Scielo RSS <![CDATA[African Human Rights Law Journal]]> http://www.scielo.org.za/rss.php?pid=1996-209620150002&lang=en vol. 15 num. 2 lang. en <![CDATA[SciELO Logo]]> http://www.scielo.org.za/img/en/fbpelogp.gif http://www.scielo.org.za http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200001&lng=en&nrm=iso&tlng=en <![CDATA[<b>HIV-specific legislation in sub-Saharan Africa: A comprehensive human rights analysis</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200002&lng=en&nrm=iso&tlng=en As at 31 July 2014, 27 sub-Saharan African countries had adopted HIV-specific legislation to address the legal issues raised by the HIV and AIDS epidemics. The article provides the first comprehensive analysis of key provisions in these HIV-specific laws. It shows that HIV-specific laws include both protective and punitive provisions. Protective provisions often covered in these laws relate to non-discrimination in general or in specific areas, such as employment, health, housing and insurance. However, these non-discrimination provisions are often not strong enough to fully protect the human rights of people living with HIV and those affected by the epidemic. Punitive or restrictive provisions appear to be a defining feature of HIV-specific laws, both in terms of the number of countries that have adopted them and with regard to the diversity of restrictive provisions provided in these laws. Restrictive provisions often covered in HIV-specific laws include compulsory HIV testing, particularly for alleged sexual offenders, involuntary partner notification and criminalisation of HIV non-disclosure, exposure and transmission. In the great majority of cases, these provisions are overly broad, they disregard best available recommendations for legislating on HIV, fail to pass the human rights test of necessity, proportionality and reasonableness, consecrate myths and prejudice about people living with HIV, and risk undermining effective responses to the HIV epidemic. While noting these gaps and concerns in HIV-specific laws, the article calls for ensuring the effective implementation and enforcement of their protective provisions, while devising strategies to address their restrictive stipulations. <![CDATA[<b>LGBT rights in Africa and the discursive role of international human rights law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200003&lng=en&nrm=iso&tlng=en Much of Africa seems to be riding on a homophobic wave that is being billed as an African resistance to Western attempts to force homosexuality on Africa. However, this Africanisation of homophobia is based on false premises. Pre-colonial Africa entertained a diverse set of ways in which non-heterosexuality and non-heteronormativity were expressed and it was colonialism that introduced the now widespread religious and legal norms that policed sexuality and gender. The current wave of homophobia is also based on Western anti-LGBT rights discourses and in some part is sponsored by Western/American evangelical groups. The article argues that the imposition of an African label on colonial and neo-colonial products needs to be challenged without, however, effectively replacing it with an equally Western construct. The article advocates a grassroots and ground-up approach wherein international law on LGBT rights is used for its discursive value at the societal, national and regional levels. As part of this approach, it is argued that activists should temporarily refrain from bringing LGBT cases to the African Commission on Human and Peoples' Rights since a detrimental decision, which currently is extremely likely, can cause serious and long-term problems. <![CDATA[<b>Intervention pursuant to article 4(h) of the Constitutive Act of the African Union without United Nations Security Council authorisation</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200004&lng=en&nrm=iso&tlng=en Article 4(h) of the Constitutive Act of the African Union (AU) establishes the right of the Union to intervene in a member state to prevent grave violations of human rights. It does not state whether the AU should request prior authorisation from the United Nations (UN) Security Council, leading to many interpretations. Many articles were written on this issue at a time when the AU and the Security Council were not in confrontation. However, the situation has changed since the controversy over the arrest of President Al Bashir of Sudan, and the intervention by NATO in Libya in 2011. The AU's right of intervention may be the next controversy. This article examines the question whether the AU could implement military intervention in a member state without authorisation by the Security Council. The article initially states that, in principle, the AU needs authorisation in accordance with article 53 of the Charter of the UN. After further analysis, the article recognises that, under certain circumstances, the AU could implement such intervention without prior authorisation by the Council. The article analyses the legality and legitimacy of such action. <![CDATA[<b>A watershed moment for African human rights: <i>Mtikila & Others v Tanzania </i>at the African Court on Human