Scielo RSS <![CDATA[African Human Rights Law Journal]]> http://www.scielo.org.za/rss.php?pid=1996-209620090001&lang=en vol. 9 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=S1996-20962009000100001&lng=en&nrm=iso&tlng=en <![CDATA[<b>The role of the judiciary in the promotion of democracy in Uganda</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100002&lng=en&nrm=iso&tlng=en The article examines the role of the judiciary in the promotion of democracy in Uganda. The article recognises the fact that the democratisation process requires the involvement of many stakeholders, including the judiciary, the legislature and the executive. However, it is argued that the judiciary has a stronger constitutional responsibility for securing the integrity of democracy through the protection of fundamental human rights and the resolution of electoral disputes. It is argued that courts can be utilised as arenas in the struggle for democratisation and the rule of law. Judges must feel compelled to select those values and principles from the Constitution which best promote democracy. Through their boldness, judges can push the government so that it may move forward on the journey of democracy. Judges must accept an aggressive law-making function regarding all categories of human rights. <![CDATA[<b>Correcting the historical asymmetry between rights: The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100003&lng=en&nrm=iso&tlng=en On 10 December 2008, the United Nations General Assembly unanimously adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The Optional Protocol ensures that, just like victims of civil and political rights violations, victims of economic, social and cultural rights violations have access to remedies at the international level. This article examines the Optional Protocol, starting with the historical background and its content, highlighting some of the main issues of controversy. <![CDATA[<b>The right of indigenous peoples to self-determination versus secession: One coin, two faces?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100004&lng=en&nrm=iso&tlng=en The UN Declaration on the Rights of Indigenous Peoples of 13 September 2007 revisits the notion of 'self-determination' which has been the subject of great debate in international law over several decades and which still presents a quandary to international lawyers. As the representatives of indigenous peoples mentioned in a letter to the Working Group on Indigenous Populations in 1993, 'the right of self-determination is the heart and soul of the declaration'. Was the insertion of the right to self-determination in the Declaration intended to be understood in a broader sense as granting the right to indigenous peoples who fulfil certain conditions in the Declaration, to secede? In other words, is the right to 'self-determination', as contained in the Declaration, akin to a right to secession or is it akin to the right to 'self-determination' as contained in the United Nations Charter and in common article 1 of the two international Covenants? The notion of self-determination brings with it several issues for resolution. One such issue is the precise nature of self-determination in international law: Is it determinate or does it evolve over time? Can it be used for purposes of secession where the sovereign state does not guarantee such rights to indigenous people; or can it be used as justification for the secession of indigenous peoples where their right of self-determination within the state has been violated? It is argued in this article that the notion of 'self-determination' as used in the Declaration must be distinguished from 'self-determination' as used in the other international instruments, as a mere declaration cannot modify a norm of international law contained in international conventions and covenants. Since the Declaration does not provide sanctions for non-compliance, the author further argues that, where states do not conform, the sanction may well be the same as that for self-determination in general, amounting to what is much feared by states: the possible dismemberment of a state entity along indigenous lines. To arrive at this, the author analyses the notion of 'self-determination', on the one hand, and the ensuing development into the notion of the right to 'secession', on the other, before concluding that indigenous peoples who do not enjoy their indigenous rights within the state under the scope of internal self-determination, may exercise their right to external self-determination, and in the course of exercising their right to external self-determination, they may make claims to their right of 'secession'. <![CDATA[<b>Inclusion by exclusion? An assessment of the justiciability of socio-economic rights under the 2005 Interim National Constitution of Sudan</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100005&lng=en&nrm=iso&tlng=en Section 22 of the Interim Constitution of Sudan states that socio-economic rights provided for under the Guiding Principles and Directives section are not justiciable. However, section 27(3) of the same Constitution states that every right and freedom provided for in international human rights instruments to which Sudan is a party forms an integral part of the Sudan Bill of Rights. Sudan is a party to, inter alia, the International Covenant on Economic, Social and Cultural Rights, the United Nations Convention on the Rights of the Child, the African Charter on Human and Peoples' Rights and the African Charter on the Rights and Welfare of the Child. Each of these international human rights instruments provides for socio-economic rights. This article is an attempt to establish that, even though socio-economic rights are provided for under the Guiding Principles and Directives section of the Interim Constitution of Sudan, they are nonetheless justiciable. This is because socio-economic rights, excluded from the jurisdiction of the courts via section 22, have in fact been included by virtue of section 27(3). This paper argues that section 22 has been rendered redundant by section 27(3). <![CDATA[<b>Unaccompanied minor refugees and the protection of their socio-economic rights under human rights