Digest on Human Rights and Justice

Rachel

Description

The subject of human rights and its attendant these of access to justice have remained relevant areas to the legal fraternity. This relevance resonates well in the fields of teaching and learning the law, consultancy, legal practice and advocacy, law reform, and judicial decision making. In the East African region, however, the availability of research and reference material for these two areas of learning has remained low. It is against the backdrop of the foregoing that the publishing of the Digest on Human Rights and Access to Justice in East Africa is an important aspect of the development of the law in the region. Bringing together decisions of both municipal courts within the East Africa region beyond, the digest has breathed a totally new lease of life into the practice and comparative legal studies in the area of human rights and access to justice. To a large extent, the digest has robbed practitioners of law of the excuses attendant to poor advocacy in the arena of human rights. It has robbed judicial officer of the excuses attendant to shallow and poorly reasoned judgments. It has robbed students and teachers of law the excuses attendant to poorly researched theses in the area of human rights. Definitely, it has added immense value to the consumers of human rights and access to justice. This Digest is a product of the fruitful on-going collaboration between LawAfrica Publishing Ltd and East Africa Law Society. Both LawAfrica with its East Africa Law Reports, and EALS, with its ever-growing collaboration between East African lawyers, yearn for greater integration of legal practice in the three East African countries. This Digest is a contribution to that desire.

Sujets

• Human Rights

Informations

• Publié par: LawAfrica Publishing Ltd
• Date de parution: 19 décembre 2007
• Nombre de lectures: 2
• EAN13: 9789966031853
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Digest on Human Rights and Access to Justice in East Africa
The subject of human rights and its attendant these of access to justice
have remained relevant areas to the legal fraternity. This relevance
resonates well in the fields of teaching and learning the law, consultancy,
legal practice and advocacy, law reform, and judicial decision making. In
the East African region, however, the availability of research and
reference material for these two areas of learning has remained low. It is
against the backdrop of the foregoing that the publishing of the Digest on
Human Rights and Access to Justice in East Africa is an important aspect
of the development of the law in the region. Bringing together decisions of
both municipal courts within the East Africa region beyond, the digest has
breathed a totally new lease of life into the practice and comparative legal
studies in the area of human rights and access to justice. To a large
extent, the digest has robbed practitioners of law of the excuses attendant
to poor advocacy in the arena of human rights. It has robbed judicial
officer of the excuses attendant to shallow and poorly reasoned judgments.
It has robbed students and teachers of law the excuses attendant to
poorly researched theses in the area of human rights. Definitely, it has added
immense value to the consumers of rights and access to justice.
This Digest is a product of the fruitful on-going collaboration between
LawAfrica Publishing Ltd and East Africa Law Society. Both LawAfrica
with its East Africa Law Reports, and EALS, with its ever-growing
collaboration between East African lawyers, yearn for greater integration of
legal practice in the three East African countries. This Digest is a
contribution to that desire.


DIGEST ON HUMAN
RIGHTS AND ACCESS TO
JUSTICE




Published by:
LawAfrica Publishing (K) Ltd
Co-op Trust Plaza, 1st Floor
Lower Hill Road
P.O. Box 4260 - 00100 GPO
Nairobi, Kenya
LawAfrica Publishing (T) Ltd
Twiga Towers, 6th Floor
P.O. Box 38564
Dar-es-Salaam, Tanzania
LawAfrica Publishing (U) Ltd
Crown House, 1st Floor Plot 4A,
Kampala Road
P.O. Box 6198
Kampala, Uganda

