Scielo RSS <![CDATA[African Human Rights Law Journal]]> http://www.scielo.org.za/rss.php?pid=1996-209620210002&lang=en vol. 21 num. 2 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Special focus</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Forty years of the African Charter and the reform issues facing the discourse and practice of human rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200002&lng=en&nrm=iso&tlng=en During its four decades of existence, the African Charter on Human and Peoples' Rights has become the grand human rights instrument that inspired and informed the development of norms and institutions for the promotion and protection of human rights both at the national and continental levels. Despite the normative and jurisprudential contributions of the African Charter and the standard of legitimate state behaviour that it established, currently the Charter and the African human rights system face multifaceted challenges raising questions on the relevance and legitimacy of the African Charter-based human rights system. The central message of this article is that the future and continuing credibility of human rights depend on whether and how its existing and emerging flaws are addressed. Using the insights gleaned from the human rights issues that the COVID-19 pandemic laid bare, this contribution seeks to discuss the reform issues facing the discourse and practice of human rights, in general, and that of the African Charter-based system, in particular. To do so, the article draws on a conception of reform that the late Christof Heyns expounded two decades ago. Accordingly, the areas of reform that this contribution identifies relate to changes in the priorities of focus of the discourse and practice of human rights and the approaches to the promotion and protection of human rights. <![CDATA[<b>The African human rights system as 'norm leader': Three case studies</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200003&lng=en&nrm=iso&tlng=en Africa (including its human rights system) is rarely imagined or considered an originator, agent and purveyor of ideas, including in the human rights sphere. On this occasion of the fortieth anniversary of the adoption of the 1981 African Charter on Human and Peoples' Rights which founded the African human rights system, it is only fitting that its contributions or otherwise to global human rights praxis, over these four decades, be examined from this perspective. Utilising the theory of the norm life cycle, developed by scholars of international relations who work within 'strategic social constructivism', this article examines how the African human rights system has, or has not, functioned as a 'norm leader' with regard to certain important and increasingly widely-accepted human rights standards. To that extent, the article examines (as examples) certain human rights norms first elaborated and made into legally-binding forms in the African Charter, widely circulated and having achieved a considerable level of global dispersal and adoption, in part, as a result of the work of the African Commission on Human and Peoples' Rights and the African Court on Human and Peoples' Rights. Focusing on three important norms (the right to self-determination, the right to development and the right to the environment) and based on a study of academic and other literature, treaties or instruments, case law and records of international negotiations, the article attempts to respond systematically to this overarching question. The article argues that although the African human rights system clearly is not a state, the critical but globally under-appreciated roles it has played regarding the globalised socialisation of certain human rights ideas fits within, and helps in extending, social constructivist human rights theory and praxis. The article concludes with a reflection on some key limitations that are observable as to how far the system has been able to travel in the direction of norm leadership in human rights law. <![CDATA[<b>The African Charter: Just one treaty among many? The development of the material jurisdiction and interpretive mandate of the African Court on Human and Peoples' Rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200004&lng=en&nrm=iso&tlng=en In contentious cases the material jurisdiction of the African Court is the jurisdiction to interpret and apply the instruments that are provided for in article 3(1) of the African Court Protocol. For the African Court to appropriately apply these instruments it must perform an interpretive role and utilise, at its discretion, information available from sources other than those that fall under its material jurisdiction and the sources of law stipulated in article 7 of the Court Protocol. In a 2001 article Heyns brought to our attention a number of potential problems related to the material jurisdiction of the African Court. He particularly pointed us to the loss of the 'African' in article 3, the narrow approach to the applicable sources of law in article 7 and the uncertainty of the position of articles 60 and 61 of the African Charter in guiding the interpretive mandate of the African Court. Through an analysis of the Court's jurisprudence, guided by these three essential issues, the article explores how the Court has approached its material jurisdiction during its first ten years of its existence. It further aims to establish what methodology the Court has developed to address the lack of an interpretive provision in the Court Protocol with specific reference to the application of articles 60 and 61 of the Charter. The analysis demonstrates a pragmatic approach to material jurisdiction, firmly grounded in the principle of complementarity. <![CDATA[<b>Protecting the right to life during assemblies: Legal and jurisprudential