deal with all sorts of legal problems including human rights, a national human
rights institution is focused exclusively on human rights and is able to develop expertise in this
area. Furthermore, the Constitution of Zambia limits the High Court’s jurisdiction to matters
within Arts. 11 to 26 inclusive.50 On the other, the mandate of the Human Commission under
the Human Rights Act, is to promote and protect human rights. This mandate of the Human
Rights Commission is not restricted to the rights enshrined in the Constitution only, but also
applies to those rights and freedoms secured in international human rights documents to which
Zambia is a party which must be observed and respected. Therefore, the Human Rights
Commission is also mandated to ensure that Zambia meets its reporting obligations to the various
international treaty bodies.51

In addition, national human rights institutions like the Human Rights Commission are generally
administrative in nature in that they are either judicial nor law-making. As a rule, national human
rights institutions have on-going advisory authority through opinions or recommendations, or
through the consideration and resolution of complaints submitted by individuals or groups.
Courts on the other hand are sources of law in the form of stare decisis or case-law. The high
Court has broad powers to provide remedies, including making such orders, issuing such writs

50
Provide some illustration with case-law and what the judiciary say about the limits imposed by Arts. 11 to 26
inclusive.
51
See Chapters 5 and 6.
and giving such directions as it may consider appropriate for the purpose of enforcing , or
securing the enforcement of the Bill of Rights.52

Revision Questions.

Why is important that the appointment of commissioners by the President is ratified by the
National Assembly?

Highlight some of the major constraints faced by the Human Rights Commission in terms of
ensuring that human rights are protected in Zambia.

References.

Permanent Human Rights Commission. National Plan of Action for Human Rights 1999-2009.
Lusaka. Permanent Human Rights Commission.

Human Rights Commission Act No. 39 of 1996.

The Constitution of the Republic of Zambia. Cap 1 of the Laws of Zambia.

CHAPTER FIVE.

The Historical Development of Human Rights.

One of the main features of the post-Second World War era is the establishment of the United
Nations (UN). The establishment of the UN extended the horizons of international law beyond
its traditional structures to include among other things the protection of human rights. The
development of modern international human rights law has been attributed to the gross violations
of human rights in the Hitler era and to the belief that these could have been prevented had there
been in existence an effective international system for the protection of human rights. 53

Thus, the UN has as some of its major purposes the promotion of human rights and fundamental
freedoms.54 This is closely linked to the maintenance of international peace and security and the
development of friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples. The link between human rights, friendly relations
among nations and peace became an essential pre-conditions for the realisation of human rights
and fundamental freedoms. In other words, whereas peaceful relations promote the enjoyment of,
and respect for human rights, armed conflicts result in gross violations of human rights.

Prior to the development of the modern international human rights law, there is already had been
some developments in the area of human rights. For instance, there were anti-slavery treaties of

52
See CHRISTINE MULUNDIKA AND 7 OTHERS v. THE PEOPLE (1995) S.J. and KACHUSU v. THE ATTORNEY-GENERAL
for reference on how the court enforces the provisions of Part III of the Constitution.
53
Buergenthal T. International Human Rights Law in a Nutshell. p.21
54
See Article 1 of the United Nations Charter.
the period 1815-1880, the Brussels Conference of 1890, the 1926 Slavery Convention
prohibiting slavery and the slave trade, the 1924 Declaration of the Rights of the Child, et cetera.
These early developments of human rights though were mainly humanitarian interventions, state
responsibility for injuries to aliens, international humanitarian law and the protection of
minorities. Despite that, there still was growth in the idea that governments and individuals were
responsible under international law for meeting international standards of decency in their
conduct and that they should be accountable for failure to do so.55

Even before the developments in the 1800s and the early 1900s, there were some notions of
justice, fairness, dignity and respect. While some scholars argue that the notion that all human
beings, simply because they are human have certain inalienable rights against society and the
state/rulers was alien to pre-modern societies, there is a noticeable development in the area of
human rights in the 1600s with the emergence of philosophers such as John Locke.

Locke supported a theory of natural rights, which begins with a pre-social state of nature in
which equal individuals have natural rights to life, liberty and estates. Since in the absence of
government these rights have no value and cannot be protected by individual action, people form
societies, which in turn establish governments to enable themselves to enjoy their natural rights.
The government is based on a social contract between the ruler and the ruled and the ruled are
obliged to obey only if the government protects their rights. Therefore, government is legitimate
to the extent that it protects and furthers the enjoyment of the human rights of it citizens.56

It must be noted however, that despite the apparent universalism of the language of natural
rights, Locke’s theory is meant for the protection of the rights of the propertied European males,
to the exclusion of women, other races (“savages” according to Locke), labourers and slaves.
This approach changed with time with the gradual advancement of the notion of equal and
inalienable rights held by all. Those claiming privilege, for example, through arguments of racial
superiority or superior breeding et cetera had to assert them, often through the use force.57

The last two centuries have seen struggles for the expansion of the recognition and enjoyments
of human rights by all. For instance, there were struggles for universal suffrage, for fair wages,
for safe and humane working conditions in the West prior to the two World Wars. After the
second world war the international community through the United Nations Charter came together
and put human rights high on its agenda. This was followed by the conclusion of a number of
important human rights treaties and the ending of colonialism during the 1950’s, 1960’s and
1970’s. by its very nature, colonialism amounted to a denial of human rights. There are many
documented accounts showing how colonialism resulted into some of the grossest violations of
human rights in living memory.

