scholarly journals Afterword: The Role of a Bill of Rights

1992 ◽  
Vol 59 (1) ◽  
pp. 539
Author(s):  
David A. Strauss
Keyword(s):  
Bill Of Rights

The Kenya National Commission on Human Rights under the 2010 Constitutional Dispensation

2018 ◽  
Vol 26 (2) ◽  
pp. 205-226
Author(s):  
Bonolo Ramadi Dinokopila ◽  
Rhoda Igweta Murangiri
Keyword(s):  
Human Rights ◽  
Transitional Justice ◽  
National Commission ◽  
Bill Of Rights ◽  
Institutional Perspective ◽  
Post Conflict ◽  
National Human ◽  
The Status ◽  
Protection Of Human Rights

This article examines the transformation of the Kenya National Commission on Human Rights (KNCHR) and discusses the implications of such transformation on the promotion and protection of human rights in Kenya. The article is an exposition of the powers of the Commission and their importance to the realisation of the Bill of Rights under the 2010 Kenyan Constitution. This is done from a normative and institutional perspective with particular emphasis on the extent to which the UN Principles Relating to the Status of National Institutions for the promotion and protection of human rights (the Paris Principles, 1993) have been complied with. The article highlights the role of national human rights commissions in transformative and/or transitional justice in post-conflict Kenya. It also explores the possible complementary relationship(s) between the KNCHR and other Article 59 Commissions for the better enforcement of the bill of rights.

Conservative Anti-HRA Rhetoric, the Bill of Rights ‘Solution’ and the Role of the Bill of Rights Commission

2013 ◽  
Author(s):  
Helen Fenwick
Keyword(s):  
Human Rights ◽  
Constitutional Reform ◽  
The Political ◽  
Coalition Government ◽  
Bill Of Rights ◽  
Conservative Government ◽  
European Court ◽  
Human Rights Act ◽  
Advisory Role

This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative government. It considers views expressed by Conservative spokespersons prior to and after the 2010 general election, and answers given by members of the Bill of Rights Commission to the Political and Constitutional Reform Committee in 2011. This chapter also touches on the second aspect of the Commission's remit — its advisory role on reform of the European Court of Human Rights. It questions whether adopting a Bill of Rights on the lines favoured by the Conservative leadership, combined with the Strasbourg reforms recently determined on, would be likely to realise Conservative aims of creating divergence from Strasbourg and enhancing parliamentary autonomy.

The King Reports and the common law in South Africa

2020 ◽  
Vol 11 (2) ◽  
pp. 167-172
Author(s):  
J. Michael Judin
Keyword(s):  
South Africa ◽  
Design Methodology ◽  
Common Law ◽  
Bill Of Rights ◽  
Content Type ◽  
The Supreme Court ◽  
Task Team ◽  
The Common ◽  
Court Of Appeal

Purpose This paper aims to discuss the King Reports and Codes and the development of South Africa’s common law. The role of developing the common law is explicitly recognised in the Constitution, as is the obligation to give effect to the spirit, purport and objects of the Bill of Rights. With decisions of the Supreme Court of Appeal being based on the King Code, the King Code is now an integral part of South Africa’s common law. Design/methodology/approach When the task team drafting King IV commenced their work, one of the important issues raised with Mervyn King, as Chairman, was the challenge to ensure that King IV was aligned to the now firmly entrenched common law principles taken from King I, King II and King III. It is believed that this has been achieved and it is hoped that King IV (and the subsequent King Reports that will inevitably follow because the corporate milieu keeps changing) continues to enrich South Africa’s common law. Findings The King Reports and Codes have been made part of South Africa’s common law. Originality/value This paper fulfils an identified need to study the King Report and Code, as it relates to South Africa’s common law.

Judges and Human Rights: The Kenyan Experience

1991 ◽  
Vol 35 (1-2) ◽  
pp. 142-173 ◽  
Author(s):  
Gibson Kamau Kuria ◽  
Algeisa M. Vazquez
Keyword(s):  
Attorney General ◽  
Fundamental Rights ◽  
The Other ◽  
Constitutional Rights ◽  
Bill Of Rights ◽  
High Court ◽  
Rules Of Procedure ◽  
Fundamental Rights And Freedoms ◽  
The Individual

On 4 July, 1989 in Maina Mbacha v. Attorney General the High Court of Kenya appeared to remove itself from its role of enforcing the Bill of Rights of Kenya. The court ruled “inoperative” section 84 of the Constitution of Kenya which grants original jurisdiction to the High Court to enforce Fundamental Rights and Freedoms of the Individual, section 70–83 (inclusive) (Chapter V). The provision was deemed “inoperative” in Kamau Kuria v. Attorney General, and this was upheld shortly thereafter in Maina Mbacha when the High Court found that no rules of procedure had been enacted to enforce the Bill of Rights and dismissed for lack of jurisdiction. Indeed, in the latter case the court dismissed the application for lack of jurisdiction even though the case was before the court by virtue of the constitutional grant of “original unlimited jurisdiction”. As a matter of established law, the court can be approached by any available procedure when ruling to enforce established constitutional rights. Ordinary rights can be defeated for failure to follow procedure, but historically, procedural requirements often defer to constitutionally granted rights. Once the Bill of Rights was enacted in the Constitution, its enforcement became supreme to all other law, including procedural rules, for the supremacy clause of the Kenya Constitution states: “… if any other law became inconsistent with this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void”

scholarly journals To whom will ye liken me, and make me equal? Reformulating the role of the comparator in the identification of discrimination

