Scielo RSS <![CDATA[African Human Rights Law Journal]]> http://www.scielo.org.za/rss.php?pid=1996-209620080002&lang= vol. 8 num. 2 lang. <![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=S1996-20962008000200001&lng=&nrm=iso&tlng= <![CDATA[<b>A few reflections on the role of courts, government, the legal profession, universities, the media and civil society in a constitutional democracy</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200002&lng=&nrm=iso&tlng= This contribution is a reworked version of a lecture presented at the Faculty of Law, University of Pretoria, commemorating the University's centenary celebrations. Contrasting the pre- and post-constitutional legal landscapes, Justice Van der Westhuizen emphasises that political meddling in judicial affairs, previously left in a legal void, is now very clearly circumscribed by the constitutionally-entrenched principles of separation of powers and independence of the judiciary. Justice Van der Westhuizen proceeds to analyse aspects of the relationship between the courts, on the one hand, and the govenment, the legal profession, universities, the media and civil society, on the other hand. The relationship between courts and the government is fraught with tension, but so far the executive has readily complied with almost all court decisions, and the court has steered a cautious course when it comes to interference in the legislature. The importance of the legal profession, both inside and outside courtrooms, is underlined, and the crucial role of universities in fostering free speech is emphasised in the contribution. Turning to the media, Justice Van der Westhuizen acknowledges the importance of an informed public, and responsible reporting. He takes the media to task for some irresponsible and factually incorrect reporting. In conclusion, the author emphasises the important role of civil society and of continuous debate, analysis and criticism in the attainment of 'our constitutional project'. <![CDATA[<b>The justiciability of human rights in the Federal Democratic Republic of Ethiopia</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200003&lng=&nrm=iso&tlng= Making human rights domestically justiciable by clearly defining their content and subjecting them to judicial and quasi-judicial mechanisms of enforcement is important for their effective protection. Although a legal framework for the justiciability of human rights exists in Ethiopia, the judicial practice reveals some problems. Lawyers and courts tend to avoid invoking and applying human rights provisions in the Constitution of the Federal Democratic Republic of Ethiopia and ratified international human rights treaties which form part of the law of the land. There is confusion regarding the mandate of the House of Federation to 'interpret' the Constitution. Procedurally, the basic laws of the country limit 'standing' in human rights litigation to those with a vested interest, failing to make public interest litigation possible and hence limiting the justiciability of rights. The article examines the justiciability of human rights in Ethiopia from a substantive, jurisdictional and procedural perspective. It juxtaposes law and practice in an attempt to show the extent to which rights are justiciable in the Ethiopian legal system. <![CDATA[<b>In search of philosophical justifications and suitable models for the horizontal application of human rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200004&lng=&nrm=iso&tlng= This article critiques the dominant view that human rights do not bind non-state actors. It ties the dominant discourse to the natural rights theory and, to a lesser extent, the positivist school of thought. A critique of these traditions reveals that there are no insurmountable philosophical barriers to recognising the application of human rights to non-state actors and the private sphere. Drawing on Marxist and feminist philosophical schools, as well as African conceptions of human rights, it argues that the view that non-state actors should be bound by human rights can be defended philosophically. The article ends with an analysis of the various options through which human rights obligations of non-state actors may be enforced within a domestic constitutional framework. <![CDATA[<b>The drafting of the Constitution of Swaziland, 2005</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200005&lng=&nrm=iso&tlng= Swaziland gained independence from the United Kingdom on 6 September 1968, under a written, Westminster-type Constitution (the Independence Constitution). This Constitution was unlawfully repealed by His Majesty King Sobhuza II on 12 April 1973, promising that all the people of Swaziland would craft their Constitution in complete liberty and freedom, without outside pressure. In pursuit of this goal, a number of commissions were established to solicit the citizens' views on the type of constitution they wanted to govern them. Because the Independence Constitution was abrogated on the ground that it was imposed by departing colonial masters, it was expected that the Constitution to be drawn after independence would truly reflect the aspirations of