developments in the African human rights system</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200005&lng=en&nrm=iso&tlng=en The right of peaceful assembly has been recognised as a critical component of democracy. In Africa it played a significant role in the liberation of states from colonial oppression, and continues to be used to express dissent. The actual exercise of this right, however, faces significant challenges. Too often, police officers use excessive or indiscriminate force during assemblies, leading to violations not only of the right of peaceful assembly but also, in some cases, of the right to life. Alive to the reality of the threat to life and limb posed by the unlawful use of force by the police during assemblies, over the past decades the African human rights system has developed standards for the use of force during assemblies. This article analyses the legal and jurisprudential developments around the protection of the right to life during assemblies and enquires as to whether they are consistent with international standards and whether they are adequate. It finds that despite progressive legal development on the protection of the right to life in law enforcement, in general, there is limited jurisprudence on the specific protection of the right to life in the context of the policing of assemblies. Consequently, the standards expressed in various instruments and resolutions are yet to be adequately interpreted and reinforced. <![CDATA[<b>An analysis of the contribution of the African human rights system to the understanding of the right to health</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200006&lng=en&nrm=iso&tlng=en The right to health is one of the important rights guaranteed in international and regional human rights instruments. Over the years the content and nature of this right have evolved through the works of scholars and clarifications provided by human rights treaty bodies. Focusing on the work of the African Commission on Human and Peoples' Rights, this article assesses the contributions of the African human rights system towards the advancement of the right to health. It outlines some of the major achievements in terms of normative framework as exemplified by the provisions of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, the African Youth Charter and the Protocol to the African Charter on the Rights of Older Persons. In addition, it highlights the clarifications provided by the African Commission charged with interpreting the African Charter on Human and Peoples' Rights and the African Women's Protocol. These include the adoption of resolutions, General Comments, guidelines and important decisions which provide a nuanced understanding of the right to health in the African context. The article identifies challenges militating against the full enjoyment of the right to health, including sexual and reproductive health in the region, such as the slow ratification of important human rights instruments, the lack of political will for law reforms, the failure to timeously submit state reports and interference with the work of the African Commission. The article concludes by calling on African governments to exhibit political will in ensuring the effective implementation of the right to health at the national level. <![CDATA[<b>The impact of COVID-19 on the socio-economic rights of older persons in Africa: The urgency of operationalising the Protocol on the Rights of Older Persons</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200007&lng=en&nrm=iso&tlng=en Since the outbreak of the COVID-19 pandemic across the world, it has been reported that older persons have suffered acute hardship and fatalities more than any other age group. According to the World Health Organisation the fatality rate among older persons is five times the global average, and the United Nations has predicted that the mortality rate could climb even higher. The situation is aggravated on the African continent as a result of a shortage of medical personnel and other resources, as well as inadequate palliative measures to address the issues around the pandemic. Despite the provisions in the African Charter on Human and Peoples' Rights and the Protocol to the African Charter on the Rights of Older Persons in Africa which seek to provide some safety nets, many of these senior citizens continue to suffer untold socioeconomic hardship. Adopting an analytical and doctrinal methodology, this article examines the Protocol, the International Covenant on Economic, Social and Cultural Rights and several United Nations policy documents aimed at realising the socio-economic rights of older persons. The article finds that there is a lack of political commitment to operationalise the provisions of the Protocol, as evinced by the limited number of countries that have ratified it since its adoption in 2016. It comparatively engages with the provisions of the Inter-American Convention on the Rights of Older Persons to argue that, beyond the normative framing of these rights in Africa, there is a need for deliberate and genuine commitment by governments in Africa, if the rights are to be realised. The article advocates international, regional and national cooperation and calls for a more liberal judicial approach, to ensure that the Protocol's 'paperisation' of the rights of older persons does not lead or continue to lead to their pauperisation. <![CDATA[<b>The right to reparations in the contentious process before the African Court on Human and Peoples' Rights: A comparative analysis on account of the revised Rules of Court</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200008&lng=en&nrm=iso&tlng=en The purpose of this article is to examine the possible repercussions that the revised Rules of the Court adopted in September 2020 