.
                                         UTAFITI (New Series) Vol. 3 No.1, 1996:1-46
                          Constructing A New Rights Regime:
                           Promises, Problems And Prospects *
                                              lssa G. Shwjt"
         Abstract
         This article reflects on the interface between issues of poverty am deprivation which is the
         life-c:ondition of the large majority in the countries of the South, am the approacbes to human
         rights which have attemp!ed to take on board such issues. The article consists of three
        sections am an extended appendix. The first section is an introduction which presents the
        basic premise of the discussion in the article. The second section outJines the key elements
        defining the lnunan rights am development debates. The third section examines in some
        detail approaches to litigation practices developed in IIKIia am elsewhere, which take into
        aCCOUntnotions of lnunan rights am the right to development introduced in earlier sections of
        the article. The two extended"awendices present moot case proceedings which exemplify the
        application of the oove1legal notions introduced in the main body of the article.
 I. Introduction: Human Rights as a Contentious Discourse
 Human rights are the concrete result of historical and social development.
 They mirror the struggles and concerns of the dominant social groups in
 society at a particular time as these groups organise and reorganise to
 maintain their po!ition. At the same time, rights formulation and articulation
 reflect, albeit in a subordinate position, the resistance of the dominated as
 they strive to <:hange the status quo. Human rights, therefore, like any other
 systematised regime of articulated ideas, is a contested terrain.
     Human rights discourse, as we know it, has its origin in the development
of the West, and in particular it is the result of the Enlightenment period (see
generally MacCormick & Bankowski, 1989). It carries with it the
philosophical and ideological baggage forged in the crucible of bourgeois
• This is a slightly revised version of the paper read at the Conference of Judges on
'Constitutionalism am Human Rights in a Demncracy' held at Arusha, Tanzania, 18-19 June,
1996
•• Professor of Law, University of Dar es Salaam am Advocate of the High Court of Tanzania.


.2     Issa G. Shiv)i
  revolutions based on the autonomy of the individual commodity owner whose
  worth is constructed in the market place. It is the atomist individual so
  abstracted from real relations of society who is then presented as the
  individual being, the erstwhile bearer of rights.
      The political overtones of internationalised human rights, however, are of
  more recent origins. The United Nations activity which gave us the first
.human rights standards in the form of declarations, covenants, resolutions,
  etc. was also the meeting point of contested global ideologies, in particular the
 capitalist and communist ideologies as represented by the then superpowers on
 the one hand, and the resistance of the peoples of the third world smarting
 under direct or indirect colonialism on the other. Human rights talk is deeply
 embedded in this global terrain of contested ideologies. It is this which forms
 the basic premise underlying this article, rather than some natural law
 conception of 'inherent' rights. Rights are historically and socially determined
 rather than absolute qualities or possessions which inhere in human beings
 (Shivji, 1989).
      Section two of the article traces in broad strokes the development of
 human rights and developmental discourse. The thesis of this section is that
 the two major discourses of the post-war period with direct impact on the
 third world ran parallel and often at cross-purposes. The article then examines
 the attempts by writers, publicists and the legal community, both within the
 mainstream and that on the fringes, to take on board some of the
 developmental concerns of the South. This has had the effect of .opening up
 the foundations of the dominant human rights discourse for closer scrutiny,
 and its rearticulation to address the demands and needs of different peoples in
 different cultural contexts and espousing diametrically opposed interests. This
 is what underpins the alternative models of development, democracy and
 governance, and which is the harbinger of the development of a 'new rights
jurisprudence' examined in sections three and four of the paper.
      Section three looks specifically at the model of social action litigation
 (SAL) developed by the Indian Supreme Court. Section four proposes an
alternative approach to constructing a 'new rights regime' based on two
 fundamental rights: the right to life, and the right of peoples to self-
determination. The thesis is that these rights, conceptualised as composite
rights and contextualised in the contemporary international and national
conditions of Africa, have the potential and potency of placing on the human
Tights agenda the fundamental problems of the large majority of the African
people. The actually existing condition of the African social and political


                                      Constructing         A New Rights Regime                3
formations is that they are smarting under the domination and hegemony of
the North in the international arena, and the hegemony of their authoritarian
states in the domestic arena. In_..other. words, the reconcepmaIised and
reconstructed new rights regime challenges the double hegemonic logic, i.e.,
imperialist and. statist, while at the same time providing. the necessary
elements for legitimising people's resistance to the hegemonic logic.
    The two appendices give an example of operationalising the 'new rights
regime' in the language of judicial discourse albeit in the case of a Southern
African Moot Court (Shivji, 1992).
2. The Fragmented          Nature of Developmental and Rights Discourse on the
    Global Level
The Universal Declaration of Human Rights (UDHR) was born in the wake of
the disastrous Second World War. Its human rights conceptions were
formulated with a view to provide a counter ideology to the racist and fascist
ideologies of Nazism (see the preamble). World hegemonies were also being
reconstituted on the basis of a bipolar world divided between the two
superpowers on the one hand, and anti-colonial struggles of the third world
peoples on the other. Particularist ideologies of Nazism based on racial purity
and superiority were being countered by universalist language of the
Declaration. Ironically, Nazist racism was a logical extension of the racist
ideology which had hitherto rationalised and legitimised the imperial project
(colonialism) in the third world (Hayter, 1990: 19 et seq, Said, 1994:
passim). For instance, when the imperial racist ideology was at its zenith, the
West rejected Japan's attempt to 'include a clause on racial equality in the
League of Nations Covenant' (Furedi, 1994: 5). This was the sign of the
global ideological hegemony of the time which was rooted in the racial
superiority and civilising mission of the white race. An ideological construct
based on equal rights (human rights) then was a world war away.
    Indeed, as Furedi rightly observes, Woodrow Wilson's principle of right
of nations to self-determination applied eminently only to Europe.! Robert
Lansing, Wilson's Secretary of State, could not be clearer when he said in the
course of the Peace Conference:
  I  Contrast Lenin's exposition  of the right of oppressed nations to self-detennination which
    primarily applied to the peoples of the East (Lenin, 1970).


4     Issa G. Shivji
         The more I think aboutthe President's declarationas to the right of 'self-
         determination', the more convincedI am of the danger of putting such
         ideas into the minds of certain races. It is bound to be a basis for
         impossibledemandson the Peace Conferenceand create trouble in many
         lands.
             What effect will it have on the Irish, the Indians, the Egyptians, and
         the nationalistsamong the Boers? Will it not breed discontent, disorder
         and rebellion? Will not the Mohammedansof Syria and Palestine and
         possiblyof Moroccoand Tripoli rely on it? (quotedin ibid.: 13)
Thus, 'What was at stake was that sense of superiority which was so vital to
imperial self-confidence.' (ibid.) Between the wars that self-confidence was
undermined in different ways by the reconstruction of, and opposition to the
then dominant racial ideology.
     Firstly, as already argued, the imperial project could no longer be
legitimised in racial terms. Hitler's Nazism made sure of that. Secondly, the
participation of the coloured Japan in the war and its initial successes had
weakened the underlying premise of racial superiority. For the colonised
peoples, it was an eye-opener to see barbaric butchery between civilised
whites, which had hitherto been reserved for the non-whites, and to witness a
non-white race (Japanese) standing on its own, and on an equal military
footing, against their masters. Subhas Chandra Bose's militant Indian
Nationalist Army sought support from Japan and posed a greater and probably
a more decisive threat to the British Raj than the passive and moderate Indian
National Congress (Hobsbawm, 1994: 216). The colonised peoples in the
Afro-Asian world spontaneously felt the need to 'purge' their consciousness of
racial inferiority drummed up by colonial masters before they took up arms to
regain their independence (Fanon, 1967).
     Thirdly, the shift of the centre of gravity from Europe (possessing
colonies) to the US (without colonies) as a global Superpower further
facilitated the reconstruction of ideological hegemony from the language of
 'racial superiority' to that of 'human equality' (human rights). The
fundamental limits of the universalising language of human rights were,
however, immediately apparent.
     First, the war did not end either imperialism or inter-imperialist rivalries
on the global level. It placed both on a new level of the emerging 'cold war'
(see generally Walker, 1993). For the United States and its allies, the Soviet
bloc was perceived and presented as a threat to the 'free world'. It is the
ideology of anti-communism and the 'free world' which was the standard text


                                       Constructing A New Rights Regime                      5
 during much of the 50s and 60s. The human rights debate arising in this
 context inevitably dovetailed into the politics and diplomacy of the 'cold war' .
 The sub-text of the 'free world' ideology was not so much to nurture,
 maintain and propagate freedom and rights of peoples, but strategically and
 economically to keep the states and peoples, particularly of the third world,
 within the sphere of the 'free world'. Thus the right of nations to self-
 determination proclaimed by the US President as early as the First World War
 was given the status of a political principle in the United Nations Charter, but
had no place in the human rights document, the Universal Declaration of
 Human Rights. The four freedoms-freedom                    of expression and faith and
 freedom from fear and want-proclaimed by Roosevelt in 1941 as the basis of
the new international order, and which inspired the UDHR, did not include
people's freedom from oppression and exploitation. Even Soviet Union's
narrow version of the right of peoples to self-determination to mean the
process of formal independence continued to be opposed by the West,
including the United States (Cassese, 1986: 416-7).
     Second, Hitler's violence which had 'shocked the conscience of human
beings world-wide, and laid the ground for a broad consensus that a new
humanistic legal order would have to be established' (i.e. UDHR)(Alston,
 1992: 10) did not mean that the new order would be without (universal)
violence. There were two important differences though. The violence of the
cold war era was far more ferocious and took place almost exclusively in the
third world. From the Korean war, through Vietnam, Palestine and
Mozambique to the Gulf, systemic violence killed, maimed and devastated
third world peoples. But this violence was not supposed to shock the
 'conscience of the human beings world-wide' because the third world people
were being killed to protect them against the evil incamate-communism-
during the cold war, and in the interest of human rights in the post-cold war
                                    1
 "New International Order".
     Third, imperialism continued to support and nurture (through overt a."d
covert violence) dictatorial regimes in the third world so long as the latter
continued to keep their peoples and resources in the 'free world' (Chomsky &
Herman, 1979). Under the spectre of anti-communism, even purely nationalist
I   Compare the utter cynicism with which the president of the United States, George Bush
manipulated human rights abuses by Saddam Hussein in the preparation for the Gulf War when it
';as the same president who had armed Hussein in the Iran-Iraq conflict. What is more, several
of Bush's allies in the war-including   Saudi Arabia, Turkey, Egypt and Gulf countries-were
and are, worst human rights violators (Amri 1992).                                             '


 6    Issa G. Shivji
 regimes (from Nasser to 'Nyerere) with policies to retain their .resources
 within their own countries evoked the wrath of Western states whIch at the
 same time presented themselves as the champions of democracy and human
 rights. No wonder then that for much of the 60s and 70s, third world states
paid little heed to human rights arguments ..
     Over the first two decades of independence in Africa, the human nghts
 discourse developed in opposition to the developmentalist discourse. Post-
 independence states were in a hurry to develop; to pull their peoples out of
backwardness. True, developmentalism was used as an ideological cover to
 rationalise and justify the development of strong, authoritarian states by the
 ruling elites in Africa. Yet, it is also true that development was a central
 concern, and that an abstract advocacy of rights would have little meaning to
the vast majority. The academic developmental discourse, contentious as it
was, and the practical struggles underlying it, filtered into the United Nations
 system as well. Development thus found legitimacy in the global political
discourse. The result was a spate of resolutions, declarations and covenants on
development.
     Within the UN system,. the developmental discourse originating in the
General Assembly and finding expression in declarations and resolutions was
politically an extension of the domestic statist/developmentalist ideologies of
many third world, particularly African states. Intellectually, that discourse
was grounded in the unequal international political economy, while
organisationally it took off from such groupings of third world countries as
G77 and UNCTAD. This movement originally began in a negative fashion as
a non-aligned movement (not aligned either to NATO or Warsaw Pact
countries), but eventually took on the form of more positive economic
bonding in opposition to what was perceived by third world leaders as unfair
and inequitable practices of international trade and economic control. To some
extent, therefore, it was an anti-imperialist movement, albeit statist in
orientation. It seems to me that it is the underlying anti-imperialist stance of
the third world development discourse which is what was centrally opposed by
the dominant states of the North led by the US.
     This is very well borne out by the fact that the right to self-determination
often became the bone of contention between the West and the official third
world. Contrary to traditional belief reiterated in the dominant human rights
dis:<?urse,. i~ is not s~ much the issue of the divisibility of rights between
pohtlcal/clvll and socIal/economic and the priority of the latter over the
former, or trade-offs, as it is often expressed (Vincent, 1988), which


