Scielo RSS <![CDATA[African Human Rights Law Journal]]> vol. 16 num. 2 lang. pt <![CDATA[SciELO Logo]]> <![CDATA[<b>Interpretation and international law in South African courts: The Supreme Court of Appeal and the Al Bashir saga</b>]]> The South African Constitution is regarded as an international-law friendly constitution. Much has been written about the willingness ofSouth African courts to refer to international law instruments when interpreting and applying South African law. Yet, the extent to which South African courts have applied recognised tools and methods for the identification and interpretation of international law has not similarly been considered. The recent case concerning South Africa's decision not to arrest the President of Sudan, Al Bashir, highlights the importance of a proper approach to the interpretation and identification of international law by South African courts. In this case, the Supreme Court of Appeal had to consider the complex interrelationships between two treaties, namely, the AU South Africa host country agreement and the Rome Statute of the International Criminal Court, customary international law and a UN Security Council resolution. The objective of the article is not to determine the correctness or not of the decision. Rather, the article is aimed at assessing the Court's approach to the methodological questions of interpretation and identification of international law. The article, therefore, evaluates whether the rules of interpretation as contained in the Vienna Convention on the Law of Treaties have been applied by the Court in searching for the meaning of the instruments under consideration. It also assesses whether the relationship between the various sources of international law at play in the Al Bashir matter is adequately considered. <![CDATA[<b>Laws in conflict: The relationship between human rights and international humanitarian law under the African Charter on Human and Peoples' Rights</b>]]> Most armed conflicts today take place in Africa and it is increasingly African actors who are engaged in peacekeeping on the continent, yet scholarly writing on the regulation of these conflicts lags behind. One area where this is particularly true concerns sanctioning violations of international humanitarian law. This has long been difficult, given the tendency of domestic systems to close ranks and insulate their citizens from legal action. To provide at least some forum for justice in this situation, regional human rights bodies increasingly deal with rights violations even in situations of war, raising questions about their mandate and the relationship between human rights and humanitarian law. In the European and American context, these questions have already been the subject of considerable academic writing, but the same is not true for Africa. This article seeks to fill this gap. It first situates the existing approach of the major pan-African human rights institutions to international humanitarian law within the broader global debate. As a second step, it argues that an interpretive approach which takes international humanitarian law into consideration when interpreting rights in the African Charter provides the best approach to this question in the African context. <![CDATA[<b>Assessing enabling rights: Striking similarities in troubling implementation of the rights to protest and access to information in South Africa</b>]]> Many human rights have a dual value in that their realisation is both an important end, and a means to enable the realisation of other rights. The effective implementation of these kinds of rights is thus particularly important for advancing rights-based democracy. However, in practice, the implementation of such rights is often problematic. The article examines access to information and protest as examples of such 'enabling' rights. Drawing on the experience of communities and civil society organisations, it identifies and discusses some striking similarities in the way in which the legislation promulgated to give effect to these two rights in South Africa is being implemented, and argues that the problematic implementation of legislation is having the effect of thwarting these rights, rather than promoting them. Further, it argues that the existence of such striking similarities may point to a more systemic problem of civil and political rights failing to enable the realisation of socio-economic rights. <![CDATA[<b>Boko Haram and sexual terrorism: The conspiracy of silence of the Nigerian anti-terrorism laws</b>]]> Over the centuries rape has been used effectively by terrorist groups as a weapon of terror. In this context, women's bodies are used by terrorists as battlegrounds, serving the dual purpose of spoils of war and a means of terrorising the populace. The Nigerian fundamentalist group, Boko Haram, has employed sexual terrorism in its campaign of terror against the Nigerian state and its people. Boko Haram has since 2013 embraced this tactic, which has led to the abduction of hundreds of women and girls, the most outrageous being the abduction of 276 Chibok girls' that has attracted global concern. The Nigerian government has responded to the upsurge of Boko Haram terrorism by enacting the Terrorism Prevention Act, 2011, amended by the Terrorism Prevention (Amendment) Act, 2013, aimed at criminalising terrorist activities. Unfortunately, this Act is silent on the use of rape to further the ends of terrorist groups. Relying on media reports and interviews, the article examines what appears to be a