may have on the right to reparations. In particular, the article focuses on the two procedures to issue a judgment on reparations, specific procedures and third party interventions. The information therein has been assembled by reviewing relevant regional legal instruments such as the African Charter, the African Court Protocol and the Rules of Procedure of the African Commission and the Court with their counterparts in the European and Inter-American systems, as well as through an appraisal of pertinent case law. The revision of the Rules of Court demonstrates a constructive attempt by the African Court to clarify previously imprecise rules, expand the scope of specific procedures and reiterate its competencies. These additions are evident in the new arrangement of the contents of an application, and the inclusion of the pilot-judgment procedure or the revised Rule 72 which reaffirms the binding nature of all Court decisions. The article highlights relevant changes to the Rules of Court while arguing that additional rules need to be amended or expanded to more effectively guarantee the right to reparations. To that end, it provides recommendations for the African Court to consider. <![CDATA[<b>Monitoring the implementation of its own decisions: What role for the African Commission on Human and Peoples' Rights?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200009&lng=en&nrm=iso&tlng=en The African Commission on Human and Peoples' Rights in recent years has put in place various measures to monitor the implementation of its decisions on individual communications. These include a series of panels and seminars, amendments to its Rules of Procedure, extending the mandate of its Working Group on Communications, clarifying more expressly roles for national human rights institutions and civil society organisations, and calling on states to establish focal points and other procedures at the national level. This article considers the effectiveness of these measures and critically evaluates the role of the African Commission in monitoring the implementation of its decisions. The article draws on the findings of a four-year research project conducted by the University of Bristol's Human Rights Implementation Centre, in collaboration with the Centre for Human Rights at the University of Pretoria; the Human Rights Centre at the University of Essex; and the Middlesex University. This project tracked the implementation of selected decisions on individual communications, from the regional and UN human rights bodies, against nine countries from Africa, the Americas and Europe. These decisions were used as case studies to identify and examine the processes in place at the national, regional and international levels, to monitor and facilitate implementation. Among the themes explored was an examination of the extent to which there may be a difference in the discourse and behaviour of various domestic actors depending on which body issued the decision. In relation to decisions of the African Commission, this research identified that while there has been increased attention paid by the Commission to the issue of monitoring the implementation of its decisions, it nevertheless lacks strategic direction and there is a risk that the momentum and opportunities created by these initiatives will be lost without further strategic and institutional development by the Commission to clarify its role. <![CDATA[<b>Business and human rights versus corporate social responsibility: Integration for victim remedies</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200010&lng=en&nrm=iso&tlng=en It is a daunting task to discern between the several debates within and surrounding the corporate social responsibility and the business and human rights movements. At the basic level of objectives, for instance, questions arise as to which movement is substantively or comparatively broader in scope. In contributing to the debates, this article investigates their evolution and the intersections within the fields. It finds both movements to be inextricably-linked regulatory movements directed at establishing accountability for the impact of human rights violations. Using the human rights due diligence requirement elaborated by the influential United Nations Guiding Principles on Business and Human Rights as a springboard, the article integrates the shared objective of the two inseparable movements, describing for scholarship and practice, the ambit of a victim-centred accountability remedial framework for business-related human rights abuses. <![CDATA[<b>Tackling inequality and governance challenges: Insights from the COVID-19 pandemic</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200011&lng=en&nrm=iso&tlng=en The article addresses inequality and governance in the face of the COVID-19 pandemic. Globally, it highlights ways in which COVID-19 has further exacerbated the already worrying inequality levels. Specifically, it addresses issues such as vaccine nationalism, rising income inequality levels, while the minority become richer, some from the manufacturing and selling of COVID-related products. From a governance perspective, it is argued that the reliance on liberal democracies to deliver equality is proving to be insufficient as these have been noted to pursue and prioritise market-based strategies that ultimately perpetuate inequality. Ultimately, it is forwarded that there needs to be a rethinking of the global political economy policies, including debt, health systems, intellectual property laws and trade, in order to directly address how such systems perpetuate inequality. In the context of the African continent, the article highlights the difficulty in accessing vaccines, posing a major threat to the continent, which is experiencing waves of the pandemic that are more