and Peoples' Rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200005&lng=en&nrm=iso&tlng=en This article examines the case of Mtikila & Others v Tanzania before the African Court on Human and Peoples' Rights. The application centres on Tanzania's prohibition on independent candidates running for public office, with the applicants alleging that this prohibition violates article 2 (freedom from discrimination), article 10 (freedom of association) and article 13(1) (the right to participate in government) of the African Charter on Human and Peoples' Rights. The case is the first to be decided on its merits at the African Court, the first to find in favour of the applicants and the first to consider the issue of reparations and damages. The article examines the arguments of both the applicants and Tanzania, including Tanzania's reliance on the 'claw-back' provisions found in articles 27(2) and 29(4) of the African Charter, before assessing and analysing the African Court's findings. The article highlights the African Court's findings that are likely to require further clarification in the future, as well as the possible precedents that the findings set. The article concludes by stating that, while the African Court should be commended for the delivery of its first judgment on the merits, Tanzania's approach to the judgment could be indicative of difficulties the African Court will encounter as it enters an era of judgment compliance by member states. <![CDATA[<b>The challenges of adjudicating presidential election disputes in domestic courts in Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200006&lng=en&nrm=iso&tlng=en Defective and fraudulent elections are common in Africa. Although there has been some improvement since the democratic wave of the 1980s and 1990s, sham elections are still prevalent across the continent. Where elections have been assailed with anomalies and results are disputed, as is often the case in Africa, aggrieved parties have looked to the judiciary as an institution of last hope to seek redress. The judiciary has, however, almost always decided presidential election disputes in common patterns that militate against the growth of democracy on the continent. The common patterns are that all cases are decided in favour of the status quo; many cases are dismissed on flimsy technical and procedural rules without consideration of the merits; there is misuse of the substantial effect rule to uphold defective elections; there are delays in determining cases; and judges refrain from making any reasonable decisions. The judiciary in Africa may, therefore, be fully complicit in the delayed consolidation of electoral democracy on the continent. <![CDATA[<b>Mandatory mediation: An obstacle to access to justice?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200007&lng=en&nrm=iso&tlng=en The article evaluates the efficacy of mandatory mediation in attaining access to justice, in particular with reference to the resolution of labour disputes in Mozambique and South Africa. First, what is meant by mediation, both voluntary and mandatory, and what is meant by 'access to justice' is ascertained. The advantages and disadvantages of mediation are highlighted. It is argued that mandatory mediation is the antithesis of mediation and that, therefore, it denigrates the process and can ultimately divest it of most, if not all, its advantages. It is concluded that, although mediation can be a quick, efficient and cost-effective means of resolving some disputes, it is not suitable to every dispute. Consequently, mediation should be encouraged, but it should not be made mandatory. <![CDATA[<b>Access to justice through clinical legal education: A way forward for good governance and development</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200008&lng=en&nrm=iso&tlng=en Access to justice is a fundamental right that ought to be universal, but a lack of effective access to justice is frequently identified as a major barrier to realising human rights. This relates especially to women. Nigerian women are not sufficiently protected by the legal system. Women in Africa, generally, and in Nigeria, in particular, face numerous barriers that hinder their access to legal services and assistance from legal institutions that are set up to redress wrongs. Under the Constitution of the Federal Republic of Nigeria 1999, it is the duty of government to ensure that all citizens have access to justice. Legal aid clinics have in the last decade developed alongside other governmental legal services. The article discusses the evolution of legal clinics in educational institutions and by non-governmental organisations in Nigeria and focuses in particular on how access to justice through the intervention of the Women's Law Clinic, University of Ibadan, has impacted on governance and development. <![CDATA[<b>Raising legal giants: The agency of the poor in the human rights jurisprudence of the Nigerian Appellate Courts, 1990-2011</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200009&lng=en&nrm=iso&tlng=en This article examines the extent to which the jurisprudence of the Nigerian appellate courts