Introduction
The development of the concept of rights has carried with it a lot of confusion and difficulty when it comes to classifying or categorizing fundamental rights and freedoms. A number of scholars have attempted various categorizations; some of which illuminate the understanding of the concept of rights while others simply lead to more confusion. As a result, there has been controversy for quite some time on this issue of categorization of rights. Some of the attempted categorizations are as follows:
1. Procedural rights in contradistinction to substantive rights. Procedural tights are seen to be related to due process law and they rights such as fair trial rights and all other related rights. Substantive rights on the other hand cover personal rights, civil rights, political rights, economic rights and social rights.
2. Individual rights and social rights.
3. Private law rights in contradiction to economic, social and cultural rights.
4. Civil and political rights in contradistinction to economic, social and cultural rights.
This controversy notwithstanding, one classification which talks of three generations of rights has gained more prominence and recognition all over the world. In this connection a distinction is normally made among three categories of human rights, usually referred to as the three generations of human rights. The debate about these generations of rights normally also touches on the question of which rights should be protected in a bill of rights—only the first generation rights or and then especially the second and third generation rights.
THE FIRST GENERATION RIGHTS OR THE BLUE RIGHTS
This category of rights has rights that pre-eminently belong to the traditional group of human rights. Professor Albie Sachs in his article “Towards a bill of rights in a democratic South Africa” includes in this generation of human rights the political, civil and procedural rights. He observes that these rights were “established against feudal and colonial absolutism in the eighteen century”. These are rights that normally concentrate on the individual and their typical examples are the following:- the right to life; the right to liberty; the right to property; the right to freedom of movement; the right to freedom of speech; the right to privacy; the right to vote; the right to be represented in government; the right to assemble and to hold demonstrations; the right to citizenship; the right to not be arbitrarily detained; the right to legal representation; and procedural rights. The German Basic Law and the amendment to the American constitution contain good examples of bills of rights that protect such rights.
Because this list of rights is not complete, it is necessary to define the first generation rights more closely. David Selby in his book “ Human rights” prefers the phrase “ Library-orientated rights” and defines it as follows:-
Liberty – oriented rights are rights concerned with giving individuals freedom of action and choice and freedom to participate in the political life of their community and society.
For a proper understanding of the concept of first generation rights however, it is necessary to note that different scholars use different terms and or phrases to describe this generation of rights. As already noted Selby uses the phrase liberty – oriented rights. This is in keeping with the position taken by Dion Basson and H.P. Viljoen in their book “South African constitutional law” where they talk of “Liberal Human Rights”. However, in an article titled “Economic Rights: A focal point in the debate on human rights and labour relations in South Africa” Basson changes and uses the phrase “First tier rights”. Dr. Brooks in his article “Albie Sachs on human rights in South Africa” considers that the more general term is negative human rights. The reason for this is that these rights seek to give individuals as much freedom and control over their own lives as possible and in this respect retrain the authorities from acting. In a number of countries however the categorization of human rights has not yet become firmly established and consequently the predominant current practice followed is simply to list all the different rights or to single out the right for discussion without first categorizing it.
Internationally the first generation of rights has gained recognition, particularly in the United Nations International Covenant on civil and Political rights of 1996, which came in to effect on 23rd March 12976. This covenant is substantially in accord with the first generation rights. A scrutiny of the bill of rights under the replaced Kenyan constitution clearly shows that the only rights covered in it were first generation rights. There was no provision for the other generation of rights. The new Constitution of 2010 has however departed from this approach and provided for all the three generations of rights.
THE SECOND GENRATION OF RIGHTS OR THE RED RIGHTS
Professor Albie Sachs in his “Conservation and Third Generation Rights: The Rights to Beauty” describes the origin of this group of rights as follows:-
The rights to education, to health, to nutrition, to shelter, could not be easily fitted into the classical scheme of individuality based rights. What has previously been regarded as benevolent or charitable activities base upon moral or religious obligation gradually became codified into law. Municipalities were placed under a duty to provide clean water and rubbish collection to build schools and hospitals. The concept of social economic and cultural rights began to emerge and today is formally established.