                                    Constructing A New Rights Regime              7
characterised the debate between the third world and the West, but rather the
sense of autonomy, however' partially expressed in the right to self-
determination, which was the real ground of contention. This can be seen in
the debates on the two Covenants.
     The Universal Declaration itself did not dichotomise between political/civil
and social/economic rights (see articles 22-26.) But it did not contain the right
to self-determination.        Self-determination was seen as a political and
organisationaI principle embodied in the UN Charter rather than a rights
issue. US objection to ecosoc rights was based more on the nature of the
obligations of the state that this entailed rather than the nature of rights as
such (Alston, 1992: 394-6). The dichotomy between these two set of rights
became eventually entangled in the iijeological war between the Soviet Union
and the US. The Soviet Union retaliated against accusations of breach of
political and civil rights in the Soviet bloc by pointing out breaches of social
and economic rights in the US. The diplomatic cold war on the human rights
terrain then (probably inaccurateiy) got extended to the West-South largely
because the "socialist" and third world countries tended to vote together on
many third world initiatives such as on processes of decolonisation, the
Palestinian struggle for self-determination, etc.
     The US objection to both International Covenants (1966) resulting in non-
ratification was largely because of the inclusion of identical Article, 1(1) on
self-determination. This reads:
         All peoples have the right to self-determination.
         By virtue of that right they freely determine their political status and
         freely pursue their economic, social and cultural development.
     The second paragraph was found offensive because of the perception (quite
correct in the circumstances) of the West that it was directed against the
interests of foreign, largely Westerp., capital involved in the exploitation of
resources in the third world, and transfer of profits from the South to the
North. There was, indeed, the expansion of the meaning of the right of
peoples to self-determination to include, what many third world publicists
often called, economic self-determination (Cassese, 1979: 92-3). It is this
aspect which was originally proposed by Chile to be included in the
Covenants, and which began to find expression in the documents and
declarations proposed by third world states and adopted by the General
Assembly where the third world was in a majority. Thus we had the
Resolution on Permanent Sovereignty of Natural Resources, 1962, Charter of


8     Issa G. Shiv);
Economic Rights and Duties of States, 1974, and various resolutions and
declarations to do with the New International Economic Order.
    In spite of its original promise of strong resistance to external domination
in both political and economic spheres, in the hands of third world states the
principle of self-determination was narrowed in three respects. Politically, the
right to self-determination was limited to colonial and colonial-like situations
as in apartheid South Africa. The right was considered to have exhausted
itself once a country became independent. It was not applicable to 'peoples'
(nations) within an independent sovereign state. Secondly, so far as the right
to economic self-determination was concerned, the term 'people' was
conflated with 'state'. The right was seen as belonging to the state. It became
both statist and developmentalist in conception, and in practice the right to
economic self-determination at the international level was restricted to 'trade-
union' type demands of the third world, i.e., demanding better and fairer
terms of trade and laying claims to more aid. The potential within the right of
articulating and legitimising a stronger version of political and economic
democracy for the benefit of the large majority of the disadvantaged people in
the South was understandably not in the interest of the thit:d world states and,
therefore, was not fully developed in the official discourse. Yet, to underscore
once again, even in this limited form, the third world version found only.
cursory mention in the mainstream discourse of' aman rights. The dominant
discourse, largely originating in and propagate( by the West, continued to
focus on the universality of individual rights with monumental disregard for
the social, economic and political disempowerment affecting the large masses
of people in the third world who suffered under despotic regimes, very often
supported by the West.
    Whatever the critique-and much of it was valid-of the preoccupation of
African leaders with development at the expense of rights, the centrality of
development could not be ignored. The dilemma was summed up well by
Mwalimu Julius Nyerere when he asked rhetorically:
        What freedom has our subsistence farmer? He scratches a bare living
        from the soil provided the rains do not fail; his children work at his
        side without schooling, medical care, or even good feeding. Certainly
        he has freedom to vote and to speak as he wishes. But these freedoms
        are muc~ less real to ~im.than his freedom to be exploited. Only as his
        pove~y IS reduce~ WI~IhiS existing political freedom become properly
        meanmgful and hiS nght to human dignity become a fact of human
        dignity (quoted in Shivji, 1989: 40)


                                  Constructing A New Rights Regime                 9
     This is then the point of my thesis so far. By and large, the dominant
discourse in the third world, and that which the third world pursued
internationally, was openly contentious, centrally developmental, probably
economistic and often inevitably intertwined with the then superpower rivalry
(cold war). Nonetheless, it had achieved a measure of ascendancy and
legitimacy for some of the major concerns of the peoples of the South. On the
global terrain of social and .political discourse, the developmental and the
human rights discourses were locked in battle. They were polarised and
became mutually exclusive. This meant that the developmental discourse and
the human rights discourse ran parallel.
     The dominant human rights discourse was couched in terms of individual
rights grounded in the liberal jurisprudence of essentially free-market
economies dominated by capital in pursuit of profit. Right by definition was
(a) an individual claim or entitlement (b) on the state which could be (c)
enforced in a court of law. Development, on the other hand, was seen and
perceived as (a) a societal project (b) to be pursued by the state as (c) a matter
of priority and urgency. In sum, the liberal theory ruled out of court any link
between individual rights and economic justice, while developmental theory
was prepared to sacrifice individual rights in the pursuit of socio-economic
justice. Whatever the merits of each position, the truth was that the dilemma
or tension between the liberal notion of individual rights constructed in the
context of a developed capitalist economy and the real life-conditions of
poverty, ignorance, disease and domination of the large mass of people in
Africa was real and could not be wished away, nor could it be easily
reconciled on the existing conceptual foundations. This is the dilemma which
expresses itself in the dichotomy between the so-called social/economic rights
and political/civil rights on the one hand, and the various attempts to reconcile
the tension by reconceptualising the jurisprudence of rights, on the other.
     From the human rights side, we had the development of such paradigms as
the indivisibility of human rights, basic needs/right school, human rights as
integral, etc. From the developmental side, we have such attempts as the
Algiers Declaration (Shivji, 1989 passim; Cassese, 1979). Suffice it to say
that these attempts to carve out a 'middle ground' between the human rights
and development discourses became even more contentious because each
side-and this is inevitable-approached      it from its own premises and outlook
reflecting real life social forces and interests. It is arguable if the most valiant
attempt at integrating the two discourses-the UN Declaration on the Right to


   10 Issa G. Shivj/
   Development-has been a roaring success or one gargantuan and meaningless
  diversion (M'Baye, 1979; Welch & Meltzer, 1984).
      Be that as it may. It was against this background that the human
  rights/democracy discourse made its forceful entry on the African scene in the
  late 70s. Whatever the pundits may say, the immediate genesis of this entry
  lay in the Carter doctrine. It was ideologically charged and came with the cold
  war package, including its anti-developmental bias. This is so notwithstanding
  that the African Charter of Human and People's Rights embodied a strongly
  statist version of the right to development. The essentially neo-classical
  paradigm of the new emerging "development" discourse (as opposed to that of
  60s and 70s grounded in political economy (Hyden, 1994), became manifest
  in the various structural adjustment programmes (SAPs) and liberalisation
  policies imposed on African states by the international fmancial institutions or
  IFDs (Gibbon et. at., 1992a).
      Larger issues of even official third worldist political economy-unfair
  terms of trade, inadequate aid, protectionism of Western markets, extraction
 of profits and resources by multinational corporations, debt burden and lack
 of basic services such as epucation, health, etc. -which were the common
 currency of the developmentalist discourse of the 60s and 70s-have not only
 disappeared but have been delegitimised. African states which were in the
 forefront of the demand for a New International Economic Order have been
 reduced to virtual supplicants with no say. In the Uruguay round, to cite one
 typical example, Africa was marginalised from the negotiations. Yet it is
 estimated that the continent (particularly sub-Saharan Africa) will be the net
 loser to the tune of US$ 2.6 billion (Third World Economics, 1994, issues
 88/89, 10).
     From the human rights side, the radical fringes of the mainstream for
some time now have tried to address the issues raised by the developmental
discourse at the level of poverty alleviation and relief (minimalist), or
empowerment (maximalist). So we have debates over the integration of
political/civil and social/economic rights; basic needs as basic rights; right to
aid (Tomasevsky, 1993), right to food (Alston, 1984; Kowalewski, 1985;
Brockett, 1985), right to development, etc ..
     The intervention of the radical academia in the human rights discourse
from the developmental perspective has been incoherent, inconsistent and
more or less ignored. There is the work of the Permanent Peoples' Tribunal
which uses mock litigation to highlight larger issues of international
inequality. It was the Lelio Basso Foundation behind this Tribunal which


                                          Constructing A New Rights Regime               11
organised and proclaimed in 1976 the Universal Declaration of the Rights of
the People (Algiers Declaration, 1976) (Cassese, 1979). Based on the right to
self-determination, it organised a mock trial of the IMF and the World Bank
in 1988. The IFls were charged with breaching, among other things, the right
of peoples to self-determination because of the conditionalities and structural
adjustment programmes that' they impose on third world states and peoples
(Permanent Peoples' Tribunal 1988).
    The tension between lack of basic development and proclamation of rights
in the global human rights discourse summed up above has been felt even
more starkly by practitioners and advocates of human (legal) rights at the
level of domestic jurisdictions in the Afro-Asian world. The contradiction
between declarations of individual rights rooted in human worth, and the
reality of grinding poverty of miIli~ns mutilating human life itself in poor
countries poses a challenge not only to the intellectual integrity of human
rights jurisprudence but brings into question the legitimacy of the judiciary
and legal profession presented              as the founts of justice, fairness and equality
(see Baxi, 1988: 32 on legitimacy). A Tanzanian judge, agreeing with his
Indian brother judge, put it thus:
         The former Chief Justice of India Mr. Justice Bhagwati in an article on
        the role of the judiciary in the changing society in developing countries
        has urged that the judiciary has a duty to fight for a just, social and
        political order in society. He says at p.65 of the magazine 'The
         Commonwealth Lawyer' of December, 1986 that:
              This challenge is an      important one, not only because judges are
              under a duty to create    and mould a just society but also because the
              social and :,political   legitimacy of a modem judiciary become
              questionable if it fails to make a substantial contribution to the issue
              of social justice.
             For sure if the judiciary cannot come to the aid of a poor citizen
        when oppressed, then its existence is questionable. We can do without
         it and perhaps create other institutions for that noble purpose.
         (Chamchua Marwa v Attorney General, unreported, High Court of
         Tanzania, Misc. Crim. Cause No.2 of 1988)
    Coming to the aid of the 'poor citizen' has been the latent or patent
consideration which has informed activist or new rights jurisprudence that
has been developed by publicists and higher judiciary in some countries of the
South, particularly India. We briefly consider this development in the next
section.


