Universality of Basic Rights

…This evening I will assume that I am having a dialogue with all my fellow human beings in the world. Whatever I say about Kenya is an application to our situation of truths which are valid everywhere.  I wish to use John Rawls’s concept of “original position” in his A Theory of Justice. 

· to argue that human rights can be and are protected in a society where most people obey either God’s laws or man’s just laws

· that the individual as either a citizen of a particular state or as a citizen of God’s Kingdom on earth is under a moral duty to act in a way which advances or better secures enjoyment of human rights—the human situation in the world today is as sorry as it is because of the individual’s breach of that duty

· that where the breach occurs to a small extent in a democratic state a mean spirit emerges and the enjoyment suffers—where the breach is on a large scale the results are either a civil war or a dictatorship in which human rights cannot be enjoyed

· in the contemporary world the lawyer, like the Christian, following Cicero of Rome or Jeremiah and Daniel of the Old Testament is under a moral duty to draw the attention of his society to the dangers he sees and to refuse to participate in activities which would undermine the constitutional order and

· breaches in Kenya of both the citizen’s and Christian’s duties are such that the country must go back to its 1963 democratic values if great danger which looms is to be avoided.

The expression “original position” firstly refers to a civil society with a democratic system of government in which enjoyment of rights is secured by a constitution, a political tradition, an independent judiciary, legislature, executive, and the individual has an unfettered right to choose his governors and to remove them from authority. The concept is loose enough to include many countries in the world which either have had such a constitutional order or have one today. Even where there is such a constitutional order, its ideals are rarely adhered to strictly.

                Because of this reason I am making an appeal that even in such countries there be a return to the original position. Where there has been such a constitutional order which has been departed from the appeal is to return to both former constitutional position and ideal. Where a country has never had such a constitutional order the argument is that such a society has a capacity to attain such an order and the present sorry situation represents man’s fall from his ideal. Even in such a society there can be a notional return to the original position. In each case the return is to be through obedience to God’s or man’s just laws. I being a Christian lawyer and this function coming as it does shortly after the Holy Week, I cannot help drawing on Biblical truths today.

                When living in my cell at Naivasha Prison as a detained person in 1987 I found and even today find great encouragement from Psalm 27 and Daniel Chapter 6. The Psalm indicates what happens to one who obeys God’s laws. Daniel in my judgement was an ideal citizen and many can emulate him with advantage. Recently I argued amongst Christians inter alia that:

· the idea of human rights is rooted in a universal belief that the human being has a dignity or worth which puts a limit as to what fellow human beings acting through such institutions as the state may do to him

· that that vision of man is identical to the one Christ had at the time he taught his followers how to live on earth and

· that the Christian cannot follow Christ truly or faithfully and fail to defend any attack of his human rights and that of human beings anywhere else in the world. Today I will adopt those arguments

The expression “human rights” refers to certain basic rights which the international community believes man needs or are essential for him to live in dignity. They are based on the international community’s view of what it is to be a human being. Those rights include among others:

· the right not to have one’s life taken without compliance with the law

· the right to liberty

· the right not to be treated like a slave or be tortured or subjected to degrading or inhuman treatment

· the right to hold property

· the right to the protection of the law to a lawyer to assist him in securing the protection of the law and to a fair trial

· freedom of worship

· freedom of association

· freedom of movement

· the right not to be discriminated against and

· the right to privacy and family life.

These rights lay down for all men every where a standard of morality below which a society acting through a government cannot be allowed to fall.

                As constitutional experience in India in 1973 and the South West African Cases before the World Court in early 1970s showed, it is not appreciated by many people who accept the idea of human rights, that inherent in it is the view that no human institution, be it the legislature, the executive or the judiciary has or can in reason have the power to depart from the principle of human equality from which the rights spring. The contemporary world is one where one sees the pretence that such power to derogate from human equality exists. Men everywhere have a duty to eradicate this heresy. The International Community’s statement of human rights which I intend to use as a basis is the one contained in the United Nations Universal Declaration of Human Rights.

