HUMAN RIGHTS-By Winfred Lichuma
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 posses,
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
imposes corresponding duty to 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 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

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also be referred to as Conventions, Protocols, Agreement 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 in local laws in order to be applicable.
The nine (9) Core international human rights treaties are:
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 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 Degrading
Treatment or Punishment (CAT) (1984)
7. International Convention on the Protection of the Rights of All
Migrant workers and members of their Family (MWC) (1990)
8. Convention on the Rights of Persons with disabilities (CRPD) 2006.
9. The international Convention for the protection of All persons
from Enforced disappearances 2006 (will come into force soon).
There are also regional human rights treaties which essentially concern the
same sets of rights but only open for signatures 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.
• Protocol to the African Charter on Human and People’s rights of
women in Africa.

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In addition to the above, some of the 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 legislations
• 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 standards 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.

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• Freedom from torture and cruel, inhuman or degrading treatment or
punishment.
• Right to the highest attainable standard of health
• 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.
• The right to education e.t.c.
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, and 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. 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 to the human rights principles should take appropriate

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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 right means to take steps progressively to realize the right
in question. These obligations 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.
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 periodic report to 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

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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 right are
violated.
Taking the rights 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.
Note
1. The Universal Declaration of Human Rights together with the International
Covenant on Civil and Political Right and the International Covenant on
Economic, Social and Cultural Right form the 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 of 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, Stateless, Asylum and Refugees.
– War crimes and Crimes against Humanity, including Genocide.
– Humanitarian Law
– Slavery, Slavery-like practices and forced labour.
It is important to understand rights since they form the bases