Scielo RSS <![CDATA[African Human Rights Law Journal]]> http://www.scielo.org.za/rss.php?pid=1996-209620180002&lang=en vol. 18 num. 2 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za <![CDATA[<b>Editorial</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Implications of the African Union's stance on immunity for leaders on conflict resolution in Africa: The case of South Sudan and lessons from the <i>Habré </i>case</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200002&lng=en&nrm=iso&tlng=en After 2009 when the International Criminal Court issued an arrest warrant against President Omar Al Bashir of Sudan, the African Union began to promote an immunity principle for sitting leaders and senior government officials. The immunity principle was formalised in article 46Abis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. While the immunity principle raised an uproar among civil society groups, there has been limited scholarly engagement with its implications for conflict resolution and the need to deter would-be perpetrators of international crimes. Thus, the article examines the impact of the AU's immunity principle on conflict resolution efforts in Africa using South Sudan as a case study and drawing lessons from the case involving the former President of Chad, Hissène Habré. The article contends that even though an AU-led hybrid court without any immunity provisions is to be established in South Sudan, the AU's historical immunity stance will impede the hybrid court from trying the warring leaders who are the main actors responsible for the crimes in South Sudan. As such, the immunity principle provides opportunities for the warring leaders, who eventually will be leaders and senior government officials in line with the peace deal, to enjoy impunity for international crimes. If it is established the court most likely will focus on trying scapegoats of the warring factions in a tokenist effort at justice. The Habré case reveals that the trial of incumbent leaders is possible when incumbent leaders lose political power, but prosecution depends on additional variables such as a lack of international support. In the context of the proclivity of some leaders on the continent to remain in power beyond their constitutional mandates, the AU's immunity stance further provides an incentive for the 'sit-tight-in office syndrome' to avoid future probes into international crimes. The article argues that the AU's strategic shift away from the immunity stance could prevent impunity and provide leaders with greater legitimacy. <![CDATA[<b>The domestic impact of the decisions of the East African Court of Justice</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200003&lng=en&nrm=iso&tlng=en The East African Court of Justice is the judicial arm of the East African Community and is vested with the primary mandate of interpreting and applying the Treaty for the Establishment of the East African Community. The EAC Treaty does not contain a catalogue of human rights, neither does it constitute the EACJ as a human rights court with the power to adjudicate human rights cases. Nonetheless, the EACJ over time has handed down decisions that have had the effect of safeguarding and promoting human rights within the Community. It is in this context that the article explores the influence of the EACJ's decisions within the legal frameworks of the respective member states, beyond mere compliance by the member states with the orders of the Court. Inclusive in this is an analysis of how these decisions have influenced the development, interpretation or application of law and policy, and the practices of state and non-state actors in the domestic sphere of the East African Community member states. The overall finding of the article is that there are clear linkages, albeit limited in scale and spread, between the decisions of the EACJ and national laws, policies and practices of national actors, which extend beyond the domestic implementation of the Court's decisions and which need to be further investigated and upscaled in order to harness their potential benefits for the EAC integration process. <![CDATA[<b>Challenges when drafting legal aid legislation to ensure access to justice in African and other developing countries with small numbers of lawyers: Overcoming obstacles to including the use of non-lawyers to assist persons in conflict with the law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200004&lng=en&nrm=iso&tlng=en The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, the United Nations Commission on Legal Empowerment of the Poor Report, the United Nations Office of Drugs and Crime Early Access Handbook and the United Nations Model Legal Aid in Criminal Proceedings Law can all be used when drafting legal aid legislation to ensure the accessibility, effectiveness, sustainability and credibility of legal aid services. Challenges to referring to the UN Principles and Guidelines and other relevant UN documents when drafting legal aid legislation in developing countries - particularly in Africa - with small numbers of lawyers arise because of opposition by the organised legal profession and the judiciary. They object to the use of the assistance of non-lawyers such as paralegals, law students and lay persons, as well as traditional mechanisms of dispute resolution to provide legal aid. In order to provide access to justice for all and safeguard the rule of law the organised legal profession, legislative drafters and legislators need to 'think outside the box' when trying to provide access to justice in an environment where there are very few lawyers. A failure to establish an accessible, effective, sustainable and credible legal aid scheme may result in civil strife and even insurrection by disaffected communities. <![CDATA[<b>Survival rights for children: What are the national and global barriers?