Understanding Human Rights

1. What are human rights?

Human rights are universal legal guarantees protecting individuals and groups against actions and omissions that interfere with fundamental freedoms, entitlements and human dignity. Human rights law obliges Governments (principally) and other duty-bearers to do certain things and prevents them from doing others. Human rights, as part of international law, are rights every human possesses, irrespective of race, religious or political beliefs, legal status, economic status, language, colour, national origin, gender and ethnicity among others. A fundamental aspect of human rights is that they protect human dignity and integrity.

Human rights basically regulate the relationship between States and individuals. Human rights are claim rights — meaning that rights of one party impose a corresponding duty on another party for protection. The government should enforce human rights with minimum standards of legal and administrative practice.

International Human Rights Treaties

The 1948 Universal Declaration of Human Rights (UDHR) is understood to be the cornerstone of the human rights movement. Article 1 of the UDHR states:

"All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."

Under the auspices of the United Nations, many international treaties have been formulated after the adoption of the UDHR in 1948. Treaties are legally binding documents under international law. Once a State has ratified a treaty, they are legally obliged to implement the rights and the provisions which are recognized therein. These treaties create legally binding obligations on the States that ratify them, thereby giving them the status and power of international law. Binding international legal instruments can also be referred to as Conventions, Protocols, Agreements and Covenants. However the UDHR is not legally binding since it is a declaration.

Kenya is a dualistic State. Upon ratification of treaties, the treaty must be domesticated — reduced into local laws — in order to be applicable.

There are nine core international human rights treaties. Each of these treaties has established a committee of experts to monitor implementation of the treaty provisions by its state parties. These are:

1. International Covenant on Civil and Political Rights (ICCPR) (1966)
2. International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966)
3. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (1965)
4. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979)
5. Convention on the Rights of the Child (CRC) (1989)
6. Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (1984)
7. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (MWC) (1990)
8. Convention on the Rights of Persons with Disabilities (CRPD) (2006)
9. International Convention for the Protection of All Persons from Enforced Disappearance (2006)

There are also regional human rights treaties which essentially concern the same sets of rights but are only open for signature by States in the relevant region. States are also mandated to promote and protect human rights. Regional treaties also reflect regional values and offer a more specific framework than the UN system. In the African system we have the following key treaties:

• The African Charter on Human and Peoples' Rights
• The African Charter on the Rights and Welfare of the Child
• The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa

In addition to the above, some countries have National Human Rights Commissions with mandates to protect and promote human rights, for example the Kenya National Commission on Human Rights, established under an Act of Parliament of 2002.

Kenya has ratified most of the core international and regional treaties.

Some of the most important characteristics of human rights are that they:

• Are universal — the birthrights of all human beings.
• Focus on the inherent dignity and equal worth of all human beings.
• Are equal, indivisible and interdependent.
• Cannot be waived or taken away.
• Impose obligations of action and omission, particularly on States and State actors.
• Have been internationally guaranteed.
• Are legally protected in constitutions and other national legislation.
• Protect individuals and, to some extent, groups.

Human rights standards have become increasingly well defined in recent years. Codified in international, regional and national legal systems, they constitute a set of performance standards against which duty-bearers at all levels of society — but especially organs of the state — can be held accountable. Independent expert committees called "treaty bodies", which also help to clarify the meaning of particular human rights, monitor the fulfilment of commitments under international human rights treaties.

Among the rights guaranteed to all human beings under international treaties, without any discrimination on grounds such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status, are:

• The right to life, liberty and security of person.
• Freedom of association, expression, assembly and movement.
• The right to the highest attainable standard of health.
• The right to a fair trial.
• The right to just and favourable working conditions.
• The right to adequate food, housing and social security.
• The right to education.
• The right to equal protection of the law.
• Freedom from arbitrary interference with privacy, family, home or correspondence.
• Freedom from torture and cruel, inhuman or degrading treatment or punishment.
• Freedom from slavery.
• The right to a nationality.
• Freedom of thought, conscience and religion.
• The right to vote and take part in the conduct of public affairs.
• The right to participate.

2. Is there any hierarchy among human rights?

No, all human rights are equally important. The 1948 Universal Declaration of Human Rights (UDHR) makes it clear that human rights of all kinds — economic, political, civil, cultural and social — are of equal validity and importance. The international community has reaffirmed this fact repeatedly.

