Civil and Political Rights

Roselyn Karugonjo-Segawa
 Overview of Lecture
§ Introduction
§ Description of Civil and Political
Rights (CPR)
§ Classification of CPR
§ State obligations on CPR
§ Limitations
 Introduction
§ Civil and political rights are contained
in the UDHR, ICCPR, regional
instruments and Constitutions and
subsidiary laws (Lecture will
concentrate on ICCPR)
§ Civil and Political Rights especially
in the UDHR and ICCPR are
universal (supported by a great
majority of States).
 Introduction
§ By and large civil and political rights
place duties upon the State with a
few obligations placed on the individual
(see Preamble of ICCPR and Art. 29 of
the UDHR)
§ Initially presumed to be absolute and
immediate unlike ESCR which are
progressive
§ Civil and Political rights can only be
limited under certain circumstances.
How would you describe Civil and
Political Rights?
Article 6 – Right to life. • Article 17 – Freedom from arbitrary
Article 7 – Freedom from torture. or unlawful interference.
Article 8 – Right to not be enslaved. • Article 18 – Right to freedom of
thought, conscience and religion.
Article 9 – Right to liberty and security
of the person. • Article 19 – Right to hold opinions
Article 10 – Rights of detainees. without interference.
Article 11 – Right to not be imprisoned • Article 20 – Propaganda for war
merely on the ground of inability to shall be prohibited by law.
fulfil a contractual obligation. • Article 21 – Right of peaceful
Article 12 – Freedom of movement assembly.
and choice of residence for lawful • Article 22 – Right to freedom of
residents. association with others.
Article 13 – Rights of aliens. • Article 23 – Right to marry.
Article 14 – Equality before the courts • Article 24 – Children’s rights
and tribunals. Right to a fair trial. • Article 25 – Right to political
Article 15 – No one can be guilty of an participation.
act of a criminal offence which did not • Article 26 – Equality before the law.
constitute a criminal offence. • Article 27 – Minority protection.
Article 16 – Right to recognition as a * Summary of ICCPR
person before the law.
 Description of CPR
Civil and Political rights are the rights
that generally:
a) restrict the powers of the
government in respect of actions
affecting the individual and his or her
autonomy (civil rights); and
b) confer an opportunity upon people
to contribute to the determination of
laws and participate in government
(political rights).
 Description of CPR
Civil rights include:
§ the right to life;
§ the right to freedom from torture
and ill treatment;
§ the right to a fair trial;
§ the right to freedom of assembly
and association
§ the right to freedom of thought,
conscience and religion
 Description of CPR
Civil rights also include:
§ the right to freedom of expression
§ the right to an effective remedy
§ the right to privacy
§ the right to liberty and security
§ the right to asylum
§ the right to freedom from
discrimination*
 Description of CPR
Political rights include:
• the right and opportunity, without
unreasonable restrictions, to take
part in the conduct of public
affairs, directly or through chosen
representatives.
• The right to vote and stand for
election at genuine periodic
elections held by secret ballot
Right to life
 Right to Life
Everyone has the right to life but this right
is often violated, for example:
• deaths in custody as a result of torture,
neglect, the use of force, or life-
threatening conditions of detention;
• killings by state agents, or persons acting
in direct or indirect compliance with the
State, when the force used is not
absolutely necessary and proportionate to
the circumstances;
 Violations of the Right to Life
• expulsion or "refoulement" (illegal
return) of persons to a country where
their lives are in danger;
• failure by the state to investigate alleged
violations of the right to life and to bring
those responsible to justice.
• Failure to comply with the standards on
the use of the death penalty.
• Unlawful abortion
Freedom from Torture and ill treatment
UHRC Photos
The right to freedom from torture
Everyone has the right to freedom from
torture and inhuman or degrading treatment
or punishment but this right is often violated,
for example by:
• the deliberate infliction of severe
physical or psychological pain by state
agents with the intention of causing
suffering;
Violations of the right to freedom
from torture
• expelling or returning a person to a
country in which they face a real risk of
being tortured or subjected to inhuman
or degrading treatment or punishment;
• keeping persons in very poor conditions
of detention, even if there is no intention
to inflict suffering;
• corporal (physical) punishment of
children in schools.
Right to a fair trial
 Right to a fair trial
Everyone has the right to a fair trial but
it is often violated through:
• Trials by Courts which are neither
independent nor impartial;

