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COMMONWEALTH LAW BULLETIN

"HARARE DECLARATION OF HUMAN RIGHTS"

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- 1 -

HARARE DECLARATION OF HlJMAN RIGHTS

on domestic

i1 D Kirby'"

Judicial Colloquium in Harare, Zimbabweapplication of _iIlt~rn_atl-o.D-a1 f!Dn!aI! ~iqhts norms

Readers of this Bulletin will recall the note on the judicialcolloquium held in Bangalore, India, in February 1988concerning the domestic apPlication of international humanrights norms. See (1988) 14 CLB 1196. The colloquium wasadministered by the commonwealth Secretariat on behalf ofJustice P N Bhagwati, the former Chief Justice of India.participants included a number of Chief Justices and Judgesprincipally from the Asian region. Amongst the participantswas Chief Justice Enoch Dumbutshena of Zimbabwe.

COMMONWEALTH LAW BULLETIN

Between 19-22 April 1989 in Harare, Zimbabwe, Chief JusticeDumbutshena convened a follow-up meeting. Like the Bangaloremeeting it was administered by the commonwealth secretariatin London. It was supported by funds from the FordFoundation. papers Were presented by Chief JusticeDumbutshena and three of the paper-writers for Bangalore.The colloquium gathered together most of the Chief Justicesof the commonwealth countries in Africa. The meeting wasopened by the President of zimbabwe (The Han R G Mugabe). Itclosed with the approval by the participants of the "HarareDeclaration on Human Rights ll

• This is an appendix to thisnote.

In his opening remarks, President Mugabe placed respect forinternationally stated human rights in the context of theChief concerns of African countries. He said that liThedenial of human rights and fundamental freedoms is not onlyan individual and person tragedy, but also creates conditionsof social and political unrest, sowing seeds of violence andconflict within and between societies and nations". Herecorded that since independence in 1980, Zimbabwe hadenjoyed the benefits of a justiciable Bill of Rights,enforceable in the courts. It had adopted a policy ofnational reconciliation applicable to all citizens. ThePresident said that his government was lIfirmly committed tothe rule of law and to the maintenance of a justiciable Billof Rights. It respects judicial decisions and avoidsconfrontation with the judiciary".

President Mugabe referred to a significant decision of thesupreme Court of Zimbabwe in 1987 in the case of Ncube Tshuma

f

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(.',I[r'

COMMONWEALTH LAW BULLETIN

HARARE DECLARATION OF RUMAN RIGHTS

\1 D Kirby'"

Judicial Colloquium in Harare, Zimbabwe on domestic application of international human rights norms

Readers of this Bulletin will recall the note on the judicial colloquium held in Bangalore, India, in February 1988 concerning the domestic application of international human rights norms. See (1988) 14 CLB 1196. The colloquium was administered by the commonwealth secretariat on behalf of Justice P N Bhagwati, the former Chief Justice of India. participants included a number of Chief Justices and Judges principally from the Asian region. Amongst the participants was Chief Justice Enoch Dumbutshena of Zimbabwe.

BetWeen 19-22 April 1989 in Harare, Zimbabwe, Chief JUstice Dumbutshena convened a follow-up meeting. Like the Bangalore meeting it was administered by the commonwealth Secretariat in London. It was supported by funds from the Ford Foundation. papers Were presented by Chief Justice Dumbutshena and three of the paper-writers for Bangalore. The colloquium gathered together most of the Chief Justices of the commonwealth countries in Africa. The meeting was opened by the President of zimbabwe (The Hon R G Mugabe). It closed with the approval by the participants of the "Harare Declaration on Human Rights ll

• This is an appendix to this note.

In his opening remarks, President Mugabe placed respect for internationally stated human rights in the context of the chief concerns of African countries. He said that liThe denial of human rights and fundamental freedoms is not only an individual and person tragedy, but also creates conditions of social and political unrest, sowing seeds of violence and conflict within and between societ.ies and nations". He recorded that since independence in 1980, zimbabwe had enjoyed the benefits of a justiciable Bill of Rights, enforceable in the courts. It had adopted a policy of national reconciliatio'n applicable to all citizens. The President said that his government was IIfirmly committed to the rule of law and to the maintenance of a justiciable Bill of Rights. It respects judicial decisions and avoids confrontation with the judiciary".

President Mugabe referred to a significant decision of the supreme Court of Zimbabwe in 1987 in the case of Ncube Tshuma

- 1 -

I.~

!r

!

,

& Ndlovu v State. There, the S~?reme Court held thatcorporal punish~ent by whipping (a~~i~istered by six strokesof the cane) was an inhuman or c~grading punishment incontravention of the constitution of Zimbabwe. In reachingthat view/ the Supreme Court drew u?on jurisprudence whichhad developed around similar provisions in internationalstatements of human rights and in the constitutions of othercountries. It was in this way, the President said, that thedeveloping jurisprudence of human rights could be utilised inthe domestic decision-making of juc.ges. In closing,President Mugabe expressed doubts about the "cosmetic"reforms to apartheid in neighbouring South Africa. Hedeclared that "any wishful thinking on this score is not onlyfutile but positively harmful as it raises false hopes anddeflects attention and energies away from the struggleagainst apartheid". The President's speech was a thoughtfulcontribution to the conference, reflecting Mr Mugabe'straining both in law and economics. The Chief Justice of TheGambia (Ayoola CJ) expressed the participants' thanks to thePresident who then met the Judges privately.