Human rights are also indivisible and interdependent. The principle of their indivisibility recognizes that no human right is inherently inferior to any other. Economic, social and cultural rights must be respected, protected and realized on an equal footing with civil and political rights. The principle of their interdependence recognizes the difficulty (and, in many cases, the impossibility) of realizing any one human right in isolation. For instance, it is futile to talk of the right to work without a certain minimal realization of the right to education. Similarly, the right to vote may seem of little importance to somebody with nothing to eat or in situations where people are victimised because of their skin colour, sex, language or religion. Taken together, the indivisibility and interdependence principles mean that efforts should be made to realize all human rights together, allowing for prioritization as necessary in accordance with human rights principles.

Human Rights and the State

The central place of human rights is given to the individual. The government in Kenya is duty bound to protect individuals since the State is the guardian of human rights under international law. A contemporary State that respects human rights is usually characterized as a democratic State governed by the rule of law, realizing an appropriate social policy.

A person's human rights cannot be taken away. However this does not mean that abuses and violations of human rights should be tolerated. A government, in keeping with human rights principles, should take appropriate measures to punish the violators through administrative or judicial mechanisms.

3. What kinds of human rights obligations are there?

Obligations are generally of three kinds: to respect, to protect and to fulfil human rights:

• To respect human rights means simply not to interfere with their enjoyment. For instance, States should refrain from carrying out forced evictions and not arbitrarily restrict the right to vote or the freedom of association.
• To protect human rights means to take steps to ensure that third parties do not interfere with their enjoyment. For example, States must protect the accessibility of education by ensuring that parents and employers do not stop girls from going to school.
• To fulfil human rights means to take steps progressively to realize the right in question. These obligations are sometimes subdivided into obligations to facilitate and to provide for its realization. The former refers to the obligation of the State to engage proactively in activities that would strengthen people's ability to meet their own needs, for instance, creating conditions in which the market can supply the healthcare services that they demand. The obligation to "provide" goes one step further, involving direct provision of services if the right(s) concerned cannot be realized otherwise, for example to compensate for market failure or to help groups that are unable to provide for themselves.

The ICESCR imposes binding obligations on all state parties. Under international law, a state has to implement these obligations in good faith. Discussion about the covenant usually focuses on what a state has to do to conform to its treaty obligations. Upon ratification, the state usually amends its domestic law so it is in conformity with the covenant. After ratification, the state has an obligation to ensure new laws conform to the covenant. Every five years a state is required to submit a periodic report to the Committee on Economic, Social and Cultural Rights and to attend before the committee.

Human rights law recognizes that lack of resources can impede the realization of human rights. Accordingly, some human rights obligations are of a progressive nature, while others are immediate. For economic, social and cultural rights, States have a core obligation to satisfy the minimum essential level of each right. This level cannot be determined in the abstract; it is a national task, to be undertaken in accordance with human rights principles. However, in any situation where a significant number of people are being deprived of their right to health, housing, food and so forth, the State has a duty to show that all its available resources — including through requests for international assistance, as needed — are being called upon to fulfil these rights.

For socio-economic rights, the following obligations are of immediate effect:

• The obligation not to discriminate between different groups of people in the realization of the rights in question;
• The obligation to take steps (including devising specific strategies and programmes) targeted deliberately towards the full realization of the rights in question; and
• The obligation to monitor progress in the realization of human rights. Accessible mechanisms of redress should be available where rights are violated.

Taking the right to health as an example, it is not permissible for available resources to be devoted exclusively to first-rate services for only half the population or only those living in urban areas. Available resources should be dedicated to ensuring that the standard of health of the entire population is progressively improved, with immediate planning towards that objective, and effective mechanisms for monitoring progress and, as necessary, redress.

Notes

1. The Universal Declaration of Human Rights together with the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights form the International Bill of Rights.
2. In addition to the Bill of Rights and the core human rights treaties, there are many other universal instruments relating to human rights. The legal status of instruments varies. Declarations, principles, guidelines, standard rules and recommendations have no binding legal effect, but such instruments have an undeniable moral force and provide practical guidance to States in their conduct. On the other hand Covenants, Statutes, Protocols and Conventions are legally binding for those States that ratify or accede to them.
3. There exists a host of international instruments protecting various categories of rights. These include:
   • Rights of indigenous peoples and minorities
   • Prevention of discrimination
   • Rights of women
   • Rights of the child
   • Rights of older persons
   • The right of self-determination
   • Rights of persons with disability
   • Social welfare, progress and development
   • Promotion and protection of human rights
   • Marriage
   • Right to health
   • Right to work and to fair conditions of employment
   • Freedom of association
   • Rights of migrants
   • Nationality, statelessness, asylum and refugees
   • War crimes and crimes against humanity, including genocide
   • Humanitarian law
   • Slavery, slavery-like practices and forced labour