Scielo RSS <![CDATA[African Human Rights Law Journal]]> http://www.scielo.org.za/rss.php?pid=1996-209620190001&lang=en vol. 19 num. 1 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=S1996-20962019000100001&lng=en&nrm=iso&tlng=en <![CDATA[<b>Confidentiality and the implementation of the decisions of the African Commission on Human and Peoples' Rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100002&lng=en&nrm=iso&tlng=en The African Commission on Human and Peoples' Rights has been criticised for its restrictive application of article 59 of the African Charter on Human and Peoples' Rights resulting, it is argued, in a shroud of secrecy around the protective elements of its work. This article explores the application of the principles and presumptions in article 59 and the confidentiality covering the communication procedure of the African Commission after the adoption of the decision. Research reveals that there may be a greater likelihood of implementation of the recommendations in the decision if it is visible and a variety of actors are made aware of its existence and these measures that the state then takes, or fails to take. Drawing upon an Economic and Social Research Council-funded project, the article argues that article 59 in practice has so far been applied without a great deal of thought, to procedures post-decision that monitor the implementation of the recommendations. Thus, at present the African Commission has slipped into presuming that measures taken by the state to implement recommendations, evidence presented by the complainants (or indeed other actors) on the extent to which it has done so, and the Commission's own assessment, fall within the communication procedure and, therefore, by default are confidential. Yet, article 59 does not require this, neither do the Rules of Procedure, and a blanket approach to confidentiality post-decision is not appropriate. The article recommends that the African Commission can improve publication and visibility of the decision itself; and should be making available on its website and in documentation information on what measures the state has taken to implement the decision. <![CDATA[<b>Private prosecution as a local remedy before the African Commission on Human and Peoples' Rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100003&lng=en&nrm=iso&tlng=en Article 56(5) of the African Charter on Human and Peoples' Rights provides that the African Commission on Human and Peoples' Rights will admit individual communications only if, inter alia, they '[a]re sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged'. The African Commission has developed rich jurisprudence around article 56(5). One of the issues that has started to emerge before the African Commission is whether or not a private prosecution is a domestic remedy that has to be exhausted before a person may file a communication before the Commission. Relying on the jurisprudence of the Human Rights Committee, the Committee against Torture, the Committee on the Elimination of All Forms ofRacial Discrimination, the Inter-American Court ofHuman Rights and the European Court of Human Rights, the author suggests some of the ways in which the African Commission could deal with the issue of private prosecution as a domestic remedy. Specifically, the author argues that in order to determine whether or not a private prosecution is an effective remedy the African Commission may have to consider factors such as the person with locus standi to institute a private prosecution; funding to conduct a private prosecution; and how the public prosecutor has exercised or is likely to exercise the power to intervene in private prosecutions. <![CDATA[<b>Improving the administration of justice by military courts in Africa: An appraisal of the jurisprudence of the African Commission on Human and Peoples' Rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100004&lng=en&nrm=iso&tlng=en The African Commission on Human and Peoples' Rights was established to protect and promote human and peoples' rights on the African continent. This mandate extends to protecting and promoting human rights in the administration of justice by all organs that exercise judicial power, including military courts. In the execution of its mandate the African Commission has developed important jurisprudence on different aspects concerning the administration of justice by military courts. In this jurisprudence, the African Commission has expounded on what constitutes a violation of the African Charter on Human and Peoples' Rights and how military courts should administer justice in a manner that conforms to internationally-agreed standards, especially those relating to the right to a fair trial. Through desk review, the contribution appraises this jurisprudence. In analysing this jurisprudence, the article tries to draw a comparison, especially with the jurisprudence of the Human Rights Committee and other UN-established initiatives. It is argued that although the African Commission has done fairly well in interpreting the relevant provisions of the African Charter and in laying down principles and rules that should be followed by military courts in administering justice, there is still much the Commission can do to improve the administration of justice through military courts in Africa. <![CDATA[<b>No second chance for first impressions: The first amicable settlement under the African Children's Charter</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100005&lng=en&nrm=iso&tlng=en In 2016 the African Children's Committee dealt with its first amicable settlement under the African Children's Charter. The article discusses amicable settlements within the African human rights system, and analyses Government of Malawi v Institute for Human Rights and Development