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200005&lng=en&nrm=iso&tlng=en Most children die in low and middle-income countries as a result of structural injustice, and while it may not be possible to prove causality between economic policies and breaches of rights, it is possible to audit policy and practices through the lens of human rights. Child health advocates need to highlight the fact that technical interventions, in the absence of action on structural injustice, cannot address the fundamental causes of poor health. It could even be said that we collude in the fallacy that injustices can be solved with technical solutions. The determinants of health, water, food, shelter, primary education and health care are minimum core human rights, are the rights required for survival and today should be available to every child (and their families) in all countries. However, there are national and global limitations on the ability of countries to determine policy and generate the revenue required for core human rights. The authors conducted a review of the literature on the main leakages from government revenues in low and middle-income countries to identify obstacles to children enjoying their right to survival. Based on the review the authors suggest a framework for an upstream audit that can be carried out, country by country, to identify barriers in terms of policies and the generation, allocation and utilisation of revenues. This audit involves systematically screening the policies and practices of the main actors: national governments, high-income country partners, multinational enterprises, and international organisations, for possible influence on the realisation of human rights. Human rights advocates and child health associations could lead or commission an upstream audit on behalf of children in their countries in order to identify the fundamental causes and real remedies. <![CDATA[<b>Recent legal responses to child marriage in Southern Africa: The case of Zimbabwe, South Africa and Malawi</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200006&lng=en&nrm=iso&tlng=en Child marriage occurs when one of the parties is below the age of 18 years. In Zimbabwe, South Africa and Malawi research has shown that most child marriages are linked to harmful practices that are embedded in culture. Law reform to end child marriage, therefore, is a difficult task since it presents a potential conflict between children's rights and cultural rights. This article critically examines how these selected countries seek to address the conflict between cultural practices that lead to child marriage and the protection of children's rights. It also highlights conceptual as well as practical difficulties that law reformers face in regulating cultural practices, and the gaps in the reforms that need to be addressed. <![CDATA[<b><i>Onuoha Kalu v The State </i>and flaws in Nigeria's death penalty jurisprudence</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200007&lng=en&nrm=iso&tlng=en In Onuoha Kalu v The State, the Supreme Court of Nigeria affirmed that the death penalty violated neither the right to life nor human dignity under the Nigerian Constitution. Since the decision, the list of capital crimes has grown in Nigeria. In the last decade and more, not less than eight Nigerian states made kidnapping a capital offence, while 12 others adopted Shari'a criminal codes that extend capital punishment to sexual offences. Although executions have been rare, courts have continued to impose the mandatory death penalty, swelling the number of inmates on death row. These developments are unconstitutional and exploit two shortcomings: First, the Constitution's provision on penalties that violate human dignity - or the interpretation of the provision - is tenuous. Second, Nigerian courts have surrendered their autonomy to statutory prescripts that remove discretion from sentencing. The Kalu case is one of many decisions that expound a flawed death penalty jurisprudence in Nigeria. A review of the jurisprudence indeed is overdue. While the death penalty may be constitutional under Nigerian law, the basis of imposing the sentence in most cases is constitutionally flawed. <![CDATA[<b>Implementing legal accountability to reduce maternal mortality and morbidity in Uganda</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200008&lng=en&nrm=iso&tlng=en Accountability is a vital human rights principle to address preventable maternal morbidity and mortality in Uganda. The continuous use of 'accountability' as a term without elaborating on it gets in the way of using its underlying principles to improve laws and policies. The implementation of legal accountability requires creating avenues through which women whose maternal health rights have been violated may access legal remedies. The existence of adequate legal remedies is vital not only for redressing violations of rights but also for identifying and proposing strategies towards addressing the bottlenecks in health systems. Courts of law are principal judicial mechanisms and, therefore, it is incumbent upon courts to expand rather than limit maternal health-related rights. The Uganda Human Rights Commission is another body which is empowered with a protective and promotional mandate that should be used to promote and protect reproductive health rights. It is further emphasised that accountability is not a tool to be understood and interpreted only by legal practitioners. Rather, various forms of accountability, including social and administrative forms, are vital for complementing legal accountability in reducing preventable maternal mortality and morbidity. <![CDATA[<b>The concept of surrogacy in Nigeria: Issues, prospects and challenges</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200009&lng=en&nrm=iso&tlng=en The journey from girlhood to womanhood in Africa begins with betrothal to marriage. This journey is not complete and the place of an African