law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100006&lng=en&nrm=iso&tlng=en This paper reflects the results of a study, the main objective of which was to investigate the practical treatment of unaccompanied minor refugees in Ghana and South Africa, and to explore whether such treatment is in accordance with existing international norms and standards for the protection of refugee children. The study focused on the realisation of children's socio-economic rights in order to measure treatment. The paper seeks to address the obstacles which prevent the proper treatment of unaccompanied minor refugees, and to make recommendations as to how the international community can better regulate the treatment of unaccompanied minor refugees. In essence, this paper aims to investigate whether there is a discrepancy between the rights of child refugees acknowledged in international law, and the situation of unaccompanied minor refugees in practice and, if so, how this can be remedied. The paper seeks to show, through the case studies of Ghana and South Africa, that unaccompanied minor refugees are, to a certain extent, lost in the system. <![CDATA[<b>The Model Law on HIV in Southern Africa: Third World Approaches to International Law insights into a human rights-based approach</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100007&lng=en&nrm=iso&tlng=en Legislating in response to the HIV epidemic is a core element of the global HIV strategy. A human rights-based approach is essential in order to comply with international law as well as to ensure effectiveness. This stands in contrast to punitive measures and criminalisation provisions within HIV legislation. Third World states are entitled to be cautious about a purportedly human rights-based approach and an explicit conformity with international law that have their institutional origins in advancing Western hegemonic interests. The insights of Third World Approaches to International Law (TWAIL) are important in harnessing international human rights law as a necessarily transformative framework that is effective in meeting its globally equitable and social justice character. This is especially so for the Southern African model law on HIV. TWAIL provide critical guidance relating to context and strategy for Southern African states in this regard and the model law, in turn, offers important opportunities in advancing TWAIL objectives in its counter-hegemonic struggle for global equity and justice. The Southern African model law on HIV is strongly compliant with international human rights principles and obligations and relevant to effectively address the nature of the HIV epidemic in the region. The domestic adoption of the model law across Southern African states has the potential to fulfil a strategically crucial transformative role in advancing Third World resistance. <![CDATA[<b>The African Commission on Human and Peoples' Rights and the promotion and protection of refugees' rights</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100008&lng=en&nrm=iso&tlng=en African countries have been host to and have produced refugees for decades. These refugees have fled their countries for various reasons, including political and religious reasons. Many African countries are party to the 1951 United Nations Convention Relating to the Status of Refugees and its additional Protocol of 1967. In 1969, the Organisation of African Unity┬╣ Convention Governing the Specific Aspects of Refugee Problems in Africa, the major instrument that deals with the rights and duties of refugees in Africa, was adopted to address, as the name suggests, the specific aspects of refugee problems in Africa which were not addressed by the 1951 UN Refugee Convention. The African Commission on Human and Peoples' Rights has put in place various measures to promote and protect the rights of refugees in Africa. These measures include the organisation of seminars, seminar paper presentations by commissioners, the appointment of a Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons in Africa, and adopting resolutions on the rights of refugees. The African Commission has also allied itself with various international human rights and humanitarian law organisations to protect the rights of refugees in Africa. It has protected the rights of refugees through its visits to different countries and through its decisions on individual communications. This article observes, inter alia, that, although the African Commission has entertained various communications dealing with the rights of refugees in Africa, the arguments of the parties to those communications as well as the decisions of the Commission have largely focused on the African Charter on Human and Peoples' Rights and not on the 1969 OAU Convention on Refugees. The author recommends that, in matters relating to refugee' rights, the African Commission should always invoke the provisions of the 1969 OAU Refugee Convention in addition to the African Charter and, where need be, reference should be made to other refugee-related instruments. <![CDATA[<b>The right to participate in the government of one's country: An analysis of article 13 of the African Charter on Human and Peoples' Rights in the light of Kenya's 2007 political crisis</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100009&lng=en&nrm=iso&tlng=en The article analyses the right to participate in the government of one's country under article 13 of the African Charter on Human and Peoples' Rights within the context of the post-election crisis experienced in Kenya in December 2007. It is argued that the crisis was a culmination of poor governance and undemocratic practices successively handed down from one political regime to another, from when the country attained its independence. The article maintains that since 1963, many Kenyans have been denied the enjoyment of the right to participate in government through political manipulation, corruption, intimidation, vote rigging, ethnicity and other related vices. Hence, the undermining of democracy and diverse citizenship rights have contributed extensively to the country's governance crisis, the labyrinth of which was exposed by the 2007 postelection events. <![CDATA[<b>The practice on the right to freedom of