disturbing than those that went before. It also highlights the extent to which paucity of research affects vaccine efficiency on the continent. COVID-19 has further worsened the already precarious political and economic situation in most of Africa, characterised by countries being unable to pay debt, electoral political violence, COVID-19 denialism, exploiting COVID-19 to clamp down on opposition, and misuse of COVID-19 funds. Thus, it is recommended that there needs to be an overhaul of the already broken fiscal and political environments rather than the adoption of piecemeal economic solutions such as debt freezes, or politically-flawed ones, that ultimately do not work. <![CDATA[<b>Worthy of membership? Rwanda and South Africa on the United Nations Human Rights Council</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200012&lng=en&nrm=iso&tlng=en The election of human rights-abusing states to the human rights bodies of the United Nations has long been a source of dissatisfaction. There have been repeated calls that such states should not be members of the UN Human Rights Council. This article compares the HRC records of Rwanda, an authoritarian state, with that of South Africa, a liberal democracy. The focus falls on 12 country-specific situations and nine civil and political rights issues that appeared before the HRC from 2017 to 2019. It is demonstrated that Rwanda has been a much stronger defender of international human rights than South Africa. This finding contradicts various empirical and theoretical studies that posit a positive relationship between domestic democracy and respect for human rights, on the one hand, and international support for human rights, on the other. This finding further suggests that demands that the HRC should only have members with respectable domestic human rights records should be tempered. <![CDATA[<b>Mechanisms adopted in curbing unsafe infant abandonment: A comparison between Namibia and South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200013&lng=en&nrm=iso&tlng=en This article looks at the development of 'baby safe haven' laws in Namibia as a response to unsafe infant abandonment and examines the lack of similar laws in South Africa to curb this practice. The central question addressed in the article is whether an obligation rests with the South African legislature to prevent unsafe infant abandonment by providing a safe alternative. This question is expounded upon by looking at the approach or the mechanisms adopted in countries around the world with a specific focus on South Africa's neighbouring country, Namibia. The impact of the non-legalisation of any of these mechanisms in South Africa is dealt with through analysing the various human rights that are infringed in terms of the South African Constitution. The previous laws governing the abandonment of infants in Namibia are compared with the more recent introduction of 'baby safe haven' laws, which is indicative of how far Namibia has come in moving from emulating South African laws in the realm of children to taking the lead in introducing a safe alternative to unsafe abandonment. Lastly, the current South African law, which is reactive in its approach to infant abandonment, is dealt with. The conclusion is reached that in view of what Namibia has done an obligation indeed rests on the South African legislature urgently to implement similar laws to save the lives and protect the various other rights of unsafely abandoned infants. It is proposed that 'baby savers' and 'baby safe haven laws' urgently should be introduced in South Africa to prevent further deaths through the unsafe abandonment of infants in places such as toilets, pit latrines and open fields. <![CDATA[<b>Implementing transitional justice in post-transition Central African Republic: What viable options?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200014&lng=en&nrm=iso&tlng=en The Central African Republic currently is in search of the most suitable approach to adopt in order to address serious crimes and human rights violations committed in the country in recent years. This article is a contribution to the ongoing debate relating to transitional justice options in post-transition CAR. It suggests a three-pronged policy; focusing on the perpetrators, the victims and on society generally. The proposed policy in respect of perpetrators refers to the International Criminal Court, the Special Criminal Court and the national judiciary. Amnesty could be granted to suspected perpetrators willing to cooperate fully with transitional justice institutions. Such individuals equally could be subjected to diverse forms of lustration in exchange for forgiveness. As far as victims are concerned reparation programmes should be adopted and the necessary skills provided in order to enable them, their relatives and communities to earn a living. Lastly, society-focused transitional justice initiatives could involve the effective operationalisation of the Truth, Justice, Reparation and Reconciliation Commission, the establishment of a permanent national peace and dialogue commission and the involvement of community-based mechanisms and religious leadership. Yet, in order to increase the likelihood of success for the proposed transitional justice policy, the overall capacity of the CAR state ought to be significantly improved. Furthermore, external polities will have to refrain from interfering in the country's internal affairs and, at the same time, the international community should increase its support of the CAR. <![CDATA[<b>Ethnocentric nationality in the Democratic Republic of the Congo: An analysis under international human rights law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200015&lng=en&nrm=iso&tlng=en In order to dismantle institutionalised tribalism in the Democratic