Scielo RSS <![CDATA[African Human Rights Law Journal]]> http://www.scielo.org.za/rss.php?pid=1996-209620170002&lang=en vol. 17 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=S1996-20962017000200001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Transformative constitutionalism and the adjudication of constitutional rights in Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962017000200002&lng=en&nrm=iso&tlng=en Transformative constitutionalism, popularised in the context of South Africa's transition from apartheid to constitutional democracy, arguably offers an antidote for failed constitutionalism and weak protection of fundamental rights and freedoms in emergent democracies in Africa. This article examines the idea of transformative constitutionalism and its implications for the adjudication of fundamental rights and freedoms. It recognises that past failures of constitutionalism in Africa, to a significant degree entailed state abuses of fundamental rights and the corresponding inability of the courts to uphold these rights. Using examples of adjudication of rights in the post-2010 period in Kenya and post-apartheid era in South Africa, the article argues that, taken as a model for constitutionalism in Africa, transformative constitutionalism offers hope for increased protection of fundamental rights and freedoms. The article analyses the demands of transformative constitutionalism on the judicial adjudication of rights, and concludes that the concept demands more from judges than has traditionally been understood in the two legal systems. <![CDATA[<b>The right of access to information and national security in the African regional human rights system</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962017000200003&lng=en&nrm=iso&tlng=en October 2016 marked the 35th anniversary of the adoption of the African Charter on Human and Peoples' Rights - the first two decades of which the meaning, normative content and scope of the right of access to information guaranteed by article 9 of the Charter were largely unexplored. However, the implementation bodies of the African Charter subsequently have whittled down challenges posed by the narrow formulation of article 9, its claw-back clause and the undemocratic practices of African regimes in relying on vague and widely-drafted laws to deny access to state-held information on grounds of state security. This article examines the methodologies adopted by the African Commission on Human and Peoples' Rights and the African Court on Human and Peoples' Rights to supplement and entrench a substantive right of access to information compatible with international standards in article 9. The article finds that an overhauled article 9 dictates that the right of access to information held by public and private bodies is a fundamental right, indispensable to the health of a democracy and a means of protecting other rights, especially socio-economic rights. The right may in recognised instances be restricted, including on grounds of national security, only as clearly provided by law to serve a legitimate purpose and as necessary in a democratic society. The article proposes that state parties to the African Charter engage with the logic and reasoning of its implementation bodies to adopt measures and align their constitutional frameworks with the fundamental principles of access to information. <![CDATA[<b>Implementation of the right to social security in Nigeria</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962017000200004&lng=en&nrm=iso&tlng=en The article examines the constitutional provision on the justiciability of the right to social security as well as other legislation on social security in Nigeria with a view to determining the extent to which the right is actualised in the country. It is argued that, apart from the issue of the prima facie non-justiciability of the right, the various Nigerian laws on social security are inadequate in their content and scope of application. The article further argues that the various national/state programmes on social protection are not stricto sensu social security schemes as they are not anchored in any legislation and do not create any enforceable rights for citizens. It concludes that there is a need for Nigerian policy makers to demonstrate greater commitment to the due implementation of this right in Nigeria by enacting an all-encompassing social security law and making appropriate budgetary provision for the sector. <![CDATA[<b>Correct but wrong: A critical analysis of recent jurisprudence on the proper test for release pending appeal applications in Malawi</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962017000200005&lng=en&nrm=iso&tlng=en In Kumuwa v Republic, the High Court of Malawi held that the Constitution did not distinguish between release before and after conviction. Relying on section 42 of the Constitution, which provides for the right to be released from detention with or without bail unless the interests of justice require otherwise, the Court reasoned that there was one test for release: the interests of justice. This position was rejected by the same Court in Uche v Republic. The Malawi Supreme Court of Appeal in Kumwembe v Republic upheld the correctness of Uche, and reiterated that the Constitution had not changed the traditional test of exceptional circumstances for release pending appeal. This article argues that Kumuwa rightly identified the test as the interests of justice, but erred in finding that the constitutional premise was the right in section 42. Consequently, Uche and Kumwembe miss the point when they discard the test advanced in Kumuwa solely on this faulty constitutional premise. The article aims to discuss the Court's reasoning and evaluate it in light of the law and jurisprudence on the proper test for granting release pending appeal. <![CDATA[<b>The direct application of the Constitution by ordinary courts and the concept of Shari'a as a source of legislation: A review of the Sudanese Supreme Court's decision in <i>Sudan Government v ASK</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962017000200006&lng=en&nrm=iso&tlng=en This is a review of the 2011 decision of the Sudanese Supreme Court in Sudan Government v ASK. Relying on article 5(1) of the Sudanese Constitution 2005, which states that Shari'a should be the source of legislation, the Court decided to disregard the provision in section 4 of the Child Act 2010, which defines the child as a person whose age does not exceed 18 years, as unconstitutional as it was in conflict with the Criminal Act 1991, derived from Shari'a, that defines an