all the people. This article, therefore, interrogates the question whether, in light of the wave of constitution making in Africa in the 1990s, the Swaziland constitution-making process fulfilled the requirements of an all-inclusive, participatory, transparent and accountable process. The article examines the independence of the King's appointed constitutional review bodies, given that, in order to produce a credible, legitimate and durable constitution, the review bodies must be as independent from the government as possible. Further, the article looks at the role of the African Commission on Human and Peoples' Rights as well as the Swaziland courts in enhancing a people-driven process. The article concludes that the Swaziland constitution-making process did not herald a departure from the constitutional order that existed prior to the adoption of the Constitution of the Kingdom of Swaziland Act 1 of 2005. Despite the adoption of this Constitution, the Kingdom does not qualify as a constitutional and democratic state with a justiciable bill of rights capable of enforcement by an independent judiciary. <![CDATA[<b>Law, religion and human rights in Africa: Introduction</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200006&lng=&nrm=iso&tlng= Swaziland gained independence from the United Kingdom on 6 September 1968, under a written, Westminster-type Constitution (the Independence Constitution). This Constitution was unlawfully repealed by His Majesty King Sobhuza II on 12 April 1973, promising that all the people of Swaziland would craft their Constitution in complete liberty and freedom, without outside pressure. In pursuit of this goal, a number of commissions were established to solicit the citizens' views on the type of constitution they wanted to govern them. Because the Independence Constitution was abrogated on the ground that it was imposed by departing colonial masters, it was expected that the Constitution to be drawn after independence would truly reflect the aspirations of all the people. This article, therefore, interrogates the question whether, in light of the wave of constitution making in Africa in the 1990s, the Swaziland constitution-making process fulfilled the requirements of an all-inclusive, participatory, transparent and accountable process. The article examines the independence of the King's appointed constitutional review bodies, given that, in order to produce a credible, legitimate and durable constitution, the review bodies must be as independent from the government as possible. Further, the article looks at the role of the African Commission on Human and Peoples' Rights as well as the Swaziland courts in enhancing a people-driven process. The article concludes that the Swaziland constitution-making process did not herald a departure from the constitutional order that existed prior to the adoption of the Constitution of the Kingdom of Swaziland Act 1 of 2005. Despite the adoption of this Constitution, the Kingdom does not qualify as a constitutional and democratic state with a justiciable bill of rights capable of enforcement by an independent judiciary. <![CDATA[<b>The freedoms of religion and culture under the South African Constitution: Do traditional African religions enjoy equal treatment?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200007&lng=&nrm=iso&tlng= This article is concerned with traditional African religions, in particular the belief system of the Pondo people of the Eastern Cape Province in South Africa, in terms of the rights to equal treatment and freedom of religion under that country's 1996 Constitution. The authors begin by describing a ceremonial animal sacrifice performed by a former executive member of South Africa's ruling African National Congress in 2007. This ritual brought to light a strong tendency to confound traditional African religions with culture. Although it is apparent that religious beliefs are treated with greater respect than cultural practices, any supposition that culture is less important than religion is not only alien to traditional African societies, but also contrary to the equality provisions in the Constitution. The paper argues that, as a consequence of being consistently overshadowed by the main monotheistic religions in Africa, Christianity and Islam, traditional religions receive far from equal treatment. Hence, instead of being treated equally, as dictated by the Constitution, traditional religions are perceived as incidents of culture, and are subjected to an implicit value judgment: that they are somehow inferior to 'true' religions, which the West would characterise as monotheistic. Full realisation of the freedoms of religion and culture requires that one be distinguished from the other. In proposing a method to do so, it is argued that culture is broader than religion, for it embraces everything that marks humans as social beings, whereas religion is not a necessary requirement of social life. In framing the argument for equality in the context of culture, the authors argue that constitutional protection of religion is best attained through the symbiosis of community and culture. In this way, the right to culture and, by extension, faith, is exercised through the identity of the group. <![CDATA[<b>Affirmation and celebration of the 'religious Other' in South Africa's constitutional jurisprudence on religious and related rights: Memorial constitutionalism in action?