in Africa - the first amicable settlement dealt by the African Children's Committee. Some thematic reflections are proffered relating to the definition of a child, child marriage, the notion of 'serious and massive violations' of children's rights, reparations, the mandate to initiate an amicable settlement, and the follow-up to the amicable settlement reached. <![CDATA[<b>The International Criminal Court and Africa: A fractious relationship assessed</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100006&lng=en&nrm=iso&tlng=en For many African states, the latest iteration of Western colonialism is the International Criminal Court. All the Court's prosecutions have involved African conflicts, and the continent's initially strong support for its creation has in recent years notably weakened. Leaders from Museveni to Kenyatta and Zuma to Bashir have excoriated the Court for its partiality, and only a change of government in The Gambia reversed a serious threat to quit its jurisdiction. Under pressure from Burundi and South Africa, the African Union has made increasingly militant noises about a mass withdrawal of member states. How should blame be apportioned for the turbulence of this relationship between the Court and the current generation of African leaders? Where does it leave a continent blighted by conflict, egregious human rights abuses and perceptions of the impunity of the 'big man' at the top? A research project, funded by the British Academy, has examined attitudes in civil society in Uganda and Kenya towards the ICC and asked whether human rights abuses could be effectively addressed by any other means. Researchers from three universities in Kenya, Uganda and the UK have interviewed judges, lawyers, NGOs, journalists and others about the ICC, domestic or regional forms of 'justice' (such as the putative African Court of Justice and Human Rights) and other transitional post-conflict mechanisms. The findings suggest that there is a high level of frustration with the performance of the ICC and, specifically, the Office of the Prosecutor. The article argues that although there is no one common denominator in the failed prosecutions, the ICC's strategy has too often yielded the initiative to long-serving leaders adept at retaining power and that, while state parties see little hope of reforming the ICC and favour an 'Africanist solution to African problems', there is little agreement on what form that should take. <![CDATA[<b>Twelve years of judicial cooperation between the Democratic Republic of the Congo and the International Criminal Court: Have expectations been met?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100007&lng=en&nrm=iso&tlng=en The Democratic Republic of the Congo is a party to the Rome Statute. Unable to deal with past serious violations of human rights the country decided formally to refer the situation to the International Criminal Court. Based on article 54(3)(c) of the Rome Statute a judicial cooperation agreement was signed between the DRC and the ICC in 2004. As a result six cases have been prosecuted. The research relied on legislation, literature and empirical fieldwork as its sources of information. To collect data, 29 key informants were interviewed and three focus group discussions were held. After a data analysis the following results were found. Thirteen key informants and participants in the focus group appreciated the iCC's jurisdiction over international crimes and its complementarity to the Congolese judicial system as it brought some relief in the fight against impunity considering the lack of political will on the part of the government to prosecute alleged perpetrators. Eleven key informants and participants in the focus group revealed that the ICC was selective as it prosecuted some perpetrators and freed others (mostly the leaders). Six key informants and participants in the focus group noted that the achievements of the ICC were below the expectations of the population due to the prolonged nature of the proceedings. Six key informants regretted the fact that the ICC does not have retroactive jurisdiction for crimes committed in the DRC before the entry into force of the Rome Statute. Therefore, the study recommends that the ICC should avoid selective justice in prosecuting persons bearing the greatest responsibility. The ICC must also make an effort to prevent further delays in proceedings and avoid long trials in order to meet Congolese expectations and, therefore, restore its credibility and avoid frustration on the part of victims. <![CDATA[<b>The effectiveness of market-based initiatives for regulating development projects by multinational corporations in Africa with regard to human rights and environmental abuses</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100008&lng=en&nrm=iso&tlng=en This article analyses market-based initiatives for ensuring compliance by multinationals in Africa with specific standards, such as standards established by international financial institutions such as the International Finance Corporation, the World Bank as well as the Equator Principles and self-regulatory standards incorporated by multinationals into their operations. These initiatives are described as market-related initiatives because non-compliance could have a direct effect on a corporation's social licence to operate or its economic position in the international market. In other words, in general these initiatives involve measures that are voluntary and, strictly speaking, are not legally required, but which are complied with by corporations because of possible negative consequences associated with non-compliance. The initiatives discussed in this article include voluntary corporate social responsibility standards. The article further demonstrates how these initiatives