has expanded, maintained or contracted the opportunities of the poor for exercising as robustly as possible their own 'agency' to act to redress human rights abuses committed against them during the period between 1990 and 2011. In doing so, the article mostly utilises a critical socio-legal framework which situates Nigeria's human rights law relating to the agency of the poor within its historical, social, economic and political context. Specifically, it utilises - among others - the kernel ideas ofUpendra Baxi's seminal trade-related market-friendly human rights theory. While it is often assumed that the weak, excluded and deprived are passive victims of their condition, the starting position of the article is that, where sufficient opportunities exist in law and policy, or are allowed by the adequate availability of resources, or are made possible through pro-poor judicial action, the poor are actually able to resist this characteristic and to struggle to transform their life conditions. The main question the article addresses is the extent to which the Nigerian appellate courts have - in the course of developing their human rights praxis -helped to provide or restrict opportunities for poor Nigerians to exercise their agency within the legal system so as to more effectively 'struggle to transform their life conditions'. With what conceptual apparatuses have these courts examined and decided the relevant cases in ways that expand or contract the agency of the poor to seek legal redress and social justice? We argue that many factors interact in this regard to produce certain outcomes, some within and others outside the control of the courts. We also believe that courts should, where necessary, ameliorate the factors within their control such that the poor can more robustly exercise their agency in this regard. <![CDATA[<b>Child marriage in Nigeria</b><b>: </b><b>(Il)legal and (un)constitutional?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200010&lng=en&nrm=iso&tlng=en The article refers to a recent article on child marriage in Nigeria, published in this Journal, as a broad context to examine two issues. The first is the statutory elaboration of the constitutional protection of children, and the second is the suggestion that religious marriages trump children's rights in Nigeria's constitutional jurisprudence. These issues are discussed together in the context of the belief that the absence of statutory protection of children is not fatal to their human rights protection, and that neither an Islamic nor any other religious marriage trumps the rights of children in Nigeria. The article recommends a negotiated consensus in determining the minimum age for child marriage, given Nigeria's plural and religious constituents. <![CDATA[<b>Adolescent girls' access to contraceptive information and services: An analysis of legislation and policies, and their realisation, in Nigeria and South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200011&lng=en&nrm=iso&tlng=en Adolescents' early sexual debut contributes to their huge burden of sexual and reproductive ill-health, especially in sub-Saharan Africa. Reports continually reveal that female adolescents, in particular, constitute a large portion of the 34 million people living with HIV worldwide. Other consequences associated with early adolescent sexuality include unplanned pregnancies, unsafe abortions and sexually-transmitted infections. In light of this, the article analyses approaches adopted by Nigeria and South Africa in fulfilling their international law obligations to respect, protect and fulfil adolescent girls' right to access contraceptive information and services, specifically, in their domestic legislation, policy documents and court decisions. Sexuality education is compared, as well as actual access. There is extensive evidence of the measures put in place to ensure adolescent girls' access to contraceptive information and services in Nigeria and South Africa. Although the level and extent of the barriers faced by adolescent girls when accessing contraceptive services and information vary, the consequences are similar: We find that Nigerian and South African adolescent girls, generally, lack access to contraceptive information and services. Despite measures to ensure adolescent girls' access to contraceptive information and services in Nigeria and South Africa, several gaps remain. <![CDATA[<b>Rape as a weapon of war: Combating sexual violence and impunity in the Democratic Republic of the Congo, and the way forward</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200012&lng=en&nrm=iso&tlng=en Rape is both a consequence and a weapon of war, as may be seen throughout the crisis in the Democratic Republic of the Congo. The United Nations joint Human Rights Office recently published a report that noted the necessity of moving these issues to the forefront of the international political agenda. Sexual violence in the region has led to mass human rights breaches that require the attention of the international community. With impunity plaguing the social and judicial structure of the DRC, combating this issue is more challenging. This