                The making of the award to me today reminds me of Jesus’ instructions to his disciples the day he had the Last Supper with them. He commanded them to do certain things both as a way of keeping in mind what obedience to him entailed and as a means of bringing to fellow men God’s own Kingdom to earth. I do not know how today’s award was established. I know that the recipients need not be religious people. But it would appear that what the founders did is somewhat analogous to carrying out Jesus’ instructions which I have referred to. St. Luke’s record of those instructions reads as follows:

And he took the cup, and gave thanks and said, Take this and divide among yourselves. For I say unto you I will not drink of the fruit of wine until the Kingdom of God shall come. And he took bread and gave thanks and broke it and gave unto them saying This is my body which is given for you; this do in remembrance of me. Likewise also the cup after supper saying This cup is the new testament in my blood which is shed for you. (Chapter 22 verses 17-20.)

                …In my judgement the passage requires anyone who obeys it and other teachings to be prepared to go all the way Christ went up to the Calvary. Many Christians largely pay lip service to those instructions. As a Christian I have tried to be faithful to it. Presumably it is because of that attempt that we have this function today…

                I will review the human rights situation briefly. For this purpose I divide all the countries of the world into three classes. On the basis of this classification it can be said that the human community today falls into three classes:

                First there is the class where even though the United Nations Universal Declaration of Human Rights is accepted, the essential institutions such as the rule of law, an independent judiciary, an independent legislature to which everyone has freedom to elect representatives of his political persuasions, an independent executive which does not discriminate against its citizens, and an independent press have never emerged at any time in its political history. The struggle for human rights among such people faces a conceptual problem as the institution cannot be said to have been accepted. The second class is that of countries which have in their political history subscribed to the United Nations Universal Declaration of Human Rights soon after the attainment of their independence and established institutions designed to ensure that human rights would be enjoyed. Many African, Caribbean and Asian countries fall into this category. India, most Caribbean countries and a few African countries apart, one sees in those countries either the abolition or weakening of democratic institutions. The struggle for human rights is in the nature of an endeavour to get the country to return to its original position of innocence. The third class of mankind lives in societies which have subscribed to the United Nations Universal Declaration of Human Rights and have old institutions which safeguard democracy and human rights. The Western countries belong to this class.

                The award which is made to people in all the three classes will advance the respect for human rights. Irrespective of the class in which a country is, human experience is that:

· because of man’s capacity for freedom to choose, there is a perpetual contest between good and evil; there is an era during which liberty is generally respected which era is followed by one where it is not respected; the guarantee against great violation of human rights is therefore institutions which ensure that power is distributed fairly between individuals and institutions; the countries which have fairly good institutions do not claim to have solved the political theory’s problem of evolving a truly just society. The protection of human rights must include ensuring that the institutions which are essential for the enjoyment of human rights are not abolished or weakened;

· everywhere in the world irrespective of the constitution the executive branch of the government tends to exercise more power than it should in reason or according even to a very good constitution exercise; John Locke’s observation that the civil society can be endangered by governors themselves in borne out by recent experience in the countries in both the second and the third classes; where the judiciary is independent, the institution of judicial review is being perfected to ensure that the executive remains in its legal territory; the protection of human rights entails strengthening the judiciary;

· inherent in the acceptance of the United Nations Universal Declaration of Human Rights is the acceptance of the legal and political fact that everyone must, to use Bracton’s own words, be “under God and the laws” ; the sad reality of the contemporary world is that many countries which profess to respect human rights do not give effect to that proposition; human rights cannot be enjoyed where Bracton’s law is not followed;

· although the international machinery for the protection of human rights is always being improved upon, a lot remains to be done to ensure that the international standards are maintained; the draft European convention which will permit states mutual inspection of institutions enforcing human rights is most welcome; one hopes that other countries will adopt similar conventions;

· the concept of sovereignty in international law and relations is in great need of refinement to ensure that human rights are better protected; it is unfortunate that for many years, the world community took no action against Hitler and Idi Amin who enforced dangerous concepts of sovereignty of nations;

· it is because of the realization of the inadequacies of the international and national machineries for the enforcement of human rights that many associations and foundations have grown up in some countries; it is a sad commentary of the international situation that it is in the countries where human rights are protected least that either there are no private associations supporting human rights or not strong associations; there is an urgent need for such associations to be founded where they do not exist and for those there are to exchange their experiences;

