Drawing lessons from the protection of taxpayers’ rights in Europe
Posted: 13 November, 2013 Filed under: Eric Ntini Kasoko | Tags: Africa, African Charter of Human and Peoples’ Rights, citizens, Court of Justice, Economic Community of West African, Europe, European Court of Justice, European Court on Human Rights, fundamental rights and freedoms, human rights, international human rights law, investments, law, right to property, rule of law, tax, tax legislation, taxpayers, The National Co-ordinating Group of Departmental Representatives of the Cocoa-Coffee Sector v Côte d’Ivoire Leave a comment
Author: Eric Ntini Kasoko
PhD candidate, University of Liege (Belgium)
“You can have a Lord, you can have a King, but the man to fear is the tax collector”- Sumerian proverb.
Today, fearing the tax man does not seem to hold true when it comes to the protection of taxpayers’ rights in most European countries. Indeed, for several decades now, taxpayers’ rights in Europe have been benefiting from internationalisation of human rights process. Under the impulse of case law from the European Court on Human Rights (ECHR) and the European Court of Justice (ECJ), human rights have become a fundamental part of taxation. While Africa is running the marathon of attracting and boosting private investments, it may be vital to stimulate the interaction of these two areas of law as a means to strengthen the rule of law on the continent.
In Africa, tax is primarily regarded as a civic duty. Article 29 (6) of the African Charter of Human and Peoples’ Rights (hereinafter referred to as “the Charter”) states that “the individual shall also have the duty (…) to pay taxes imposed by law in the interest of the society”. It follows in particular that the state has the right to levy taxes on its citizens, whether individual or corporate. In contrast, citizens are entitled to enjoy property rights in respect of Article 14 of the Charter or any other pertinent instrument relating to international human rights law. Since the state and its citizens have opposing interests, a balance is obviously required between the individual’s right to property and the state’s right of establishing taxes. In others words, in case of a dispute regarding taxation, the judge should be able to censure any excessively high tax burden on citizens.
The need for proper leadership to guide the Kenya National Commission on Human Rights in Promoting and Protecting Human Rights in Kenya
Posted: 11 November, 2013 Filed under: Francis Khayundi | Tags: human rights, human rights culture, independence, Kenya, Kenya National Commission on Human Rights, Kenyan Constitution, National Human Rights Institution, Paris Principles, representation, socio-economic rights 1 Comment
Author: Francis Khayundi
PhD candidate, Rhodes University, South Africa
The advent of the new 2010 Kenyan Constitution brought with it a promise of inclusive human rights enjoyment by making provision for socio-economic rights in Article 43. The entrenchment of the Kenya National Human Rights Commission (KNCHR) as an independent constitutional body, specifically tasked with the promotion and protection of human rights in Kenya, in terms of Article 59(1), further strengthened this development and promise. The KNCHR’s legal mandate, powers and the selection of commissioners is governed by the KNCHR Act of 2011.
Realising the importance of having an institution that could independently work towards the promotion and protection of human rights in Kenya, the drafters of the Constitution opted to include the KNCHR in the final draft, with a mandate that was whittled down from what was initially proposed. Through the Act, the KNCHR was established as a successor institution to the one initially anticipated in Article 59(1) of the Constitution. The KNCHR is a National Human Rights Institution (NHRI), an institution formed by either a constitutional provision or legislative text to specifically promote and protect human rights. There are quite a number of similar NHRIs formed across the globe. NHRIs are non-judicial mechanisms that complement other arms of government in the fulfilment of human rights within a state. They are also an indication of a state’s commitment to use all appropriate means to realise human rights. The establishment of NHRIs is guided by the Principles Relating to the Status of National Institutions (Paris Principles) which, at a minimum, require that such an institution be independent (financially, operationally and legally autonomous); have a broad mandate; have a diverse membership; and given enough room to carry out their functions.
Why Kenya needs to ratify the ICESCR Optional Protocol
Posted: 4 November, 2013 Filed under: William Aseka | Tags: African Union, Chief Justice Willy Mutunga, economic rights, International Covenant on Economic Social and Cultural Rights, International Criminal Court, international human rights, Kenya, poverty, President Uhuru Kenyatta, socio-economic rights, South African Development Community Tribunal Leave a comment
Author: William Aseka
LLM candidate, Syracuse University College of Law, New York (United States of America)
As Beth Simmons points out, three billion people survive on less than $2.50 per day. She states that if these facts are anything to go by, it is even harder to comprehend that economic rights have been codified as part of the international human rights system for the past 60 years. According to Simmons, what is even more disturbing is the fact that over 85% of states have ratified one or two treaties that recognise economic rights. In Kenya, more than 58% of Kenyans live below the poverty line. Further, more than half of the Kenyan population is poor and over 7 million Kenyans live in extreme poverty, despite Kenya having ratified the International Covenant on Economic Social and Cultural Rights (ICESCR) 41 years ago.
