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The concept of Human Rights

i) Definition of human rights

Here we start our discussion with the definition of human rights.
Human rights are said to be inalienable entitlements that each person has by virtue of being human. As we can see from this definition, human rights go to the root of a person’s existence. This also means, human rights are God given since they exist because of a person’s existence.
Human rights may be said to be natural entitlements that no one can take away.
Therefore, each person is free to enjoy his/her rights.

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A right is a claim to something or authority to do something.
Although inalienable, human rights, as we will see later are not absolute in their enjoyment.
Human beings who possess the rights are found in communities.
Therefore, human rights do not exist in a vacuum, they exist where people are.
As such, where one person’s rights end, the other person’s rights start. This means that in the enjoyment of human rights, consideration must be given to the rights of others. This promotes co-existence.

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ii) Types of Rights: Moral, Legal, Constitutional rights

There are several types of rights each with its own connotations.
The major groups are moral rights, legal rights and constitutional rights.
Moral rights are those rights that have something to do with principles of right and wrong behavior. These are standards based on people’s sense of what is right and acceptable. A moral right is not enforceable by the state through courts of law. It however binds society in its interaction. Its effectiveness lies in the force of public opinion and one’s conscience. A moral wrong is frowned upon by society and one may lose the confidence of the family or friends.

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A legal right on the other hand is established by law. It is a legal right because it is found in legally established documents and laws. It is enforceable in the courts of law.
Constitutional rights are those found in the constitution and enforced by the courts. These are stated in the bill of rights. They are fundamental rights because they are ordained in the constitution which is the supreme law of the land.
One of the most famous constitutional rights is the freedom of assembly, another is the freedom of expression.

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These are usually litigated upon by those who claim to have their rights infringed. See Christine Mulundika & 7others v The People (1995-1996) ZR 1.
It is important to know that for one to claim a right, that right should be legally enforceable. This is referred to as justiciability.
The rights contained in the bill of rights are justiciable, meaning a person can sue to claim any of the rights if infringed.
Even though justiciable and fundamental, constitutional rights are not absolute as they have a number of derogation clauses. These are limitations embedded in each right except the freedom from torture.

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iii) History of Human Rights
Human rights have existed from time immemorial.
This arose from the need to protect the individual from the power of the sovereign kings.
In addition, the atrocities of the second world war brought to the fore the urgent need to promote and protect human rights to reduce the suffering of many innocent individuals.
This journey was not always smooth as it faced resistance from some quarters of society such as the European rulers.

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The proper grounding of human rights came after the creation of the United Nations. This brought about the unified regard for human rights and human dignity.
With the adoption of human rights as fundamental came the need to have institutions for the protection of the said rights.
The world today regards human rights as universal and they form an integral part of international law and international relations.
To that end, the Charter of the UN states ‘the people of the united nations reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.’

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One of the purposes of the UN is to ‘achieve international cooperation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.’
The non-discrimination clause in the application of human rights was coined here and is found in many other instruments as well as national laws.
Human rights are inherent in human nature and are foundations of human existence and co-existence.
Human rights are the hallmarks of democratic societies.

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The development of human rights was also influenced by philosophical postulations such as those of the natural law theory, positivism, culture, secular ideas among others. In recent times, it has been influenced by feminist theories as well. For our purposes, we shall focus on the natural law and positivists influences.

iv) Influence of Natural law

natural law theory is individual centred emphasizing individual freedom and the inherent nature of the rights.
It postulates that rights are not given but that they come naturally to all human beings.

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The natural law theory is founded on two philosophical conceptions; these being natural law or the law of nature and the social contract.
Basically, the natural law theory subordinates man-made laws to individual claims.
The natural law theory states that people have rights against the government.
This theory postulates that the prescriptive rules of law as to what is right or wrong are self evident in nature or ascertained through reason. This natural law is given by God and hence any law made by man is inferior to it.

