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.