55
Sapporco. p.26
56
Sapporco Resource Book. p.26
57
Ibid.
By concluding the early human treaties and undertaking to cooperate at the international level for
the promotion and protection of human rights, States were limiting their sovereignty and
internationalising a subject which had hitherto been considered to be a domestic matter and not
subject to international regulation. 58 The development of international cooperation meant that
national borders were no longer limits to human rights, but by their nature, human rights
represented trans-boundary values. International cooperation implies that human rights are a
matter of legitimate international concern and that wherever and whenever human rights have
been seriously breached, the international community is entitled to raise such issues. 59
International concern also entails an obligation on the part of States to fulfil (and protect and
promote) in good faith the undertakings they have assumed on the basis of the United Nations
Charter and other instruments.

The of adoption of standard-setting human rights instruments would ensure the promotion of
respect for and the observance of, human rights and fundamental freedoms everywhere in the
world.60

One of the cornerstones of the concept of human rights enshrined in the United Nation Charter
and other international instruments is the principle of non-discrimination. The principle of non-
discrimination underlines the idea of human rights and hence the big profile it has been granted
in international law. Art. 2 of the Universal Declaration of Human Rights sets out the principle
when it states that : “ everyone is entitled to all the rights and freedoms set forth in the
Declaration, without distinction of any kind, such as race, colour, sex. Language, religion,
political or other opinion, national or social origin, property, birth or other status.” This is
repeated in the Covenant on Civil and Political Rights which forbids discrimination in Arts. 2
and 26.

The principle of Non-discrimination is given pride of place in the African Charter on Human and
Peoples rights of 1981. In this regional mechanism, the drafters decided to base their concept of
human rights on the principle of non-discrimination. 61 Through this, human rights are given
universal content.

The Universal Declaration of Human Rights.

The Universal Declaration of Human Rights (UDHR) was adopted by Resolution 217 (111) of
10th December 1948of the United Nations General Assembly. The declaration was not intended
to impose legal obligations on States but rather to establish goals for States to work towards. The
operative part of the resolutions reads as follows:

58
Bring aspects of the mechanisms used to ensure the upholding of human rights on the various continents.
5959
Examples of such concerns abound and include Darfur, Bosnia, China and Israeli-Palestinian conflict.
60
Expand on this as it is an important aspect in ensuring the observance of human rights.
61
Sapporco p.27
“… the General Assembly proclaims this (UDHR) as a common standard of achievement for all
peoples and all nations, to the end that every individual and every organ of society…shall strive
by teaching and education to promote respect for these rights and freedoms and by progressive
measures, national and international, to secure their universal and effective recognition and
observance…”

Definition of Human Rights.

Human Rights are entitlements every human being has by virtue of his or her belonging to the
human race. They are held by every person against the state and society and are based on the
principle that all people are created equal and are endowed with inalienable rights and is
reinforced by the international standards on human rights. Human rights are held independently
of duties a person may have to the family, community or society. During war, conflict or times of
emergency threatening the life of the nation, some human rights may be suspended in accordance
with the law and in order to allow a restoration of the normal situation. The supreme human right
is the right to life. Today, human rights are categorised into three different generations, first
generation (civil and political), second generation (economic, social and cultural), and third
generation (solidarity, group or collective rights). In the 1993 Vienna Declaration and
Programme of Action, human rights were described as being indivisible, interdependent,
interrelated and universal.62

The Characteristics of Human Rights.

It has been noted that human rights are the rights one has simply because one is
human.63Although this sounds more like unicorn64, human rights are claims that every human
being has or should have, upon the society in which one live. They are universal, which means
that they are due to every human being in every society, irrespective of geographical, historical,
subculture, ideological, political, economic systems or stage of development. They do not
depend on gender, race, class or status. Human rights are therefore claims as of right and not
merely appeals to grace, charity, brotherhood or love nor are they aspirations or assertions of
goods but claims of entitlement and corresponding obligations.65

The major characteristics of human rights are:

 They are universal

 They are inalienable
 They are indivisible, interrelated and interdependent
 They derive from the dignity and worth of the human person

62
Authority?
63
Jack Donnelly. What are Human Rights? Introduction to Human Rights?
64
Sounds like a fairytale!
65
Jack Donnelly. p.3
  Their enjoyment is based on the principle of non-discrimination.

Human Rights are Universal.

Human rights are universal because they are based on every human being’s dignity, irrespective
or race, sex, religion, ethnicity, political or other opinion, national or social origin. Human rights
are universal because they apply to every human being in the world. This is because human
beings are the same everywhere as human nature is the same everywhere. It has been argued,
however, that regional or national peculiarities may be considered in the implementation of
human rights standards. This is because it is true that the world has in its various regions
different cultures, traditions religions and beliefs. The position taken here is that human rights
are not necessarily in conflict with the cultures or ways of people. For example, the International
Covenant on Economic, Social and Cultural Rights does in fact protect cultural rights un Art. 15.
The problem comes in when people want to use the excuse of culture to deny the enjoyment of
individual rights and freedoms, e.g. the continued practice of female genital mutilation in some
African cultures.66

Another instance of this protection can be found in the Africa Charter on Human and People’s
Rights whose adoption took into account the African Peoples’ “virtues of their tradition and
values of African civilisation which should inspire and characterise their reflection on the
concept of human and peoples’ rights.” The Charter also recognises that ‘fundamental human
rights stem from the attributes of human beings, which justifies their national and international
protection..’ therefore, it is only the positive aspects of our traditions and culture that we must
promote and practices that violate human life and dignity.