The working sessions then opened wltn a paper presented byLallah JA of Mauritius, recently elected Chairman of theHuman Rights Committee of the United Nations. Thiscommittee, established under the International Covenant onCivil and Political Rights (ICC?R) (to which manyCommonwealth countries are parties) has a large jurisdictionin reviewing national reports on human rights issues andcompliance with international obligations. In the case ofcountries which have accepted the Optional Protocol to theICCPR/ it also receives individual complaints.Justice Lallah outlined the developing framework ofinternational and regional treaties dealing with humanrights. He explained the development of customaryinternational law which has accumulated around the UnitedNations Charter itself/ the Universal Declaration of HumanRights (1948), the International Covenants and Declarationsand Resolutions of the General Assembly of the United Nationsand other international and regional instruments.

This paper was followed by one presented by Dr Rose D'Sa/ aKenyan lawyer now living in England concerning the domesticapplication of the African Charter on Human and peoples 1

Rights. This Charter was adopted as a by the Organisation ofAfrican unity (OAU) in 19B1. It entered into force inOctober 1986. Some two-thirds of the membership of the OAUhas ratified or acceded to the Charter, bringing up tothirty-five the number of participating States. The AfricanCharter is the African equivalent to the European Conventionon Human Rights and Fundamental Freedom and the AmericanConvention on Human Rights developed by the Organization ofAmerican States. But unlike the European and AmericanConventions, the African Charter does not establish aninter-jurisdictional court to receive and determinecomplaints about derogations from the treaty. Instead, an

- 2 -

I t f

I f

t r

I f I

I r

I .' r ,

& Ndlovu v State. There, the S~?reme Court held that corporal punish~ent by whipping (a~~i~istered by six strokes of the cane) was an inhuman or c~grading punishment in contravention of the constitution of Zimbabwe. In reaching that view/ the Supreme court drew u?on jurisprudence which had developed around similar provisions in international statements of human rights and in the constitutions of other countries. It was in this way, the President said, that the developing jurisprudence of human rights could be utilised in the domestic decision-making of juc.ges. In closing, President Mugabe expressed doubts about the "cosmetic" reforms to apartheid in neighbouring South Africa. He declared that "any wishful thinking on this score is not only futile but positively harmful as it raises false hopes and deflects attention and energies away from the struggle against apartheid". The President's speech was a thoughtful contribution to the conference, reflecting Mr Mugabe's tra~n~ng both in law and economics. The Chief Justice of The Gambia (Ayoola CJ) expressed the participants' thanks to the President who then met the Judges privately.

The working sessions then opened w~tn a Daner presented by Lallah JA of Mauritius, recently elected Chairman of the Human Rights Committee of the United Nations. This committee, established under the International Covenant on Civil and Political Rights (ICC?R) (to which many Commonwealth countries are parties) has a large jurisdiction in reviewing national reports on human rights issues and compliance with international obligations. In the case of countries which have accepted the Optional Protocol to the ICCPR/ it also receives individual complaints. Justice Lallah outlined the developing framework of international and regional treaties dealing with human rights. He explained the development of customary international law which has accumulated around the United Nations Charter itself, the Universal Declaration of Human Rights (1948), the International Covenants and Declarations and Resolutions of the General Assembly of the United Nations and other international and regional instruments.

This paper was fOllowed by one presented by Dr Rose D'Sa/ a Kenyan lawyer now living in England concerning the domestic application of the African Charter on Human and peoples' Rights. This Charter was adopted as a by the Organisation of African unity (OAU) in 19B1. It entered into force in October 1986. Some two-thirds of the membership of the OAU has ratified or acceded to the Charter, bringing up to thirty-five the number of participating States. The African Charter is the African equivalent to the European Convention on Human Rights and Fundamental Freedom and the American convention on Human Rights developed by the Organization of American States. But unlike the European and American Conventions, the African Charter does not establish an inter-jurisdictional court to receive and determine complaints about derogations from the treaty. Instead, an

- 2 -

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African Commission on Human and Peoples' Rights wasestablished consisting of eleven mewbers, serving inrotation. Some participants in the Harare colloquiumquestioned why the machinery \.;hich had been accepted inEurope and the ~~ericas had not been adopted for the Africancharter. Reference was made to this point in the concludingstatement. Th8 co~ission appointed by the charter has beg~n

its work which includes the provision of educational mate~ial

concerning h~~2.n rights and the provisions of the Chcrter.The other point 0: distinction from the European and Amcr~can

treaties is the reference in the Af~ican Charter to !'peeples'rights" and to "duties" I some of the latter expressed in wic.elanguage which also attracted the c~itical attention of theAfrican jurists brought up in the traditions of the co~~on

law.

The third session considered a paper by Justice Kirby onII Implementing the Bangalore Principles on Htunan Rights Law".This paper referred to the Australian legal authority on therecognition given to international law in courts inAustralia. See Chow Hung Ching v The King (1948) 77 CLR449; New South Wales v The Commonwealth (1975) 135 CLR 337,445 and Koowarta v Bielke-Petersen (1983) 153 CLR 16B, 218,224. It called attention to the choices which mustfrequently be made by judges in common law countries wherethe language of the constitution or legislation is ambiguousor where a gap is demonstrated in the common law which is tobe filled by analogous reasoning from past precedents. Inthese circumstances, Kirby P proposed that reference couldlegitimately be made by judges to any relevant jurisprudencewhich had developed around international statements ofuniversal human rights. He pointed out that this Was nowcommonly done in the United Kingdom, under the stimUlus ofthe decisions of the European Court of Human Rights. See egAttorney General v Guardian Newspaners Limited & Drs [No 2)(1988) WLR 805 (CAl and In re K D (a minor) Ward:Termination of Access [198B] 2 WLR 398 (HL). The growingattention in English courts to international human rightsnorms has been noted in a number of recent commentaries. Seeeg T CHartley, "Federalism, Courts and Legal Systems: TheEmerging constitution of the European Cornmunity ll (1986) 34 AmJ Comp Law, 229-247; Nigel Foster, liThe European Court ofJustice and the European Convention for the Protection ofHuman Rights", [1987] ECJ and ECER vol 8 245. Kirby P thenillustrated, by reference to a number of decisions of theHigh Court of Australia and of the Court of Appeal of NewSouth Wales, instances where useful reference had been madeby members of the courts to international human rights law inthe development of their reasoning. See eg Deane J in J vLieschke (1986-87) 162 CLR 447; Daemar v IndustrIalcommission of New South Wales and Ors (1988) 12 NSWLR 45-53;Jago v The District Court of New south Wales & Ors (1988) 12NSWLR 558, 569, 580. Gadidge v Grace Bros pty Limited, Courtof Appeal, unreported, 4 December 1988; (1988) 5 NSWJB 219and Cachia v Isaacs & Ors, Court of Appeal, unreported, 23