 12      IssaG.Shivji
 3. The Dilemmas at Municipal Level: Directive Principles, Fundamental
      Rights, Accessibility and Justiciability
 1rhe tension between development and the regime of rights expresses itself in
a number of dichotomies and levels: the division between ecosoc and
 political/civil rights; the contrast that is often drawn between collective/group
 and individual rights; the characterisation of developmental rights as
 aspirations or objectives; political and civil rights as enforceable claims; and
 so on. While the debate gets polarised in this fashion, the truth, as argued,
 remains that no rights discourse, even at a more practical level of judicial
 activity, can remain passive to the fundamental societal goals of equity, social
justice and economic democracy raised by the developmental discourse. It is
in an attempt to reconcile the rift, while at the same time address the real
issues and concerns raised by the two discourses, that 'a new rights regime' is
developing (Baxi, 1994; Kothari & Sethi; 1989). To put it in another way, the
developmentalists are seeking to reformulate their concerns in the language of
rights, while the human right-advocates are taking on board developmental
issues without which, they recognise, rights-talk can have little meaning to,
and legitimacy with the vast majority of the pkopte -iff poor countries 'of the
South.
     In an increasing number of constitutions in the South; the dichotomy
expresses itself in the division between directive principles of state policy or
national objectives, and fundamental rights. One of the earlier statements of
directive principles is to be found in the Indian constitution. A number of later
day constitutions, including that of Nigeria (1979), Tanzania (1977), Namibia
(1990) (for an overview see Cottrell, 1^91) and lately Uganda (Uganda, 1995)
have followed suit. Relation between directive principles and fundamental
rights has not been an easy one. It has reincarnated the tension and
dichotomies discussed above. Governments have sought legitimacy for some
of their actions and legislation, which on the face of it were in breach of
fundamental rights, in directive principles.1 The Indian Supreme Court itself
in the first decade assumed a pretty conservative posture giving pre-eminence
to fundamental rights and striking down affirmative actions in favour of
untouchables, land reform and nationalisation measures taken by the state as
being in breach of the 'equality clause' (Singh, 1994:298 &. Kidder,
1977:604). Eventually the Supreme Court beat a retreat in its phase of what
Baxi calls 'judicial populism' (1988:32) holding that both directive principles
   It is interesting that in the Constitution of Tanzania, 1977 some of the developmental
objectives reappear in derogation clauses generally limiting fundamental rights and freedoms.


                                     Constructing A New Rights Regime                 13
and fundamental rights were fundamental and part of the basic structure of the
constitution (Kesavananda Bharati v State of Kerala AIR, 1973 SC 1461), and
that they should be interpreted in a fashion that would harmonise those two
parts of the constitution (Minerva Mills v Union of India AIR, 1980 SC
1789).
    Giving a dissenting opinion in Minerva Mills for different reasons,
Bhagwati, J. formulated a rationale which has become in a sense the
harbinger for the Indian Supreme Court to develop social action litigation
going beyond simply liberal enforcement of individual rights. That rationale
needs to be quoted in extenso because it sums up the dilemma the courts frod
themselves in, in resolving the tension discussed above which in turn has
acted as the primary push for reconceptualising and reconstJ.Iucting the
foundations of human rights regime in third world countries.
        Merely because the Directive Principles are non-justiciable, it does not
        follow that they are in any way subservient or inferior to the
        Fundamental Rights. The Directive Principles impose an obligation on
        the State to take positive action for creating socio-economic conditions in
       .which there will be an ~galitarian social order with social and economic
        justice to all, so that individual liberty will become a cherished value and
        the dignity of the individual a living reality, not only for a few privileged
        persons but for the entire people of the country. It will thus be seen that
        the Directive Principles enjoy a very high place in the constitutional
        scheme and it is only in the framework of the socio-economic structure
        envisaged in the Directive Principles that the Fundamental Rights are
         intended to operate, for it is only then they can become meaningful and
         significant for the millions of our poor and deprived people who do not
        have the bare necessities of life and who are living below the poverty
        level. It is not correct to say that under our constitutional' scheme,
        Fundamental Rights are superior to Directive Principles or that Directive
        Principles must yield to Fundamental Rights. Both are in fact equally
         fundamental and the courts have therefore in recent times tried to
        harmonise them by importing the Directive Principles in the construction
         of the Fundamental Rights. If a law is enacted for the purpose of giving
        effect to a Directive Principle and it imposes a restriction on a
         Fundamental Right, it would be difficult to condemn such restriction as
         unreasonable or not in public interest. So also where a law is enacted for
         giving effect to a Directive Principle in furtherance of the constitutional
         goal of social and economic justice it may conflict with a formalistic and
         doctrinaire view of equality before the law, but it would almost always
         conform to the principle of equality before the law in its total magnitude


   14 Issa G. ShlvJI
          and dimension, becausethe equalityclause in the Constitutl0!ldoes not
          speak of mere formal equalitybeforethe law but embodiesthe concept of
          real and substantive equality which strikes at inequalities arising on
          accountof vast social and economicdifferentials and is consequently an
          essentialingredientof social and economicjustice (at p. 1791).
      This judicial approach, which underlies social action litigation, has been
  usefully categorised by Wambali (1996) as the 'social justice' approach, in
  contradistinction to the 'natural justice' approach of the liberal Anglo-
  American jurisprudence. The latter is premised on the notion of equal
  opportunity or treatment (see, generally, Dworkin, 1977) which in judicial
  discourse translates into a number of procedural rights often labelled as
  principles of natural justice. Whether Indian judges have managed to take
  their social justice approach to its logical social conclusion in their judicial
 decision-making, or have willy-nilly fallen into simply a more radical version
 of 'natural justice approach', will become clear when we examine the practice
 and critique of social action litigation below.
      The core of the social action litigation has been to expand and relax the
 rule of locus standi in two respects. One, that the litigant need not have a
 direct or sufficient interest in the matter brought to the court. Two, that the
 victim of the violation may be a social group or a collective identified only by
 its disadvantaged position in society, often called by Indian judges the weaker
 or oppressed sections of society. Thus there has been SAL brought by
journalists, professors, public spirited individual lawyers and lawyers'
 associations on behalf of bonded labour, pavement dwellers, quarry workers
 in unhealthy conditions, oppressed women and children, undertrial prisoners,
etc. (Cottrell, 1993: 107 et. seq & Gomez, 1993 passim). Besides relaxing the
rules of locus standi, the Indian Supreme Court has gone further in ignoring
formal procedures by asserting what is called epistolary jurisdiction 'where
the Court can be moved by just addressing a letter on behalf of the
disadvantaged class of persons.' (Bhagwati 1987: 25).
     Relaxing of locus standi rules has spread to African jurisdictions as well,
although the higher judiciary there has not gone as far as the Indian Supreme
Court. In a Tanzanian case of Rev. MtiJdla v. The Attorney General,
(~ep<?rted, .~igh Court Civ. Case No.5 of 1993) Lugakingira, J., after
revIewmg BntIsh, Canadian, Nigerian and Indian authorities, concluded that
in ~atters where a public interest was at stake, it was not necessary for the
petItIOner to show sufficient personal interest. He found support in the
constitutional provision which places a duty on every citizen to protect the


                                  Constructing A New Rights Regime              15
constitution. The judge cited illiteracy, lack of right-awareness, poverty and
mono-party culture as factors which constrained people from seeking redress
of their rights in courts. "Given all these and other circumstances", Mr.
Justice Lugakingira argued, "if there should spring up a public-spirited
individual and seek the Court's intervention against legislation or actions that
pervert the Constitution, the Court, as guardian and trustee of the Constitution
and what it stands for, is under an obligation to rise up to the occasion and
grant him standing." (at p. 12) Whether African courts will go as far as the
Indian Supreme Court in asserting epistolazy jurisdiction remains to be seen.
But it is interesting to note that in one of the most recent African
constitutions, the Uganda Constitution of 1995, art. 50(2) explicitly provides:
        Any person or organisation may bring an action against the violation of
        another person's or group's human rights.
    Besides relaxing the rules of locus standi, the Indian Supreme Court has
imaginatively combined the reading of directive principles and fundamental
rights to reconceptualise and give new meaning to the content of rights as well
as forge new remedies. In this regard, to cite one important example, the
right to life as a basic right has been given much wider meaning. In the case
of Tellis v Bombay Municipal, (1987) LRC (Const) 351) the Court argued that
right to life was wide and far-reaching, and that it included the right to
livelihood 'because no person can live without the means of living, that is, the
means of livelihood.' (at p. 368). This has opened up the potential for
extending the right to life to right to wholesome living as a human being, and
therefore the assertion of the right to be human (Baxi, 1985). We will return
to this argument in the subsequent section.
     Another problem that social action litigatiorl faced was that of proof.
Realising that it would be futile to permit public spirited individuals and
bodies to move the court through simple procedures on behalf of 'weaker
sections', if the individual or body concerned could not marshal sufficient
evidence for lack of resources, the court has in such circumstances appointed
socio-Iegal commissions of inquiry to find facts and report back to the court
which material is in turn placed before the parties and scrutinised as if it was
valid evidence before the court (Bhagwati, 1987:27). And for remedies,
again, the court has gone quite far in giving directions to public agencies,


16 Issa G. Shivji
appointing monitoring agencies to report back to court on whether or not their
orders and directions are implemented. I
     All in all, the contribution of the Indian Supreme Court in forging social
action litigation and the jurisprudence of new rights regime which goes far
beyond anything hitherto known to the common law world is now widely
recognised. This does not mean that social action litigation has all been a
roaring success without its problems and critiques. This paper will not look in
any detail at the obvious dangers of abuse that SAL presents. It may be, for
example, deployed by middle class persons for whom it is not meant or for
ulterior political, social and private motives (see, generally, Cottrell,
1993:122). The Supreme Court has been quick to realise this as it observed in
the Judges Transfer case that 'we must be careful to see that the member of
the public who approaches the court in cases of this kind is acting bona fide
and not for personal gain or private profit or political motivation or other
oblique considerations.' (quoted ibid.: p. 123). But more important is the
critique as to whether the court is best suited in terms of resources,
competence and political mandate to address the kind of large systemic
problems of exploitation, oppression and resultant poverty that confront the
disadvantaged. Where special problems of the disadvantaged are inherent in
the system affecting millions, a few hundred court actions can have little more
than symbolic value. As one commentator has perceptively observed:
         ... the new role that the courts have assigned to themselves must be seen
         as their attempt not to correct the social reality, but to correct the legal
         system. Trying to redeem the system of not having kept up its laudable
         objective-justice for all .. ,
              Once it is recognised that the courts cannot bring about social
         change, or at any rate, cannot replace social movements, the only role
         they can play is to aid social movements ... The courts can only free an
         ailing Naxalite prisoner, or bailout a labour leader, or free one group of
         the endless stream of bonded labour. (quoted in Cottrell, 1993:124)
     This undoubtedly raises a fundamental critique which goes to the root of
the nature, role and social character of state organs in a capitalist society
divided into classes. The limits of the judicial process in addressing basic
I I believe the Tanzanian Basic Rights and Duties Enforcement Act, no. 33 of 1994, gives wide
ranging enabling power to the court under which a creative bench may be able to forge
innovative remedies. It stipulates that the High Court has original jurisdiction to hear and
determine any application brought under the Act and 'may make such orders and give directions
as it may consider appropriate for the purposes of enforcing or securing the enforcement of
section 12 to 29 of the Constitution, .. .' (s.8(l»b). For a contrary view see Mwaikusa, 1995.