Human Rights are ‘Inherent’ and “Inalienable.’

Human rights and fundamental freedoms are regarded as ‘inherent’ because they are the
birthright of all human beings. This means that we are all born with these rights and freedoms. In
other words, human rights flow from human nature. According to the Vienna Declaration and
Programme of Action on Human Rights (1993) “human rights and fundamental freedoms are
the birthright of all human beings, their protection and promotion is the first responsibility of
governments.”

Therefore, if human rights are the birthright of all human beings, then it is correct to say that
human rights exist even independently of the law. The law does not create the rights and
freedoms that we have as human beings. The law, however, recognises the existence of human
rights and facilitates their enforcement through the creation of procedures and institutions to
ensure that there are protected and promoted e.g. the court system and the international legal
framework comprising of the International Bill of Rights which provide legal redress for the
violation of human rights. In this regard, human rights are not given, bought, earned or inherited.

66
Sapporco. buttress with further research………………
They belong to people simply because they are human. The only qualification needed is to be a
human being.

Human rights are also considered to be ‘inalienable’ in so far as no person can be divested of his
or her human rights, save under clearly defined legal circumstances.

Human Rights are Indivisible, Interdependent and interrelated.

Human rights are indivisible, interdependent and interrelated. This means that the protection of
human rights depends on the effective promotion and protection of other rights. The Vienna
Declaration provides that the international community must treat human rights globally in a fair
and equal manner, on the same footing, and with the same emphasis. It is, therefore, essential
and indispensable to ensure a minimum in one or more of the rights in order to avoid or prevent
degradation in another. There are no human rights which are more important than others. All
rights and freedoms deserve equal attention.

The Categories of Human Rights.

Although human rights are indivisible and inter-dependent, they are generally divided into the
following three generation or branches. The categories can further be divided into sub-categories
depending on the nature of right and what it seeks to promote for the full development of a
person.

First Generation Human Rights (the Civil and Political Rights)

Civil and political rights emphasise the freedom of the individual and normally require the State
to abstain from interfering in their enjoyment. These are ‘liberty-oriented’ rights. In this sense,
civil and political rights impose what is termed a “negative” obligation on the state. These are
mainly enjoyed on an individual basis by every person and they are of immediate application.
The state has an obligation to refrain from interfering with their enjoyment i.e. they ,limit the
state’s actions vis-à-vis the individual. Examples include the rights to life; liberty and security of
person; freedom from torture and slavery; political participation; freedom of opinion, expression,
thought, conscience and religion; freedom of association and assembly.

They are justiciable,67 which means that it is possible to pursue a legal remedy in respect of
them in an ordinary court of law. However, the fact that these rights are immediate, impose
obligations on states not to interfere with their enjoyment and that they are justiciable should not
be overstated.68 Since the State has an obligation or a duty to protect those rights, it requires a
functioning judiciary and the establishment of laws aimed at protecting a certain right e.g. the
right to life. However, legislative measures are not enough. The State is required to take actual
steps of enforcement to prevent the violations of those rights or, if the violation has occurred, to

67
Definition of the term “justiciability”
68
Sapporco
punish its perpetrators. Although the government has a duty of abstention concerning the first
generation rights, it has to take active steps to ensure that their obligation is complied with by all
authorities. This includes also the duty of investigation if as fundamental right has been violated.
The same or similar elements may be found in other generations.

Second Generation Rights (Economic, Social and Cultural Rights)

The second generation category consists of rights that are termed economic, social and cultural
rights . These are ‘security-oriented’ rights e.g. the right to food, healthcare or education. Their
realisation should bring about social justice and equity. They are said to require ‘positive ’action
on the part of the state, meaning that the State should take deliberate or active steps to bring
about conditions in which every person enjoys adequately his or her economic, social and
cultural rights. Although these are mainly goals which the state has to fulfill, some of them raise
the same obligations as those of the first generation. However, most of the economic, social and
cultural rights can be realised progressively, through positive state intervention. They can be
both individual and group rights. This category includes the right to education, work and work
related rights, adequate standards of living, food, healthcare and shelter. Traditionally, the
second generation rights have generally not been justiciable. However, there is a growing trend
towards their justiciability in international law and especially domestic law.

Third Generation Rights (Collective, Solidarity or Group Rights)

Collective or group rights are by their nature asserted not by individuals as such, but by people as
a group. Relatively recently recognised, these rights include the right of self-determination, the
right to a clean and healthy environment, the right to peace and the right to development,
indigenous and minority rights. These are enjoyed in community with others, and, although it is
ultimately the individual who suffers from a violation, violations of this generation of rights are
not targeted at individuals. Third generation rights are very complex and also very vague. This
makes enforcement, and even simple recognition, very difficult. States, especially Western States
more often prefer to sidestep these rights.

Human rights can be also be further categorised as follows:

i. Existential rights: the focus of human rights is on life and dignity of human beings. A
person’s dignity is violated when they are subjected to torture, forced to live in
slavery or poverty, i.e. without a minimum of food, clothing and housing. Other
economic, social and cultural rights, such as access to a minimum of education,
medical care and social security, are as fundamentally important to a life of dignity as
are respect for privacy and family life or personal freedom. Therefore existential
rights form the nucleus around which other rights have been created.
ii. Freedom rights: these include the freedom of expression, conscience, religion,
movement, assembly and association.
 iii. Equality rights: these include equality before the law and equal protection of the law;
protection against discrimination on the grounds of sex, race, colour, religion, ethnic
or social origin et cetera.
iv. Political rights: includes the right to vote; equal access to public services; freedom to
form a political party: the right to petition etc.
v. Procedural rights: these are especially important in the administration of criminal
justice
vi. Specific rights for vulnerable groups: these groups include women, children, the
elderly, sick, the disabled, asylum seekers and refugees etc.