- 3 -

pi

African Commission on Human and Peoples' Rights was established consisting of eleven mewbers, serving in rotation. Some participants in the Harare colloquium questioned why the machinery \.;hich had been accepted in Europe and the ~~ericas had not been adopted for the African charter. Reference was made to this point in the concluding statement. Th8 co~ission appointed by the charter has beg~n its work which includes the provision of educational mate~ial concerning h~~2.n rights and the provisions of the Chcrte=. The other point 0: distinction from the European and Amcr~can treaties is the reference in the Af:!::'ican Charter to 1'peeples' rights" and to "cuties" I some of the latter expressed in wic.e language which also attracted the c:-itical attention of the African jurists brought up in the traditions of the co~~on law.

The third session considered a paper by Justice Kirby on "Implementing the Bangalore Principles on Htunan Rights Law". This paper referred to the Australian legal authority on the recognition given to international law in courts in Australia. See Chow Hung Ching v The King (1948) 77 CLR 449; New South Wales v The Commonwealth (1975) 135 CLR 337, 445 and Koowarta v Bielke-Petersen (19B3) 153 CLR 168, 21B, 224. It called attention to the choices which must frequently be made by judges in common law countries where the language of the constitution or legislation is ambiguous or where a gap is demonstrated in the common law which is to be filled by analogous reasoning from past precedents. In these circtunstances, Kirby P proposed that reference could legitimately be made by judges to any relevant jurisprudence which had developed around international statements of universal htunan rights. He pointed out that this Was now commonly done in the United Kingdom, under the stimulus of the decisions of the European Court of Human Rights. See eg Attorney General v Guardian Newspaners Limited & Drs [No 2) [1988) WLR 805 (CA) and In re K D (a minor) Ward: Termination of Access [1988] 2 WLR 398 (HL). The growing attention in English courts to international human rights norms has been noted in a number of recent commentaries. See eg T CHartley, "Federalism t Courts and Legal Systems: The Emerging constitution of the European cornmunityll (1986) 34 Am J Comp Law, 229-247; Nigel Foster, liThe European Court of Justice and the European Convention for the Protection of Human Rights", [1987] ECJ and EeHR vol 8 245. Kirby P then illustrated, by reference to a number of decisions of the High Court of Australia and of the court of Appeal of New South Wales, instances where useful reference had been made by members of the courts to international human rights law in the development of their reasoning. See eg Deane J in J v Lieschke (1986-87) 162 CLR 447; Daemar v IndustrIal commission of New South Wales and Ors (1988) 12 NSWLR 45-53; Jago v The District Court of New south Wales & Ors (1988) 12 NSWLR 558, 569, 580. Gadidge v Grace Bros pty Limited, Court of Appeal, unreported, 4 December 198B; (198B) 5 NSWJB 219 and Cachia v Isaacs & Drs, Court of Appeal, unreported, 23

- 3 -

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March 1989; (1989) 6 NSWJB 54.

The session then proceeded to a discussion led by I'lr AnthonyLester QC (United Kingdom) on the way judges could respond,consistently with human rights law, to state challenges topersonal liberty of sUbjects who appeal to the court forprotection. Antho~y Lester's sessio~ was stimulated by apaper of Ms Beverley 3y=icld of Intcrights, London o~

"Pcrso:1al Liberty and ?easons of state". The sessionconcluced with a vigoro~s paper by Justice Bhagwati on:undarnental Rights in their Economic, Social and CulturalContext.

Although meetings of the Chief Justices of CommonwealthAfrica now regularly take place (see (1988) 14 CLB 1198) itis rare, if not unprecedented, to have collected in the oneplace so many leading jUdges discussing international humanrights instruments. Dinners in honour of the participantswere offered by the Minister of Justice, Legal andParliamentary Affairs of Zimbabwe and the Zimbabwe LawSociety. At the last mentioned, the guest of honour wasMr Arthur Chaskalson SC of South Africa. He is the NationalDirector of the Legal Resources Centre of south Africa. Thisis a body which helps to represent disadvantaged personsbefore the courts of South Africa, particularly personsdetained under the emergency laws. Mr Chaskalson alsoattended the meeting of the colloquium as an observer, as didrepresentatives of the African Bar Association, the ZimbabweLegal Resources Foundation and representatives of theUniversity of Zimbabwe, the publishers of the Law Reuorts ofthe commonwealth and of Interights. The last mentionedpUblishes regular bUlletins on developing international humanrights law and makes particUlar mention of domesticreferences to such law in court decisions in many countries rincluding Australia.