is due to a number of obstacles: a lack of resources within the judicial system; the stigmatisation of victims (social and cultural); the costs of legal proceedings; and a lack of protection for victims. As such, the article examines sexual violence committed by military officers and rebel groups in the DRC in order to outline the failures of the domestic system. It also provides a brief historical overview of sexual violence in the DRC. The article uses Baaz and Stern's perception of 'rape as a weapon of war' to analyse the lack of protection mechanisms for victims and witnesses of sexual violence in the region. In doing so, the article examines the obstacles to fighting sexual violence in armed conflict in the DRC (stigmatisation and shame, and costs of legal proceedings). Finally, the article suggests that a mixed chamber or hybrid court be created in order to prosecute perpetrators of the worst human rights violations. <![CDATA[<b>The right to justice: A challenge for survivors of conflict-related sexual violence in the Eastern Democratic Republic of the Congo</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200013&lng=en&nrm=iso&tlng=en In the eastern Democratic Republic of the Congo, since 1996 conflict-related sexual violence against women and girls, particularly, has been a sad reality, even though these crimes are prohibited by international humanitarian law and criminalised by international and domestic criminal laws. When these violations occur, the perpetrators should be brought to justice. However, survivors face many challenges in holding perpetrators accountable, such as fear of speaking out due to cultural prohibitions, stigmatisation and fear of reprisals and rejection. The judiciary also faces challenges, including an insufficient budget, the lack of a competent court of law to deal with crimes of sexual violence in rural areas, poor equipment and a lack of education on crimes of sexual violence. In order to improve this situation, this research article argues that it is vital that the Congolese government establish competent courts of law to deal with crimes of sexual violence in rural areas and to ensure that officers of the judicial police are well trained, well remunerated and equipped to conduct investigations. Survivors should be adequately informed, encouraged and made aware of the fact that breaking the silence is an effective way of eradicating rape and other forms of sexual violence. Local communities should also be made aware and sensitised so that they do not reject survivors because unknown people have abused them. <![CDATA[<b>Human rights education in South Africa: Whose responsibility is it anyway?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200014&lng=en&nrm=iso&tlng=en The enjoyment of human rights largely depends on the level of awareness of what these rights are and how to enforce them. Human rights education (HRE), therefore, is crucial in ensuring that people are empowered to access the rights to which they are entitled. There have been several programmes and plans of action aimed at HRE at international level, but 20 years after the advent of a new democratic and constitutional dispensation in South Africa, the level of public awareness in the country is still, unfortunately, inadequate. It is against this background that the roles and responsibilities of the main role players in HRE in South Africa are discussed and, where possible, assessed. This analysis is important, because without an understanding of all available infrastructure and the main actors involved in HRE, it is impossible to identify gaps or to make recommendations for future improvements. The role of government, human rights institutions, such as the South African Human Rights Commission, and non-state actors, such as nongovernmental organisations and other civil society formations, are reviewed, after a presentation of background information on conceptual issues, the international dimension of HRE, and HRE in Africa. Recommendations for increased involvement in HRE - especially by government - are made. It is recommended that the state play a more dominant role in HRE, because it has the resources and the obligation and responsibility to do so. <![CDATA[<b>Anti-terrorism measures in South Africa: Suspicious transaction reporting and human rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200015&lng=en&nrm=iso&tlng=en Terrorism has become a serious risk. Two factors exacerbate this threat: The first is the challenge of finding a definition suited to the terrorism phenomenon; the second is linked to the difficulty of detecting this crime. As it is accepted that terrorism causes human distress and suffering, and weakens the basic rights and freedoms of people, measures are taken to alleviate this scourge. In this article, mechanisms that relate to the duty to report transactions - so-called suspicious transaction reports - are analysed. It is accepted that these should operate in frameworks that show respect for human rights, for example, the rights to privacy and confidentiality. Accordingly, suspicious transactions should be reported reasonably and must be justifiable