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200008&lng=&nrm=iso&tlng= In this article it is argued that there are examples in South African constitutional jurisprudence on religious and related rights where, in addition to being respected and protected, these rights have indeed and in effect also been promoted and fulfilled as envisaged in section 7(2) of the Constitution. This has been achieved through reliance on a jurisprudence of difference affirming and, indeed, celebrating otherness beyond the confines of mere tolerance or even magnanimous recognition and acceptance of the Other. The said jurisprudence derives its dynamism from memorial constitutionalism which, as is explained, is one of three leitmotivs of significance in constitutional interpretation in South Africa (the other two being transitional and transformative constitutionalism). Memorial constitutionalism understands the South African Constitution as both memory, (still) coming to terms with a notorious past, and promise, along the way towards a (still) to be fulfilled, transformed future. How a jurisprudence of difference feeds into and, indeed, sustains memorial constitutionalism is shown by analysing some selected judgments on guarantees for religious and related rights in the South African Constitution. The examination of relevant case law peaks towards consideration of the Constitutional Court judgment in MEC for Education: KwaZulu-Natal and Others v Pillay and Others 2008 2 BCLR 99 (CC); 2008 1 SA 474 (CC), assessed by the author to be a jurisprudential high point in memorial constitutionalism pertinent to religious and related rights. It is argued, in the final analysis, that recent (especially) Constitutional Court jurisprudence dealing with the assertion of religious and related entitlements, couched as equality claims, has increasingly been interrogating, with transformative rigour, 'mainstream' preferences and prejudices regarding the organisation of societal life, inspired by a desire to proceed beyond - and not again to resurrect - all that used to contribute to and sustain marginalisation of the Other. <![CDATA[<b>Religion and human rights in Namibia</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200009&lng=&nrm=iso&tlng= Namibia is one of the most Christianised countries in Africa. Its Christian roots date back to the early nineteenth century, when the first German and Scandinavian missionaries arrived in the country. Before independence, the churches were radically divided between supporters of the struggle for independence (predominantly mainline black churches), so-called apolitical mainline white English-speaking churches and multi-racial charismatic churches and white Reformed and Pentecostal supporters of the apartheid system. After independence, the state did not interfere with the business of the churches. The threat that a SWAPO government would not honour Christian public holidays in an independent Namibia came to naught. The affluent white churches and new Pentecostal churches remained influential and played a strong role in the rejection of a pro-choice Abortion Act. Many churches also supported the government's (and the Supreme Court's) stance against protecting same-sex relationships. The churches also ignored the fate of the small Jewish community. Christians and other religious communities have experienced privileges not always associated with a secular state. However, in the last two years of President Nujoma's term as President, he declared the government's preferential treatment of the historical churches that supported the struggle (Lutheran, Anglican, Catholic and AME churches). While President Pohamba took a more reconciliatory stance, evangelicals and charismatics lost the privilege to preach on national radio. The churches remain sectarian in their interaction with other vulnerable communities. <![CDATA[<b>Comments on the constitutional protection of religion in Swaziland</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200010&lng=&nrm=iso&tlng= Comparable to the South African legal system, the Swazi legal system has the characteristics of a dual legal system. Though the common law of Swaziland is Roman-Dutch law, Swazi customary law has a firm hold in the Swazi legal system. With a population in the region of 1,2 million, made up of different religious denominations, religion in Swaziland is an important matter. Although Christianity is the majority religion in Swaziland, there has generally been freedom of religion from an early stage. This was recently confirmed in the Constitution of the Kingdom of Swaziland Act 1 of 2005, which came into operation on 8 February 2006. The focus of this presentation is on the fairly new constitutional provisions dealing with freedom of religion in Swaziland. The first part of this contribution consists of a general discussion dealing with the commonalities of and interaction