There is a need for a comparative and comprehensive study of human rights

By Tonny Raymond Kirabira

There is a golden rule that "The right to swing my fist ends where the other man's nose begins". This was articulated by a renown American jurist Oliver Wendell Holmes.

 What this conveys in the context of a constitutional democracy like Uganda is that all people, including state actors cannot consider their rights as ranking higher than the fundamental rights of others.

Uganda has a very good Constitution which is a model to those of other African states. However, it is not supported by the right education so many citizens don't understand its context. There are very few teachers who can effectively teach the subject of human rights which is very important in the understanding of the Constitution.

Therefore, we have to look towards the education and systems of other countries in order to build our own human rights system and education.

Last month, I was one of the 20 participants in the 8th session of the Lucerne Academy for Human Rights Implementation which took place at the University Of Lucerne Faculty Of Law in Switzerland. 

As a legal practitioner in media and human rights, I found this programme distinctly relevant to our human rights regime.

The interesting thing is that the mechanisms of human rights protection in Africa and Europe are pretty similar, but the realities of their implementation differ. There is no doubt that fundamental rights like freedom of expression,non-discrimination ,freedom from torture and the right to life among others  are well addressed in our laws. This unique program which attracts people from all regions of the world focused on the challenges and practical aspects of litigation and advocacy of human rights.

Our faculties at Ugandan universities should not only teach about  theoretical  principles of human rights, but should train students on how to incorporate that knowledge into the actual work of defending human rights  with a special focus on advocacy skills such as case assessment, brief writing and oral argumentation.

The only time a student gets to practice these skills is when they are taking the bar course at the Law Development Centre. This should not be the case, as seen during the Lucerne Academy.

Many developed countries have excellent human rights trainings that not only benefit trial advocates, but also activists and other professionals like journalists and teachers.

European countries have over time developed their systems using the international instruments and platforms. An example is the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights or ECHR) which was adopted in 1950 and entered into force in 1953. The ECHR was developed under the aegis of the Council of Europe. Every country that joins the Council of Europe agrees to be subject to independent monitoring mechanisms which assess its compliance with human rights and democratic practices.

To this end, all but three recognised states on the European land mass are parties to the Convention today (the exceptions are Vatican City, Belarus and Kazakhstan) During the Academy, we had an excursion to the Council of Europe at its headquarters in Strasbourg, France. This body is so vibrant  in terms of human rights protection and implementation that it made the abolition of the death penalty a precondition for accession.

In comparison, our African system is more dependent on the African Commission on peoples and human rights together with the Court of Human Rights. These bodies are very important but many African states like Uganda have not ratified them which is an embarrassment. The African Charter on Human and Peoples' Rights or Banjul Charter, guarantees many fundamental rights which ought to be accepted, respected, protected and implemented by countries like Uganda.

The major block here, however, lies in the absence of good education and knowledge of the working of these systems.

The European system also has a Court of Human Rights, which is a supra-national or international court established by the European Convention on Human Rights. This should be a good model to our East African Court of Justice which Uganda accepted. This court is presently handling a very important case regarding the law on criminal libel.

It does not mean that when a country like Uganda accepts the jurisdiction of the African Court of Human Rights, our domestic courts will be rendered useless. In the European system, several norms in the Convention system indicate that the role of the Court is subsidiary to that of member states and is essentially one of review rather than that of final court of appeal or "fourth instance" This means that the people have to exhaust all the domestic legal remedies in order to go to the Regional or International Courts.

We should also make use of other bodies like the Human Rights Committee of the UN which is the treaty body that considers complaints and offers authoritative interpretation of the International Protocol on Civil And Political Rights.

We visited the United Nations Office   which is housed at the Palais des Nations, in Geneva and serves as the representative office of the Secretary-General at Geneva. This place remarkably services more than 8,000 meetings every year, making it one of the busiest conference centres in the world. With more than 1,600 staff, it is the second biggest United Nations duty  after the headquarters in New York.

It has a wonderful history having been established after the dissolution of the League of Nations in 1946. All the League of Nations properties and assets, including the Palais des Nations were then handed over to the United Nations Organisation.

Another important aspect of the Luzern Academy which I think is important is the moot court competition. A moot is basically a mock court at which law students argue imaginary cases for practice. This should be an essential subject in our law schools and it prepares an advocate for local and international court systems. In Luzern, there were excellent teachers like Ausserladscheider Jonas who has coached both the Inter-American and the World Human Rights Moot Courts.

With good teachers, our lawyers will be able to properly argue human rights cases before not only Ugandan courts, but regional and international Courts.

At the final session, Justice Johann van der Westhuizen who is a former judge of the Constitutional Court of South Africa made an articulation which encourages us to use our profession and defend the rights of the vulnerable people.

Uganda, just like many African countries needs well trained lawyers and our law schools should build partnerships with other institutions to improve the quality of human rights standards and litigation. 

The writer is a media and human rights lawyer