Beneficiaries and addressees of Human Rights.

The traditional human rights paradigm has focused on the rights of the individual and the
corresponding obligations of his or her state. The State is primarily responsible for ensuring
respect for, and observance of human rights. It is the state which is a party to international
human rights instruments and assumes direct obligations in relation to human rights. By
becoming parties to international human rights treaties, States incur three broad obligations: the
duties respect, to protect and to fulfil. Under the obligation to respect, the state obligation is to
refrain from interfering. This means the prohibition of certain acts by the state that may
undermine the enjoyment of rights. The obligation to respect implies the obligation to protect
individuals against abuses by non-state actors. Under the third obligation, the state is required to
take positive action to ensure that human rights can be exercised and realised.

It is important to realise that the state is not the only entity that is obliged to respect human
rights. In the modern era, even individuals can be held accountable for human rights violations.
For example, the United Nations created the International Criminal Court specifically to deal
with persons accused of serious crimes such as genocide, war crimes and crimes against
humanity. These crimes always involve serious and mass violations of human rights.

Therefore, the following are some of the beneficiaries and addressees of human rights

 Groups as beneficiaries
 Minorities under art. 27 of the International Convention on Civil and Political Rights.
 Non-governmental actors as duty-bearers
 Individuals
 Multinationals.

Can States Restrict Human Rights?

International law permits states to limit or suspend part of their legal obligations and thus restrict
some rights under certain circumstances. For example, the Zambian constitution provides for
derogation in the following instances…… To this end, the legal recourse available to States
includes limitation clauses and derogation clauses.???
Limitation Clauses.

Many obligations to respect human rights are subject to limitation clauses. The exercise of
freedoms and rights may be subject to certain formalities, conditions, restrictions and penalties in
the interest of national security, territorial integrity or public safety, the prevention of crime or
disorder, the protection of public health or morals, or the protection of the reputation or rights
and freedoms of others.(Highlight specific Articles in the Zambian constitution that deals with
the various limitation clauses.)

Derogation Clauses.

Derogation clauses are also permitted under international law. In times of war, rioting, natural
disasters or other public emergencies that pose a serious threat to the life of a nation,
governments may take measures derogating from their human rights obligations, provided that
the following conditions are met:

 A state of emergency has been declared

 The specific measures derogating from an international treaty must be officially notified
to the competent international organisations and other States Parties
 The derogation is permissible only to the extent strictly required by the situation
 The derogation must be lifted as soon as the situation permits
 The rights subject to derogation must not be among those that admit no derogation e.g.
the right not to be tortured cannot be derogated from under any circumstance.

The Influence of the International Bill of Rights.

From 1948, when the Universal declaration of Human Rights was adopted and proclaimed, until
1976, when the International Covenant on Human Rights entered into force, the declaration was
the only completed portion of the international Bill of Human Rights. The Declaration, and later
a later stage the Covenants exercised a profound influence on the thoughts and actions of
individuals and their governments in all parts of the world. For more than 25 years, the Universal
Declaration of Human Rights stood alone as an international “standard of achievement for all
peoples and all nations.” It became known and was accepted as authoritative both in States which
became parties to one or both of the Covenants and in those in which did not ratify or accede to
either. Its provisions were cited as the basis and justification for many important decisions taken
by United Nations bodies; they inspired the preparation of a number of international rights
instruments, both within and outside the United Nations system; they exercised a significant
influence on a number of multilateral and bilateral treaties; and they had a strong impact as the
basis for the preparation of many new national constitutions and national laws.69

69
United Nations Communications on Human Rights.
The Universal Declaration came to be recognised as a historic document articulating a common
definition of human dignity and values. The declaration is a yardstick by which to measure the
degree of respect for, and compliance with, international human rights standards everywhere on
earth. The Universal Declaration is truly universal in scope as it preserves its validity for every
member of the human family, everywhere, regardless of whether or not governments have
formally accepted its principles or ratified the Covenants. On the other hand, the covenants, by
their nature as multilateral conventions, are legally binding only on those States which have
accepted them by ratification or accession.

Over the preceding years, many important resolutions and decisions adopted by the United
Nations bodies, including the Security Council and the General Assembly, the Universal
Declaration of Human Rights and one or both Covenants have been cited as the basis for action.
For example, the UN Security Council Resolution 1973 on Libya involved the use of Universal
Declaration on Human Rights and also the international Covenant on Civil and Political Rights.

View of Zambian Bill of Rights as a result of this influence.

Revision Questions.

References.

CHAPTER SIX.

THE MAJOR INTERNATIONAL HUMAN RIGHTS INSTRUMENTS AND SUPERVISORY

MECHANISMS.

The United Nations Charter of 1945 carries some human rights provisions aimed at the
promotion of human rights. The preamble to the Charter reads in part:

“We the people of the United Nations, determined …to reaffirm faith in fundamental human
rights, in the dignity and worth of the human person, in the equal rights of men and women…
have resolved to combine our efforts to accomplish these aims.”

Article 1(3) of the Charter proclaims as one of the purpose of the UN, the following:

“ To achieve international cooperation in solving international problems of an economic, social,

cultural or humanitarian character, and in promoting and encouraging respect for human rights
and for fundamental freedoms for all without distinction as to race, sex, language or religion.”