· everywhere the struggle for human dignity is and has always been a struggle against vested interests which thrive from the violation of human rights; the trials and deaths of Socrates, Christ, St. Joan of Arc, and Sir Thomas More indicate how those vested interests can react; the 1988 Human Rights Watch’s Worldwide Survey states that last year, thirty human rights monitors or activists were killed or died in custody; in this country, in the 1950s much blood was shed and many sacrifices made so that man may live in dignity; a just constitution was sought to ensure that the colonial violations of human rights might not recur in this country; my understanding of Greek and Roman history and institutions tells me that the changes which this country has effected in the institutions it inherited at independence are such that the latter have in essence disappeared and that unless we restore them, Kenya may suffer the same fate which befell these two states;

· unless the human being obeys either God’s or man’s just laws he is condemned to live in misery and without dignity; man’s laws themselves must be based on a recognition of the human needs of everyone; no individual can in fact or reason authorize another to make laws or administer or execute laws in a manner oppressive to him; it is only the laws there is authority to make that there is obligation to obey; obedience to “laws” where is no authority to make leads to great suffering and bloodshed; another sad commentary on the human rights situation is that the universally accepted ideas have not been published as much as they should; in many countries false doctrines as to the extent of the authority of the civil government exist;

· the obedient citizen of God’s state has something in common with the obedient citizen of the modern state; both are under a duty to act in ways which promote humanity; the fact that this is not being done by many people in the world does not render the proposition invalid…

Today I would like to perform roles akin to the ones which Jeremiah and Cicero performed. In my capacity as both a Christian lawyer and a citizen I have:

· found that as a country we have the not too good distinction of being a place where a citizen has not been able to secure liberty through the process known as habeas corpus; in 1984 in a case where I was arguing a habeas corpus application I submitted that the court decision which was being relied upon in support of an argument for refusal of release of detained persons was from Uganda which after the decision witnessed calamities and that the history of that country was not a happy one; our court elected to follow that decision instead of those from India and the Caribbean countries where democracy is strong; the institution of habeas corpus protects human rights; we ought to make it work;

· found that it is very rarely that a person charged with political offence gets acquitted even where his defence appears strong; the time probably has come for Kenya to borrow from the old democracies the institution of jury where the verdict is given by one’s twelve peers as opposed to one official as is the case in this country today;

· found that in too many cases the courts have been reluctant to exclude confession made under circumstances that suggest that force had been used on the accused persons; cases of the mistreatment of suspects in custody have been such that the state has found it necessary to state that it is not its policy that the suspects in custody be mistreated; there may be a link between these two;

· come across many cases where allegations of abuse of power are made; I have seen great delay following the filing of cases in which abuse of power is alleged;

· witnessed changes in constitutional and statutory provisions dealing with the nature of the legislature, the right of the individual to participate in the political process, the nature of the judiciary, the nature of the executive, and the nature of liberty which mark a radical departure from democratic assumptions made at independence in 1963;

· witnessed a situation where the citizen’s right to secure the protection of law through a lawyer of his choice has been greatly endangered;

· witnessed a general decline in tolerance for the different views held in the society;

· witnessed a move to curtail the professional independence which professional bodies have enjoyed and are entitled to enjoy;

· witnessed constitutional curtailment of the freedom of associations in the political field; there is no freedom to belong to a political party other than the ruling one; non-party citizens have no political rights;

· witnessed the loss of the constitutional right to leave Kenya which is not preceded by compliance with rules of natural justice or due process; it is because I could not travel to Washington last November that we meet here today. The making of today’s award will according to my moral reasoning remain incomplete as long as I cannot exercise my human and constitutional right to visit Washington where the award is normally made….

My view is that our success as a nation has come from substantial adherence during the greater part of our nationhood to the institutions we adopted in 1963. Greater prosperity can only come from maintenance and strengthening of these. It cannot be said that we have been strengthening our institutions. Although it is getting very late, it is not too late to repent our sins and recapture our lost innocence as a nation….