                                  Constructing A New Rights Regime              17
systematic social issues is dramatically illustrated by the very case in which
the Indian Supreme Court gave the right to life an extended meaning discussed
above. In the case of Tellis a number of pavement and slum dwellers in the
city of Bombay who had been forcibly evicted and their dwellings demolished
by the Municipal Council petitioned, through Public Interest Litigation, the
Supreme Court for redress. They argued that their fundamental right to life
had been infringed. While the Court held that right to life included right to
livelihood, the right was not absolute, and that a person could be deprived of
livelihood provided the procedure stipulated by law was followed and that
such procedure was fair and reasonable (ibid. p.371 et. seq.). In the case
before the court, while the petitioners had not been given prior notice, they
had been given ample opportunity to be heard before the court and therefore,
in effect, the court dismissed the petitions with some directions extending the
time within which the pavement dwellers ought to vacate. This is an
interesting case in that it illustrates how the social justice approach made the
court give a wide and substantive meaning to right to life, while in the actual
decision made this was reduced to a procedural right of being heard.
    This obviously raises more fundamental issues in terms of law and social
change, and the role of ne-w rights regime to which we will return in the
conclusion. Suffice it to say that commentators and writers have taken cue
from SAL to develop further the jurisprudence of new rights regime so as to
capture (and hopefully address) some of the problems raised by the
development discourse. This is looked at briefly in the next section in which I
make a proposal for directions in which the alternative human rights discourse
may be advanced.
4. The New Rights Regime: Composite Rights
We have already seen one direction of the development of a new rights
regime. This has largely been in the direction of integrated rights, basic
rights, minimum core of rights on the one hand, or formulation of new rights
such as right to food, right to shelter, right to good environment, right to
d~velopment, on the other hand. I have argued elsewhere that this mainstream
attempt to salvage the rights discourse from the challenge posed by the
development discourse has one main characteristic. It is constructed on the
same liberal foundations of liberalism and the hegemonic logic of the North
(Shivji, 1989). The point is not simply to take-on board the development
discourse by adding on more rights of economic, social and collective nature
to the existing catalogue of rights. It seems to me the task of reconceptualising


18 Issa G. Shivji
and rethinking of human rights and constructing a new ri~'1ts regime should
involve integrating a new conceptual and political apparatus which would at
once expose and focus attention on the fundamental issues of the day. It is my
submission that this could probably be done by zeroing on two rights and
conceptualise them as composite rights. This is the right to life and the right
of peoples to self-determination.
    Both rights, unlike some new rights, have the advantage of being part of
the recognised mainstream rights. What we need to do, therefore, is to
reconstruct them as opposed to inventing new rights.
4.1 Right to Life
We have already seen that the Indian Supreme Court has extended the
meaning of right to life to include the right to livelihood. Jurisprudentially this
is a significant advance. This means that the right to work or livelihood
appears within the purview of what is accepted as a basic right which is
invariably included under fundamental (and in many cases non-derogable)
rights in constitutional schemes. Right to work, as we know, is considered an
economic right placed probably as an aspiration or a goal in non-justiciable
provisions of many constitutions. In the 1966 International Covenant on
Economic, Social and Cultural Rights. its observance (like other social and
economic rights) is subject to progressive realisation 'to the maximum of ...
resources' available to a State Party, unlike civil and political rights which are
required to be given effect immediately by adopting necessary legislative and
other measures (art. 2(2) of the Covenant). By making the right to work a
part of the right to life, the qualification of 'available resources' is not
applicable. What is more, the dichotomy between ecosoc rights and
political/civil rights which has bedevilled the human rights debates is also
overcome.
    Writers have further expanded the meaning of the right to life to include
such things as right to shelter, right to food and, therefore, right to land in
agricultural communities (see the Farmers' Charter, 19931); even right to
 I A Charter of Farmers'  Rights was drawn up by leaders of Indian farmers' organisations
meeting in New Delhi in 1993. Clause 1 of the Charter says:
       1. The right to land
           Farmers across the country are being displaced to give way to factories,
           mines, dams etc. Under the new liberalisation regimes of the Structural
           Adjustment Programme, the Land Acquisition Act is being used to


                                         ConstructingA New Rights Regime                   19
education and good governance on the basis that human living means
wholesome living in dignity. In other words, right to life is the right to be
human. In a word, right to life is constructed here as a composite right which,
to borrow the words of Mathew, J. in Kesavananda, is an "empty vessel(s)
into which each generation must pour its content in the light of its experience"
(Singh, 1994:3(0). Mwalimu Nyerere summ~,this up well when he said:
         Life is the most basic human right. If justice means anything at all, it
         must protect life. That should be a constant underlying purpose of all
         social, economic, and political activities of government at all levels: '"
               To have food, clothing, shelter, and other basic necessities of life; to
         live without fear; to have an opportunity to work for one',s living;
         freedom of association, of speech, and of worship. All these things
         together are among the basic principles of living as a whole person in
          'Freedom and Justice'. In other words, all are almost universally
         accepted as basic 'Human Rights'. (Daily News, 27/9/93)
It is submitted that human life in the right to life means, implies and stands
for human being as a social being as opposed to an individual being. Human
being, it was argued in the fIrst moot court judgement appended to this paper,
is not seen as existing and living apart or isolated from his/her community and
 society. ,Therefore his/her right to life is not an individualist claim against
 society, but the very core of his/her living as a social being. Society lives in
him or her as much as s/he lives in society. This way of conceptualisation,
which, it is submitted, is consonant with the spirit expressed in the African
 Charter of Human and Peoples' Rights, overcomes another dichotomy: that
 between individual and collective rights. In much of the mainstream debate,
 the collective is seen simply as an aggregate of individuals. The point of
             appropriate land from farmers and transfer it to multinational corporations.
             Farmers have a fundamental right to land. Prime farm land should be
             protected for social and environmental reasons and not to be acquired for
             non-agricultural purposes. No agricultural land should be acquired without
             the farmer's consent and no agricultural land should be made available to
             multinational corporations.
 This has immediate echo in many African countries. In Tanzania the report of the Presidential
 Commission of Inquiry into Land Matters (Tanzania 1994) catalogued many incidences of
 "grabbing of agricultural and pastoral lands". In terms similar to those of the Charter. the
 Commission recommended. democratisation of the land tenure system and constimtional
 entrenchm,ent of villa!ers' right to.laI¥l .
          ..A.


  20 Isse G. Shivji
  reference and departUre continues to be the individual. The r~nstruction
  suggested here questions that philosophical assumption by argulIl~ that a
  human being isa social being, not an individual being. The assertIOn of. a
  right of a human being therefore' is oot a claim posse~sed by. an a~omlst
  individual, but a refleCtion and an embodiment of sOCial relatIOns ill the
  language of rights."               ...
      The second composite right with a far reaching potential is the nght of
 people to self-determination (see, generally, Twining, 1991; and Cassesse,
  1979). This right is to be found in both the International Covenants and the
  African Charter on Human and Peoples' Rights. It bas two aspects, external
  and internal. State practice has recognised its political external aspect whose
 core content is the right of colonised people to become independent and form
 their own states. The economic external aspect .is what is called economic
 self-determination, and the right to 'freely determine their political status and
 freely pursue their economic, social and cultural development.' This is the
 phraseology which allowed Afro-Asian states to argue in favour of the
 sovereignty of their states in determining their economic policies, including to
 assert sovereignty over .natural resources. It was the building block of the
 Universal Declaration of Peoples Rights or the Algiers Declaration, 1976, and
 the basis for the People's Tribunal to organise their mock trials of the
 structural adjustment policies (SAPs) imposed on African countries by the
IFIs. In other words, the right to self-determfuation is a potent weapon within
the human rights discourse to focus on the domination of the South (the
hegemonic logic of the North ~ Fane (1992) calls it) by the North in the 80-
called World Order. With the processes of globalisation at work in the post-
cold war era, where the basic sovereignty of the peoples of the South is at
bay. the assertion of. the right to self-detennination has become even more
important. As a well-known Malaysian human rights activist puts it:
        It is particularly. important at this juncture in history to continue to
        reme~ber th~ b~ood-soaked pages of our past. Fer as new forms of
        colomal dommatlo~ a~d control are institutionalisedand Jegitimised in
        lite name of ~lobahsatlOn, the centres of power in the West are forcing a
        sort o~ a~nesl3 upon the rest of us which, in very subtle ways, persuades
        the victims of grave historical injustices to forget bow they were
        oppressed .and exploited not so long ago-often           by geopolitical,
        geoeco.nomlc and geoculturalforces      similar to those that lord over
        humamty today. (Muzaffar, 1995: 53)


                                    Constructing A New Rights Regime                21
     Addressing the UN General Assembly on consultations on UN Agenda for
 Development, Mwalimu ,Nyerere forcefully reasserted the centrality of the
 right of people to self..Qeterm~don, "particularly its external economic and
 political .aspects. He pointed out the eVer-widening inexorable North-South
 divide in the international order. Nyerere argued that if humanity were a
 single. nation,' the North-South divide would make it an unviable, unstable
 "feudal" entity tom by internal conflicts. He suggested that the UN Agenda
 for Development should try to redress the North-South divide, and should be
 based on two principles:
              First, a UN Agenda for Developmentmust be a plan of action to end
         poverty throughout the worM. It must say, 'We, the Peoples of the
         World, determined to save succeedinggenerations from the scourge of
         war, poverty, and underdevelopment, do hereby adopt this plan of
         action.' It must not say, "We, the Bankersof the World, determinedto
         extract maximumprofit from the poor, do hereby .....
              Secondly-and in a sense fOllowingfrom that requirement-it must
         not purport to provide a universaldevelopmentpolicy prescription. Each
         country must be able to determine its own policy balances in accordance
         with its own needs, its'own value systems, its own level of development,
         its own history, and its own cultural inheritance.
              Drawing up a UN Agendafor Developmentbased on those principles
         wouldconstit~e ar~sertion of the right oj ~ach country-hQwe~:er PU')T
         or weak-todei~rmine its ownpolicie;accQrding to the requirementsof
         its own hi.~torbl exper~nce,. cuItlue~..and. circumstances. But an
         assertion of a Right to national equality is not the same as ensuring that
         the right is recognised irtpractiCe.(tmphasis supplied) (Daily News,
         20/06/1994)
    The internal aspect of self-determination has two facets. One relates to the
rights of minorities, nations and nationalities within state boundaries to self-
determination. Here self-determination has a spectrum of meaning from the
'right to practise one's culture, language, etc., to the right of an oppressed
nation to secede.' The latter is much more controversial. This is not a place to
go into the issue (but see, generally, the Collection in Twining, 1991). Here I
am more concerned with another internal facet of the right to self-
determination which is least theorised, This relates to the right of a people to
determine their 'self' politically in terms of participating in major decision-
making proeesses that affect their lives. Conventionally ,the right to self-
detentlination has not been given thismeanifig, yet there is enough material to
enable a reconceptualisationalong the direction suggested here. It is suggested


    22 Issa G. Shivji
    that the term 'people' should be given a contextual meaning. Thus a pe~ple of
    a country entitled to self-determination means that they have a nght to
    organise their own political system in a democratic fashion ..
        On the other hand, within the country such collectives as vilIage
    communities and suburban groups could also be considered 'people', whose
    right to self-determination would include the right to participate in, and be
   consulted on, decisions affec.ting their lives. Just as principles of natural
   justice require an individual to be given a hearing, so ~e principle of self-
   determination requires that the affected people be consulted on issues and
   decisions affecting them. In the Tellis case, without using the concept of self-
   determination but expanding on the eoncept of right to a hearing, the Court
   came very close to asserting such a right of consultation. Speaking through
   Chandrachud, C. J., the Court said:                                                         .
            The right to be heard has two facets, intrinsic and instrumental. The
            intrinsic value of that right consists in the opportunity which it gives to
            individuals or groups, against whom decisions taken by public authorities
           operate, to participate in the proceedings by which those decisions are
           made, an opportunity that expresses their dignity as persons. C .. ) (right
           of the poor to participate in public processes.) (at p. 376)
       The right of the (poor) to participate in public processes, it is submitted,
  constitutes the core element of one of the two internal aspects of the right of
 people to self-determination. It must be noticed, though, that the right to be
 consulted as asserted by the judges in the Tellis case is built on the. conceptual
 foundations of individual rights. In other words it does not challenge the
 bourge~is, liberal epistemology. The right of people to be consulted as a part
 of the nght of people to self-determination takes off from a different, socially
 based epistemology. It has a potential to make a paradigmatic shift in the
 human rights discourse. In the moot court case given in the appendix, I
 argued that the group of squatters who were removed from a squatter
 settlement because the government wanted to build an airPort for economic
 de~elopme~t were entitled to be consulted as a people prior to the decision
bemg ~en           on the basis of the right to self-determination.
      It IS true that African domestic constitutions do not provide the right of
people to self-determination. Yet, it seems to me, such a right can be derived
1 It is, no:-v well-established in law that consultation has to be prior to the decision being taken
~therwl~ It has, no ~eaning. See,. for example, the case of Hamisi Ally Ruhondo & 115 Others v.
  anzanta-Zambw Railway Authority, unreported, Court of Appeal (Tanzania), Civil Appeal No.1
of 1986.