© LawAfrica Publishing Ltd 2007
ISBN 9966-7121-5-1


Printed and bound by Don Bosco Printing Press FOREWORD
Access to justice and human rights have had a blotted and grim history in East
Africa. Perhaps, this is to be partly attributed to the policies, laws, culture, and
institutions that were bequeathed to the individual countries upon attainment
of independence. Human rights as defined in the Universal Declaration of
Human Rights and in subsequent international treaties, had little place in the
colonial regime established in the East African countries. The colonial regimes
created prolific corruptive forces that were at best hostile to human rights. At
the brink of independence of each of these countries, it was expected that
human rights protection and promotion would take a center stage in the new
independent governments. But this was not to be. The new governments
embarked on perfecting that which the colonial governments had started.
Thus, in Kenya for instance, though the Constitution embodied a bill of
rights, the rights were merely paper rights. Until 2001, the courts declined to
exercise jurisdiction over human rights cases on the ground that since there
were no rules of procedure enacted by the Chief Justice as envisaged by
section 84(6) of the Constitution, the bills of rights lacked a framework for
enforcement. In Tanzania, it was not until 1985, twenty-three years after
attaining independence, that a bill of rights was enshrined in the Constitution.
In Uganda, like in Kenya, the existence of a bill of rights, has not fully
guaranteed the respect for human rights and its enforcement. The picture that
is hence drawn is that litigating the bill of rights in East Africa has been beset
with problems inbuilt within the socio-political and the legal systems.
It is in this context, that there is a dearth of human rights jurisprudence in
East Africa. In the recent past, however, there have been great strides achieved
in consolidating gains in the human rights arena though documentation of the
same have not been systematic and exclusive. Accordingly, the Human Rights
Law Digest could not have come at a better time. This is the first time that a
digest on human rights cases in East Africa is compiled and published. The
Digest attests to the commitment of the East Africa Law Society (EALS) to the
protection and promotion of human rights in the region. Indeed, as the
premier regional bar association in East Africa, the EALS considers the
questions of human rights, rule of law and good governance as central to its
vision and mission.
The Digest documents judicial landmarks in the field of human rights in
East Africa. It highlights fundamental issues surrounding the enforcement of

iv Digest on Human Rights and Access to Justice
human rights in the region. The issues range from anticipatory bail to freedom
of movement; from legal representation to the right of a wife not to be
ordered to return to her ex-husband.
The Digest thus forms the foundation upon which the systematic and
consistent documentation of human rights cases in East Africa will be built.
Consequently, this generation, unlike the colonial regime, will be able to
bequeath to the next generation not a culture of “human wrongs” but one of
respect for “human rights.” Only then can we confidently say that the region
has moved from “human wrongs to human rights”.
I therefore have no doubt that this Digest is of great importance to legal
practitioners, the judiciary, human rights activists, scholars and human rights
students. In addition, the Digest will be found to be a treasure to behold when
the East African Court of Justice fully embraces its mandate and jurisdiction as
a human rights court.
It is also vital to note that in the future editions of the Digest, the EALS
plans to include human rights cases from Rwanda and Burundi. Further, it is
also expected that the future editions of the Digest will be both in English and
French. In the final analysis, it is the hope of the EALS that the ‘Human
Rights Law Digest’ will grow to be the premier human rights reference text
in East and Central Africa.
Done at Arusha this 15 April 2007.
TOM O OJIENDA
PRESIDENT; EAST AFRICA LAW SOCIETY INTRODUCTION
As a member of both the Law Society of Kenya and the East African Law
Society, I feel honoured to write this brief introduction to this Digest on
human rights law cases. I wish to point out right away that this Digest does
not purport to be a comprehensive collection of human rights law cases. It is a
highlight of few decisions in that field of law for quick reference. Perhaps
there is no other area of law that involves greater emotion and caution on the
part of the litigants and the bench as much as cases involving abuse or alleged
abuse of human rights. The emotion on the part of the litigants is brought
about by acts of the transgressors which deny the litigant the fundamental
right to enjoy a `basic human existence`. On the other hand, the transgressor,
invariably being an agent of the government, the courts are sometimes anxious
to strike a balance so as not to upset the `powers that be`. This assertion may
not find a ready authority to back it up. But it is common knowledge that
courts have not been aggressive in upholding human rights until recently
when democratic space gradually opened up in East Africa.
Human rights, sometimes called fundamental rights and freedoms, are
inherent and not conferred upon by law or the state. Nonetheless, human
rights are incorporated in the Constitutions of Kenya, Uganda and Tanzania
in a part commonly called the Bill of Rights. The setting out of these rights is
intended to avoid doubt and make them known to all who may care to find
out. Unlike other laws (for example, statute law or common law) human
rights have found a place in the Constitutions, so that they form part of basic
law or what is sometimes referred to as the grand norm a means to protect and
preserve the fundamentals of human existence.
Litigation regarding constitutional issues in the three East African
countries began soon after independence in each of the countries respectively.
Matters concerning the Constitution and many more specifically fundamental
rights have been the preserve of the High Court except, of course, on appeal
as will be noted from the decisions reported in this book.
Among the first constitutional cases to be determined in Uganda by the
Court of Appeal was Ibingira and others v Uganda in 1966, when the court held
that section 28 of the Uganda Constitution guaranteed the right to personal
liberty and freedom of movement. This case concerned the Deportation
Ordinance under which the appellants had been held pending a decision by
the minister as to whether or not an order to deport the appellants should be

vi Digest on Human Rights and Access to Justice
made. In 1968 the Court of Appeal again in Ochieng v Uganda