woman is not secure in her matrimonial home until such time as she is able to procreate. As such, reproduction is an essential aspect of the African family system. The inability of an African woman to fall pregnant within months of marriage is usually seen as a cause for anxiety and if this condition continues for some years, the woman is tagged barren and treated as a woman with a disability, seeing that the inability to conceive is seen as such. In most cases the husband's family mount pressure on the husband to either marry an additional wife or another wife in order to produce a child. This leads many women to make desperate decisions which may not necessarily be legally recognised, including the practice of buying babies. The article examines the legal framework for surrogacy in Nigeria. It adopts a comparative method and compares the legal frameworks governing surrogacy in Nigeria and South Africa. It concludes that there is a lacuna regarding surrogacy in the laws of Nigeria which allows for abuse during the surrogacy, and makes policy recommendations to provide the legal architecture to protect stakeholders in surrogate agreements in Nigeria. <![CDATA[<b>Cultural values as a source of law: Emerging trends of ubuntu jurisprudence in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200010&lng=en&nrm=iso&tlng=en From time immemorial the cultural value which epitomises togetherness and 'caring for each other' in a community has been a way of life in various African communities, including that of South Africa. According to this value one is his or her brother's or sister's keeper. This philosophy, which developed into a way of life, was expressed before the period of Enlightenment in Europe, considered as foregrounding a human rights discourse. In other words, a human rights discourse in the form of caring for one another was a lived reality and experience in Africa in terms of the ubuntu philosophy. The aim of this article is to examine the emerging trends of the ubuntu jurisprudence in South Africa. The South African model is chosen as a case study for several reasons. The country peacefully transited the apartheid era to democracy, arguably under the guidance of ubuntu. The ubuntu philosophy possibly is part of a South African jurisprudence. Unlike Western philosophy expressed in abstract terms and focused on individualism, the uniqueness of ubuntu rests upon the need to secure social equilibrium, compassion, humaneness and a strong consideration of the other's humanity. <![CDATA[<b>Editorial: Special focus on 'Dignity takings and dignity restorations'</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200011&lng=en&nrm=iso&tlng=en From time immemorial the cultural value which epitomises togetherness and 'caring for each other' in a community has been a way of life in various African communities, including that of South Africa. According to this value one is his or her brother's or sister's keeper. This philosophy, which developed into a way of life, was expressed before the period of Enlightenment in Europe, considered as foregrounding a human rights discourse. In other words, a human rights discourse in the form of caring for one another was a lived reality and experience in Africa in terms of the ubuntu philosophy. The aim of this article is to examine the emerging trends of the ubuntu jurisprudence in South Africa. The South African model is chosen as a case study for several reasons. The country peacefully transited the apartheid era to democracy, arguably under the guidance of ubuntu. The ubuntu philosophy possibly is part of a South African jurisprudence. Unlike Western philosophy expressed in abstract terms and focused on individualism, the uniqueness of ubuntu rests upon the need to secure social equilibrium, compassion, humaneness and a strong consideration of the other's humanity. <![CDATA[<b>From reparations to dignity restoration: The story of the Popela community</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200012&lng=en&nrm=iso&tlng=en In certain circumstances property takings are part of a larger strategy to further subjugate a certain group within the polity by denying their humanity or their capacity to reason. These takings involve more than the confiscation of property; they also involve the deprivation of dignity. In her book, We want what's ours: Learning from South Africa's land restitution program, Atuahene has called these dignity takings. The Popela people are a resource-poor, but culturally-rich African community from South Africa's Limpopo region that the colonial and apartheid regimes subjected to dignity takings. The post-apartheid state was interested not only in providing compensation for property taken from the Popela community and others, but also facilitating dignity restoration - a comprehensive remedy that addresses the deprivations of property as well as dignity. At the end of a protracted legal battle, the Constitutional Court ruled that the Popela community was entitled to reparations requiring the post-apartheid state to purchase the disputed land from its current owners and return it to the community. However, the state went above and beyond the Court-ordered remedy and tried to facilitate dignity restoration by expanding the number of community members entitled to land and increasing the amount of land transferred. The problem, however, is that over ten years since the much-celebrated court victory, the state has failed to deliver the more modest reparations mandated by the Constitutional Court as well as the more ambitious remedy designed to bring about dignity restoration. This article charts the consequences of the state's failed move from reparations to dignity restoration. <![CDATA[<b>From disgust to dignity: Criminalisation of same-sex conduct as a dignity taking and the human rights pathways to achieve dignity restoration</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200013&lng=en&nrm=iso&tlng=en