                                    Constructing A New Rights Regime                23
from a more radical reading of the overall democratic scheme of these
constitutions which invariably have such formulae as 'all power belongs to the
people .. : etc. (Uganda 1995 Constitution art. 1(1)).
    The development of the right to self-determination as a composite right as
suggested in this article has the other advantage of taking on board the current
disc~:)Urseon democracy and accountability. Indeed, it has the possibility of
taking us beyond the current formula of multi-party, parliamentary
democracy, which invariably operates as a top-down state structure, and
integrating alternative discourses on popular participatory democracy from
below involving consultation and participation at 'people's' level in the
continuous process of decision-making. It thus counters the statist/elitist logic
so pervasive in much of the human rights, development and democracy
discourse current in Africa today.
    As has been observed by more astute writers (see, for example, Amin,
 1993), the liberal premises of the current democracy discourse fall far short
of addressing the real problems of the large majority of the people in Africa.
In a forceful piece reviewing the democracy debate' among African
intellectuals, Archie Mafeje argues that African intellectuals who inscribe the
debate within liberal paradigms know neither the history of the concept- of
democracy in Europe, nor understand the contemporary balance of social
forces in Africa. As he puts it:
         Historically and substantively, liberal democracy has been superseded by
         other modes of bourgeois democracy. Liberalism was for all intents and
         purposes dead but for its letter, the term itself had become a swear-word
         both on the right and left of the contending forces. What has obscured
         the social and political significance of this is that the form it has
         inaugurated has remained. The rules of the game prevailed-call        them
         parliamentary democracy and individual rights or 'human rights', to use
         the current jargon of the right in America and Europe. So, in insisting on
         liberal democracy, some African intellectuals can be accused of
         mistaking the form for its substance. If elsewhere the major battles are
         being fought between social democrats and representatives of monopoly
         capitalism personified by Western leaders like Reagan, Thatcher, Bush
         and Kohl, how can they sound their clarion call for battle in such
         reactionary and antiquated terms'!
              Should not African intellectuals identify more clearly the contending
         social forces in their societies so as to be able to determine in a non-
         arbitrary fashion what kind of democracy is at issue on the continent?
         (1995: 118-19)


 24 lssa G. Shiv]i
 Mafeje argues that, to be of any relevance under present conditions in Africa,
 the debate must iaise and answer at least two questions at the minimum: the
 national question which of necessity is an anti-imperialist issue, and the
 question of social equity (not equality). In his own words:
         Regarding the present conditions in Africa, this can refer only to two
         things: first, the extent to which the people's will enters decisions which
         affect their life chances, and, second, the extent to which their means of
         livelihood are guaranteed. In political terms the first demand does not
         suggest capture of 'state power' by the people (workers and peasants) but
         it does imply ascendancy to state power by a national democratic aIliance
         in which the popular classes hold the balance or power. The second
         demand implies equitable (not equal) distribution of resources. Neither
         liberal democracy, imposed 'multi-partyism' nor 'market forces' can
         guarantee these two conditions. It transpires, therefore, that the issue is
         neither liberal democracy nor 'compradorial' democracy but social
         democracy. (ibid.: 26).
     It is the position of this paper that the reconceptualisation of the right to
 life and right to self-determination places on the human rights agenda
 precisely the issues of social democracy discussed by Mafeje.
     In sum, the right to life and the right of people to self-determination,
 constructed on conceptually different social foundations and reformulated as
 composite rights, have the potential to integrate the major problems, issues
 and concerns raised. by the development and human rights discourse. In
 Appendix 1, I have given an example, albeit in a moot-court judgement,
which illustrates the translation of the 'new rights jurisprudence' suggested
here into judicial 1anguage. The hypothetical problem in that moot is fairly
representative of the real life-conditions and political processes in many
African countries, and brings into sharp focus some of the tensions and
contradictions discussed in this paper.
     Appendix 2 provides an interesting contrast in the 'judgement' of Cullins,
J. (the then Chief Justice of Lesotho) who gave judgement on behalf of the
panel of judges. With respect, Cullins, J., uses the conventional approach but
at the end of the day arrives at same conclusions. The question that may be
validly raised, and is illustrated in this moot problem judgements, is: Does it
make any practical difference to the enforcement of rights whether one uses
'new rights jurisprudence' or conventional human rights approach in judicial
decision-making? If not, what is then the significance of constructing a new
rights regime proposed in this paper? That brings me to the conclusion where
we try to evaluate briefly the judicial and publicists' attempts to address social


                                       Constructing A New Rights Regime                       25
and developmental problems raised by the development discourse through the
human rights discourse.
s. Conclusion
One of the major critiques of SAL developed by the Indian Supreme Court is
implicit in the observation by one commentator that:
          Typically, PIL is initiated and controlled by elites and is governed by
          their own priorities and choices. These activists have different agenda
          and ideologies. Most of them lack sustained commitment to any specific
          victimised groups. Nor have they any enduring relationship with such
          groups. (parmanand Singh, quoted in Cottrell, 1993:124)
     Implicit in this observation is the fundamental critique of legal activism
that it is an elitist top-down project, in many ways paternalistic, in which
good-hearted and sensitive judges substitute themselves for the people; and
that, ultimately, a few hundred favourable decisions in SAL are only a drop in
the ocean of systemic processes which are responsible for the deprivation,
dispossession and disempawerment of the large majority of people in the
developing countries of the South. In a word, judicial decisions-even those
based on populist perspectives-are                  no substitute for a major social
transformation which can only be brought about by the organised activity of
the people themselves from below. The same criticism may be directed at the
academic and professional jurists involved in developing a new rights regime.
     It is true that rights activity per se, whether this is at the level of the
bench, the profession or the academia, cannot bring about major social
transformation. I This is probably not the role of the institutions and social
groups concerned. The aim, it seems to me, of activist lawyers in constructing
a new rights regime and persuading the courts in that direction is essentially
two-fold: one, to focus on and expose the real problems of the large majority,
and the incapacity of the existing structures to resolve this, and two, to
legitimise and give moral credence to the organised activities of the people
themselves to transform their life-conditions while at the same time to
I Latin American activist lawyers have been much more sensitive in agonising over these issues
than Indian or African lawyers. The Tanzanian legal community, by and large, seems to have
uncritically talcen on board the current dominant rights discourse without interrogating it. One
hopes this initial enthusiasm will eventually give way to more critical and sober appreciation of
the prospects and limits of human rights/constitutional activity. For Latin America see Rojas
 1988. For a critical debate on law and rights see Corrigan & Sayer 1981; Fudge & Glasbeek
 1992; Herman 1993 and Shivji 1995.


  26 Issa G. Shlv)1
 delegitimise the reaction of the forces of the status quo. In this regard, what is
  important is not the outcome of a few hundred SAL cases but :~e discourse
 constructed around it which, when done in open courts, have a far greater
 visibility and, hopefully, impact on a larger societal level.
     By the same token, it is important that issues are joined with the dominant
 human rights discourse paradigmed on Western jurisprudence                 and pleading
 innocence regarding the inequities of the international order dominated by the
 North. Here, the reconceptualisation and construction of a new rights regime
 plays the role of an ideology and consciousness of resistance which in turn
 expands the capacity of the oppressed and victimised to defend themselves.
 The role of alternative ways of legal activism and reconstruction             of human
 rights paradigms is. captured succinctly by Hiroko Yamane who, summarising
 the new approaches to human rights in South East Asia, notes;
          The strictly individualistic character of the legal system which was
          introduced during the colonial period is under scrutiny, due to its
          shortcomings in solving the problems of massive poverty and of the
          access to the essentials: food, water, land and forest resources ....
          Problems of massive poverty often depend on agrarian or other structural
          reforms for their solution. A new legal approach to this problem,
          consisting of conscientizing the community concerned and developing
          plans to help the local community to stand up for their own rights, has
          been developed in South and South-east Asia. In order to cope with the
         paralyzing aspect of an often individualistic outlook of law, defence of
          specific collective rights over water, land and other means of production
         has been carried out, under the slogan "people's rights" or "people's
         law".
              Whether the defence of their rights is done in the name of human
         rights or under other names is less important than the real question of
         how the peoples of Asia would increase their capacity to defend
         themselves from oppression of all kinds.
~e r~onceptualisation           of human rights being attempted here has precisely
~     ann of enlarging the capacity of the masses to defend themselves
mtellectuallyand ideologically from oppression of all kinds.


                               Constructing   A New Rights Regime         27
References
Alston, P. & K. Tomasevsky. (eds). 1984. The Right to Food. Nijhoff.
Alston, P. ed. 1992. The United Nations and Human Rights: A Critical
       Appraisal. Oxford: Clarendon.
Amin, S. 1993. The Issue of Democracy in the Contemporary Third World.
       In Gills, B., J. Rocamora & R. Wilson eds ..Low Density Democracy.
       London: Pluto.
Aruri, N. 1992. Human Rights and the Gulf Crisis: The Verbal Strategy of
       George Bush. In Phyllis Bennis & Michel Moushabeck. 008. Beyond
       the Storm: A Gulf Crisis Reader: 305-324. Edinburgh: Canongate.
Baxi, U. 1985. Law, Struggle and Change: An Agendum for Activists. Social
       Action, 35.
Baxi, U. 1988. Taking Suffering Seriously. In U. Baxi. ed. Law and
       Poverty. Bombay: Tripathi.
Baxi, U. 1994. Mambrino's Helmet: Human Rights for a Changing World.
       New Delhi: Har-Anand.
Bhagwati, P. N., 1987. Social Action Litigation: The Indian Experience. In
       Tirucklvam & Comaraswamy eds. The Judiciary in Plural Societies.
Brockett, C. D. 1985.The Right to Food and International Obligations: The
       Impact of U.S. Policy in Central America. In George W. Shepherd &
       Ved P. Nanda eds. Human Rights and Third World Development: 125-
       147. Westport: Greenwood.
Cassese, A. 1979. U. N. Law/Fundamental              Rights:  Two    Topics.
       International Law. Netherlands: Nijthoff.
Cassese, A., 1986. International      Law   in a Divided     World. Oxford:
       Clarendon.
Charter of Farmers' Rights. 1993. Third World Resurgence. No. 39:28-29.
Chomsky, N. & E. S. Herman 1979. The Washington Connection and the
       Third World Fascism: The Political Economy of Human Rights.
       Boston.


 28 Issa G. Sh/vjl
 Corrigan, P. & Derek Sayer. 1981. How the Law Rules: Variations on Some
         Themes In Karl Marx. in Bob Fryer et. al. eds. Law, State and
         Society, London: Croom Helm.
 Cottrell, J. 1991. The Constitution of Namibia: An Overview. Journal of
         AfricanLaw, 35, 1 &2: 56-78.
 Cottrell, J. 1993. Third Generation Rights and Social Action Litigation. In
         Abdul Paliwala & Sammy Adelman eds. Law and Crisis in the Third
         World. 102-126. London: Hans Zell.
 Dworkin, R., 1977. Taking Rights Seriously. Cambridge: Harvard University.
         Press.
 Falk, R. 1992. Human Rigbts and State Sovereignty. In Claude, R. F. & B.
        H. Weston eds. Human Rights in the World Community: Issues and
        Action 2nd edn. Philadelphia: University of Pennsylvania. (?)
 Fanon, F. 1967. The Wretched of the Earth. London: Penguin
 Furedi, F. 1994. The New Ideology of Imperialism. London: Pluto.
Fudge, J. & H. Glasbeek. 1992. The Politics of rights: A Politics with Little
        Class. Social and Legal Studies. 1. 1:45-70.
Gibbon, P. et. al. 1992a. Adjustment, Authoritarianism and Democracy: the
        Politics of Economic liberalisation in Africa. Uppsa1a: Scandinavian
        Institute of African Studies.
Gibbon, P. 1992b. The World Bank and African Poverty 1973-91. Journal of
       Modem African Studies, 30. 2:193-220.
Gomez, M. 1993. In the Public Interest. Colombo: Legal Aid Centre.
Hayter, T. 19922nd. edn. The Creation of World Poverty. London: Pluto.
Herman, D. 1993. Beyond the Rights Debate. Social and Legal Studies. 2.
        1:25-43 ..
Henne, B. 1990. Development Theory and the Three Worlds. London:
       Longman.
Hobsbawm, E. 1994. Age of Extremes: The Short Twentieth Century, 1914-
       1991. London: Michael Joseph.