conspiracy of silence by Nigerian anti-terror legislation regarding the use of rape as a weapon in the hands of terrorists. By not making any reference to the use of rape as a terror tactic, the Act appears either to have glossed over the possibility of rape being used by terrorists, or chosen to ignore it in line with the culture of silence surrounding rape in Nigeria. The article concludes that the Terrorism Prevention Act urgently needs to be amended in order to criminalise sexual assaults targeted at women and young girls by Boko Haram and other terror groups in Nigeria, so as to adequately address the perception of acts of rape as extensions of terrorist activities. <![CDATA[<b>The admissibility in Namibia of evidence obtained through human rights violations</b>]]> Unlike the case in other African countries, such as South Africa, Kenya and Zimbabwe, the Namibian Constitution does not require courts to exclude evidence obtained through human rights violations if the admission of that evidence would render the trial unfair or would be detrimental to the administration of justice. The only article in the Namibian Constitution dealing with the issue of evidence is article 12(1)(b), which provides that '[n]o persons shall be compelled to give testimony against themselves or their spouses, who shall include partners in a marriage by customary law, and no court shall admit in evidence against such persons' testimony which has been obtained from such persons in violation of article 8(2)(b) hereof'. However, Namibian courts have invoked the criteria (set out in the Constitutions of South Africa, Kenya and Zimbabwe) in determining whether or not to admit evidence obtained through human rights violations. This article deals with the jurisprudence emanating from Namibian courts dealing with evidence obtained through human rights violations, and highlights the challenges that courts have grappled with in dealing with such evidence. The issues discussed are the relevant provisions relating to the admission of evidence obtained through violating human rights; the tests courts have developed to decide whether or not to admit evidence obtained through human rights violations; the right to remain silent at the time of arrest; the accused's right not to incriminate himself at the trial; the right to consult a lawyer before making a statement; and evidence obtained through violating the rights to freedom from torture, cruel, inhuman or degrading treatment. It is recommended that Namibia may have to amend its Constitution to provide, inter alia, for criteria to be used in deciding whether or not to admit evidence obtained through human rights violations. <![CDATA[<b>Child justice administration in the Nigerian Child Rights Act: Lessons from South Africa</b>]]> Child justice administration is critical in any legal system. This is due to a general recognition of the vulnerability of children. As such, they must be treated with much care and should be distinguished from adults in the handling of their legal matters. Thus, special legal regimes are put in place to protect the rights of this special class of persons. In Nigeria, the Children and Young Persons Act, together with other related criminal laws, used to be the main statute on child justice administration. However, their inadequacies, the fact that they were unco-ordinated and that large numbers of children technically fell outside their scope, in 2003 led to the enactment of the Nigerian Child Rights Act. The goal of the Child Rights Act was to remedy some of the former injustices against children who are either in conflict with the law or in need of care and protection. The article argues that even this new law does not provide adequate protection for the rights of children as they are still being tried in conventional court environments by the same judges that handle adult criminal cases. The article, therefore, critically examines child justice administration under the regimes of the Child Rights Act, the Children and Young Persons Act and other relevant laws. It argues that, in spite of the lofty provisions of the Child Rights Act, more needs to be done for the protection of the rights of the child. As such, one can gain vital insights from the South African child justice administration regime which, for example, has separate civil and criminal jurisdictions for civil and criminal cases involving children. <![CDATA[<b>A comparison between the position of child marriage 'victims' and child soldiers: Towards a nuanced approach</b>]]> This article aims to juxtapose and draw analogies between the legal position of children affected by child marriage and child soldiers. It is argued that childhood is not an undifferentiated status or category. We do not subscribe to a catch-all approach with regard to the accountability of children or those who exploit children. It is vital to make distinctions according to the age and maturity of a child, whether in the context of child soldiering or child marriage. This is the practice in most domestic legal systems and has to a large extent been followed in international instruments. This approach might seem to diverge from the so-called 'straight 18 approach' in favour of standardisation of the minimum age at which children can enter into the armed forces or enter into marriage. In our view, the 'standardisation' approach should only be followed with regard to setting the age for the definition of children at 18 years. Within the category 'children', however, we support a sliding scale approach in