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Accordingly, the individual is regarded as sovereign, superior possessing a whole range of rights and liberties in a state of nature.
People are said to possess certain rights in the natural state devoid of the intervention or support of society.
As such, the individual brings these rights with him/her into society which is created not to destroy the rights but to protect them by enacting laws.
As such an individual does not lose all the rights upon gaining civil status in civil society. Some rights are surrendered in order to enable society to function but other rights remained protected by natural law.

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According to John Locke’s thinking, individuals entered into a social contract whereby they made a pact to form civil society (pactum unionis) and in the second pact (pactum subjectionis) instituted government with political powers to protect their respective rights.
Therefore, through this the individual gave up some of the rights in exchange for being part of society.
The purpose of government therefore is to protect the individuals who in turn obey the laws. In the absence of protection, the people can decide to have another ruler.
We are all encouraged to read the works of John Locke, Jean Jacques Rousseau, Thomas Hobbes and other natural law philosophers.

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v) Influence of positivism

Focus on the natural law theory declined in the 19^th century although it revived later in the 20^th century. The positivist theory took centre stage.
Positivists argued that there was nothing divine about law and that all rules were made and accepted as such. They refused the existence of natural rights stating that rights could only flow from the law of the society and could not come from any natural or inherent source.
The focus on individualism postulated by natural law theory was despised and accused of having led to the French and American revolutions

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Positivists make a clear distinction between the laws of science which govern the behavior of all physical entities in accordance with the unavoidable principle of physical causation and normative laws which lay down norms of human conduct.
They make a clear distinction between the field of fact which is the ‘is’ and the field of ‘ought’. Is deals with ‘what is’ or lex lata or expository jurisprudence while ought deals with ‘what ought to be the case’ or lex ferenda or censorial jurisprudence.
According to the positivists, what qualifies to be law is decided by the criteria set by the society in which the rule operates.

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Therefore for the positivists, law must be actually exist and should be capable of being found.
They separate moral and legal principles stating that concepts of good or bad are irrelevant to the question of validity of a legal rule. A moral question does not deprive a legal rule of its validity. This is not to say a bad law is just and must be obeyed. It only means that a bad law does not cease to be legal because of its moral shortcomings.
Accordingly, a judge cannot refuse to apply a law just because he or she believes the law to be bad because the judicial duty under the law is to apply the law whether it is bad or good.

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Therefore according to the positivists, a rule properly made and accepted is a valid law irrespective of its moral content.
Human rights derive their validity and status from society’s designation; it is up to society to decide whether or not to invent some set of laws with a higher authority.
As such according to this school of thought, what sets human rights apart is nothing inherent in the rights themselves. It is how society’s law makers choose to define, categorize and regard those rights. Every society decides for itself what its fundamental values are.

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Positivism suffered a decline for three main reasons: firstly, the frequent wars led to a decline in standards and to growing insecurity. Secondly, the atrocities of the second world war shocked the entire world and thirdly, totalitarian regimes which passed abhorrent laws while strictly following the legislative procedures emerged in many parts of the world.
This situation called for a moral order and the development of an ideological control. This led to the revival of the natural law theory.
Propounded by Kent, the new natural law theory was based not on God but on what was reasonable.

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vi)Human rights and constitutionalism

Constitutionalism is adherence to a constitutional system of government. it is the idea of doing things according to the constitution.
This is the idea often associated with the theories propounded by John Locke that government can and should be legally limited in its powers and that its authority or legitimacy depends on its observing the said limitations.
How then does constitutionalism relate to human rights?

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The basic idea is that human rights must be protected by government in order for people to enjoy them.
The government should not infringe on the rights of individuals especially the civil and political rights because these rights are fundamental to the existence of individuals.
The government should not restrict for example the right to assemble freely and the right for one to express himself or herself.
These rights are the most abused in many societies by citizens on one hand and they are often restricted by the government through application of certain laws like the Public Order Act.