On 5 May 2013, the Optional Protocol to the ICESCR entered into force after receiving its tenth instrument of ratification. The purpose of the Optional Protocol is to address violations of socio-economic rights which have been loosely applied when compared to the civil and political rights. The Protocol achieves this by giving an individual locus standi before the Committee and hence asking directly whether a state violated the ICESCR. As much as there is scepticism about this Protocol, this paper wishes to submit that states, especially Kenya, should look beyond this scepticism and ratify the Protocol. This article will provide both arguments for and against ratification of the Optional Protocol.
The African Union summit on the International Criminal Court: In whose interest?
Posted: 28 October, 2013 Filed under: Wonderr Freeman | Tags: Addis Ababa, Africa, African Court on Human and Peoples’ Rights, African Union, crimes against humanity, Deputy President William Ruto, ICC, international court of law, International Criminal Court, international law, justice, Kenya, post-election violence, President Omar Al-Bashir, President Uhuru Kenyatta, Rome Statute, Rwanda, United Nations Security Council, victims of atrocities, Waki Commission 1 Comment
Author: Wonderr Freeman
LLM (Trade and Investment Law in Africa) candidate, Centre for Human Rights, University of Pretoria, South Africa
(Date of article: 4 October 2013)
On 13 October 2013, leaders of African states will meet in Addis Ababa, under the African Union (AU) banner), to consider a possible withdrawal from the Rome Statute creating the International Criminal Court (ICC). African leaders do not find favour with the ICC’s pursuit of Kenya’s “big men”- President Uhuru Kenyatta and Deputy President William Ruto. The AU draws links between the indictment of Kenyatta and Ruto with that of President Omar Al-Bashir of Sudan and Laurent Gbagbo of the Ivory Coast. Having drawn such links, the AU is of the view that the ICC is a western plot to finish-off African leaders. What is striking of the AU’s ICC analysis is the complete lack of consideration for the victims, 99.9% of whom are Africans. It seems as though grave crimes against humanity are of much less importance when a few “big men” stand accused. What seems to be of extreme importance in the minds of African leaders is that, once again, one of their kind is wanted for crimes against humanity.
African heads of states are rarely united on any issue relevant to development of the continent, such as a common currency, the free movement of people and products, military interventions in war torn regions, etc. However, when it comes to protecting the likes of Bashir and Kenyatta, the AU is zealously united – without regard to the victims of atrocities.
Nigeria’s National Conference: The right to have it right in the education sector
Posted: 21 October, 2013 Filed under: Olaniyi Olayinka | Tags: Academic Staff Union of Universities, Boko Haram, constitution, education, National Conference, Nigeria, Regionalism 2 Comments
Author: Olaniyi Olayinka
Principal Assistant Registrar (Legal Matters) at The Polytechnic, Ibadan (Nigeria)
Calls for an all-inclusive National Conference to fashion out Nigeria’s national focus dates back to before 1922 – the Clifford Constitution – which until recently was never held. President Goodluck Jonathan in his 2013 Independence Day broadcast appointed a committee to facilitate the realisation of the conference. Author Uzodinma Nwaogbe has identified disunity, lack of faith and trust amongst citizens of Nigeria as some of the issues the conference should tackle and has given his support for the conference. The conference, according to Nwaogbe, is a platform for Nigerians to talk about issues that will help develop the country irrespective of religious, political and ethnic difference.
The Nigerian constitution, per Section 18(1), clarifies educational objectives of the government and provides that:
“Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels.”
This article will determine the adequacy of funding for education in Nigeria and how the conference can pave the way for an improvement.
Education is under the purview of both the federal and state governments, and being less generous about funding education is plausible because they both draw from the same purse.
South Africa apartheid lawsuit – The end of the epopee?