possibly could be more effective in regulating multinational corporate activities on the continent as corporations generally seem more willing to comply with standards where non-compliance has a negative impact on the corporation's social and economic position. <![CDATA[<b>Students' academic freedom in African universities and democratic enhancement</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100009&lng=en&nrm=iso&tlng=en This article makes a case for the need to recognise students' right to academic freedom as a necessary and vital component in the academic freedom matrix in addition to that of the university and academics. It seeks to affirm this position by exposing the various categories of rights that students are entitled to enjoy on and off campus. The conclusion reached is that the academic freedom of the three actors (university, academics, students) are indivisible, interdependent and interconnected; and that the suppression of students' right to academic freedom has the consequence of denying them the right to engage democratically on the university campus which could spill over into their involvement in realpolitik in the real world. <![CDATA[<b>Digital activism and free expression in Uganda</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100010&lng=en&nrm=iso&tlng=en In recent years in Africa there has been increasing use of digital technologies in terms of political and social activism. In Uganda this takes the form of text messaging, social media activism, blogging and, in some cases, hacktivism. This article examines digital activism in Uganda in light of the guarantee of freedom of expression under international instruments and the Ugandan Constitution. The article begins with an analysis of international and regional instruments that buttress digital activism through their enunciations regarding freedom of expression. The article then takes a critical look at a number of laws, such as the Computer Misuse Act, the Anti-Terrorism Act and the Regulation of Interception of Communications Act, that directly or indirectly restrict digital activism. The article argues that for free expression to be fully exercised in the online environment, laws and policies with provisions in conflict with the Constitution and international instruments will have to be amended or abolished. <![CDATA[<b>Historical perspective on the place of international human rights treaties in the legal system of Lesotho: Moving beyond the monist-dualist dichotomy</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100011&lng=en&nrm=iso&tlng=en This article reviews the relationship between international law and domestic law in the legal system of Lesotho. It explores the theories of monism and dualism and their usefulness in the protection of human rights in the legal system of Lesotho. It is argued that while Lesotho traditionally has been categorised as dualist, its conduct from before independence to date is not fully supportive of the tenets of this theory. This status is illustrated through a discussion of Lesotho's approach to international law during its territorial disputes with South Africa, and its attitude towards international instruments ratified both by the United Kingdom on behalf of Lesotho during the time it was a British Protectorate and after independence. The article also analyses the application and rejection of customary international law and international treaties by the courts of Lesotho. On the basis of this analysis it is concluded that the monist-dualist dichotomy no longer is useful in the protection of human rights as reflected in the courts' emphasis that Lesotho has to comply with its international human rights obligations. It is therefore recommended that the dichotomisation be discarded in favour of human rights protection regardless of whether the human rights norms are contained in international or in domestic law. <![CDATA[<b>Land-grabbing and the right to adequate food in Ethiopia</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100012&lng=en&nrm=iso&tlng=en The post-2008 global land rush was mainly targeted at Africa. With its weak system of governance and abundant arable land and water resources, Ethiopia has been and remains one of the hotspots for land-grabbing in Africa. Land-grabbing has various negative consequences for the human rights of rural communities. Due to the link between food security and land-grabbing, the right to adequate food is the human right most affected. The right to adequate food requires states to refrain from depriving people of access to natural resources that they use to feed themselves; this includes land and water. Although the right to food is progressively realised, the duty not to take retrogressive measures is immediate. As the custodian of the land under the 1995 Constitution the Ethiopian government has since directly concluded deals with investors, displaced communities, and given away land previously used by Ethiopian farmers to the new foreign lessees. Since land-grabbing mainly affects the agrarian rural community, the article analyses the phenomenon of land-grabbing against the type of agriculture practised in Ethiopia, climate change and coping mechanisms of communities, and the livelihood of pastoralists and indigenous people. It demonstrates how land-grabbing is antithetical to the right to adequate food in the context of Ethiopia. <![CDATA[<b>Human rights violations of persons with albinism in Tanzania: The case of children in temporary holding shelters</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100013&lng=en&nrm=iso&tlng=en Albinism is a genetic condition that occurs in people of all races and in all parts of the world. In Tanzania, and in many other places where it occurs, children living with albinism constantly are subjected to