                               Constructing A New Rights Regime          29
Howard, R. 1983. The Full-Belly Thesis: Should Economic Rights take
       Priority over Civil and Political Rights? Evidence from sub-Saharan
       Africa. Human Rights Quarterly. 5. 4:467-490.
Hyden,    G. 1994. Changing Ideological & Theoretical Perspectives on
       Development. In Ulf Himmelstrand, Kabiru Kinyanjui & Edward
       Mburugu eds. African Perspectives on Development: Controversies,
       Dilemmas & Openings. '308-319. Dar es Salaam: Mkuki na Nyota.
Kidder, R. L., 1977. Law and Order or Law and Freedom? In Richard
       Vuylsteke. ed. Law and Society: Culture Learning Through the Law.
       HonolUlu: East-West Centre.
Kothari, S. & H.' Sethi. 1989. Rethinking Human Rights: Challenges for
       Theory and Action. Delhi: Lokayan.
Kowalewski, D. 1981. Transnational Corporations and the Third World's
       Right to Eat: The Caribbean. Human Rights Quarterly. 3:45-64.
Lenin, V. I. 1970. The Discussion on self-determination Summed Up. On the
       National Question and Proletarian Internationalism. Moscow:
       Novosty.
Mafeje, A., 1995. Theory of Democracy and the African Discourse: Breaking
       Bread with my Fellow-Travellers. In Chole, E. & Jibrin Ibrahim. eds.
       Democratisation Processes in Africa. Dakar: CODESRIA.
Muzaffar,  C. 1995.    Human Rights, the State and the Secular Challenge.
       AMPO: Japan-Asia Quarterly Review. 26.3:47-53.
M'Baye, K. 1978. Emergence of the Rights to Development as a Human Right,
       in the Context of a New International Economic Order. Doc. SS-
       78/CONF.630/8. Paris: UNESCO.
Mamdani, M, 1994. A Critical Analysis of the IMF Programme in Uganda.
       In Himmelstrand et al eds. op. cit. 128-136.
MacCormick,    N, & Z. Bankowski. eds. 1989. Enlightenment, Rights and
       Revolution: Essays in Legal and Social Philosophy. Aberdeen.
Mwaikusa,    J. T. 1995. Towards Responsible Democratic Government:
       Executive Powers and Constitutional Practice in Tanzania, 1962-1992~
       Ph:O. Thesis submitted to University of London, SOAS.


 30 IUB G. Shlv)1
 Nyerere, J., 1970.        Stability and Change.    Dar es Salaam: Government
         Printer.
 Nyerere, J. 1993. Life is a Basic Right. Daily News 27/09/93.
 Nyerere, J. 1994. Address to UN General Assembly on UN Agenda on
         Development. Daily News. 20/06/1994.
 Permanent Peoples' Tribunal 1988. On the Policies of the IMF and the World
         Bank.
 Rojas, F. 1988. A Comparison of Change-oriented Legal Services in Latin
         America with Legal Services in North America and Europe.
         International Journal of the Sociology of Law. 16:203-256.
 Said, E. 1993. Culture and Imperialism. London: Vintage.
Shivji, I. G. 1989. The Concept of Human Rights in Africa. Dakar: Codesria
Shivji, I. G. 1991. Contradictory Developments in the Teaching and Practice
         of Human Rights in Tanzania. Journal of African Law. 35. 1&2: 114-
         127.
Shivji, I. G., & Cullinan, P. 1992. Judgements by Panels of Deans and Chief
        Justices. In Raymond Sakala et. al., v the Government of the Kingdom
        of Caprivia. Lesotho Law Joumal8.1:1-16.
Shivji, I. G. 1995. The Rule of Law and Ujamaa in the Ideological Formation
        of Tanzania. Social & Legal Studies. 4.
Singh, M. P. 1994. V. N. Shukla's Constitution of India.       9th eOO. Lucknow:
        Eastern Book.
Tanzania, United Republic of, 1994. Report of the Presidential Commission
        'if Inquiry into Land Matters. vols. I & II, Uppsalla: SIAS
Third World Economics.       1994. Issues No. 88/89.
Tomasevsky, K. 1993. Development            Aid and Human       rights Re-visited.
       London: Pinter.
Uganda, Republic of. 1995. Constitution of Uganda, 1995.
Vincent, R. J. 1986. Human Rights and International Relations (Ch.5 on
       Human Rights in North-South relations). Cambridge: Cambridge
       University .


                            Constructing A New Rights Regime             31
Walker, M. 1993. The Cold War: And the Making of the Modem World.
       London: 1
WambaIi, M. K. B. 1996. Democracy and Human Rights in Tanzania
      Mainland. Ph.D. Thesis, Warwick University, March 1996. ch. XII.
Welch, C. E. & R. I. Meltzer 1984. Human Rights and Development            in
      Africa. Albany.
Yamane, H.?,   Approaches to Human Rights in Asia. in [citation misplaced]


  32 I.        G. Shlv]1
                                             APPENDIX]:
  Introductory    Note
  The 'judgment' that follows was delivered by the author on behalf of the Panel of
  Deans at the Southern African Moot Court Competition. In this judgment I have
  tried to translate my argument for an altemative human rights discourse in The
  Concept of Human Rights in Africa (1989) into resolving a particular human rights
 dispute before a court of law using the traditional techniques and the language of
 judicial discourse.
                                             ***
                           Judgement by a Panel of Deans/Representatives
                           In the Southern African Court of Human Rights
                                            Lusalca, Zambia
 In the matter between:
 Family Sakala                        1st Applicant
 Brian Sakata                        2nd Applicant
 and
 The Government of the Kingdom of Caprivia ... Respondent
Shivji, }:
Background
This matter,has be:n brought before the Court by the Sakala family and Brian
~akala. Various reliefs sought for the individual members of the family are in the
title of the family. Briefly, the material facts which are not in dispute, are as
follows:


                                    Constructing A New Rights Regime                     33
Raymond Sakala, a national of Kunenia, was married to Winfred, a national of
Caprivia, in 1965. They lived in Kunenia until 1991. They have three children.
Brian was born in 1969, Constance in 1974 and Alfred in 1977. Mr. Raymond
Sakala was a lecturer in a teachers' training college, and Brian a graduate from the
same college. Both Mr. Sakala and his son Brian were active in oppositional
politics. They reliably leamt that they were likely to be detained for their political
activities, and therefore had to flee from Kunenia with the family and seek asylum
in Caprivia.
Raymond Sakala was granted refugee status while Bnan was given asylum. Mr.
Sakala found a job in the capital of Caprivia, lusando, while Brian remained
unemployed and continued to live as a dependent. The family occupied a shack in
Tintatown, a settlement for informal housing on state land where none of the
occupants had obtained permission from the govemment to build their shacks.
Even after marriage, Mr. Sakal a continued to support Brian who had in the
meantime built his own shack.
The govemment, claiming that it wanted the land occupied by the inhabitants of
Tintatown for building an international airport which was likely to contribute to the
economy of Caprivia, resettled the inhabitants of Tintatown in various locations In
terms of the Prevention of Ulmarranted Squatting Act 44 of 1990. The Sakalas
were allocated a piece of land 50km from lusando in an area where, as a result of
the inadequacy of public transport, Mr. Sakala was forced to give up his job in
Lusando. He could not find any other work and remained unemployed. The
family's financial position deteriorated rapidly. Brian and his wife, who
accompanied the family to the new settlement, went to live with the wife's parents
in a remote rural area, some 200km away. Constance was eventually sent to live
with Mr. Sakala's parents in Kunenia, and Alfred had to go and live with Mrs.
Sakala's parents in Lusando. There was no money to pay for the education of the
two youngest children.
It is not in dispute either that Mrs. Sakal a contracted tuberculosis as a result of the
appalling conditions in which they were living, and Mr. Sakala was badly in need
of psychiatric treatment for a condition directly related to the deterioration of his
personal circumstances.
We notice that the Constitutional Court of Caprivia, while refusing to declare the
Prevention of Unwarranted Squatting Act (which will be referred as the Squatting
Act hereinafter) unconstitutional, nevertheless held that those adversely affected by
its operation were entitled to "reasonable compensation". On the strength of that
finding, the Sakal a family filed their applications in the Caprivian Supreme Court
for the following orders against the Government of Caprivia:
      1. Provision of housing for the Sakal a family and Brian.


 34 Issa G. Shivjl
      2. Provision of free medical and psychiatric services for the members of the
           family in need of it.
      3. Provision of education for the two youngest children.
      4. $10000     compensation   for the loss of Mr. Sakala's job.
 While denying liability, the respondent have admitted that the quantum,       $ 10 000,
 claimed would be reasonable in the circumstances.
 The Supreme Court dismissed the applications. That decision was confirmed o~
 appeal, and now the applicants have approached this Court claiming all the rehef~
 claimed in the lower Court and, in addition, their Counsel have further pressed thIs
 court to declare the Squatting Act unconstitutional.
 Although it was a common cause between the parties that this Court has
 jurisdiction, we would like to make some observations of our own on the issue.
 The Convention setting up this Court enjoins the Court to determine disputes on
 the basis of articles 1-29 of the African Charter on Human and People's Rights.
 Reading the Charter as a whole and considering its underlying principles, we find
 that the Charter provides for, and protects collective rights in addition to individual
 rights. In the event, we have no hesitation in holding that the Sakala family has
 locus standi to appear before this Court in the title of the family.
The second issue with regard to jurisdiction is more contentious. The Counsel on
 both' :des did not address us on this issue but we are of the view that under the
Convention, Article 1, this Court cannot be seized of jurisdiction unless the rights
alleged to have been breached are (1) fundamental and (2) incorporated in the
domestic constitutions of the countries parties to the Convention. These two
conditions are conditions precedent, and have to be established at the outset before
the Court can embark on the investigation of the dispute brought before it. Once
the jurisdiction of the Court is established, however, there is nothing to prevent the
Court from seeking aid of the jurisprudence on other rights-other than those which
fall within those two conditions-to      understand better the rights alleged to have
been breached. Similarly, I would not hesitate to make findings collaterally on
rights which are not provided in the constitutions but are to be (ound in the African
Charter once the Court is satisfied that the core rights alleged to have been
breached meet the jurisdictional conditions set out above.
Although the applicants did not argue before us that the conditions precedent had
been met in the instant case, for reasons we will give in the course of the judgment,
we were of the firm opinion that the necessary conditions had been met, and
therefore we proceeded to hear the matter on its merits.
The Counsel on both sides addressed us on many and varied interesting issues. The
arguments were refreshing and showed great diligence. However, we will exercise