Posted: 14 October, 2013 Filed under: Marek Jan Wasinski | Tags: Alien Tort Statute, apartheid, customary international law, extrajudicial killings, extraterritorial jurisdiction, Filartiga v Penalrala, injustices, international human rights, Khulumani, Kiobel v Royal Dutch Petroleum Co, Nigeria, South Africa, Truth and Reconciliation Commission, United States of America 2 Comments
Author: Marek Jan Wasinski
Assistant Professor and Chair of Public International Law and International Relations – Faculty of Law and Administration, University of Lodz, Poland
On 21 August 2013, the 2nd United States (US) Circuit Court of Appeal reached a decision on a decade long putative class action suits brought on behalf of individuals harmed by the South African apartheid regime. The suits were originally initiated by two groups of plaintiffs, the Balintulo (or Khulumani plaintiffs) and the Ntsebeza plaintiffs against corporate defendants (namely: Daimler, Ford, and IBM). Plaintiffs asserted that the South African subsidiary companies of the defendants aided and abetted violations of customary international law committed by the (then) South African government. It was claimed inter alia that subsidiary companies had sold cars and computers to the South African government, thus facilitating race-based depredations and injustices, including rape, torture, and extrajudicial killings. A legal basis for the US court’s jurisdiction was the Alien Tort Statute (ATS), a famous part of the Judiciary Act of 1789, conferring federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”. The ATS remained dormant nearly for two centuries until it spectacularly entered the stage before 2nd US Circuit Court of Appeal in a Filartiga v Pena-Irala wherein Paraguay citizens were allowed to sue a former Paraguayan police officer allegedly involved in an extrajudicial killing of a Paraguayan dissident’s son in Paraguay. The decision in Filartiga led to a dramatic rise in international human rights litigation in US courts, involving not only suits against private individuals but also against corporate entities for aiding and abetting violations of the law of nations. There were instances of such litigations ending with profitable settlements. For example, in Abdullahi v Pfizer Inc., Pfizer has reportedly agreed to pay $75 million as compensation for illegal clinical trials in Nigeria. Similarly in Wiwa v Shell Oil Co., faced with claims of complicity in murder, torture, and other crimes related to oil production in the Niger Delta, the Shell provided $15.5 million as compensation to those affected.
Illegal immigrants now deserve the eye of law in Tanzania
Posted: 27 September, 2013 Filed under: Njiti Lucius Batty | Tags: African, African Union, human rights, illegal immigrants, Kenya, Luo, Masaai, non-refoulement principle, Tanzania, United Nations 6 Comments
Author: Njiti Lucius Batty
Candidate Advocate, High Court of Tanzania; Tutorial Assistant and Coordinator, University of Dodoma Law Society & Moot Court, Tanzania
This article comes as result of the historical background on the status of immigrants in the western part of Tanzania where the expulsion of illegal immigrants is never stable (see a BBC report). The main reason leading to the expulsion of illegal immigrates is the fact that most immigrants are not aware of Tanzanian immigration. In turn, Tanzania reacts by deporting them back to various nations along the Great Lake States.
Illegal immigration in Tanzania may be legally assessed based on two perspectives. One, those immigrants who enter Tanzania without observing due processes and are then apprehended, detained and charged with breaching immigration laws, and two, those who are found to be residing with and married to Tanzanians without observing legal procedures.
Illegal immigrants, of whatever nature, as described above, are deserving of human rights as other Tanzanians. Thus, there is a great need for lawyers and non-governmental organisations to offer information and knowledge on issues relating to immigration, labour and citizenship so as to bring awareness amongst refugees of their rights.
Realisation of inclusive education for persons with disabilities at rural universities in South Africa
Posted: 10 September, 2013 Filed under: Adrian Jjuuko | Tags: apartheid, constitution, Convention on the Rights of Persons with Disabilities, economic accessibility, education, human rights, inclusive education, non-discrimination, persons with disabilities, physical accessibility, rural universities, South Africa, University of Venda Leave a comment
Author: Adrian Jjuuko
Executive Director of Human Rights Awareness and Promotion Forum (HRAPF); LLM (Human Rights and Democratisation in Africa) candidate, Centre for Human Rights, University of Pretoria, South Africa
South Africa’s efforts to implement inclusive education started before the Convention on the Rights of Persons with Disabilities (CRPD) – to which South Africa is a state party- came into force. This was owing to its legacy of apartheid, a policy of exclusion. It created different universities for both the white and black communities. White universities were comprehensive universities that prepared students for professional careers, while black or rural universities were meant to produce semi-skilled menial workers.