discrimination, stigmatisation, persecution and ridicule. However, the most disturbing phenomenon is the mindless killing of these children. The threat of being murdered forces some of these children to flee from their homes and communities. In an attempt to address the situation and to protect these children, the Tanzanian government has established temporary holding shelters. This article explores the challenges faced by children at these temporary holding shelters and the extent to which their rights are violated. Despite Tanzania's ratification of the 1989 UN Convention on the Rights of the Child in 1991, which compels it to prevent violence against children and to uphold the right of all children to human dignity and physical integrity, human rights violations against these children abound. It is evident that the Tanzanian government's commitment to protect all children, as required by the Law of the Child Act, is lacking in implementation and effectiveness. The article utilises secondary data obtained through a review of relevant documents. The findings point to a lack of security, care and protection of the children in temporary holding shelters. It is concluded that the Tanzanian government needs to take effective and sustainable steps towards the elimination of all forms of violence against children, generally, and against children with albinism, in particular. The government also is urged to improve the conditions in these shelters in order to uphold the rights of the children residing there as provided for under international as well as domestic law. <![CDATA[<b>Greasing the wheels of legal aid in criminal proceedings in Ghana</b><b>: </b><b>An evaluation of the legal and regulatory framework</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100014&lng=en&nrm=iso&tlng=en The provision of legal aid to deserving indigent accused persons in criminal proceedings in Ghana is fraught with numerous operational challenges. Despite the country's ratification of key international legal instruments on legal aid, its strategies for incorporating the letter and spirit of the right to legal aid in its Constitution and enabling legislations have been problematic. Furthermore, several regulatory drawbacks affect the implementation of the public legal aid schemes, especially in criminal proceedings. Consequently, a large number of accused persons, ignorant of the intricacies of the criminal adjudicatory system which is adversarial in nature, are forced despairingly to defend themselves in person at their peril. This article argues that revamping legal aid and guaranteeing its sustainability in criminal proceedings can be achieved only through a review of the normative structure of the right to legal aid and its implementation framework under the public legal aid schemes. The article concludes that the legal and regulatory frameworks governing the operations of legal aid exhibit serious shortcomings that whittle down the country's limited efforts at enforcing its international obligation to provide state-funded counsel to deserving indigent accused persons. The article adds to the general discourse on the promotion of legal aid in criminal proceedings in Ghana, where the extant scholarship primarily focuses on inadequate funding as the cause of an inefficient system. <![CDATA[<b>A capabilities approach to remedies for systemic resource-related socioeconomic rights violations in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100015&lng=en&nrm=iso&tlng=en The judiciary plays a key role in holding the government accountable for its socio-economic policies. By adhering to certain tenets that underlie both South Africa's transformative Constitution and Sen and Nussbaum's capabilities approach, courts can promote the foundational values of dignity, equality and freedom, broaden participation and ensure accountability. Since government's priorities are most clearly reflected in its budgetary allocations, courts should apply a capabilities-based standard of proportionality review where it is claimed that a socioeconomic right has been violated due to disproportionate resource allocation. In this article, the focus shifts to the implications of adopting a capabilities approach at the remedial phase of adjudication. Given that the South African Constitution demands 'effective' relief where a constitutional right has been infringed, it is argued that efficacy can be assessed by a remedy's ability to realise the capabilities that form the content of the infringed socio-economic right. Furthermore, where socioeconomic rights are infringed upon on a systemic level through unreasonable resource allocation, key principles that inform a capabilities approach to adjudication can be incorporated into the design of structural interdicts to ensure lasting capability realisation and institutional reform. Where all these principles are observed, effective relief can ensue. Finally, the incorporation of these principles into remedial design can help mitigate separation of powers-based concerns that the judiciary lacks the institutional competence and legitimacy required to adjudicate complex, polycentric matters of government resource allocation. <![CDATA[<b>An empirical study of the early cases in the pilot equality courts established in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100016&lng=en&nrm=iso&tlng=en In this article the authors consider the early complaints lodged at the pilot equality courts. Since theirinception the equality courts have been underutilised. These early complaints are considered against three themes relating to effective legislation: (1) the legislature must be realistic; (2) different groups of people will be influenced in different ways by a new law; and (3) Parliament should see to it that its laws are popularised. In