Despite global advances in the rights of sexual and gender minorities, more than 70 countries worldwide still criminalise consensual same-sex conduct. Taking the case of Kenya, this article employs the concept of 'dignity takings' to underscore the direct and indirect costs of criminalising homosexuality. Criminalisation leads to a direct taking where it engenders forced examinations and medical tests, and indirect takings where the institutionalisation of stigma - labelling sexual and gender minorities as criminal - creates an environment that legitimises the use of violence against individuals on the basis of their real or perceived sexual orientation or gender identity. Viewing criminalisation as a dignity taking not only helps one to understand the direct effects by which the state is empowered to violate the bodies of lesbian, gay, bisexual and transgender persons, but also the more pernicious ways in which the state uses homophobia as a political weapon that can exclude individuals from meaningfully participating as citizens in the body politic. The article also examines the efforts of Kenyan LGBT activists to reclaim dignity by employing international human rights norms and institutions of the African regional human rights system. I argue that the pursuit of public, grassroots activism is an assertion of agency in the face of institutionalised stigma and systemic violence, and that the strategic mobilisation of human rights norms has allowed activists to reframe LBGT rights in terms of fundamental rights to life and dignity guaranteed to all Africans, effectively countering the false claim that homosexuality is 'un-African'. <![CDATA[<b>The shadow of legal pluralism in matrimonial property division outside the courts in Southern Nigeria</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200014&lng=en&nrm=iso&tlng=en Scholarly interest in the co-existence of normative orders in African social fields tends to focus on conflicts arising from the interaction of customary law with state law. This article takes a different path by revealing the normative influence of state law on actors involved in matrimonial property division outside the courts in Southern Nigeria. Based on individual interviews and focus group discussions with female divorcees, their parents, clergy, traditional leaders, NGOs and social welfare officials, it analyses inequalities in property division under customary law, arguing that these inequalities often lead to 'dignity takings'. It reveals how the Social Welfare Department, a government agency mandated to champion the interests of women and children, plays a prominent role in the privileging of gender, class and women's dignity. Spurred by statutes, this department increasingly orders men to divide matrimonial property and/ or to pay compensation to women. Its quasi-judicial orders on marriage gifts, properties bought by women, and child custody potentially contribute to 'dignity restoration' for women infantilised by the customary law of matrimonial property. By revealing the driving forces behind shifts in the traditional philosophy of matrimonial property, the article demonstrates how non-judicial dialogue between state law and customary law facilitates a living customary law of marital property division in Southern Nigeria. <![CDATA[<b>Human rights developments in the African Union (January 2017-September 2018)</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200015&lng=en&nrm=iso&tlng=en The African Human Rights Decade (2017-2027) did not get off to a good start. The African Commission on Human and Peoples' Rights has been facing a backlash from the African Union Executive Council since granting observer status to the Coalition for African Lesbians in 2015, which has escalated to a level where the independence of the Commission is at stake. While the number of cases decided by the Commission has dropped steadily, its other monitoring roles and its role as a norm setter remain important. Many cases are pending before the African Court on Human and Peoples' Rights. However, almost all the contentious cases are against the few states that have made a declaration allowing direct access to the Court. The limited access to the Court is also as a result of its own jurisprudence. Thus, the opportunity of NGOs to submit requests for advisory opinions was severely limited by the Court in the SERAP case. The increased hostility of states towards the African human rights system demonstrates that many states are sensitive to human rights criticism. The future will tell whether states will take further steps to weaken the system, for example through their choice of appointments to the monitoring bodies, or disengagement, or whether they will finally take action to meet their rhetoric and strengthen the system they started to build more than three decades ago. <![CDATA[<b>In default: <i>African Commission on Human and Peoples' Rights v Libya</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200016&lng=en&nrm=iso&tlng=en This article examines the judgment in the case of African Commission on Human and Peoples' Rights v Libya before the African Court on Human and Peoples' Rights. It argues that as the first judgment to be delivered in default, it serves as an intriguing foundation, and one that will often be revisited as the African Court takes on more and more cases. The article examines the procedures leading to the African Court taking the step of issuing judgment in default, the procedure itself and its future application. The article also examines the nature of the transfer by the African Commission to the African Court and how this may provide guidance in relation to future transfer cases. The article further examines the African Court's findings under article 6 (right to personal liberty and protection from arbitrary arrest) and article 7 (right to a fair trial) of the African Charter.