Article 56 of the charter provides that all members of the UN “pledge themselves to take joint
and separate action in cooperation with the UN for the achievement of the purposes set forth in
Article 55.” These purposes include the promotion by the UN of Universal respect for, and the
observance of, human rights and the fundamental freedoms for all without distinction as sex,
race, language or religion.

To facilitate this cooperation, Article 13(1)(b) of the Charter provides that the UN General
Assembly shall initiate studies and make recommendations for the purpose, among other things
of, assisting in the realisation of human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion.

Art. 62(2) of the UN Charter empowers the United Nations Economic and Social Council
(ECOSOC) to make recommendations for the purpose of promoting respect for, and the
observance of, human rights and fundamental freedoms for all, while Art. 68 requires it to set up
commissions in the economic and social fields and for the promotion of human rights. Art. 76
makes the promotion of human rights and fundamental freedoms for all one of the basic
objectives of the trusteeship system.70

While the human rights provisions in the Charter have been generally considered as broad and
vague, they have had significant impact on human rights. In that they “internationalised” and/or
codified human rights with the consequence that members of the United Nations recognise that
the human rights referred to in the Charter are a subject of international concern and are no
longer within their exclusive domestic jurisdiction.71 The charter obligation on members of the
United Nations to cooperate with the organisation in the promotion of human rights and
fundamental freedoms has conferred the United Nations with the requisite legal authority to
define and codify these rights, and this is reflected in the adoption of the International Bill of
Human Rights and numerous other human rights instruments in force today. 72

Though the Charter did not give a definition of human rights or spell them out, two points are
worth noting:

i. The United Nations Charter internationalised human rights. By adhering to the

Charter which is a multilateral treaty, the States parties recognised that human rights
referred to in it are a subject of international concern and, to that extent, no longer
within their exclusive domestic jurisdiction

ii. The obligation of the member states of the United Nations to co-operate with the
organisation in the promotion of human rights and fundamental freedoms has
provided the UN with the requisite legal authority to undertake a massive effort to
define and codify these rights. That effort is reflected in the adoption of the
international Bill of Human Rights and the numerous other human rights instruments

70
Highlight the history of the development of the United Nations system and it’s the precursor with its attendant
problems of the trusteeship system.
71
Sapporco. p.29
72
Ibid p.29
 and the creation of Charter-based institutions designed to ensure compliance by
governments.

The International Bill of Human Rights.

When the United Nations was created in 1945, one of the major objectives was to come up with
an International Bill of Rights. The idea was to draw up a declaration of rights, a treaty imposing
legal obligations on States Parties and mechanisms of supervision of adherence to those
obligations. Thus the International Bill of Human Rights is a composite of five documents: the
Universal Declaration of Human Rights, the International Covenant on Economic, Social and
Cultural Rights, the International Covenant on Civil and Political Rights and its two Optional
Protocols, the First and Second Optional Protocols.

The Universal Declaration of Human Rights.

The Universal Declaration of Human Rights was adopted by Resolution 217 (111) on the
10thDecember 1948. The Declaration was not intended to impose legal obligations on States but
rather to establish goals for States to work towards. [The operative part of the resolution reads…]
the UDHR is the first comprehensive human rights instrument to be proclaimed by a universal
international organisation.

The preamble notes among other things, that the recognition of the inherent dignity and equal
and inalienable rights of all members of the human family is the foundation of freedom, justice
and peace in the world. The Universal Declaration of Human rights is not a treaty. It was adopted
by the UN General Assembly as a resolution having no force of law. Its purpose according to its
preamble, is to provide “ a common understanding” of the human right and fundamental
freedoms referred to in the UN Charter and to serve “as a common standard of achievement for
all peoples and all nations.”

The UDHR proclaims two broad categories of rights, namely, civil and political and economic,
social and cultural rights. Article 1 recognises that all human beings are born free and equal in
dignity while Art. 2 provides that everyone is entitled to all the rights and freedoms in the
Declaration, without distinction of any kind, such as race, colour, sex, religion, political or other
opinion etc.

The Universal Declaration of Human Rights is a statement of general principles spelling out in
considerable detail the meaning of the phrase “human rights and fundamental freedoms” in the
United Nations Charter. It can be considered as an authoritative interpretation of the Charter.
While the Declaration is not legally binding on UN members, it strengthens their obligations
under the Charter by making them more precise.

The Rights are not Absolute.

States are permitted to enact laws limiting the exercise of these rights provided their sole purpose
is to secure 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.

Derogation and limitation Clauses.

It is important to note that only very few human rights, such as the prohibition of torture, slavery
and retroactive criminal laws can be considered as absolute. Most of the covenant rights may be
subject to reservations and limitations in conformity with the relevant provisions. These
measures were designed to leave states parties a fairly broad margin of appreciation in order to
adapt universal human rights standards to their respective political, economic, social and cultural
circumstances. These limitation clauses provide a fair balance between the allegedly
contradictory aims of universalism and cultural relativism.

The International Covenants.

Together with the Universal Declaration of Human Rights (UDHR), the two international
covenants, the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights form part of the International Bill of
Human Rights. Originally, the United Nations envisaged only one general human rights treaty
to give binding force to the provisions of the UDHR. During the early years of the Cold War,
the Western States succeeded in their demand for two separate covenants with different state
obligations and different monitoring bodies and procedures. In their view, only the civil and
political rights of the first generation were genuine human rights that could be guaranteed
immediately and implemented by judicial procedures, whereas the economic, social and cultural
rights of the second generation were only considered ‘programme rights.’