Republic of the Congo, which has fostered recurring war and armed conflict, its lynchpin of ethnocentric citizenship must be removed. Due to the Congolese law of nationality by birth being grounded in ethnicity, Congolese nationality has been and remains subject to political manipulation, particularly concerning the Banyamulenge people. In the latter half of the twentieth century the Congolese state has alternatively granted, withdrawn and reinstated their Congolese citizenship. Fundamentally, the basic Congolese nationality law - anchored in the Congolese Constitution - perpetuates a legal framework for racial division which does nothing to hinder but only enables malicious sympathies that tend toward exclusion, persecution, expulsion and genocide. To address this existential flaw, this article describes how the primacy of ethnicity in the Congolese law of nationality by birth violates three international human rights treaties that the DRC has accepted, thus laying a foundation for legal action to change the Constitution and nationality law of the DRC. <![CDATA[<b>The right to sustainable development in article 43(3) of the Ethiopian Constitution</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200016&lng=en&nrm=iso&tlng=en Article 43(3) of the Constitution of the Federal Democratic Republic of Ethiopia provides that all international agreements concluded by the country shall respect Ethiopia's right to sustainable development. The concept of the 'right to sustainable development' contained in this provision is somewhat unclear. Issues such as the right holders and duty bearers, justiciability and binding nature of this right require clarification in order to effectively enforce it. This article argues that both the state and its people, but not individuals, are the right holders of this right. Under the Constitution the state is the duty bearer of fundamental human rights and freedoms, which include the right to sustainable development. It is the duty of the government to ensure that all international agreements adopted by Ethiopia respect the country's right to sustainable development. Although this right is contained in the Constitution as a goal and group right which does not impose a binding obligation to be enforced by courts, the state should take steps to progressively realise the right by adopting international agreements that incorporate the economic, social and environmental objectives of sustainable development in a balanced manner. In general, the government has a 'soft constitutional obligation' to respect and enforce the right to sustainable development stipulated in article 43(3) in order to protect development-related national interests, ensure legal certainty and consistency, and avoid indirect foreign interference which may occur under the disguise of international agreements and cooperation. <![CDATA[<b>Rethinking abortion laws in Nigeria: The trauma of rape victims of Boko Haram</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200017&lng=en&nrm=iso&tlng=en Abortion is the medical procedure of expelling a fetus from the uterus before it can result in a live birth. Several means are adopted to achieve this, either by taking medication or having a surgical procedure. 'Abortion' in the context of this research differs from 'miscarriage', a situation whereby pregnancy ends naturally without medical intervention, often referred to as spontaneous abortion. Reasons for abortion vary, ranging from health risks to economic factors, personal misadventure, socio-cultural factors and many others. Diverse justifications have been advanced both in favour of and against the liberalisation of abortion laws globally. Nigerian laws allow abortion only to preserve the life of the mother in the case of medical challenges; abortion done for any other contrary reason is proscribed and regarded as a crime. However, the recent experience ofthe Boko Haram insurgency resulting in humanitarian crises is novel to the existing legal framework. Abducted under-aged girls and women were severely and repeatedly raped and sexually abused, resulting in unwanted pregnancies. Upon being rescued, the traumatised victims' desire for elective abortion unfortunately is not captured in the nation's abortion laws. In this research the issues of rights to the life, sexual and reproductive rights and the economic implications of unwanted pregnancies are critically examined and the well-being of these victims is juxtaposed with the restrictive abortion laws in Nigeria predating the emerging trends. The article recommends an amendment allowing elective abortion in certain circumstances as this will create a new balance and reflect positive social change. <![CDATA[<b>The rights of victims of core international crimes to reparation in Nigeria</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200018&lng=en&nrm=iso&tlng=en Generally, the rights to reparation of victims of crime is largely controverted, especially in common law jurisdictions such as Nigeria where there is no express provision conferring or denying such right. With the rising number of victims of core international crimes in Nigeria, there is an increasing need to evaluate Nigeria's disposition to the plight of victims of core international crimes within its jurisdiction in light of the provisions of the Rome Statute. The article evaluates the possibility of the recognition of the right of victims of core international crimes to reparation in Nigeria. Although there are fragmentary provisions in the existing legislation that may be explored to ground the rights to reparations of victims of domestic crimes generally, the flaws and inadequacy of those laws are apparent in the face of the gravity and demands of core international crimes. The article argues that Nigeria owes an obligation to repair the harms suffered by victims of core international crimes in line with the provisions of article 75 of the Rome Statute which unequivocally confers such rights on victims, and the principle of ubi jus ibi remedium. The article concludes by making concise recommendations with respect to legal provisions on victims' rights to reparation in Nigeria in the context of international criminal law. <![CDATA[<b>The impact of climate change on economic and social rights realisation in Nigeria: International cooperation and assistance to the rescue?