• trials in which, from the beginning,

one party has a significant
advantage over the other (in breach
of the principle of "equality of arms");
Violations of the right to a fair trial

• excessive delays in bringing a case

to trial and/or in completing court
proceedings;

• secret trials;
Violations of the right to a fair trial
• failing to respect the presumption
of innocence by denying
procedural guarantees of
protection to accused persons (e.g.
information about the nature of the
charge, time to prepare a defense,
access to a lawyer, the possibility to
confront witnesses and (if necessary)
access to interpretation).
Freedom of assembly and association
Freedom of assembly & association
Everyone has the right to freedom of
assembly and association but this can
be violated by:
• preventing peaceful public
demonstrations (unless it can be
shown that there would be a serious
danger to public safety and order if
the demonstration took place);
Violations of freedom of assembly &
association
• restricting possibilities to join
voluntary associations; denying
persons the right to form and/or
join organized unions.
Freedom of thought, conscience
and religion
Freedom of thought, conscience and
religion

This right includes freedom to have or

to adopt a religion or belief of his or
her choice, and freedom, either
individually or in community with others
and in public or private, to manifest his
or her religion or belief in worship,
observance, practice and teaching.
Freedom of thought, conscience and
religion
Common violations include:
• Coercing people to adopt certain
religion and imposing
unreasonable restrictions, including
criminal penalty, for exercising one’s
own religion.
Freedom of expression
Everyone has the right to freedom of
expression but this right can be violated
by:
• restricting access to political,
artistic or commercial information
and ideas (e.g. limiting the freedom
of the press; placing undue
restrictions (excluding reasonable
licensing restrictions) on
broadcasting.
Right to effective remedy
Right to an effective remedy
Everyone has the right to an effective
remedy but it is violated by:
• failing to provide adequate
procedures to complain about, or
obtain compensation for, killings by
security forces; and
• not carrying out thorough enquiries
or investigations into alleged ill-
treatment by security forces; among
other things
Right to privacy
Right to privacy
Everyone has the right to privacy but it
can be violated in a variety of ways,
including by:
• interfering with private
correspondence;
• intervening in a person's private
life;
Violations of the Right to privacy
• disrupting family life (which includes
the right to marry and to found a
family);
• destroying a person's home or
preventing a person from living in
his/her home;
Liberty and Security
Right to liberty and security
Everyone has the right to liberty and
security but this right can be violated
by:
• unlawful or arbitrary detention
(where there is no legal basis for the
deprivation of liberty);
• detention after a trial which did not
comply with international human
rights standards for a fair trial
Right to asylum
Right to asylum
Everyone who has a well-founded fear
of persecution has the right to asylum in
a country where they will be safe.
However, this right is violated by:
• not providing the facilities
necessary to enable people to claim
asylum (including interpreters and
properly-trained immigration staff);
• failing to give adequate
consideration to a request for asylum;
Violations of the right to asylum
• expelling a person to a country in
which he/she would be at risk of
torture or inhuman or degrading
treatment or punishment.
Equality and Non-Discrimination
Everyone has the right to equality and
freedom from discrimination but the right
is violated through:
• Discrimination against someone
because of: race, colour, sex,*
language, religion, political or other
opinion, national or social origin,
property, birth or other status.
* Ugandan Constitution Article 21 includes ethnic
origin, tribe, birth, social or economic standing and
disability.
 Classification of Civil and
Political Rights
• Protection of the individuals'
integrity, as in provisions of torture,
arbitrary arrest and arbitrary
deprivation of life;
• Procedural fairness when
government deprives an individual of
liberty, as in provisions for arrest, trial
procedure and conditions of
imprisonment
 Classification of Civil and
Political Rights
• Equal protection norms defined in
racial, religious, gender and other
terms;
• Freedoms of belief, speech and
association, such as provisions on
political advocacy, the practice of
religion, press freedom, and the right
to hold an assembly and form
associations; and
 Classification of Civil and
Political Rights
• The right to political participation
• Self determination and enjoyment
by minorities of their cultures