adult as a person whose puberty is established by apparent features and has reached 15 years of age. While the article argues that the decision reaffirms the power of the ordinary courts to refrain from applying unconstitutional legislation even with the existence of a specialised Constitutional Court, it argues that in this specific case there was neither a violation of Shari'a nor of the Constitution that justifies invoking this power. <![CDATA[<b>Editorial: Adolescent sexual and reproductive rights in the African region</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962017000200007&lng=en&nrm=iso&tlng=en This is a review of the 2011 decision of the Sudanese Supreme Court in Sudan Government v ASK. Relying on article 5(1) of the Sudanese Constitution 2005, which states that Shari'a should be the source of legislation, the Court decided to disregard the provision in section 4 of the Child Act 2010, which defines the child as a person whose age does not exceed 18 years, as unconstitutional as it was in conflict with the Criminal Act 1991, derived from Shari'a, that defines an adult as a person whose puberty is established by apparent features and has reached 15 years of age. While the article argues that the decision reaffirms the power of the ordinary courts to refrain from applying unconstitutional legislation even with the existence of a specialised Constitutional Court, it argues that in this specific case there was neither a violation of Shari'a nor of the Constitution that justifies invoking this power. <![CDATA[<b>Adolescents' access to emergency contraception in Africa: An empty promise?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962017000200008&lng=en&nrm=iso&tlng=en Governments have committed themselves at international human rights fora to prioritising programmes aimed at adolescents' development and wellbeing, particularly their educational and health needs. Such programmes include those focused on adolescents' sexual and reproductive health, and are aimed at enabling adolescents to manage in a positive manner their awakening sexuality. African countries, too, have focused their efforts on adolescents. Despite commitment by governments, an alarmingly high rate of unintended pregnancies among Africa's adolescents persists. These unintended pregnancies are associated with a low level of contraceptive use, especially among adolescent girls who face significant discrimination and inequality when accessing contraceptive information and services, including specific information on where and how to access emergency contraceptives. This situation flies in the face of the realisation that unconditional and unhindered access to emergency contraceptives is an important tool to protect adolescent girls from sexual ill-health and maternal mortality and morbidity. In light of obstacles in the way of adolescent girls' access to emergency contraception in the African region, the comments of the various treaty-monitoring bodies are highlighted in the article in order to strengthen arguments in support of African adolescents' access to emergency contraception. Additionally, mechanisms which may be adopted to overcome obstacles that hinder adolescents' access and use of emergency contraceptives are examined in order to determine whether they may be beneficial in ensuring African adolescents' access to emergency contraception. Although the study is comparative in nature, specific attention is paid to Nigerian adolescents' access to emergency contraception. <![CDATA[<b>Adolescent sex and 'defilement' in Malawi law and society</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962017000200009&lng=en&nrm=iso&tlng=en During colonisation Malawi received a Western penal code, which included the 'defilement' provision, restricting males from sexually accessing girls below a specified age. Countries that maintain colonial age of consent provisions, including Malawi, have uncritically assumed that these laws serve the purpose of protecting girls and children from harm. This article examines the fundamental assumptions underlying the development of sections 138 and 160B of the Malawian Penal Code, and their historical and sociocultural origins. The article submits that these provisions serve the interests of adults and not those of children. They are inherently heterosexist, promote gender-stereotypical meanings of sexuality and potentially stigmatise the normative development of sexuality in children. Sections 138 and 160B need to be reviewed and aligned with Malawi's commitments to promote gender equality and sexual health and the rights of children. <![CDATA[<b>Protecting adolescent girls with intellectual disabilities from involuntary sterilisation in Nigeria: Lessons from the Convention on the Rights of Persons with Disabilities</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962017000200010&lng=en&nrm=iso&tlng=en Adolescent girls with intellectual disabilities are highly susceptible to involuntary sterilisation in Nigeria. Existing Nigerian laws contain no provisions expressly prohibiting involuntary sterilisation and the provisions that could be indirectly applied are inadequate. Accordingly, this article seeks to draw lessons from the provisions of the Convention on the Rights of Persons with Disabilities that are pertinent to protecting adolescent girls with intellectual disabilities from involuntary sterilisation in Nigeria. In doing this, it examines four provisions of the CRPD, namely, the rights to respect for home and the family (article 23); health (article 25); equality and non-discrimination (article 5); and equal recognition before the law (article 12). The right to retain fertility in article 23 can unequivocally be construed as prohibiting involuntary sterilisation of persons with disabilities. In Nigeria, the recognition of people's right to consent to medical procedures, including sterilisation, determines whether or not they are allowed to consent to such procedures. Accordingly, a lack of informed consent results in third parties making decisions about sterilisation without consulting those about whom the decisions are made. Also, involuntary sterilisation is an issue of inequality and discrimination and, thus, the right to equality and non-discrimination is very important in protecting adolescent girls with intellectual disabilities from involuntary sterilisation. The article contends that the CRPD provides an avenue for challenging the discrimination and inequality that sterilisation presents for adolescent girls with intellectual disabilities in Nigeria, and makes recommendations based on the provisions of the CRPD.