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200019&lng=en&nrm=iso&tlng=en The role of international cooperation and assistance in the realisation of economic and social rights has not been given sufficient attention in existing literature. It is also quite concerning that, although the impact of climate change has dominated scholarly debates in recent times, most of the discussions focus on environmental and economic perspectives, with scanty reference to its specific impact on the realisation of economic and social rights. However, the fact is that climate change not only alters the environment, but also adversely affects the realisation of economic and social rights of people, especially the most vulnerable groups of society. This article appraises these adverse effects of climate change in Nigeria and argues for an international cooperation approach towards mitigation and adaptation mechanisms. Drawing on several United Nations human rights and climate change instruments, the article theorises 'contributory and legally obligatory grounds' to affix an international obligation to developed countries in favour of developing countries such as Nigeria, in the latter's efforts to address the socio-economic impact of climate change. However, it notes that international cooperation is complementary, not substitutive of the Nigerian government's obligation to realise economic and social rights with locally-available resources. <![CDATA[<b>Duty without liability: The impact of article 12 of the International Covenant on Economic, Social and Cultural Rights on the right to health care in Nigeria</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200020&lng=en&nrm=iso&tlng=en The right to health care under article 12 of ICESCR is an instrumental right because it bears vital linkages to the realisation of other rights. For the many Nigerians living in poverty, their health may be the only asset on which they can rely for the exercise of other rights, such as the right to work or the right to adequate housing. Conversely, ill-health can be a liability to the many people living in poverty in Nigeria, even more so in the absence of equal access to affordable and essential healthcare services. This article aims to review the implication of article 12 of ICESCR on some of the existing initiatives for achieving the right to health care in Nigeria, especially in respect of human rights law and policy. The article argues that for Nigeria to meet its international obligations under the right to health care, it must commit to adequate funding of healthcare services and engage with regional and international partners to ensure compliance with article 12 of ICESCR. Given that the right to health care presently is not justiciable in Nigeria because of the ouster clause contained in section 6(6)(c) of the Nigerian Constitution, the article calls for an attitudinal change in the judicial perception of economic and social rights that come before the courts. It urges Nigerian courts to adopt the principle of the interdependency and indivisibility of rights, whereby judicial measures to enforce the right are given effect through the formally-enforceable civil and political rights contained in chapter four of the Nigerian Constitution. The Indian Supreme Court is reputable for taking this approach to the interpretation and enforcement of economic and social rights because the enjoyment of civil and political rights is linked to the satisfaction of economic and social rights, such as the right to health care. Finally, because of the importance of health care to a life of dignity, the article calls for Nigerian courts to adopt a progressive and broader approach when dealing with economic and social rights because of the evident connection between, for example, the right to health care and the right to life. <![CDATA[<b>Revisiting personal immunities for incumbent foreign heads of state in South Africa in light of the <i>Grace Mugabe </i>decision</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200021&lng=en&nrm=iso&tlng=en In the Grace Mugabe decision in which the conclusion was arrived at that Grace Mugabe was not entitled to spousal immunity by virtue of being the wife of the then incumbent foreign head of state, Vally J remarked that the late former President Mugabe would not have been entitled to immunity had he been accused of committing the assault. This article analyses this remark and its potential negative impact on South Africa's relationship with other African states. The analysis is valuable as South Africa has positioned itself as being a human rights state that strives to play a significant role in peace making in Africa and consistently has argued that removing customary international law immunity, to which foreign heads of state are entitled, may undermine these intentions. The article examines South Africa's position on personal immunity for foreign heads of state in customary international law against the backdrop of the Mugabe decision. It argues that as it currently stands South African law recognises absolute personal immunity for foreign heads of state in cases not relating to the perpetration of international crimes. <![CDATA[<b>The rationality test in lockdown litigation