between the South African and Swazi legal systems, as well as certain key elements in the making of the Swazi Constitution. The second part deals with specific constitutional provisions pertaining to religion in general and freedom of religion in particular. The contribution concludes with a few comments on the role the South African constitutional jurisprudence has to play in future Swazi constitutional adjudication. <![CDATA[<b>Religion, law and human rights in post-conflict Liberia</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200011&lng=&nrm=iso&tlng= Liberia has had a turbulent recent history, and today deals with extreme poverty, high crime, ethnic tensions, widespread impunity and corruption. In addition to this, there is a complex and contradictory relationship between law and religion, which further complicates the ongoing efforts towards peace building and reconstruction. This paper aims to highlight the fundamental question of whether certain laws and human rights - in this case, religious or cultural freedom - can or should be actively promoted by the state and by society in such a unique scenario as fragile, post-conflict Liberia. The paper first addresses this question with respect to the country's contradictory dual-justice system, highlighting the problems that arise when the weak state struggles to enforce statutory and human rights law, while much of the population still sees legitimate justice to be rooted in traditional mechanisms, such as trials by ordeal, which oppose these laws. The second section of the paper considers the extent to which all Liberians enjoy religious freedom. It is shown that, while Liberia is de facto a secular state, it is essentially de jure a Christian country. Although there are historically and presently few indications of unrest based strictly on religion, it is argued that there is underlying religious tension that makes it dangerous for the state or society to suggest any major integration of Islam into public life. Some of this tension can be attributed to the growing number of Pentecostal and charismatic churches, which are especially vocal about the encroachment of non-Christians. However, because of Liberia's fragility, it might be the case that promoting religious equality and actively eliminating the Christian bias might cause more harm than good in Liberia today. <![CDATA[<b>Law, religion and human rights in Botswana</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200012&lng=&nrm=iso&tlng= Religion is universally recognised as a fundamental and inalienable right. It comprises a set of common beliefs and practices generally held by a group of people, codified as prayer, ritual, religious law as well as cultural and ancestral traditions and myths. In Botswana, religion plays a significant part in the lives of the majority of people. The constitutional framework within which religion is practised allows freedom of religion and a number of legal provisions exist to protect this freedom. This article appraises the current state of religious freedom in Botswana in the context of constitutionally guaranteed human rights. It concludes that the basic framework established by the Constitution creates a separation of religion and state and provides the enabling environment for the exercise of freedom of religion. Consequently, it has ensured the requisite social harmony not only for continuous development, but also for continuous enjoyment of freedom of religion. <![CDATA[<b>Law, religion and human rights in the Democratic Republic of Congo</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200013&lng=&nrm=iso&tlng= In 2005, the Parliament of the Democratic Republic of Congo (DRC) enacted a new Constitution aimed at establishing democratic rule and replacing the interim Constitution that was enacted after and in line with the resolutions of the inter-Congolese dialogue held at Sun City, South Africa, in 2002 and 2003. The new Constitution was approved by referendum in December 2005. It was promulgated by the President on 18 February 2006 and has since then governed the country. This Constitution provides that the DRC is a democratic country based on the rule of law and respect for human rights. It enshrines the rights of all the people in the country, including the right to freedom of thought, conscience and religion. This article reflects on law, religion and human rights in the DRC. It argues that the right to freedom of religion is closely related to other civil and political rights or fundamental freedoms. This right is subject to the law and is critical for peace, development, and democracy. <![CDATA[<b>Religion, law and human rights in Zimbabwe</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200014&lng=&nrm=iso&tlng= This article is an audit of the interplay between religion, law and human rights in Zimbabwe. It examines key issues such as the legal framework in place for the protection of freedom of conscience, including court jurisprudence, the religious demography of Zimbabwe, and the place of religion in politics, education and the Zimbabwean lifestyle. It also scrutinises the co-existence of ideologically antagonistic