conclusion the authors offer recommendations on how the utilisation of the equality courts may be improved, among others that equality court personnel should be adequately trained; one forum should be created where any discrimination-related complaint may be lodged; plain language promotional materials should be developed; the parts of the Act that relate to the promotion of equality must come into force; and the workings of the equality courts should be included in the Life Orientation curriculum in schools. <![CDATA[<b>The right to equality and access to courts for government employees in South Africa: Time to amend the Government Employees Pension Law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100017&lng=en&nrm=iso&tlng=en This article comments on the South African Government Employees Pension Law by highlighting a constitutional defect arising out of the parallel pension regime in the country which has yet to be resolved. Since the 1996 amendments to the Pension Funds Act Law, members of pension funds governed by that Act have enjoyed the advantage of access to a specialised pension tribunal known as the Office of the Pension Funds Adjudicator, whose functions are performed by the Pension Funds Adjudicator. The problem is that members of government funds do not have access to the Office of the Pension Funds Adjudicator nor does any legislation specific to government funds make provision for a similar advantage and benefit. While this article focuses its analysis on the impugned provisions of the Government Employees Pension Law, the arguments advanced against those provisions apply with equal force to legislation establishing other government funds. The article argues that the Government Employees Pension Law is unconstitutional to the extent that it does not afford members of the Government Employees Pension Fund the advantage of and access to the dispute resolution services at the Office of the Pension Funds Adjudicator or a similar tribunal. Although this article concerns itself with the position in South Africa, the constitutional argument is relevant to other countries (in Africa and elsewhere) that have comparable legal regimes in place. <![CDATA[<b>Editorial: Special focus on the functional dimensions of the right to development</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100018&lng=en&nrm=iso&tlng=en This article comments on the South African Government Employees Pension Law by highlighting a constitutional defect arising out of the parallel pension regime in the country which has yet to be resolved. Since the 1996 amendments to the Pension Funds Act Law, members of pension funds governed by that Act have enjoyed the advantage of access to a specialised pension tribunal known as the Office of the Pension Funds Adjudicator, whose functions are performed by the Pension Funds Adjudicator. The problem is that members of government funds do not have access to the Office of the Pension Funds Adjudicator nor does any legislation specific to government funds make provision for a similar advantage and benefit. While this article focuses its analysis on the impugned provisions of the Government Employees Pension Law, the arguments advanced against those provisions apply with equal force to legislation establishing other government funds. The article argues that the Government Employees Pension Law is unconstitutional to the extent that it does not afford members of the Government Employees Pension Fund the advantage of and access to the dispute resolution services at the Office of the Pension Funds Adjudicator or a similar tribunal. Although this article concerns itself with the position in South Africa, the constitutional argument is relevant to other countries (in Africa and elsewhere) that have comparable legal regimes in place. <![CDATA[<b>Systems problem and a pragmatic insight into the right to development governance for Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100019&lng=en&nrm=iso&tlng=en This article draws from a previous publication by the same author and aims to provide an account of the concept of the right to development governance as a rights-based model for development suited to addressing the realities and myriad of development challenges confronting the African continent. In spite of Africa's diverse socio-economic, cultural and geopolitical dynamics, the continent has occupied centre stage in the human rights and development discourse, most often presented in a negative light as the birth place of conflicts and instability, disease, extreme levels of poverty, endemic corruption, democratic insufficiencies, governance malpractices and general decline in an otherwise prosperous world. While efforts to speed up transformation have over the years multiplied at various levels, Africa is reported to be making very slow progress in meeting development goals. The situation necessitates the question: What is the problem? In responding to this question, the article achieves a threefold purpose. First, it demonstrates that the development challenges with which Africa is confronted are a systems problem requiring a rights-based solution in the form of a context-specific model to accelerate improved standards of living and the attainment of human well-being in larger freedom. Second, it illustrates that Africa is retarded in development because of the lack of an adequate model to deliver on the promise to ensure improved living standards for the peoples of the continent. Third, it explores the practical dimensions of the right to development governance as a functional model with the potential to ensure the collective advancement of Africa, which guarantees to impoverished peoples an entitlement to socio-economic and cultural development. <![CDATA[<b>Finding value for the right to development in