dealing with child soldiers and children in early marriage, an approach which will vary according to factors such as the maturity of the child, the cultural context, domestic laws and legal criteria such as voluntariness. Whereas we emphasise that children under the age of seven do not possess criminal capacity and do not have the ability to give genuine consent to marriage, the position of children over the age of seven is more complex. We argue that children on the verge of adulthood should not be stigmatised for voluntarily entering into marriage. <![CDATA[<b>Stopping mass atrocities in Africa and the Pretoria Principles: Triggering military intervention in Darfur (Sudan) and Libya under article 4(h) of the Constitutive Act of the African Union</b>]]> This article examines article 4(h) of the Constitutive Act of the African Union, which provides for military intervention in an AU member state by the AU to stop mass atrocities, namely, serious human rights violations constitutive of international crimes. The article identifies a five-prong, sequential and cumulative test as applied in Darfur (Sudan) and Libya. This test is largely based on article 4(h), the Pretoria Principles on Ending Mass Atrocities Pursuant to Article 4(h) of the Constitutive Act of the African Union, and related sources. Although not binding, the Pretoria Principles, drafted and adopted by a group of experts following a conference convened by the University of Pretoria in December 2012, provide a complete set of guidelines to apply and implement article 4(h). In applying this test, it is concluded that article 4(h) should have been applied and is still applicable in Darfur and Libya. <![CDATA[<b>The story of a legal transplant: The right to free, prior and informed consent in sub-Saharan Africa</b>]]> Land grabs in sub-Saharan Africa have in the recent past attracted considerable attention. Different strategies for confronting the problem are being discussed; one of them is the right to free, prior and informed consent (FPIC). This right seeks to balance power asymmetries between foreign corporations or the state and local communities by ensuring their participation in matters concerning their land. The article argues that FPIC is still in the vertical legal transplantation process in sub-Saharan Africa. Legal transplantation has two components: appropriation and translation. It is a multi-pronged process, in which FPIC is transplanted from the global to the (sub)-regional or national level, mostly by states. This is either the basis for the transplantation to the local level or the norm is directly transferred from the global to the local level. The examination of the legal transplantation process includes an analysis of the current state of recognition in sub-Saharan Africa. Besides that, it will be assessed whether diverging understandings have been developed. Moreover, the practical and structural limits of FPIC, which could constitute an obstacle to the full transplantation of FPIC, will be assessed. These include power inequalities within communities as well as the structural inequalities of the global order. Whether the legal transplantation will succeed ultimately depends on the communities in question. <![CDATA[<b>Human rights developments in the African Union during 2015</b>]]> There were few significant normative developments in the African human rights system during 2015. Draft protocols on the death penalty and the right to nationality were adopted by the African Commission, but whether these will be adopted eventually by the African Union remains to be seen. The Commission also adopted soft law instruments, such as a General Comment on the right to life. The Commission made a small dent in the backlog of communications by adopting a number of merits decisions, including one decision in which it found that hanging as a method of executing the death penalty violated the African Charter. Other merits decisions dealt with the right to nationality and gender-based violence. Despite an increasing docket, the African Court handed down only one merits judgment in 2015. The African Children's Committee made some progress in examining state reports, while some attempts were made to revive the African Peer Review Mechanism, which has not in recent years made much progress in its mandate. The dominant challenge facing the African human rights system in 2015 was the reaction of the AU Executive Council to the granting by the African Commission of observer status to the Coalition of African Lesbians. The directives by the Executive Council clearly challenged the independence of the African Commission as an autonomous organ of the African Union. <![CDATA[<b><em>Mudzuru & Another v The Minister of Justice, Legal and Parliamentary Affairs & 2 Others:</em> A review</b>]]> This article reviews the recent judgment of the Constitutional Court of Zimbabwe in Mudzuru & Another v The Minister of Justice, Legal and Parliamentary Affairs & 2 Others, which has been hailed with acclaim worldwide. The review highlights three areas where the judgment makes a significant jurisprudential contribution: first, with respect to the issue of standing to bring a constitutional challenge under the Zimbabwean Constitution; second, with respect to the use of international treaty law and foreign case law; and third, in its purposive approach to the interpretation of the relevant constitutional provisions relating to child marriage. The regional impact of the decision is also considered in relation to recent litigation in Tanzania.