The principal proposal of the colloquium was the preparationby the Commonwealth Secretariat in London of a handbook forcommonwealth judges and lawyers. This would include theprincipal international human rights instruments togetherwith handy references to the leading cases on the variousbasic rights referred to in those instruments. Thepreparation of such a volume would, it is hoped, translatethe growing body of international human rights law from finesentiments in international treaties to an influentialstimulus to the decision-making of judges and the work oflawyers. International human rights law is not therebyincorporated into domestic law, contrary to establishedauthority. It simply becomes one of the resources by whichlawyers and judges perform their daily functions ofinterpreting ambiguous statutes and filling gaps in thecommon law where these are shown to exist. Support for thisapproach, which is now perfectly normal in England and inother countries, was expressed by all participants at theAfrican colloquium. It is recorded in the concluding

- 4 -

".;S

March 1989; (1989) 6 NSWJB 54.

The session then proceeded to a discussion led by I'lr Anthony Lester QC (United Kingdom) on the way judges could respond, consistently with human rights law, to state challenges to personal liberty of subjects who appeal to the court for protection. Antho~y Lester's sessio~ was stimulated by a paper of Ms Beverley 3y=icld of Intcrights, London o~

"Pcrso:1al Liberty and ?easons of state". The session concluced with a vigoro~s paper by Justice Bhagwati on :undarnental Rights in their Economic, Social and Cultural Context.

Although meetings of the Chief Justices of Commonwealth Africa now regularly take place (see (1988) 14 CLB 1198) it is rare, if not unprecedented, to have collected in the one place so many leading judges discussing international human rights instruments. Dinners in honour of the participants were offered by the Minister of Justice, Legal and Parliamentary Affairs of Zimbabwe and the Zimbabwe Law Society. At the last mentioned, the guest of honour was Mr Arthur Chaskalson SC of South Africa. He is the National Director of the Legal Resources Centre of south Africa. This is a body which helps to represent disadvantaged persons before the courts of South Africa, particularly persons detained under the emergency laws. Mr Chaskalson also attended the meeting of the colloquium as an observer, as did representatives of the African Bar Association, the Zimbabwe Legal Resources Foundation and representatives of the University of Zimbabwe, the publishers of the Law Reuorts of the Commonwealth and of Interights. The last mentioned pUblishes regular bulletins on developing international human rights law and makes particular mention of domestic references to such law in court decisions in many countries r including Australia.

The principal proposal of the colloquium was the preparation by the Commonwealth Secretariat in London of a handbOOk for commonwealth judges and lawyers. This would include the principal international human rights instruments together with handy references to the leading cases on the various basic rights referred to in those instruments. The preparation of such a volume would, it is hoped, translate the growing body of international human rights law from fine sentiments in international treaties to an influential stimulus to the decision-making of judges and the work of lawyers. International human rights law is not thereby incorporated into domestic law, contrary to established authority. It simply becomes one of the resources by which lawyers and judges perform their daily fUnctions of interpreting ambiguous statutes and filling gaps in the common law where these are shown to exist. Support for this approach, which is now perfectly normal in England and in other countries, was expressed by all participants at the African colloquium. It is recorded in the concluding

- 4 -

APPENDIX

H1IR1IRE < ZIMBNlWE

- s -

of A?peal, Supremewales, Australia.of ::.hG Executive,Jurists.

the courtNew south

and !'lemberCommission of

(Here set out)

* President ofcourt ofcommissionerInternational

REPORT OF JUDICIAL COLLOQUIUM ON THE DOMESTIC AP?LIChTlONOF INTERNATIONAL HUMl\N RIGHTS NORMS

~tatement which follows:

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.:;;ta tement \olhich follows:

* President of court of commissioner International

the court New south

and !'lember Co:nmission of

of A?peal, Supreme \vales, Australia. or ::.hG Executive, Jurists.

APPENDIX

REPORT OF JUDICIAL COLLOQUIUM ON THE DOMESTIC AP?LIChTION OF INTERNATIONAL HlJM}\N RIGHTS NORMS

HARlIRE < ZIMBhllWE

(Here set out)

- s -

HARf,RE DEClARATl.o:{ OF 1!1J}'.P.11 RIGHTS

\

of

the

his

the

!,.

The part1cipontS ~ere:

Chief Justice E Oumhutshen~, Z1~abwe (Convenor)

Justice A Ademola. MiQer 18

Cnief Justice E a AYoola. The G4mbia

Ju,tico P N Bnagawati, IndiaChief Justice B P cullinon. Les~tho

Justice A R Gubbay, Z1r.nah....eJustice 1-1 0 KirbY. CMG, jl.Ustral1<'lJu~ t ice RajSOOm;<r La l1ah. Haur 1t i usHr RqCorder Anthony Lester. qC,:un1ted Kin9d~~Chief Justice E L1vesey Luke. BQtsy~na

Chiof Justice F L Makuta. H~1~w1

The colloquium was honoured by. the .ttendance .t lhe first session

His .,CO II ency the ~on R G p.ug.Jbe •. pres Id,n t 0 f I 1mbabwe. who opened

colloquium wlth a speech in which he r,afffirmed th' comnltment of

Governr.",nt to respect for human rightS. the Independence of the judiciary.

rule of law and a bill of rights which Is justicIable In the courts.

As wHh the Bangalore col)oqulum, the meeting in Harare wOS

administered by the Co<r""nw"lth secretariat on behalf of lhe convrnor. the

~on Chief Justice E Oumbutshena, IChl~f Justice of limb,bw,,1 with lhe appro,,1

of tho Gov"nment of Ilmb.bwe ,nd with assistanCe from The Ford FoundotiOn

.nd

Interights -

s,,""n 19 and 22 Apdl 19S9 there ~as convened in oMMe. ;Ieb,b·". ,

high level judicia I colloquium on tee Oor..estlc APpllalinn

of International

~uman Rights liorms. The colloqnium followed an earll,r ~"tjng held in

B",galore

, India in February 19£3 ,t which the Bangaler' Principles "ere

foroul.tod

. Tho operative parts of the Principles Me ,n annex lure to this

Statemont .