The socialist states, on the other hand, stressed the independence and indivisibility of human
rights and objected to any judicial or quasi-judicial monitoring system. These ideological
conflicts contributed to the delay in the adoption of the Covenants for almost 20 years. On 16th
December 1966, both Covenants were adopted unanimously by 106 states and the first protocol
to the International Covenant on Civil and Political Rights which provides for the possibility of
individual complaints. Zambia acceded to both Covenants on 10th April 1984.

The two covenants differ principality in relation to the terms of their respective obligation
clauses under Art. 2 in each of the covenants and their systems of supervision. Economic, social
and cultural rights were to be implemented ‘progressively’ rather than immediately, and were to
be subject to supervision by the Economic and Social Council rather than by a committee of
Independent experts. In a similar way, while a system of individual and State complaints was
envisaged for the Covenant on Civil and Political Rights, the Covenant on Economic, Social and
Cultural Rights was to be supervised solely by means of a system of periodic reporting.
Despite these differences, it was a condition for the separation of the covenants that as many
provisions as possible would remain the same. Thus the preamble to each of the covenant is
substantially the same, as are Arts. 1,3 (mutatis mutandis i.e. with the necessary changes having
been carried out), 5 and Arts. 24-31 in the Covenant on Economic, Social and Cultural Rights,
and Arts. 46-53 of the Covenant on Civil and Political Rights.

The International Covenant on Civil and Political Rights.

The International Covenant on Civil and Political Rights (ICCPR) was adopted unanimously by
the UN General Assembly in 1966. It contains legal obligations to be assumed by States as well
as measures of implementation. The catalogue of civil and political rights enumerated in the
covenant is drafted with great judicial specificity and it lists more rights than the UDHR. The
ICCPR basically guarantees the same civil and political rights guaranteed by the UDHR, but in
addition provides an undertaking by States not to deny members of ethnic, religious or linguistic
minorities the right, in community with other members of their group “to enjoy their own
culture, to profess and practice their own religion, or use their own language,”(Art. 27).

The covenant contains a derogation clause under Art. 4, which provides that a state may, in the
time of public emergency that threatens the life of the nation, suspend all but Arts. 6,7,8,11,15,
16 and 18. These protect the right to right, prohibit torture, slavery, imprisonment merely for
inability to fulfil a contractual obligation, the right to freedom of thought, conscience and
religion. where a state derogates from the rights guaranteed in the ICCPR, it should forthwith
notify the UN. The Covenant also permits States to limit and restrict the rights it proclaims, as
long as the imposition of the restrictions or limitation is not aimed at the destruction of the rights
or their limitation to a greater extent than is provided for in the Covenant in Art. 5.

The Covenant also provides for implementation measures. Art. 28 establishes a Human Rights
Committee as the principal organ of implementation of the ICCPR. It considers State reports on
implementation and makes appropriate recommendations, and considers inter-state complaints,
both of which are provided for in the Covenant under Arts. 40 and 41 respectively. The
committee has additional functions under the Optional Protocol of the ICCPR to consider
individual complaints or communications. While the Optional Protocol enables private parties
claiming to be victims of violation of the Covenant to file individual complaints or
communications to the Human Rights Committee, the Second Optional Protocol seeks to abolish
the death penalty. Once a state ratifies or accedes to the latter, it must abolish the death penalty.

Supervision Mechanisms.

The Human Rights Committee.

The Human Rights Committee is a treaty monitoring body. It is established under Art. 28 of the
ICCPR with the task of monitoring the compliance of states parties with their obligations under
the Covenant. It consists of 18 independent experts who are elected for a period of four years at
biannual meetings of states parties. Although they are nominated and elected by governments,
the experts sit on the Committee in their individual capacities. They are usually professors of
law or judges in their home countries and represent all geopolitical regions and major legal
systems.

Together with the first Optional Protocol, the Covenant establishes three kind s of supervision
procedures. These are the Reporting Procedure under Art 40 and the Inter-State Complaints
Procedure provide for in Arts. 41 and 42 of the Covenant and the First Optional Protocol also
establishes the Individual Complaints Procedure.

Apart from its moral and political authority, the committee lacks any power to force or only
induce governments to submit their reports on time, to co-operate in a proper manner and to
comply with its recommendations resulting from the examination of State reports or with its final
views relating to individual communications. These decisions are neither legally binding nor
politically enforceable. The Inter-State Complaints Procedure, which is primarily designed to
respond to gross and systematic human violations, provides even fewer possibilities for effective
action.

The International Covenant on Economic, Social and Cultural Rights.

Like the ICCPR, the International Covenant on Economic, Social and Cultural Rights
(ICESCR)was adopted by the UN General Assembly in 1966. However, this Covenant protects
different rights from those protected by the ICCPR, with the exception of common Art.1, which
protects the right of all peoples to self-determination. Articles 2 to 5, like those of the ICCPR, set
out the general provisions on the obligations of States. However, whereas the obligations under
the ICCPR are for immediate implementation or application, the obligations under the ICESCR
may be progressively realised. Article 2 makes special provision for developing countries, that
with regard to human rights and their national economy, they may determine to what extent they
would guarantee the economic rights recognised in the covenant to non-nationals.

Supervisory Mechanisms.

SPECIALISED UN HUMAN RIGHTS CONVENTIONS.

The UN system has also adopted a number of human rights instruments outside of the
International Bill of Rights. This was because of the recognition by different actors in the
international community, for the need for added protection of the human rights of certain
vulnerable groups such as women, children, minorities, migrant workers and indigenous
peoples.