in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200022&lng=en&nrm=iso&tlng=en The COVID-19 pandemic that commenced in 2020 confronted South African courts with questions regarding the rationality of decision making during exigent times. South African administrative law has seen continuous development since the negotiated adoption of South Africa's constitutional dispensation. This article examines the effect of the COVID-19 pandemic on the interpretation and application of the test for rationality by examining three particular 'lockdown' cases and how the test was subsequently applied, in all three cases under expedited circumstances and with truncated times in terms of procedure. The three cases discussed dealt with the rationality of decisions made through executive action aimed at protecting the public against the spread of COVID-19 through restrictive measures that limited an array of constitutional rights. The article concludes that the consistent application of the rationality test and, more importantly, the supremacy of the Constitution and its guaranteed rights, do not change with the onset of a pandemic. Moreover, the scrutiny applied over governmental decision making should not waiver. <![CDATA[<b>The right to 'unlove': The constitutional case for no-fault divorce in Uganda</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200023&lng=en&nrm=iso&tlng=en This article examines the constitutionality of the requirement to establish certain grounds - adultery, cruelty, desertion, bigamy and others - as a condition for the grant of divorce in Uganda. It begins with an examination of the existing legal framework, including reforms already achieved through public interest litigation, and certain changes sought to be effected via judicial activism. The article then proceeds to an analysis of the human rights issues implicated by a fault-based framework, and a consideration as to whether the public interest-based limitations in this regard pass constitutional muster. Ultimately, it is proposed that the only means of aligning this area of domestic relations law with the Constitution is through the elimination of fault as a requirement for dissolving marital bonds. Such reform would also be consistent with critical public policy concerns, including the welfare of children and the sanctity of marriage itself. <![CDATA[<b>Securing legal reforms to the use of force in the context of police militarisation in Uganda: The role of public interest litigation and structural interdict</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200024&lng=en&nrm=iso&tlng=en This article argues that the failure by the Ugandan government to put in place clear regulations governing the use of force and firearms by the police and armed security forces, particularly during joint police and military operations, as part of arrest and crowd control operations, threatens to violate the right to life, the right to freedom from inhumane treatment, the right to assemble and the right to a remedy under the Ugandan Constitution. It argues that the constitutional, statutory law and case law framework in Uganda can facilitate public interest litigation in order to secure the adoption by the Ugandan government of comprehensive and internationally-accepted standards on the use of force and firearms by police and armed security forces. The article draws on a recent progressive decision of the High Court in James Muhindo & 3 Others v Attorney-General, and the Human Rights Enforcement Act of 2019 to expound on the proactive potential of article 50 of Uganda's Constitution to deliver expedited institutional and human rights-oriented reforms and to afford the courts oversight functions in the implementation of these reforms through structural interdict. These aspects of the public interest litigation framework in Uganda offer a pathway to civilian-led reform in a highly state-controlled, politicised and militarised police and security sector over which Ugandans otherwise have no civilian oversight. Thus, the article explores the potential of public interest litigation as an empowering tool in competing approaches to state formation in transitional contexts and positions public interest litigation as a transformative response to militarisation in a fragile state. <![CDATA[<b>Decisions of the African Court on Human and Peoples' Rights during 2020: Trends and lessons</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962021000200025&lng=en&nrm=iso&tlng=en The African Court on Human and Peoples' Rights has made considerable progress in its jurisprudential activities in the year 2020. Between January and December 2020 the African Court delivered 55 decisions and received 40 new cases and one request for an advisory opinion. The swift response the African Court adopted to the challenges posed by the COVID-19 pandemic in holding three out of four sessions virtually has enabled the Court to reduce the backlog of cases. This article examines the main features of decisions the African Court adopted in 2020. It analyses trends emerging from them and draws possible lessons. The Court's 2020 decisions give an opportunity to critically review the jurisprudential direction of the Court, the number and types of decisions rendered, the quality of the protection of human and peoples' rights it offered as well as its normative contribution to the human rights corpus. While the Court has boldly and uncompromisingly asserted its authority over sensitive domestic issues - prompting four states so far to withdraw their declarations allowing individuals and non-governmental organisations to approach it directly - the Court's 2020 decisions persuasively demonstrate that it has not shied away from its mandate to hold states and their organs to the obligations to which they have committed under international human rights law.