practices, such as Pentecostal Christianity versus indigenous beliefs and practices. The article argues that the subject of religion is not a sensitive one in Zimbabwe, hence it does not easily occur in political or general debates. Drawing from his own experiences, the author concludes that, apart from looking after spiritual needs, churches play a significant role in subsidising the state's obligations in the provision of socio-economic rights such as health, education and food. For this reason, churches have an important place in national politics as partners in development. The article concludes by citing problematic areas involving religion and politics, such as child marriages practised in certain religious groupings. The author also notes the harassment of church leaders who express their alarm about the political and economic melt-down of the country. This is another problem bedevilling a somewhat previously tranquil relationship between the state and religion. <![CDATA[<b>Law, religion and human rights in Zambia: The past, present and the practice</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200015&lng=&nrm=iso&tlng= Zambia, a former British colony, is a unitary state with a population of about 10 million inhabitants. Zambia has a political system that embraces both the presidential and parliamentary systems of government. A member of parliament, once elected as such, may be appointed to cabinet. The religious demography is mostly Christian, with the other religions existing side by side. Zambia has a Bill of Rights enshrined in the Constitution, and amongst the rights guaranteed is the right to religion. The right to religion is therefore justiciable. Apart from the constitutionbal gaurantee, the right to religion is also enforced by the Human Rights Commission, the Police Complaints Authority, the Anti-Corruption Commssion, to mention but a few, as well as other institutions put in place by government for the enforcement of human rights. Under the Constitution, African traditional and customary law practices are only recognised to the extent that they do not conflict with written law. Despite this recognition, women and children have remained marginalised. Socio-economic rights are only directives of state principals which are not justiciable. The right to religion is justiciable. The right to religion, coupled with religious scruples and the regulation of the internal affairs of churches, mosques, religious schools and such by the government leaves little to be desired. Christianity is favoured. Zambia was declared a Christian nation by the second republican President, Dr Frederick Chiluba. Practice has shown that, in as much as the Constitution guarantees freeedom of religion, Zambian leaders have more often than not favoured those with an inclination towards Christianity. <![CDATA[<b>Law, religion and human rights in Nigeria</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200016&lng=&nrm=iso&tlng= This paper explores the relationship between law, religion and human rights in Nigeria. The level and intensity of religious strife in Nigeria justify this inquiry, whose aim should be the design of a framework that enables individuals to enjoy the freedom of religion and ensures that religious conflicts are managed in Nigeria's multi-ethnic and multi-religious context. Almost a decade to the introduction of Islamic criminal law in the 12 northern states of Nigeria, there is no longer any doubt that religion is fundamental to the survival of Nigeria. The basic thesis of this paper is that the key to understanding the relationship between law, religion and human rights in Nigeria lies in the unacknowledged dominance of Islam and Christianity, which I characterise as de facto state religions, and the resulting neglect of other religions. It is this reality, its denial and misunderstanding of attendant constitutional obligations that define the relationship between the Nigerian state and religion. <![CDATA[<b>An ice-breaker: State party reports and the 11th session of the African Committee of Experts on the Rights and Welfare of the Child</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962008000200017&lng=&nrm=iso&tlng= During its 11th session, the African Committee of Experts on the Rights and Welfare of the Child held its first Pre-Session for the consideration of state party reports. This update highlights the work of the Committee during this session. While little attention is paid to the proceedings of the 11th session, partly as a result of the fact that the session was short-lived (only three days, composed of open and closed sessions), the procedures for the Pre-Session, as well as the substance of the four reports that were discussed during the Pre-Session, occupy centre stage. In conclusion, it is argued that the whole exercise of the Pre-Session was an ice-breaker, and represents progress in its own right. In looking forward, the importance for the African Children's Committee to draw the necessary lessons from the four state party reports and to chart ways of strengthening the reporting regime is underscored. A number of tentative recommendations are made in this regard.