The International Convention on Elimination of All Forms of Racial Discrimination

(CERD) 1965.
The UN General Assembly adopted this convention in 1965. The preamble among other things
recognises that all human beings are born free and equal in dignity and rights and that all human
beings are equal before the law and are entitled to equal protection of the law against any
discrimination and against any incitement to discrimination and that any doctrine of superiority
based on racial differentiation is scientifically false, morally condemnable, socially unjust and
that there is no justification for racial discrimination. The convention notes that the UN has
condemned colonialism and all practices of segregation and discrimination associated therewith
and affirms the necessity of speedily eliminating racial discrimination throughout the world in all
forms and manifestations.

The Convention has been described as “as the most comprehensive and unambiguous
codification in treaty form of the idea of the equality of races.” It prohibits racial discrimination,
which it defined in Art.1 as ‘any distinction, exclusion, restriction or preference based on race,
colour, descent or national or ethnic origin’ having the effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field in public life.

States have a legal obligation to eliminate racial discrimination in their territory and to enact
laws necessary to ensure non-discrimination. Apart from government authorities, individuals,
groups and organisations are prohibited from practicing discrimination. However, Art. 2 (1)(d)
allows for special measures i.e. positive or affirmative action, for the purpose of remedying of
past racial discrimination, provided that they do not foster other forms of racial discrimination
and shall not be continued after the objectives for which they were undertaken have been
achieved.

Enforcement measures include a committee established in terms of Art. 8 for the purposes of,
among other things, reviewing periodic State reports and considering individual and inter-state
complaints or communications.

Supervisory Mechanisms.

CERD provides for three relevant supervisory mechanisms to enable the Committee to exercise
its tasks of monitoring and reviewing the legislative, judicial, administrative and other measures
which States Parties have undertaken in relation to their commitments under the Convention to
fight racial discrimination. These include the following:

 The Reporting Procedure under Art. 9

 The State Complaints Procedure governed by Arts. 11, 12 and 13
 The Individual Complaints procedure established under Art.14.

The Convention on the Elimination of All Forms of Discrimination Against Women (1979).
Women suffer the most in conditions of poverty because they have less access than men to
healthcare, education and food. Since the Second World War, many human rights instruments
have upheld individual rights without distinction of any kind including the aspect of sex(gender).
Sex discrimination has thrived despite the trend toward equal rights in human rights instruments,
particularly in the socio-economic sphere. The UN recognised the necessity of a human rights
regime that addresses women’s issue directly and protects their socio-economic as well as civil
and political rights. In 1967, the UN adopted the Declaration on the Elimination of All Forms of
Discrimination against Women. Based on this Declaration, the Convention for the Elimination of
All Forms of Discrimination Against Women(CEDAW) was adopted by the United Nations
General Assembly on the 18th of December 1979.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
recognises the equal rights of men and women and seeks to ensure the equal rights of men and
women in the enjoyment of all economic, social, cultural, civil and political rights. It is noted in
the preamble that despite the existence of various instruments prohibiting discrimination against
women and encouraging the equality of the rights of men and women, extensive discrimination
against women continues to exist, hence that need for a comprehensive convention. Therefore,
the CEDAW seeks to do away with discrimination against women.

It describes “discrimination against women as any distinction or restriction made on the basis of
sex,” and which has the effect of impairing the enjoyment by women of human rights and
fundamental freedoms in the political, economic, social, civil or any other field under Art. 1.
States are obliged to condemn discrimination against women and to embody the principle of
equality of men and women in their constitutions and the other appropriate legislation, and to
adopt laws or other measures, including sanctions where appropriate, prohibiting all forms of
discrimination against women as provided for by Art. 2. States also obliged to take measures in
the political, economic, social, cultural and other spheres of life to advance the enjoyment of
equal rights by women. Furthermore, Art. 5 provides that States have to take appropriate
measures to, among other things, modify social and cultural patterns of conduct of men and
women and the superiority of men are eliminated.

States parties to CEDAW undertake to embody the principle of equality of men and women by
adjusting their laws and constitutions to reflect their commitment to non-discrimination by
imposing sanctions on those who discriminate, by abolishing discriminatory practices and
customs, and by taking all other appropriate measures to achieve the practical realisation of a
society which treats men and women equally. The States Parties also undertake to promote
women’s development and advancement in political, social, economic and cultural fields. This is
so in order that women might participate on a de facto73equal basis with men in those areas.
Therefore the Convention stipulates that neither temporary measures taken to reach such de facto
equality, nor measures to protect maternity shall be considered discrimination.

73
i.e. Existing in fact whether with lawful authority or not
Examples of such equality include women’s right to vote, to shape government policy, to
participate in Non-Governmental Organisation activities and to represent her government at
international level under Arts. 7 and 8. States parties under Arts. 10 to 14 concerning economic,
social and cultural rights are obligated to take appropriate measures to eliminate discrimination
in educational opportunities, access to health care and employment opportunities e.g. women
must receive equal pay for equal work. Art. 14 focuses on the specific problems faced by rural
women and ensures their participation and benefit from rural development.

Supervisory Mechanisms.

Article 17 of CEDAW establishes the Committee on the Elimination of Discrimination

against Women. Its main function is to administer the Reporting Procedure. Each state Party
must submit an initial report within one year of the convention’s entry into force for that Party.
Thereafter, reports must be submitted every four years and when the Committee requests them.
Art. 28 provides that reservations incompatible with the object and purpose of the Convention
shall not be permitted.