                                     Constructing A .New Rights Regime                 35
 our minds on only substantive issues which we consider to be material for the
 disposal of the matter before us. I now turn to these.
 1. Constitutionality  of the Prevention of Unwarranted      Squatting Act, No. 44 of
 1991.
 The Constitutional Court of Caprivia refused to grant a declaratory order that the
 Squatting Act was unconstitutional, but the applicants have once again urged us for
 such an order. If we understood their arguments, the Counsel for the applicants
 sought the order on the grounds that the implementation of the Act had resulted in
 the infringement of various rights of the Sakala family entrenched in the Caprivian
 Constitution and the African Charter. In other words, as the applicants' Counsel
 eventually conceded, they were seeking to persuade us to grant the order on the
basis of the effects of the implementation of the Act on the Sakal a family. We are
 unable to accede to that argument and we believe it is flawed.
An Act of parliament, couched in general terms as is the one under consideration,
cannot be declared unconstitutional on the grounds of its effects. The remedy there
 lies in redressing the actual wrongs suffered by a party in the implementation of the
Act, but not in declaring the Act unconstitutional. This is so because the effects of
the Act may differ from person to person depending on circumstances, and need
not be adverse in all cases. In the instant case, for instance, if the Sakala family had
been allocated a plot closer to Mr. Sakala's place of work and children's schools,
the Sakal a family would have had no cause of complaint.
We would like to underscore that the Act on its face does not breach any of the
rights canvassed by the applicants. The applicants' Counsel argued before us that
the Act is deficient in that it does not provide a procedure, presumably a procedure
for hearing a party before he is resettled, and therefore the Act offends the audi
alteram parte rule. Again, we do not think that is a sufficient ground for declaring
the Act unconstitutional. The requirement for a hearing can be read into the Act by
the Court in a particular matter before it, as indeed the courts often do with regard
to principles of natural justice. It is now well settled that a court in appropriate
circumstances would supply the omission of the legislature with regard to the need
to observe the principles of natural justice unless the legislature has expressly
stipulated otherwise. The omission by itself therefore cannot render the Act
unconstitutional.
Nonetheless, we are of the opinion that the Squatting Act is unconstitutional on
other grounds, which, regrettably, were not argued before us by the Counsel.
On a careful reading of the Act, we are convinced that it does not provide for, and
indeed breaches, the right of peoples to self-determination. The Caprivian
Constitution does not expressly stipulate the right to self-determination. Yet reading


36    I...    G. Sh/v}1
the Caprlvian Bill of Rights as a whole, we have formed the view that it recognises
the core aspects inherent in the right to self-determination, such as a people's right
to determine their own social and political status, and to participate in their own
governance.
The right of peoples to self-determination is comprehensively stipulated in the
African Charter whose provisions in terms of the Convention .shall prevail over the
provisions of national instruments for the protection of human rights" such as the
 Caprivian Constitution. Article 20 of the African Charter provides:
           1. All peoples shall have the right to existence. They shall have the
           unquestionable and inalienable right to self-determination. They shall freely
           determine their political status and shall pursue their economic and social
           developrneot according to the policy they have freely chosen.
 Both' the International Covenants of 1966 also provide for the right to self.
 determination. We are aware that the right to self-determination has had a
 chequered and controversial history in the customary jurisprudence of international
 human rights instruments. 1 Its external political and economic aspects-that is to
 say, political and economic setf~termination-are             now well recosnised,
 particularly by the Afro-Asian community of states.2 The internal aspect of self-
 detennination was for the first time expressed in clearer terms in the Helsinki
 Accords (975), and since then has been elaborated and commented upon by
 writers and publicists.3 "Intemal self-determination", the distinguished writer Mr.
 Antonio Cassese explains, "usualty means that a people in a sovereign State can
 elect and keep the government of its choice, or that an ethnic, racial, religious or
 other minority within a sovereign State has the right not to be oppressed by central
 govemment.". We adopt this as a working definition of "internal" self-
 determination but construe it further in the light of new rightsJurisprudence evident
 particularly in the African scholarly writings and civil society.
 Under the African Charter and the 1966 Covenants, the right of peoples to self-
 determination belongs to a 'peopl.e'. We are aware that none of these instruments
 defines the term 'people' and wisely so. 'People', we hold, has to be given a
   1  See Issa G. Shivji, 'The Right of Peoples to Self-determination: an African Perspective' in
       William Twining (ed.) Issuesof Self-determination, Aberdeen, 1991.
   2  See Ian Brownlie, Principles of Public International Law, OxfOrd, 1979 (3rd edn.)
   J  See, for instance, Antonio Cassese, 'Political Self-determination-Old Concepts and New
       Developments' in Antonio Cassese, UN Law/Fundamental Rights: Two Topics in
       International Law, The Netherlands, 1979.
      Ibid., p.137.
   5  See, in particular, Issa G. Shivji (ed.) State and Constitutionalism: an African Debate on
        Democracy, Harare, 1992. See, also, the Algiers Declaration, 1976 reproduced as an
        appendix in Issa G. Shivji, The Concept of Human Rights in Africa, Dakar, 1989.


                                           Constructing A New Rights Regime                         37
 contextual    meaning, which means it depends on each concrete situation.
 Depending      on the situation before the Court, 'people'           could refer to a nation, a
 nationality,    a community,      an ethnic group or social entities such as
neighbourhoods         or inhabitants    of a village or a town. In the light of its context, and
 in the circumstances       of the matter before us, a community           described as 'squatters'
 in the Squatting Act, constitute        a 'people'   entitled to the right to self-determination.
Except for the core elements, the content of the right to self-determination                 cannot
be determined        in an a priori fashion either. The penumbra, so to speak, of that right
too depends on particular circumstances to be decided from case to case, and as
the new jurisprudence and human circumstances develop. At the minimum,
though, the right to self-determination            embraces the right to be consulted upon,
and the right to participate in the making of major decisions affecting the people in
question. This is, in our view, the kernal and substance of the various declarations
and proclamations of African states in recent times on participatory, grass-roots
democracy, 'people-centered'            development, or what has been called the
                                1
'empowering of people'.            In the case before us, the resettlement of the 'squatters'
(the people) under the Squatters Act ought to involve prior consultation of the
community involved. Since the Act does not provide for mandatory consultation of
the 'squatters' proposed to b~ resettled, and the procedure for doing the same, we
hold that it is tainted with unconstitutionality          in that it breaches the right of people,
to self-determination       as stipulated in the African Charter. We therefore declare the
Prevention of Unwarranted Squatting Act, No. 44 of 1991, null and void.
Since the Government          derived legal authority      to resettle the inhabitants   of
Tintatown,     including    the Sakala family, from the Squatting Act and the said Act has
no validity,    the Government       had no lawful authority      to do what they did. In the
event, the Sakal a family is entitled to be compensated              for all the losses it suffered as
a result of the wrongful       act of the Government        of Caprivia.
We therefore grant the following           claims made by the Sakal a family:
     1. Provision of housing to the family and Mr. Brian.
     2. Compensation        in the sum of $ 10000        for the loss of Mr. Sakal a's job;
     3. Medical     treatment for the family members as appropriate.
With regard to the provision         of education    for the two younger children,       as there is
not sufficient    evidentiary    material before us to determine         actual loss of education
   1  See the African Charter (or Popular Participation in Development and Transformation
       which emanated from the Arusha Conference held in Arusha In February, 1990,
       sponsored by the Economic Commission for Africa and later adopted by the OAU
       Heads of State. See also the Report of the South Commission, The Challenge to the
       South, Oxford, 1990.


   38 Ius G. ShlvJl
   and educational opportunities, we submit the matter to the Honourable A~
   General of Caprivia with the following directions:
       1. In consultation and negotiations with the Sakala family, to determine the
            loss of education and provide for an appropriate compensation either in
            monetary terms or in kind, as may be agreed; and
       2.    To provide free legal counsel to the SakaJa family for purposes of the said
           consultation and negotiations.
  We would have been inclined to dispose of the matter on dte ground of
  unconstitutionality alone but the counsel on both sides have addressed us with
  great industry on the alleged infringement of a series of specific rights, namely,
  right to family life, right to shelter, right to medical care, right to. work, and right to
  education. We will make a few observ~tions on these rights in terms of the
  arguments addressed to us by the Counsel.
  2. Civil and Political Rights versus social and economic rights
  There was common cause between the Counsel for both sides that the family of
  rights that the applicants soughno establish in their favour constituted social and
  economic rights, or the second generation rights (' red rights', as they have been
 called in the human rights literature) as opposed to civil and political rights, or the
 first generation rights (' blue rights'). In brief, the applicants sought to persuade us
 that the social and economic rights were rights stricto sensu, or positive rights, and
 enforceable by the Court. The respondent, on the other hand, argued that the so-
 called social and economic rights were no rights at aU but a declaration of
 aspirations at best. In any case, they asserted, the granting of these so-called rights
 was contingent on means available to the Caprivian Government. The Government
 itself rather than the Court, the respondent urged upon us, was the best judge as to
 whether or not it had the means to satisfy those rights.
 We would like to approach this issue differently. While we are aware of the
voluminous debate on the distinction between the first and second generation
 rights emanating from the Westem world, we also take cognisance of the emerging
writings of publicists 'who consider this distinction outdated and part of the .cold
war" ideological discourse. This distinction has been, to a large extent, overtaken
by events arid by the emerging new human rights jurisprudence. The new
jurisprudence sees this family of social and economic rights as integrated or basic


                                          Constructing A New Rig"" Regime                      39
   rights without which a human community cannot live with dignity. 1 We accept
   this position because we find that it underlies the African Charter, as is amply
   demonstrated by the Preamble to the Charter. The preparatory material which went
   into the drafting of the right to development which is embodied in the Charter
   shows that the right to development itself was, and is seen as, an integral right
  which does not make a distinction between the first and second generation rights.
   We will quote the relevant paragraph from the Preamble which says,
            ... It is henceforth essential to pay a particular attention to the right to
            development and that civil and political rights cannot be dissociated from
            economic, social and cultural rights in their conception as well as universality
            and thar the satisfaction of econOllllc, social and cultUral rights is a guarantee
            for the enjoyment of civil and political rights;
  We would therefore have had no he$itation to consider the breach or otherwise of
  these specific rights of the Sakala family. But, in the instant case, we are
  constrained from considering these rights as separate rights on jurisdictional
  grounds because, with the exception of freedom of movement and freedom to
  choose residence, the other rights claimed by the Sal911afamily, namely, the right
  to shelter, education, medical care and work are not provided ~ressly in the
  Constitution of Caprivla. As we of>served earlier, in that case, to the extent that
  these specific rights are alleged to have been breached, we would have had no
  jurisdiction because they are not stipulated as separate rights in the Constitution.
  We observe, however, without decidin& that we were far from persuaded by the
  applicants' Counsel that the Sakala family's freedom of movement and right to
  choose'residence were directly violated. In any case, the grounds advanced before
  us were tenuous. Particularly, the Counsel for the applicants failed to make a
. distinction between the 'choice of residence' stipulated in the Caprivian
  Constitution, and the right to shelter or housing provided in the African Charter.
  The two are not the same, nor can one be conflated with the other.
  tiaving said this, we are nonetheless of the view that we have jurisdiction to hear
  and determine the alleged breach of the family of rights claimed by the Sakala
  family not as separate specific rights, but as part of and integral to the right to life.
  Right to life is a fundamental right and is stipulated both in the Capriv.ian
  Constitution as well as the African Charter.
     I   See, generally, the papers presented to the African Seminar on Human Rights and
         Development, National Institute of Development Research and Documentation,
         University of Botswana, Gaborone, May 2....29, 1982.