With the fall of apartheid, the new regime adopted a policy of inclusive education, including higher education. Higher education was recognised as a right in terms of Article 26 of the 1996 Constitution. A single system of higher education was created and White Paper 6 of 2001 was adopted as the benchmark of inclusive education at all levels. It goes beyond disabilities, race, gender and other grounds of discrimination. It is an obligation for every educational institution to implement inclusive education, and physical accessibility for persons with disabilities (PWDs) is mandatory.
However, there is a need to give special focus to rural universities on account of their history if South Africa is to fulfil its obligations under Article 24 of the CRPD. This article seeks to highlight the implementation of inclusive education for PWDs at one of the rural universities – the University of Venda.
Ethiopia’s Anti-Terrorism Proclamation and the right to freedom of expression
Posted: 30 August, 2013 Filed under: Patrick Griffith | Tags: African Commission on Human and Peoples’ Rights, anti-terrorism, Anti-Terrorism Proclamation, Article 19 of the ICCPR, Convention on the Prevention and Combating of Terrorism, Eskinder Nega, Ethiopia, European Parliament, human rights, journalists, opposition activists, Organisation for African Unity, right to freedom of expression, UN High Commissioner for Human Rights, UN Working Group on Arbitrary Detention, United Kingdom, United Nations 18 Comments
Author: Patrick Griffith
Programme Attorney, Freedom Now
On Wednesday 17 July 2013, members of the European Parliament’s Sub-committee on Human Rights visited Ethiopia and urged the government to release journalists and opposition activists imprisoned under the country’s Anti-Terrorism Proclamation No. 652/2009 (Anti-Terror Proclamation). The visit is an important reminder that despite widely hailed progress on poverty reduction, the Ethiopian government continues to punish free expression in violation of international law.
Eskinder Nega, an outspoken journalist and blogger who was sentenced to 18 years imprisonment in July 2012, is amongst those arbitrarily detained under the Anti-Terror Proclamation. In early 2011, Nega began writing and speaking publicly about the protest movements then sweeping north Africa. Although initially hesitant to draw direct parallels with Ethiopia, he was clearly supportive of the protesters abroad and critical of his government at home. He also consistently emphasised the importance of non-violence. But despite the clear protection of peaceful free expression under Article 19 of the International Covenant on Civil and Political Rights, to which Ethiopia is a party, the government reacted by prosecuting Nega as a traitor and terrorist.
Right to stand for elections as an independent candidate in the African human rights system: The death of the margin of appreciation doctrine?
Posted: 19 August, 2013 Filed under: Adem Kassie Abebe | Tags: African Charter, African Commission on Human and Peoples’ Rights, African Court, African Court on Human and Peoples’ Rights, constitution, elections, Inter-American Court on Human Rights, International Covenant on Civil and Political Rights, international human rights, margin of appreciation doctrine, Mtikila, right to association, right to equality, right to political participation, right to stand for elections, Tanzania, Tanzanian Court of Appeal 8 Comments
Author: Adem Kassie Abebe
Post-doctoral Fellow, University of Pretoria
Although the right to stand for elections is recognised as an essential aspect of the right to political participation, international human rights law does not specifically address the right of individuals to stand for elections as independent candidates, for example, without being a member of and sponsored by a political party. In fact, the only implied reference to independent candidacy is to be found in General Comment No 25 of the United Nations Human Rights Committee, the organ in charge of monitoring compliance with the International Covenant on Civil and Political Rights, on the right to participation. The Committee observes that “[t]he right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of parties or of specific parties” (paragraph 21). What constitutes an “unreasonable” limit to the right of persons to stand for election is not apparent. As a result of the lack of a clear rule, the law and practice in relation to independent candidates varies across borders. In some countries, individuals must be members of political parties to be able to stand for election. In others, they may stand for elections as independent candidates. In some others, independent candidates are allowed in relation to local elections but not in relation to parliamentary and presidential elections.
It is within this context of uncertainty that the African Court had to decide whether the ban on independent candidacy in Tanzania was compatible with the right to equality, the right to political participation, and the right to association in the African Charter on Human and Peoples’ Rights (Tanganyika Law Society and The Legal and Human Rights Centre and Reverend Christopher Mtikila v The United Republic of Tanzania, Applications 009 and 011/2011). This case is interesting in many respects. Firstly, the case presented the African Court the first opportunity to address the margin of appreciation doctrine. Secondly, the application presented a test case to evaluate the trajectory of the African Court towards the jurisprudence of other international and regional human rights organs on similar issues. Thirdly, Tanzania is not the only African country that bans independent candidacy. The decision of the Court therefore has consequences for many other African countries.