These rights are of course fairly widely known as the social, economic and cultural rights. Unlike the first generation rights, which took place at the time of the American and French revolutions, the second generation rights owes their origin to the Russian revolution. The basic differences between these two groups of rights are explained by Professor Charles Dlamini in his 1990 article, “The South African Law Commission’s Working Paper on Group and Human rights Towards a Bill of Rights in South Africa “ as follows:-
The first generation rights are negative in nature. The civil and political rights prohibit the government from doing something to the individual and consequently it is relatively easier to observe them. Second generation and third generation rights impose certain obligations on the government to provide for certain needs. Their satisfaction depends on the resources the government has. For this reason these rights are more difficult to enforce.
Indeed the great controversy regarding second generation rights concerns their enforceability. Some jurists consider that these rights do not belong in a bill of rights because a government with insufficient means simply cannot fulfill its duties. Others consider that these rights should be enshrined in a bill of rights. A further question concerning the enforceability of these rights is whether the emphasis should be on the rights or the duty to provide the necessary services, Dr. Brooks whom we have quoted above is of the following opinion.
If positive welfare rights are not given a concrete, Justiciable form which an individual can act upon it seem more correct and more honest to declare social welfare a charge on or a duty of the state other than a right of the individual.
There are a considerable number of rights which fall under the designation second generation rights.
Examples are the following:-
1. The right to work and protection against unemployment.
2. The right to equal pay for equal work.
3. The right to form trade unions.
4. The rights to just and favorable conditions of work.
5. The right to an adequate standard of living i.e. the right to rest and adequate food, clothing, housing and medical care.
6. The right to education
7. The right to social security
8. The right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
It is however important not to lose sight of the fact that there is no clear dividing line between the first and second generation rights and that there are some rights that do not obviously belong to one category or the other.
As in the case of first generation rights one finds in the literature a number of designations for the second generation rights. Examples are, “Security oriented rights: positive rights” and “personal rights or legal claims”. As noted when dealing with first generation rights, second generation rights were not provided for in the bill of rights in the replaced Kenyan constitution. The new Constitution of Kenya of 2010 however makes very elaborate provision for what would amount to second generation rights. For instance, Article 43 provides for economic and social rights which include the right—
a) To the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
b) To accessible and adequate housing, and to reasonable standards of sanitation;
c) To be free from hunger, and to have adequate food of acceptable quality;
d) To clean and safe water in adequate quantities;
e) To social security; and
f) To education.
THE THIRD GENERATION RIGHTS or THE GREEN RIGHTS
As in the case of first and second generation rights, between which there is no watertight division, it is not possible to categorize the third generation rights absolutely. Nathaniel Masemola in his article “Rights and a future South African constitution: the controversial and the non -controversial” states that:-
Second and third generation rights are not regarded as distinct entities but as outgrowths of first generation rights with which they are inextricably intertwined.
There is still considerable uncertainty as to what exactly should be understood by third generation human rights. Dr, Brooks has the following difficulty with Professor Albie Sachs reference to this generation. He says:-
As for Sachs’ third generation rights, it is not very clear what they are, he talks of the right to development, peace, social identity and a clean environment which have been clearly identified as human and people’s rights only in the past decade but this is all that can be clearly ascribed to third generation rights.
Probably one of the clearest exposition of these rights is in fact that by professor Sachs. He explains that the same thinking that led to the second generation rights led to the third generations rights. He says that:-
It is with this kind of thinking that suggestions have been made for the development of yet a third cluster of rights, the so-called peoples’ rights or the rights of solidarity. They do not fit comfortably into either first or second generation rights schemes and include such rights as the right to peace, the right to control over resources, the rights to development and the right to a clean environment; some might even include the right to information, the right to see the world, gender related rights and minority rights. A few would deny that these green eights are important. Many would argue that they are not really rights at all. There are strong arguments against considering them as rights. The most important one is that the assertion of vague, poorly-defined and non-implementable rights, undermines respect for genuine rights, and end up diminishing rather that augmenting human freedom. Thus the argument goes—in the name of promoting national development authoritarian regimes are established which take away the fundamental rights of the individual citizen. In reply to this proposition, it should be pointed out that rights have always evolved over a period of time, both in terms of their substance and relation to their modes of enforcement.