international law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100020&lng=en&nrm=iso&tlng=en This article explores the value of the right to development declared by the United Nations General Assembly in 1986 in the context of challenges of underdevelopment in sub-Saharan Africa. Declared over 30 years ago, the right to development remains a paper tiger because of its legal unenforceability. Difficulties associated with enforceability are exacerbated by the failure of the Declaration's sponsors to clearly identify the duty bearers relative to the right. The article argues that the juridical status of the right ignores the mutuality between right and duty in human rights discourse and deceives developing states into believing or expecting that developed states would provide the means and resources to develop developing states. It further argues that such disconnect between right and duty is detrimental to attempts at enforcement, especially where the parties involved are sovereign states that act at the international plane principally by consent or consensus. The detachment of the legally enforceable duty from the right weakens the force of international law and, regrettably, validates the Austinian view on international law as international positive morality. Such a scenario not only has undermined the capacity of developing states to take the destiny of their development into their own hands and look within for economic salvation, but also triggered a situation where public officials in these states engage in maladministration and complacent plunder of the common wealth of their countries. Therefore, the current architecture of the right to development needs to be reconstructed so that some uncertain parts of the obligation therein can be weeded out in order to allow for the enforceability of the right. This measure is expected to infuse some sanity into the human rights discourse and more responsible conduct in developing states. <![CDATA[<b>A call for a 'right to development'-informed pan-Africanism in the twenty-first century</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100021&lng=en&nrm=iso&tlng=en The pan-Africanism ideology originated from the subjugation of the African people, which manifested itself through slavery, and was followed by the foreign domination of the African development space. In addressing the problem, intellectuals (both in the diaspora and in Africa) came together through various activities that led to the adoption of the Organisation of African Unity in 1963, and informed its transition into the African Union in 2002. Notwithstanding the apparent independence and unity of the continent, Africa's aspiration for freedom, equality, justice and development remains a dream. This article aims to demonstrate that pan-Africanism remains relevant to reclaim Africa's rightful place in the world. To this end it argues that the 'right to development' concept can lead to the development of Africa. It submits that a 'right to development'-informed pan-Africanism would lead to development of the African people. Pan-Africanism should be geared towards the realisation of development recognised as a human right as codified in the African Charter on Human and Peoples' Rights and in other international instruments. This approach calls on Western powers and international institutions that shape the global development agenda to ensure that the international environment is conducive to the development of all, including Africans. Furthermore, it urges Western powers to respect the sovereignty of African countries over their wealth and natural resources. It also calls on African leaders to adopt a people-centred constitutionalism, to cooperate with each other and to adopt responsive national policies for the well-being of the African peoples and to establish an environment conducive to a vibrant civil society. <![CDATA[<b>The Sustainable Development Goals and the rights-based approach to development: Compatible or missing the point?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100022&lng=en&nrm=iso&tlng=en The Millennium Development Goals have been criticised for the limited role that human rights have played in their design and implementation. When the timeline for the achievement of the MDGs drew near the attention turned to formulating a new development compact that would succeed them. In order to address the critiques of the MDGs a rights-based approach to development has been proposed to form the basis for the formulation, implementation and monitoring of the new set of goals. With the 2030 Agenda for Sustainable Development, and the 17 Sustainable Development Goals, adopted on 25 September 2015, it falls to be questioned to what extent the 2030 Agenda incorporates human rights in all stages of development programming. This article undertakes such an examination. To this end the article analyses to what extent the SDG framework is in line with the principles of a rights-based approach to development, namely, equality and non-discrimination, accountability, participation, empowerment and the interrelatedness of human rights. It concludes that although the 2030 Agenda in some areas is compatible with the principles of a rights-based approach to development, especially the principle of participation, more should be done with respect to the implementation, monitoring and evaluation of the SDGs to ensure that the full spectrum of advantages offered under a rights-based approach to development can be achieved. <![CDATA[<b>Reviving the right to development within the multilateral trade framework affecting (African) countries to actualise Agenda 2063</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100023&lng=en&nrm=iso&tlng=en The African Union through Agenda 2063 aspires to build 'a prosperous Africa based