 State Obligations on Civil and
Political Rights
Under the ICCPR:
§ State Parties have obligations
towards individuals as the right-
holders under the ICCPR to respect,
protect and fulfil their rights.
§ Every State Party has a legal
interest in the performance by every
other State Party of its obligations.
 State Obligations on Civil and
Political Rights
• The obligations of the Covenant in
general and article 2 in particular are
binding on every State Party as a
whole including all branches of
government (executive, legislative
and judicial), and other public or
governmental authorities.
 State Obligations on Civil and
Political Rights
• Article 2(2) of ICCPR provides that
State Parties are to take the
“necessary steps…. to adopt such
laws or other measures as may be
necessary to give effect to the rights
recognized in the present Covenant.”
 State Obligations on Civil and
Political Rights
Implementation of CPR entails:
a) Legislative measures
b) Other measures
i. Law Enforcement
ii. Institutional Safeguards
iii. Procedural Safeguards
iv. Monitoring and Control Mechanisms
v. Contextual/Special Measures
vi. Information and Education
 State Obligations on Civil and
Political Rights
• Article 28 of ICCPR provides for a
Human Rights Committee (Committee)
to be established for monitoring the
State Parties’ implementation of the
Covenant. State Parties are required
to submit reports to the Committee
for review, on measures used to adopt
and give effect to the rights enshrined
in the ICCPR.
 Limitations, restrictions and
derogations
There are essentially 3 ways in
which the State may limit or restrict
the scope of its obligations:
1. Express limitations to rights
2. Derogations from rights
3. Reservations to treaties
 Limitations, restrictions and
derogations
ØDerogations are only permitted in
exceptional circumstances, when
the “life of the nation is at stake”
ØLimitations to rights may be made
to serve certain legitimate aims.
Limitations must be lawful, legitimate
and necessary!
 Limitations, restrictions and
derogations
ØLawful: “in accordance with the
law” or “prescribed by law”
ØLegitimate: aims listed in the
provisions
ØNecessary: in a democratic society
 Limitations and Derogations
§ States are allowed to derogate from
some of their obligations under
exceptional crisis situations.
§ Derogation does not mean that the
derogating State can escape its treaty
obligations at will.
§ Some rights are non-derogable!
 Limitations and Derogations
§ Derogations are guided by the
principle of strict necessity and the
principle of international
notification.
§ It is clear from the travaux
préparatoires that derogation was not
intended to be used by authoritarian
regimes seeking to eliminate human
rights and that it cannot be used to
save a specific Government
 Limitations and Derogations
§ Article 4 of ICCPR allows for certain
circumstances for States Parties to
derogate from their responsibilities
under the Covenant, such as during
times of public emergencies.
§ However, State Parties may not
derogate from Articles 6, 7, 8
(paragraphs I and 2), 11, 15, 16 and
18.
 States may not derogate from:
§ Article 6 – Right to life.
§ Article 7 – Freedom from torture.
§ Article 8 – Right to not be enslaved
particularly slavery and slave trade
and being held in servitude.
 States may not derogate from:
§ Article 11 – Right to not be
imprisoned merely on the ground of
inability to fulfil a contractual
obligation.
§ Article 15 – No one can be guilty of
an act of a criminal offence which
did not constitute a criminal
offence.
§ Article 16 – Right to recognition as a
person before the law.
What constitutes a Public
Emergency?
A State party can only derogate from
rights where:
1. “the situation must amount to a
public emergency which
threatens the life of the nation”
and
2. “the State party must have
officially proclaimed a state of
emergency”
 What constitutes a Public
Emergency?
ØClearly, “not every disturbance or
catastrophe qualifies as a public
emergency which threatens the life
of the nation”!
ØEven during public emergencies
some rights cannot be derogated
from!
See CCPR General Comment No. 29: Article 4:
Derogations during a State of Emergency*
 Direct References and for further
reading
• Philip Alston & Ryan Goodman,
International Human Rights, Oxford
University Press, 2012. Pages: 157-
276.
• Chapter 16, The Administration of
Justice During States of Emergency,
Human Rights in the Administration of
Justice: A Manual on Human Rights
for Judges, Prosecutors & Lawyers
 Direct References and for further
reading
• Anja-Seibert Fohr, Domestic
implementation of the ICCPR pursuant to
its Article 2 para.2
• General Comment 31, Human Rights
Committee
• Fact Sheet 15, UN OHCHR, Civil and
Political Rights: The Human Rights
Committee
• Please read CPR cases
 Are you still awake?

Thank you for listening to me