   40 Issa G. Shlv]1
  We hold that the Sakal a family's right to life was breached in that the family was
  disintegrated; Mr. Sakala lost his job; both Mr. and Mrs. Sakala suffered medical
  ailments, and the two young children were deprived of education. Right to life, in
  our opinion, is an integral right to live as whole human' being in dignity. The
  forceful formulation of this right in the African Charter carries the spirit of
  wholesome living as inherent in the right to life. Article 4 provides:
            Human beings are inviolable. Every human being shall be entitled to respect
            for his life and the integrity of his person. No one may be arbitrarily deprived
            of this right.
  The use of the term 'human being' in the African Charter in.contrast to the
  traditional phrases such as 'individual', 'person', 'everyone', etc., and the use of
  phrases such as 'integrity of the person' and 'dignity', in our opinion, are
 significant. They convey the message that the framers of the Charter sought to
  protect the human being in all his or her humanity, as a whole and wholesome
 human being.
 We cannot imagine that it suffices for a human being simply to exist as a biological
 entity. To live as a social being means to live in a wholesome familYi in a decent
 dwelling; and to be accorded'the opportunity to be informed and receive
 knowledge which is what education is all about. Without family life, a decent
shelter and education a human being only 'exists' but does not 'live'; it is only a
 'being' without being 'human'. Right to life inexorably implies to live human life as
a human being. As was said by the Supreme Court of India in Tellis and Others v
Bombay Municipal Corporation and Others (198n LRC (Const) 351 at page 368:
           "Life", as observed Field, J. in Munn v 1I/inois 94 US 113 (1877), means
           something more than mere animal existence and the inhibition against the
           deprivation of life extends to all those limits and faculties by which life is
          enjoyed. This observation was quoted with approval by this Court in Kharak
          Singh v State of UP (1964) 1 SCR 332.
Under the circumstances, we consider right to family life, right to shelter, right to
work or livelihood and the right to education as integral to, and inherent in, the
right to life, and we so hold. 1
Therefore the family of rights claimed by the Sakala family to have been infringed
have indeed been infringed as part of the family members' right to life. The
    1 For discussion on 'livelihood' as inherent in the right to life, see Teflis case already cited
        and for right to shelter as integral to right to life see P. B. Sawant, 'Right to Shelter as
        Human Right' in E. Venkataramiah, led.) Human Rights in the Changing World.


                                     Constructing A New Rights Regime                41
 qual ification as to the right to housing and medical care being subject to means
 available to the Government of Caprivia, stipulated in the Caprivian Constitution,
 and on which the respondent's Counsel addressed us at great length, is not
 applicable to the right to life, and therefore we consider it unnecessary to dwell on
 it at any length.
 For these reasons too we would make the orders as we have done above.
 3. Individual and Community Rights
 The other level of arguments addressed to us revolved around the distinction
 between individual and community or collective rights. The respondent sought to
 convince us that community rights override individual rights, and that in the instant
 case, the building of the international airport, which was in the interest of the
 economic development of the Caprivian society as a whole, overrode individual
 human rights of the Sakal a family. The applicants rebutted that argument by taking
the position that individual rights ought not to be sacrificed at the altar of
community rights or economic development.
We do not consider it necessary to go into any great depth on this debate which we
 understand has been long-standing in the human rights discourse. In our reading of
the African Charter, which is the primary instrument which ought to guide us, the
contest between individual and communal or collective rights has to a large extent
been overcome. We deem that debate as irrelevant both to African circumstances
and to the underlying principles of the Charter as can be gleaned from the specific
language and formulations of the Charter. We proceed to explain briefly this
position.
The fundamental right to life embodied in the Charter belongs to a 'human being'
and not to an individual. The Charter upholds the dignity and integrity of a human
person, not simply an atomist individual. It is significant that in this regard the
language and formulations in the Charter depart significantly from the Universal
Declaration of Human Rights which uses the individualistic, aggregative term
'everyone' (see, for instance, Article 3 on the right to life). We believe this
departure to be of great significance in the light of the Preamble of the Charter
which in a summary form succinctly sums up the centuries long history of
oppression of the African people.
African peoples as a people, and the African human being as a human, have been
denied their humanity for five long centuries through the processes of slavery,
colonialism, neo-colonialism and apartheid, referred to in the Preamble. In each


  42 1558G. Sh/vjl
  one of these systemic processes the African human being was not considered a
  human being. He/she was a chattel under slavery; a native under colonialism; a
  beggar to be rescued under neo-colonialism, and a kaffir under apartheid.
  Understandably, therefore, in asserting the right to life of the African human bein&
 the framers of the Charter consciously asserted the right to life of a whole human
 being in a human community.
  Philosophically and conceptually, this is a far cry from the Western jurisprudence
 of "individual rights" based on the liberal outlook of individualism. In the African
 concept, as we read it in the Charter, there is no distinction between a human
 being and the human community. Indeed, a human being does not live above,
 prior to, or apart from a human community. He or she would not then be a human
 being. There is no Robison Crusoe or a Friday in the African concept, nor an
 aggregate sum of Crusoes and Fridays. Rather you have social entities and
 communities which could be described as a social class of Crusoe and Friday.
 We do not have to search very far for concrete social reality to support our
 reconstruction of the underlying and guiding conception of the Charter. In the very
case before us the plight of the Sakala family represents the plight of a community,
the thousands of inhabitants of Tintatown who were arbitrarily resettled. The
Tintatown community was never accorded a human treatment, because, among
other things, it was never involved and consulted on its own fate. It was denied its
humanity and dignity, the qualities of a human community constantly underlined in
the African Charter. For this reason too, the acts of the Caprivian state were in
breach of Article 4 ofthe Charter and its underlying principles, as well as the
Caprivian constitution, and we so hold.
In the result, the application is allowed with costs. We make Orders and Directions
as already enumerated in the body of our Judgment. Since my brother Judges and
sister Chief Justice agree with the conclusions, Orders and Directions, it is so
ordered by the Court ..
Delivered at Lusaka this 11th day of July, 1993.


                                     Constructing A New Rights Regime                    43
                                        APPENDIX 2:
 Intoducory Note
The judgement that follows was delivered by a panel of Chief justices and Juq~es on
the same problem as detailed in Appendix 1.
                                         *********
                        Judgement By Panel Of Chief JusticeslJudges
              Raymond SakaIa, Brian Sakala, the Family of Raymond Sakala
                                              V
                       The Government of the Kingdom of Qprivian
             (The Southern African Court of Human Rights, Lusaka, Zambia).
Cullian,}.
Background
In the time available to~, it is not possible to recite all the facts pertaining to this
ease, with which all present are in any event familiar.
At the  outset we wish to express our sincere appreciation of the assistance rendered
by Counsel for both parties and of their formidable research and extensive
submission. In the time avallable we cannot hope to deal in depth with all of such
submission, which we have nevertheless carefully considered.
Submissions for Applicant
The Applicant's claim is fourfold. They seek an order:
     1.   Declaring the Prevention of Unwarranted Squatting Act 1990 of Capriva
          ("The Act") to be unconstiMional;
     2. Compelling the respondent to compensate the Applicants in the amount of $
           10,000 for the loss of Raymond Sakala's job;
     3. Compelling the respondent to provide:
         (a) Housing for the family
         (b) Medical and psychiatric care for members of the family in need of kit.
Unconstitutionality of Unwarranted Squatting Act
As to the first prayer, Section 8 of the Act provides for the resettlement of squatters on
government land, should the government need such land, "for a purpose likely to


 44 Issa G. Shlv)1
 contribute to the d~elopment of the eq)l1omy.of Caprivia", The Applicant's claim
 that the latter purpose is an extremely vcigue standard, that appears to place no
 restraint upon the Respondent. We cannot however see that the legislation oould be
 couched in a more specific manner. The Respondent will in any given case suffer at
 least the restraint of establishing, to the Court's satisfaction, that the particular purpose
 for which the land is required, complies with the provisions of the Act. The Act
 undoubtedly conflicts with the constitutional freedom of movement and residence,
 but such freedom, under Article 12 of the African Charter on Human and Peoples'
 Rights ("The African Charter"), is qualified by the proviso that the individual "abides
 by the law". The act of squatting per se cannot be said to be an act of abiding by the
 law, and the Act cannot then be said to be unconstitutional on that ground.
 The Applicant's also submit that where an Act derogates from a constitutional right, "it
 (the derogation) must be prescribed by a procedure which is fair and reasonable" (see
 Maneka Gandhi v Union of India 1970 S.C.R. 621) and that the act under
 consideration must therefore be unconstitutional, as it "allows for haphazard
 resettlement, without compensation for any adverse results of such resettlement".
 Without defining the nature or extent of the right, or licence of a .squatter on state
 land, we observe that the legislature has in any event clothed any such claim with
 some status, by conferring on squatters the right, if displaced, too be resettled. We do
 not agree that such resettlement shOl-!ldnecessarily be haphazard or without
compensation. Indeed, we observe that the Constitutional Court found that the Act
was not unconstitutional, but that "reasonable compensation" was payable to those
detrimentally affected by its operation. We respectfully agree with, and adopt that
finding.
Compensation      for loss of employment
Inherent in that finding is the premise that if the Caprivian Govemment acknowledges
the duty of resettling an individual, displaced in the public interests, then such
resettlement must be carried out ir:'! a fair and reasonable manner. If a person,
displaced by Govemment action,'is to ~"resettled", then he must be placed in a
position as near as may be to that which he previously enjoyed. Otherwise he will
not be "resettled", but will, as we see it, be unsettled.
It is not necessary for us to decide as to whether it is Government's duty to take
inquiries in every case and attempt to reproduce identical conditions of residence,
employment, etc. We can however say that a movement of residence of some SOkm,
resulting in loss of employment and the breaking up of the family, which by all
intemational conventions, Govemment is required to protect, does not constitute a
"resettlement" envisaged under the Act. We hold therefore that Mr. Raymond Sakala
is entitled to compensation for the loss of his employment.


                                      Constructing A New Rights Regime                     45
The leamed Counsel for the Respondent submits, incidentally, that the Court by the
grant of such compensation, would be giving retrospective effect to an intemational
Convention. As we see it, however, such compensation is by necessary inference
payable under the Act itself, and no question of restrospectivity therefore arises.
As to the amount of compensation, the Respondent concedes that the claim of $10
000 is reasonable. We accordingly order the Respondent to compensate Mr.
Raymond SakaJa in that amount.
Housing and medical service
Art. 33 of the Caprivian Constitution provides that:
         "Thestate recognises the populationneeds for housingand medicalservicesand
          undertakesto providesthese in accordance with available means" (italic
         supplied). leamed Counselforthe Respondent laysstresson the words,
         "recognizes"an "in accordancewith availablemeans". There isaccordingly,he
         submits,no absoluteduty on the state in the matterunder the Constitution.We
         observe howeverthat Articles16 and 18 ofthe AfricanCharterplace an
          immediateduty upon the Stateinthe matterof medicalcare and indeed of
         protectingthe familyas "t~e naturalunit and basisof society",withoutany
         referenceto "availablemeans". Further,the Govemment must be taken under the
         Actto have waived the Constitutionalprovisoas to "availablemeans".
Quite clearly, the provision of adequate housing is necessary to the preservation of the
family as a unit. Furthermore, where the Govemment has statutorily undertaken the
duty of resettlement, then the family must be resettled at a reasonable distance from
the original settlement, in reasonable hOUSing. We appreciate that the original
housing was but a shack. Nonetheless we consider that the provisions of the Act
should endure for the benefit, and not the detriment of those displaced. We say no
more therefore than that Govemment should provide adequate housing to the
displaced family, and also free medical care in all its forms.
In any event, we observe that Raymond Sakala was given refugee status. Govemment
thereby undertook to offer him and his family all reasonable assistance in starting a
new life in Caprivia. Adequate housing and medical care are essential to such
assistance.
Leamed Counsel for the Respondent would seek to differentiate between Raymond
and Brian Sakala, as one granted refugee status, and the other granted asylum. But
Article 2 of the African Charter makes no disintiction in the matter, and as we
interpret it, includes non-citizens. The Charter applies to "every individual" ... without
distinction of any kind such as ...national and social origin ... birth or other status". In
this respect, we accede to the submission that the world "family" in the African
Charter, means the extended family, and we hold therefore that Brian Sakala. as an


.46 loa G.Sh/vjl
  immediate child of the family, even though a major, should enjoy the same protection
 as the rest of the family.
 Conclusion
 We are satisfied therefore that the Applicants are entitled to adequate housing and free
 medical care. Accordingly we dismiss the first prayer for a declaration, and grant the
 second, third and fourth prayers .. We consider that the Applicants have substantially
succeeded and we accordingly grant costs in favour of the Applicants.