in the circumstances. <![CDATA[<b>Human rights developments in the African Union during 2014</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200016&lng=en&nrm=iso&tlng=en The year 2014 saw the adoption by the AU Assembly of a protocol providing the African Court with jurisdiction over international crimes, and a revised protocol on the Pan-African Parliament providing it with power to adopt 'model legislation'. With regard to implementation, the Ebola epidemic in West Africa affected the effective functioning of, in particular, the African Commission. However, despite this and other challenges, the African Commission adopted important normative instruments, such as a resolution on the basis of sexual orientation or gender identity, responded to violations through urgent appeals and press releases, and engaged with states through missions and the state reporting procedure. The Commission also adopted some interesting jurisprudence in the period under review. The African Children's Rights Committee consolidated its position as the main regional body for the protection of children's rights in Africa. The African Court received an increasing number of cases and handed down two judgments on merits and an advisory opinion. <![CDATA[<b>The Al Bashir debacle</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200017&lng=en&nrm=iso&tlng=en This article deals with the failure of states to comply with their obligation to execute the warrant issued by the International Criminal Court for the arrest of President Omar Hassan Ahmed Al Bashir of Sudan. President Al Bashir is to stand trial on serious charges, including acts of genocide, based on action taken on instructions of President Al Bashir to eliminate nationals of Sudan who are not of Arab extraction. President Al Bashir may be depicted as the Adolph Hitler of Africa by virtue of his efforts to create a Sudanese Herrenvolk and, in the process, causing the death of between 200 000 and 400 000 members of African tribes in the Sudanese province of Darfur and the displacement of approximately 2,5 million people. A special focus of the article is the hosting of President Al Bashir by the South African government in June 2015 at a summit of the African Union in johannesburg, in blatant defiance of the rule of law, and escorting him out of the country in contempt of an order of the High Court, Gauteng Division. South Africa claimed that its obligations as a member state of the African Union prevented it from executing the warrant of arrest. However, South Africa was compelled to execute the warrant of arrest (a) as a state party to the ICC Statute; (b) because the Security Council had instructed all member states of the United Nations to do so, and (c) because South Africa's own Rome Statute Implementation Act, 2002 requires it of South African authorities. Claiming that President Al Bashir as a head of state enjoyed sovereign immunity is also based on a false premise, since sovereign immunity does not apply to prosecutions in international tribunals. Maintaining that President Al Bashir is immune from prosecution in the ICC is criticised in the article. <![CDATA[<b>Private prosecutions and discrimination against juristic persons in South Africa: A comment on <i>National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & Another</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200018&lng=en&nrm=iso&tlng=en Unlike countries such as the United Kingdom, Kenya, Zimbabwe and Australia, in South Africa companies and associations are not permitted to institute private prosecutions although natural persons have a right to institute private prosecutions. In National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & Another, the applicant argued that the law which permitted natural persons to institute private prosecutions and prevented companies and associations from doing so violated section 9 of the Constitution which protects the right to equality. The court held that the discrimination in question was not unfair. In this note, the author assesses the court's reasoning and recommends that there may be a need to empower companies to institute private prosecutions in South Africa. <![CDATA[<b>JP Bohoslavsky & JL </b><b>Černič (eds) <i>Making sovereign financing and human rights work</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962015000200019&lng=en&nrm=iso&tlng=en Unlike countries such as the United Kingdom, Kenya, Zimbabwe and Australia, in South Africa companies and associations are not permitted to institute private prosecutions although natural persons have a right to institute private prosecutions. In National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & Another, the applicant argued that the law which permitted natural persons to institute private prosecutions and prevented companies and associations from doing so violated section 9 of the Constitution which protects the right to equality. The court held that the discrimination in question was not unfair. In this note, the author assesses the court's reasoning and recommends that there may be a need to empower companies to institute private prosecutions in South Africa.