:-.: . :-:,'.-. ,;'"t'·····

i I

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I, l

HARt,RE DEClARAT l.O:{ OF HIJ}'.P.ll R t GriTS

s,,""n 19 and 22 Apdl 19S9 'here ~as convened in oMMe. ;lebab·". a

high level judicial colloquium on tee Oor..estlc APpllalinn

of International The eol1oquiu r:: followed an earl~er r.;.;:~ting held in

B,ng,lore, India in Febru,ry 19£3 ,t "hlch the Bangalu, Principles were

foroulatod. Tho operative parts of the Principles Me ,n annex lure to thiS

\-Iuman RhJhlS t1or rns .

Statemont .

As wi th the Bangalore col)oqulum, the meeting in Harare '.I<lS

admlnlstared by the Co<r""n""lth secretariat on behalf of lhe Convenor. the

Hon Chief Justice E Oumbutshena. IChl~f Justice of limb,b",,1 ~ith lhe approval

of tho Go"rnment of Ilmb,bwe ond with assist,"ce from The Ford Found"ion end

lnterlghts .

The coiloqulum waS honoured by. the ,ttendance at lhe first session of

His i,coilency the Hon R G Poug.Jbe •. President of IImb.b"e. who opened the

colloquium with a speech in which he re.fffirmed the comnltment of his

Governc",nt to respect for hum.n rightS. the Independence of the judiciory. the

rule of l.w and' bill of rights which is justlcl.ble in the courts.

The partleipontS ~ere:

Chief Justice E Oumhutshen~, Z1~abwe

Justice A Ader..ola. N1\jeJ·1e. Chief Justice E a A,yoola, The G4mbia

Ju,tleo P N Bhagawat1, Ind1a

Chief Justice B P Cullinan, Les~tho

Justice A R Gubbay, Zirrbahwe

(Convenor)

Justice 1·1 0 Kirby. CMG, p.ustral1<'l

Ju~ t iee RajSOOm;<r La llah, Haur 1t i us Hr Rqeorder AnthOny Lester. qC. :Un1ted Kingdo-'!I

Chief Justice E Livesey Luke. BQt$y~na

Chiof Justice F L He.kuta, H~1~'.I1

.,t·· .. ··

: ,

the c1t.rlf1cat1on and strict interpretation of some of the provisions

which are derog~t1ng fr~~ jmpor~ant human rights; and

VariouS opinionS ....are oxpressed by the particlP<lnts cQrlccrnintj I.'ay~ G:

strengthaning the imp1eViilntation of th.,e Charter including:

the Interpretation of the prov1s1ons In the light of the jurisprudence

which has dQveloped on simi la, provis.ions in other international .:Jnd

regional statem€nts of hu~~n rights;

of

the

2

approprlate. time, of the mochint!ry provided by

consideration of compL'Ilnts and the pr'o~'isl':'n

In cases of violation.

en largement. a tan­

Charter for the

effect lve rCr.'I.:ldlcs

Chlof Justice Cccil I! E ~HJ\'2r, ~(!ny3

_ChlQf Justice F L 11y.,,1.,,11, T3nzon13

Justice E U Sal'\sole. 11mbab~o

Chief Justice E A Soaton. Seyche)18$

ChlQf Justlco A ~\ Silung'riil. Zarnbj,l

Jut1co J N i< T~ylor, Ghana

Justice l E UnyolO, Malaw1

countries ned ratified or accedp.d to tpe Charter.

The pa r tic1pflnts paid espec \a lty close attention tC the provisions of

the African Chartar on Hum~n and Peoples' Rights.Tnat Charter was adopted as

a -regional treaty by tho Organ 1S8 t IQJl of African uni ty In 1981 and entered

inlO force on 21 October 1986, At the time of the Harare meeting, 35 African

The part Icipants eX<lmined a. nur.tber of p~pers .....hich were presented (or

their consideration. These Included pflpers ..... hlch reviewed the deve1opr.lent of

International Human Rights NormS parti.cularlY in the years since 1945: a paper

.....hich Qxam1ned the domestic:: applicatIon of the African Charter on Human and

peoplQs' Rights; a paper on personal liberty ~nd reasonS of State and a paper

on .....ays in which jud{les, in domcst1c jurisdiction, may properly toke intO

account in thair dally .....ork the norms of human rights contained In

intQrn~tiona1 Instruments ....hsther univerSbl or regional.

r',>,I

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> Chlof Justice Cocil)! E ~HJ\er, ~(!ny3

.Chl"f Justice F L l!y.,,\.)11, T3nZI)n13

Justice E U se.nsole. 11mbab·,..\1

Chief Justice E A Soaton, Seyche)lC!s

Chlof Justle\) A ~\ Silung'riil, Zarnbj,l

Jutleo J " K T~ylor. Ghana

Justice l E Unyolo. Malawi

The part IclpanlS CX3rnined a nur.tber of p~pers ..... hlch were presented (or

their consideration. These Included Dflpers which reviewed the developr.lenl of

International HUi':"kI!1 Rights Norms parti.cularly in the years since 1945: a paper

.... hich Qxamlned the domestic:: appl !calion of the African Charter on Human and

peoplQs' Rights; a paper on personal liberty ~nd reasons of Scate and a paper

on \-lays In ...... hich jud{les, in domestic jurisdiction, may properly toke intO

account In their dally .... ork the norms of human rights contained In

lntQrn~tional Instruments .... hsther lInlverSbl or regional.

The particlp~nts paid especially close attention tC the provisions of

the African Charter on Hum~n and Peoples' Rights. That Charter \-las adopted oS

a 'regional treaty by tho OrganisatlQfl of African unity In 1981 and entereo

into force on 21 October 1986. At the time of the Harare meeting. 35 African

countries had ratified or accedp.d to tpe Charter.