The optional protocol to the Convention on the Elimination of All Forms of Discrimination
against Women grants the Committee power to receive and consider communications submitted
by or on behalf of individuals or groups of individuals claiming to be victims of a violation by a
State party of any of the rights set forth in the Convention. The Optional Protocol was adopted in
1999. Zambia ratified CEDAW on the 21st of June 1985, but she’s not yet a Party to the Optional
Protocol.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT)(1984).

The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment (CAT) has
124 States Parties with only 10 signatories States. The convention defines what torture is and
also introduces supervisory mechanism to enforce the convention. The substantive provisions of
the convention starts with a definition of torture in Art.1. The definition includes all forms of
severe pain or suffering, whether physical or mental. It is worthy to note that pain or suffering
arising from lawful sanctions is not included in the definition. States parties are obliged to take
effective measures to prevent acts of torture within their jurisdiction. No exceptional
circumstances may be invoked as a justification. States Parties are required by Art. 3 not to
expel, return or extradite a person to another State where there are substantial grounds for
believing that he or she would be subject to torture.

Supervisory mechanisms/implementation mechanism.

CAT provides for the creation of a supervisory body called the Committee against Torture. The
Committee has a mandate to receive individual and State complaints under Arts. 21 and 22 on
violations of the conventions as well as periodic reports from State parties on the measures they
have taken to give effect to the provisions of the conventions. Art. 20 contains the possibility of
an inquiry procedure, initiated by the Committee if it receives reliable information from NGOs
or individuals which appears to contain well-founded indications that torture is being
systematically practised in the territory of a State Party. Such an inquiry may include a visit to
the territory of the State Party concerned if the State agrees.

The Convention on the Rights of the Child(1989).

The United Nations General Assembly adopted the Convention on the Rights of the Child in
1989. Pursuant to a proclamation by the UN that Childhood is entitled to special care and
assistance, that the family is a fundamental group unit of society in respect of which the natural
environment for the growth and well-being of all its members and particularly children should be
afforded the necessary protection and assistance, so that it can fully assume its responsibilities
within the community, the Convention on the Rights of the Child seeks to promote the full and
harmonious development of children, in an atmosphere of happiness, love and understanding,
and in the spirit of peace, dignity, tolerance, freedom and solidarity.

In addition to affording children the civil, political, economic and cultural rights provided for in
the UDHR, ICCPR and ICESCR, States have an obligation to protect children against practices
of special danger to their welfare, such as economic exploitation, illicit use of drugs, all forms of
sexual exploitation and abuse, etc. the guiding principle of the Convention for the Rights of the
Child is outlined in Art. 3(1), which provides that in all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Supervisory Mechanism.

Article 43 of the Convention for the Rights of the Child establishes a Committee on the
Convention for the purpose of monitoring progress made by State Parties in achieving the rights
enshrined in the Convention. The committee reviews periodic State reports, but has no power to
entertain individual or inter-state complaints.

The African Charter on Human and Peoples’ Rights.

The African Charter on Human and People’s Rights entered into force in 1986 after it had been
adopted at the 18th Organisation of African Unity Conference of Heads of State and Government
in 1981. It draws inspiration from earlier international instruments to which African countries are
part and establishes a system for the promotion and protection of human rights that is designed to
function within the institutional framework of the organisation of African Unity (now the
African Union). The preamble to the Charter provides that African countries had raised concerns
over the elimination of all forms of colonialism from Africa; the reflection of African tradition;
the enjoyment of rights implies the imposition of corresponding duties; and that civil and
political rights cannot be disassociated from economic, social and cultural rights.
The Charter covers individual rights and freedoms under Art. 1 to 15. The individual rights
contained in the Charter reflect more or less the rights contained in other instruments both at
universal and regional level. The Charter also includes an addition in the form of people’s rights
and introduces the imposition of duties under Arts 27-29. Economic, social and cultural are
provided for under Articles 15-17.

Supervisory Mechanisms.

The Charter establishes an African Commission on Human Rights within the framework of the
African Union to promote human rights and ensure their protection in Africa (Art. 30). The
Commission has both promotional and quasi-judicial functions. The promotional functions
includes undertaking studies and researches, convening conferences, initiating publication
programmes and disseminating information on human and people’s rights. The quasi-judicial
function includes interpreting the provisions of the Charter and “ to formulate and lay down
principles and rules aimed at solving legal problems relating to human and people’s rights and
fundamental freedoms upon which African governments may base their legislation.” This also
provides for the establishment of the an African Court on Human Rights74

The Charter establishes an inter-state Complaints mechanism in terms of which a State party
which believes that another State Party has violated the provisions of the Charter, may either
raise the matter with the State concerned or refer the matter direct to the Commission. Where the
issue has been first raised with the offending State and it is not solved amicably, then either State
may submit the issue to the Commission.

Revision Questions.

1. What is the implication of Zambia not having ratified the Optional Protocol for women’s
rights under CEDAW in Zambia?
2. What is the purpose of an Optional Protocol? State three Conventions that have Optional
Protocols and the effect of these Protocols.
3. Discuss the impact of the recruitment of child-soldiers in countries like the Democratic
Republic of Congo(DRC) and Uganda in relation to the various international
Conventions and highlight some of the manifestations of such instruments in
international affairs.
4. What is the main procedure by which the violation of any of the provisions of the
International Bill of Rights are brought to the attention of the institution dealing with a
specific instrument?

References.

74
The Court has yet to be established, but will be based in Bangul, Gambia.