Among the third generation rights the right to a clean environment is probably the right that currently receives the most attention, is the least capable of infringing individual rights and has the clearest content. In the Stockholm Declaration on the Human Environment of 1972 it is stated in principle 1 that man has the fundamental right to realize the other fundamental rights “in an environment where quality permits a life of dignity and wellbeing.” That is why P. D. Glavovic in his article “Human Rights and environment law: The case for a conservation bill of rights” says that; “human life will come to an end if the environment is destroyed”.
In terms of Article 42 of the Constitution of Kenya 2010, the right to a clean and healthy environment is provided for. This right includes the right—
a) To have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and
b) To have obligations relating to the environment fulfilled under Article 70.
In recent years minority rights have also come in for special attention as third generation rights. In “Minority rights: A comparative analysis” by Jay Sigler the author in his study of the subject stats that:-
Since 1960 over 130 new constitutions have been written, and many of them do consciously recognize some rights for minorities. Although many minorities are protected by treaties, by political custom, by national laws, and by judicial interpretations, it can be said that recognition of minority rights claims in constitutions is a growing and significant trend that shows a reversal of the tendency of classical democracy to affirm the individual but to deny the group.
The traditional view of the protection of human rights is that such protection should be expressed in negative terms in the sense that these rights may not be infringed. The mechanisms for giving effect to the negative human rights is that of a testing right of an independent judiciary by virtue of which the infringing legislative, executive and administrative acts concerned may be set aside as for example, in the U.S.A. This approach goes hand in hand with the traditional view of human rights as first generation rights. However, the rise of the second generation of rights (the social-economic rights) and also the third generation rights creates this difficulty. The need concerned apparently call for more than mere negative protection. They call for action by the state for positive implementation. But how is this to be done and in what way is such a positive duty enforceable upon the state?
It is argued from a western perspective that to describe all human needs as liberties is to make the concept so wide that for all practical purposes it loses juridical significance and ultimately renders all rights unenforceable. Jaconelli in “Enacting a bill of rights” points out that at the linguistic level it would appear that any value or norm that can be slotted into the formula “freedom of ---- “ or “freedom from----“ is a candidate for such a bill. It is precisely on this basis that S. I. Benn and R. S. Peter in ”Social Principles and the Democratic State” criticize this approach saying that:-
The trouble with this interpretation of freedom as a political ideal is that it excludes nothing. Any condition can be described as the absence of its opposite. If health is freedom from diseases and education freedom from ignorance; there is no conceivable object of social organization and action that cannot be called “freedom. But the price of making freedom all-embracing as a social end is to drain it of all descriptive meaning, and to leave only the prescriptive overtones to make it synonymous with the vaguest terms of approval like good and desirable.
These scholars then concluded their discussion with the following comment:-
There is much to be said, then, for the classical tradition of English political theory which interprets “Freedom” negatively, as the absence of restrains imposed by the power of other men.
Once again, the replaced Constitution of Kenya did not make provision for rights that could be designated as belonging to the third generation of rights. The new Constitution however provides for quite a number. For example, Article 42 makes elaborate provision for the right to a safe and healthy environment. Similarly, Article 56 provides for the rights minorities and marginalized groups. One might as well add that to the extent that the rights of older members of society under Article 57; the rights of the youth under article 55; the rights of children under Article 53; and the rights of persons with disabilities under Article 54 are perceived as rights of minority groups or of marginalized groups, to that extent these rights are third generation rights. But on the other hand, these same rights may be perceived as social security rights, which, then also makes them second generation rights.