VariouS opinions were oxpressed by the particip<lnts cOrlccrnlrltJ I.'ay~ G:

strengthening the imple~ntatjon of t~e Charter fncludlng:

the Interpretation of the prov1slons in the light of the jurisprudenCe

which has dQveloped on simi la, provis.ions in other International .:Jnd

regional statem€nts of hu~~n rights;

the clHlflcatfon and strict interpretation of some of the provisions

.... hlch are derog~ting fr~~ Impor~ant human ~lghts: and

enlargement. at an' appropriate, tfme. of the machint!ry provided by the

Charter fo~ the consideratfoll of cOrnpLllntS and the pr'o~'isl('n of

effective rc~~dlcs in C3ses of violation .

. 2

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In particul~r the participants noted th3t:

Ihe opening recital of ~hu Ch~rter of the Unllcd ;1.HlonS cont~ins d

ringing re_afflrmation of 'fa1th 1n f\lndJ;r,.~ntal human rIghtS. in ~hed1gnity and wortll of t.he hu;';)an ~erson af)d 1n th~ ~r;llil! r ighlS of men i1nd

...or.wn' ;

ThQ Charter of tho Org~nis<ltlof\ of Afdean Unit,}' In,:ludcs reference to

"frQadom, equalIty, just.ico and legItimate asplrJti.Jns of the Afric2.n

. pooples";

The Preamble to the African .Charter (If Human and Peoples' Rights

procloims that fundamental humpn rights stem from the attributes of

human beings and that this justil1es the1r InternatiOlla1 protection;

The freedom r.ovement in Afr1ca, has haQ as a centr31 tenent the: total

11beratlon

of Afr1ca. the peoples of .....hich are still struggling for

th.:l1r dignity ~nd genuine IndeQendence which digni ty and Independence

can only be realise~ fully 1f the Internationally r~cog(l1sed human

rights norms are observed and f4111 protected;

There is a close inter-11n~age. bi3tl-lecn civil and p")liticai rights and

econom1c and social rights; n~lther category of human rightS can be

fLllly realised without tht} enjoj'lTlent of the other. Indeed. as President

Kugabe said at the opening Of the colloquium: "lhe denial of human

rights and funM.ment:al freedoms.. is not only an Individual tragedy_ but

lllso creates conditions of social and political unrest. sowing seeds of

violence and conflict within anq between soc,etles and nations."

ThQ participants were encouraged in their ....ork by the declaration of

PresidQnt Mugaba that the nations of Africa, having freed themselves of"

colonIal rule and the derogat1ons from respect for human rights involved in

sllch rulQ, hove a partlclllar duty to observe and respect the fundarTh?ntal human

r1ghtl:i for which they have sacr1f1ced so much to win. including the struggle

against racial discrimination 1n all its aspects. The ultimate achievcment of

tho freedom struggle In ,\(r;c,' -.1111 not be complete until the attainment

throl,lghout the continent of proper rE\spect for the humi:ln !'ightS of €:veryonc -

)

,..-----------------~ , , ,

h

In partlcul~r the participants noted th3t:

Ihe opening recHal of ~hu Ch~rter of the Unllcd ;1.Hl0(15 cont.:dns d

ringing ie_affirmation of 'faith In f\lndJ;r,.~nt31 human rights, in ~hc d1gnity and wortll of t.he hU;';Jan ~erson af)d In th~ ~r,lli!! r ighlS of men i1nd

... or.wn' ;

ThQ Charter of tho OrgMds<ltlof\ of Afd een unltj' In·:ludc$ reference to

"frQadom, equality, justlco and legItimate asplrJti.Jns of the Afric2.n

. pooples";

The Preamble to the AfrIcan .Charter (If Human and Peoples' Rights

procloims that fundamental humpn rights stem from the attributes of

human beings and that this justilles their InternatiOliai protection;

The freedom r.ovement In Africa, has hdQ as a centr31 tenent the: lotal

liberation of Africa, the peoples of ..... hich are still struggling for

th.:!lr dignity ~nd genuln~ indcQendence which digni ty and Independence

can only be realised fully 1f the Internationally r~cognlsed human

rights norms are observed and f4111 protected;

There is a close inter-lln~age. bi3tl-lecn civil and po)litlcai rights and

economic and social rights; IH\ther category of human rightS can be

(l.llly realised without tht} enjoj-ment of the other. Indeed. 3S President

said at the opening Of the colloquium: "lne den la I of human

Kugabe

rights and funMoment:al freedoms.. Is not only an Individual tragedy_ but

lllso creates conditions of social and pol1tlcal unrest. sowing seeds of

violence and conflict within anq between socip.ties and nations."

ThQ participants were encouraged in their ..... ork by the declaration of

PresldQnt Mugaba thal the nations of Africa. having freed themselves of

0

colonial rule and the derogations from respect for human rights involved in

sllch rul'l:, hova a partlclllar duty to observe and r"espect the fundarr..?ntal human

right' for which they have sacrtr1ced so much to win. including the struggle

against racial discrimination 1n all its aspects. The ultimate achievement of

tho freedom struggle In Afric,' -.1111 not be complete until the attainment

throl,lghout the continent of prope .. rE\spect for the hUlT\iJ,n !"ightS of €!vcryooc -

. )

.?oS an ex.:lmple and inspiratiOn to nU17:.Jn!<ind ~very,.;here. In the wordS of ;Iclson

1'landelt1

, to which President ~lugabe drer: attention, "Your fri;edom Jil(l mln~

ct1nnot be separ3ted".

I.

..