on inclusive growth and sustainable development' and to ensure that Africa becomes 'a strong, united, resilient and influential global player and partner'. Similarly, the World Trade Organization aims to ensure that member states through the multilateral trade system can 'raise standards of living', 'ensure full employment' and 'sustainable development'. Both institutions seem to be aware that African countries are underdeveloped and require assistance to address the cohort of political and socio-economic challenges, and the implementation of particular practices and policies in order for the continent to be a force in the multilateral trade arena. Indeed, the unequal economic relations between states in the multilateral trading system add to the afflictions of African countries. The position of the right to development as a recognised human right has become an acceptable and settled notion. This article aims to provide and identify possible ways whereby the international community and African countries can rescue the right to development from the 'conceptual mudslinging and political quicks, in which it has been mired all these years' in the trade discipline. Indeed, trade goes hand-in-hand with development but 'is not the sole determinant for development', and there is a need to revive the right to development in the multilateral trade framework as trade is a valuable tool for actualising Africa's Agenda 2063 and the development of African countries. The article provides a succinct overview of the right to development and particular multilateral trade practices, programmes and policies and puts forward an argument of how Africa's attempt to address its economic, political and social ills can be addressed through Agenda 2063. <![CDATA[<b>The right to development, transformative constitutionalism and radical transformation in South Africa: Post-colonial and de-colonial reflections</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100024&lng=en&nrm=iso&tlng=en This article suggests that currently insufficient theorisation exists of what should constitute radical transformation in South Africa and whether the discourse on transformative constitutionalism and the right to development are capable of living up to the expectations of radical transformation. The point of departure should be radical transformation which in turn must inform the content of both transformative constitutionalism and the right to development. The central question that the article explores is whether the notion of transformative constitutionalism, read in conjunction with and as the concretisation of the right to development, has the capacity to bring about radical transformation in South Africa. <![CDATA[<b>Reconceptualising the first African Women's Protocol case to work for <i>all </i>women</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100025&lng=en&nrm=iso&tlng=en The ECOWAS Court of Justice is the first human rights body to find a violation of the African region's women's rights treaty, the African Women's Protocol. Nearly 15 years after the adoption of this Protocol, the ECOWAS Court determined in Dorothy Njemanze & 3 Others v Nigeria that the Nigerian state violated the rights of women because state agents assumed they were sex workers and, therefore, discriminated against them and treated them violently. Significantly, the Court determined that the state violated the women's rights to dignity, as well as their right not to be arbitrarily detained and arrested. However, a feminist analysis of this case reveals that the ECOWAS Court's judgment protected women who are not sex workers at the expense of sex workers' rights. This article critically examines how the ECOWAS Court developed its jurisdiction in this case, with a particular focus on how the Court's strategic avoidance of the topic of sex work resulted in a judgment that is harmful to sex workers. The article reconceptualises the Court's reasoning to provide alternative approaches for interpreting women's rights, especially sex workers' rights. By providing the ECOWAS Court judgment with an alternative approach, which includes an analysis of the right to work and the right to dignity, through the application of the African Women's Protocol and other human rights instruments, the article provides a feminist and inclusive perspective on how women's rights could be approached in future judgments and litigation efforts. <![CDATA[<b>The constitutionality of the Fee Exemption Regulations in South African schools: A critical analysis of <i>Michelle Saffer v Head of Department, Western Cape Education Department</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000100026&lng=en&nrm=iso&tlng=en This article examines the Western Cape High Court decision in Michelle Saffer v Head of Department, Western Cape Education Department. This case explores crucial issues prevalent in contemporary society surrounding custodial parents, who primarily are women, and confirms the nature of the burdens associated with their roles with respect to their children post-divorce. The article argues that section 40(1) of the South African Schools Act and Regulation 6(2) of the Fee Exemption Regulations infringe the dignity of custodial parents and indirectly preclude the children of divorced parents from realising their right to education. It further asserts that Le Grange J failed to take sufficient account of the underlying inequitable gender power dynamic that exists between custodial parents and non-custodial parents, and that the Fee Exemption Regulations place an unnecessary and discriminatory burden on custodial mothers who no longer are married. For this reason, section 40(1) of the Schools Act and Regulation 6(2) are shown to be unconstitutional and therefore invalid to the extent of its unconstitutionality.