2021 ◽  
Author(s):  
◽  
Asher Gabriel Emanuel
Keyword(s):  
New Zealand ◽  
Attorney General ◽  
Child Poverty ◽  
Chief Executive ◽  
Bill Of Rights ◽  
Group V ◽  
Analytical Reasoning ◽  
Recent Developments ◽  
Court Of Appeal

<p>The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts’ approach to the formulation of comparator groups admits a lack of a clear methodology. This paper argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of nondiscrimination provisions. Of particular concern is the involvement of matters of justification at the comparator stage. The High Court judgment in B v Chief Executive of the Ministry of Social Development is emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group v Attorney-General have provided some guidance, but have not gone far enough. This paper recommends that the courts depart from requiring a comparator for claims under s 19. Where comparators are necessary, it is proposed that the courts defer to the claimant’s choice of comparator, and decouple the identification of differential treatment from questions of causation.</p>

scholarly journals Interpretation of the Constitutional provisions relating to international law

2017 ◽  
Vol 6 (2) ◽  
pp. 25
Author(s):  
Michele Olivier
Keyword(s):  
International Law ◽  
South African ◽  
International Agreements ◽  
Fundamental Rights ◽  
Bill Of Rights ◽  
Customary International Law ◽  
The Status ◽  
First Time ◽  
Domestic Law

The 1993 Constitution,1 for the first time in South African history accorded constitutional recognition to international law, thereby bringing an end to the debate on the status of international law in South African domestic law. This step was a symbolic break from the apartheid legal system, which was closely associated with the violation of international law and indicated to the international community that South Africa was willing to abide by internationally accepted rules. More important, however, for South African lawyers are the fundamental changes the constitutional regulation of international law introduced into South African law. The 1993 Constitution dealt with the conclusion of international agreements (sections 82(1)(i) and 231(2)), the status of international law in South African law (section 231(3) and (4)) and the role of international law in interpreting the chapter on fundamental rights (section 35(1)). These provisions were substantially taken over by the 1996 Constitution. The provisions relating to the entry into international agreements and the status thereof in terms of South African law are once again dealt with under section 231. The provisions on customary international law are dealt with separately under section 232. Section 233 deals with the role of international law in the interpretation of legislation, whilst section 39, the equivalent of section 35 of the 1993 Constitution, provides for international law in interpreting the Bill of Rights.

A New Beginning: Introducing the South African Constitution and Bill of Rights

2000 ◽  
Vol 18 (1) ◽  
pp. 45-65
Author(s):  
Rassie Malherbe
Keyword(s):  
South African ◽  
Bill Of Rights ◽  
The South ◽  
South African Society ◽  
The Road ◽  
Independent Judiciary ◽  
New Beginning ◽  
On The Road ◽  
South African Constitution

Few would argue that the democratisation of South Africa is one of the most fascinating examples of constitutional engineering during the latter half of the 20th century. This article recounts the negotiating process leading up to the adoption of the Constitution of 1996, and highlights the main features of the Constitution. The features discussed are majority government, the principle of constitutional supremacy, the content and application of the Bill of Rights – with some emphasis on its impact so far on social change –, the role of the independent judiciary, the principle of co-operative government which governs the relationship between the three spheres of government, and the ways in which the diversity prevalent in the South African society has been accommodated. Some comments are also made on the necessity for the creation of a human rights culture to support the new Constitution. The article concludes with the remark that, although serious obstacles remain, a solid start has been made on the road to a constitutional democracy with justice for all.

scholarly journals Menswaardigheid na tien jaar van regstaatlikheid in Suid-Afrika

2017 ◽  
Vol 7 (1) ◽  
pp. 70
Author(s):  
LWH Ackermann
Keyword(s):  
Human Dignity ◽  
Fundamental Rights ◽  
Educational Institutions ◽  
Bill Of Rights ◽  
South Africans ◽  
Constitutional State ◽  
The Right ◽  
Constitutional Jurisprudence ◽  
Normative Value

Human dignity has been the marrow of our Constitution and our constitutional state since 1994.  The inherent dignity of man is also a key principle of the Universal Declaration of Human Rights of 1948. The Kantian categorical imperatives continue to provide guidance regarding the meaning of human dignity. At the very least, people are entitled to be regarded as moral subjects and not as objects: as subjects with absolute and inherent worth and therefore also as moral subjects of equal worth. The juridical core of the pathology of apartheid was the extensive and sustained attempt to deprive the majority of South Africans of the right to self-identification and self-determination. It amounted to an inversion of the Kantian imperatives. A reversal of this inversion has been attempted over the past ten years.  The Constitution not only elevates human dignity to a specially entrenched value, but also affords it special protection in the context of fundamental rights.  It is furthermore a specific consideration in the limitation of rights and in the development of the common law. It applies not only to the state/subject relationship, but also to "horizontal" relationships and it must be taken into account in the interpretation of the Constitution. Constitutional jurisprudence has established that the Constitution is more than a formal document, but that it also represents an objective, normative value system.  Thus the foundational norm of human dignity radiates into all areas of the law.  The role of human dignity in the interpretation and application of norms applicable to remedial or restitutionary equality, as well as in the achievement of constitutional equilibrium in the "horizontal" operation of the Bill of Rights, has also been established. The realization of human dignity is but in its initial stages: civil society, including educational institutions, are called upon to make their contribution to the process.

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