,.,

2

3

The p~rticipt1nts agreed ~s f0110~s:

Fundar;:-enta

l human rights and {rcedor::S are Inherent in humankind. In

some casOS, they are expressed In the constitutions, legis1<lt10n and

principles of common law and customary 103. .... of each country_ They drc

also Qxpressed

in customary Internat10nJ,1 law, internationill instruments

on human rights and in the developing internation,,1 jurisprudence on

human r 1gh ts.

The coming lnto force of the Mrlcan Charler on HUIl'l3Il and Peoples I

Rights is a step 1n the ever w1dening effort of humanitY to pror:ote and

protect fundamental human rights declared both in universal and regional

1nstrumen

ts, The gross vio13tlons of human rights at,d fundamental

freedoms which have occurred around the .....orld in living li'~moI"Y (nnd

.....h1ch still occur) provide t~e impetus in a world of dim1nlShing

distances and growing interdependence, for such effort to prov

1de

effectively for their promotion pnd protection.

aut fine statef:lents In domestlC laws 01" internattonal and reg10nal

instrulilOntS are not enough. Rather it is essential to develop a culture

of respect for lnternat iona 11y stilted human rightS norms ....hich !'ecs

these normS applied in the dome,stic 1aws of all nationS and given full

effect. They bust not be seen as d1ien to domestic la..... in national

courtS. It is 1n this context that the Principles on the Domestic

App11cation of InterMtlonal Hu,rnan RightS Horms stated 1n Ballgalore in

Febl"u.:sry 1988 al"e warmly endoned by the participants. tn partic\l1ar.

thoy reaffirlJ'oo?d that, subject alwlIys to any clearly appl icable dOlTIestic

la"" to the contrary, it is .... ithin the proper nature of the judicial

process (or national courts to pave rcgdTd to intern.lt10nal hUl:lan r1ghts

norms _ whether or not incorpor~ted into dornest ic liM and whether or not

il country is party to a particular conventIon ....here it is declaratory of

customary interMt10Ml law _ for the pUl"pose of rC50lv;ng ambiguity 0'"

uncerta1nty in national constitutionS i'Hld legislatioll or filling gaps 1n

,

.?oS an ex.:lmple and inspiratiOn to nU17:.Jn!<ind ~very,.;here. In the wordS of :Ielson

!.!andelt1

, to which President ~Iugabe drer: attention, "Your fri;edom Jil(l mln~

ct1nnot be separ 3 ted".

The p~rticipt1nts agreed ~s f0110~s:

Fundar;:.enta

l human r1ghts and {rcedor::S are Inherent in humankind. In

some casOS, they are expressed In the constitutions. legisl<ltion and

principles of common law and cuSlOm3ry law of each country. They drc

also Qxpressed

in customary lnternat10nJ,1 law, internatlonill instruments

on human rights and 1n the developing internation,,\ jurisprudence on

human r 1 gh ts.

2 The coming fnto force of the Mrlca n Charter on Hull'l3ll and Peoples'

Rights is a step in the ever w1dening effort of humanity to pror:ote and

protGct fundamental human rights declared both in universal Jr,d regional

ins.truments. The gross vio13tions of human rights at,d fundamental

freedoms which have occurred around the world 1n living fi'~mory (nnd

which st111 occur) provide t~e impetus 1n a .... orld of diminiShing

distances and gro .... ing interdependence, for such effort to provide

effectively for their promotion pnd protection.

J But fine state<'lents In domestiC laws or international and regional

instrulilOntS are not enough. Rather it is essent1al to develop a culture

of respect for Internat iona 11y stilted human rightS norms which !'ecS

these normS applfed in the dome.stic 1aws of all nations and given full

effect. They r.,ust not be seen as alien to domestic law in national

courtS. It is in this context that the Principles on the Domestic

Application of InterMtlonal Husnan RightS Horms staled tn Bangalore In

Febru,:,ry 1988 are warmly endoned by the participants. tn partlc\dar.

thoy reaffirlJ'oo?d that, subject always to any clearly appl icable domestic

law to the contrary, it is .... ithin the proper nature of the judicial

process (or national courts to pave regard to intern.ltfonal human rights

norms _ whether or not incorpor~ted into damest Ic liM and whether or not

a country is party to a particular convention where it is declaratory of

customary intCrMtloMl law _ for the purpose of rC50lving ambiguity 0"

uncertainty in national constltutlons and legls13tiort or fil11ng g3pS in

: ! : ;' ,

s

5

the basic texts of the most rflevanl international c.nd regional human

rights Instruments;

~hc COlXr..lJn 1.1..... The pvrticipants noted many recent examples in

countries of the CO(O\f,"On.... ealth I-Il]ere this had been done by courts of the

h1ghQst authol"1ty _ Including In f,ustrill1,). India, HaurltluS, the united

Kingdom and 21mb~bwe.

resp~c t the

litiSJnts Jnd

- s:a:ed into ensur'~ that: judges, lawyers,

applfc.:.ble I!lU;I ..\n rights norms

and other·.o'1se. In this1ns trumentsinternational

As a practical measure to c~rry1ng forward the objectives of t~e?rfnc1ples stated at B8ngalor~. the partlClpants requested that the

Lagi'll 01 ..... 1$ fon of the ComrrcnW'l3 1th Secretariat arrange for a handbook

for judges i'lnd lawyeT"s in all Darts of the COlmlonweillth to be produced,

contaln1ng at least the follo.... i~g:

pi)rtlclpllnts endorsed the spirit of ,;nlcle 25 of the AfrfC<1Cl Charler.

UndQr that Article. States PaT"tles to the CharteT" have the duty to

prorrDte and ensure through teach iog. educat lon and pub 1iea t ion, respect

for the rights and fT"eedoms (and correspondfng duties) expressed in the

Charter. The partlciponts 100kQd forward to the Commission establishc<1

by the African Charter develop1l')g 1ts work of promoting an a""areness of

human rightS. The work being done in this regard by the publfcation of

the COrrmJlTrIealth Law Bulletin, the La.... Reports of t~~ CCfilmonwealth and

the bullet1n of InterlghtS (The Tnternation;'ll Centre for the Legal

ProtQction of Human Rights) loIas especially welcomed. But to facilir."te

the domestic app11cation of lnt~rnational human rights norms r.~re needed

to be done. So much \-las l"'ecognised in the Princlpll~s stated after the

Bang3lore Colloquium .....hich called for new initiatives 1n le9al

oducat1on. provision of material to libraries and better dissemination

of information about developm·ents in this field to judges. lJ\-Iyers and

law enforc~nt officers 1n particular. There i~: also a role for

non-goverM.ent organisatIons in these as in other re9ards, including the

developm4nt of public interest litigation.

There is a part icular need

others are Ii\Jdc aware of

5

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~hc CQlXr..lJn \.1 ..... The pvrticipants noted many recent examples in

countries of the C0(O\f,"On .... ealth \-Illere this had been done by courts of the

hlghQst authol"1ty _ Including In f,ustrill1,). India. Haurlt!uS. the United

Kingdom and 21mb~bwc.

There Is a particular need to ensur·:! that. judges. lill-lyers, l iti SJnts ,lnd

others ara Ii\Jdc a ..... are of applfc.:.ble I!llr.I .. \n rights norms - s:a:ed in In this ('esp~ct the

Internatlonal lnstr"uments and other·,.dse.

pilrtlclpllnts endorsed the spirit of ';rtlcle 25 of the AfrfC<1Cl Charler.

Undor that Article. States Pa!"tles to the Charter have the duty to

prorrDte and ensure through teach ing. educat Ion and pub 1 iea t ion, respect

for the rights and freedoms (and corresponding duties) expressed in the

Charter. The partlciponts lookgd forward to the Commission establish~(1

by the African Charter developll')g Its work of promoting an Q.""areness of

human rights. The work being done in this regard by the publication of

the COlTmOn'rIealth Law Bulletin, the Law Reports of t~~ CCfilmonwealth and

the bullet1n of Interlghts (The tnternation,)l Centre for the Legal

ProtQctlon of Human R1ghts) was especially welcomed. But to faciiil."le

the domestic application of Int~rnational human rights normS r.~re needed

to be done. So much \-las !"ecognised In the Princlpl'~s stated after the

Bang310re Colloquium ..... hich called for new Initiatives In le9al

oducatlon. provision of material to libraries and bette!" dissemination

of information about developm·ents in this field to judges. lolwyers ancl There i~ also a role for

law enforc~nt officers In particular. non-goverM.ent organ Iso. t Ions in these as In other re9ards, includ ing the

developm4nt of public Interest litigation.

As a practical measure to c~rry1ng forward the objectives of t~e Pr1nclples stated at B8ngalor~. the participants requested that the

Lagi'll Dlv IS Ion of the ComrrcnW'l3 lth Secretariat arrange for a handbook

for judges i'lnd lawyers in all Darts of the COlmlonweillth to be produced,

containing at least the fol1owi~9:

the basic texts of the most rflevanl International c.nd regional human

rights Instruments;

5

:' i '~ !

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,

Zimbab....e

H3rara

22 Aprll 1989

6

if the judges and lJl-lyers in Afr:ica - and lncee'! of the Commonwealcl1 ,'nJ

of the wider world - have ready access to reference materjal of this

k1nd, opportunities .... ill be enho:nced for the princ!ples of international

human rights norms to be utll Ised in proper w~ys by Judges anu lawyers

performing their dally work. In this Wqy. the long journey to universdl

respect of basic human rfghts will be ddvanced. Judges and la ....yers have

duty to familiarise th€1l15..clves with the growing 1nternational

JurisprudencE of human rIghts. ,$0 far as they may lawfully do so, they

have a duty to reflect the! basic norms of human rights 1n the

performance of thefr duties.

up to date raforences to the Jurjsprudcnc~ of internatiollal Jnd n~tioanl

COllr:s relevant to the r.:~J.lling of the provisions i;"l such instruments.

a tabl<.l (or Odse of rofcrenc:e to .JnrJ compor1son of applicable pro',isions

in (j~ch instrument; Jnd

In this way the noble words of internatIonal instrlJments ~il1 be

translated into legal reality for the benefit of the people we serve but also

ultimbtely for that of peopla 1n every land.

6

t

,

i'";

,

1•!

Ii

t,\

Iith

Ia tabl<.l (or Odse of roferenc:e to .JnrJ comporison of applicable pro'/isions

In (j~ch instrument; Jnd

up to date raforences to the Jurisprudcnc~ o( internatiol1al and n~tioanl

COllr:5 relevant to the r.:~J.lling of the provisions i.'l such instruments.

6 if the Judges and li\wyers in Afr:ica - and Incee'! of the Commonweal,-l1 ,'nJ

of the wider world - have ready access to reference material of this

kind, opportunities .... ill be enho:nced for the principles of international

human rights norms to be utll Ised in proper w~y$ by Judges and lawyers

performing their daily work. In this Wqy. the long journey to universdl

respect of basic human rights will be advanced. Judges and la .... yers have

duty to familiarise th€1l15..clves with the growing International

JurisprudencE of human rIghts. ,So far as they may lawfully do so, they

have duty to reflect the! basic norms of human rIghts 11"1 the

performance of their duties.

In this '.(ay the noble ..... ords of international instruments ..... il1 be

translated into legal reality for the benefit of the people .... e serve but also

ultimbtely for thbt of peopla fn every land.

Zimbab .... e

22 Aprll 1989

6

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