political participation in Tanzania</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100010&lng=en&nrm=iso&tlng=en This is a review of the impact of the drastic reforms in 1992 on Tanzania's constitutional and socio-political scene, specifically upon the right to freedom of political participation. Using a historical perspective, the article traces the origins of the present failures and successes in this regard in order to test whether the law meets the requirements of constitutionalism and international standards. It debates the issue as to whether in practice the one-party political system allowed free and unimpeded participation in the public decision making. It is argued that this legacy has not been done away with by the post-1992 reforms. It asks the question as to whether the National Electoral Commission is really independent and free of influence and dictation by the government. The amendments of the relevant constitutional provisions and other laws have added to the establishment of the Commission's de jure independence. Nothing has been done by the government to date, following a report of the Presidential Committee on the Constitution (Kisanga Committee) of 1999, to make the Commission de facto independent, even to a limited extent. Similar questions have been asked relating to other elements of political participation, such as the right to effective participation and the need to hold a constitutional conference leading to a new Constitution and allowing independent candidates in all elections in Tanzania. In this regard the government has not done enough, despite consistent pressure and campaigns from political parties and other civil society institutions. Lastly, the prospects for genuine political reforms are debated, acknowledging only limited success. <![CDATA[<b>Public declaration of assets in Nigeria: Conflict or synergy between law and morality?</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100011&lng=en&nrm=iso&tlng=en The Nigerian Constitution seeks to prevent corruption and abuse of office through its provisions on the declaration of assets by public officers. Although they are not obliged to do so, many public officers have publicly declared their assets. This has in turn put pressure on others to do so. In forging a synergy between the law and practice of asset declaration in Nigeria, the paper examines the human rights implications of the recent trend and proffers suggestions for improvement. <![CDATA[<b>Mass expulsion of foreign nationals: A 'special violation of human rights' - Communication 292/2004 <i>Institute for Human Rights and Development in Africa v Republic of Angola</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100012&lng=en&nrm=iso&tlng=en This discussion deals with the decision by the African Commission on Human and Peoples' Rights in Communication 292/2004 Institute for Human Rights and Development in Africa v Republic of Angola. Whilst not the first decision by the African Commission touching on the issue of the mass expulsion of non-nationals by state parties to the African Charter on Human and Peoples' Rights, it is one of the most comprehensive and progressive decisions in this regard, particularly in terms of its recommendations. However, in the absence of a demonstrable willingness on the part of the African Commission to follow up on its recommendations and a means by which to measure actual compliance, it is argued that the jurisprudential gains of this decision are likely to be short-lived. <![CDATA[<b>Developments in international criminal justice in Africa during 2008</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100013&lng=en&nrm=iso&tlng=en The year 2008 saw important developments in international criminal justice in Africa. In 2008, all cases before the International Criminal Court involved African states. An overview of these cases is provided. The International Criminal Tribunal for Rwanda in 2008 rendered its decision in the Bagosora case, and further implemented its completion strategy. This contribution provides an overview of these developments. In respect of the Special Court for Sierra Leone, the authors provide a summary and analysis of the Appeals Chamber's judgments in the Brima, Kamara and Kanu case and the case concerning the Civil Defence Forces. Developments towards the establishment of a Special Tribunal for Kenya, following the post-electoral violence in late 2007, are also reviewed. <![CDATA[<b>Human rights developments in the African Union during 2008</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100014&lng=en&nrm=iso&tlng=en The year 2008 saw significant developments towards harnessing the institutional framework for the promotion and protection of human rights in Africa. More financial resources were allocated to the system. The African Commission and Court adopted interim Rules of Procedure which, by the end of the year, were still not harmonised to enable the Commission to submit its first case to the Court. The slow progress towards making the Court operational impedes the impact of the African human rights system. Another impediment is the inadequate response of AU policy organs to gross human rights violations, undemocratic rule, and the question of impunity. <![CDATA[<b>Human rights developments in sub-regional courts in Africa during 2008</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100015&lng=en&nrm=iso&tlng=en The year 2008 saw very significant developments in the budding human rights activities of regional economic communities in Africa. This was especially prominent in the area of supranational judicial protection of human rights by sub-regional courts. In East Africa, Southern Africa and West Africa, sub-regional courts concluded cases with considerable implications for the protection of rights on the continent. As human rights litigation before sub-regional courts is still a new trend, the jurisprudence that emerged from these courts in 2008 provides opportunities for improving a popular understanding of the processes of the courts. It also allows for reflections on the real value of these developments. <![CDATA[<b>Out of the starting blocks: The 12th and 13th sessions 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=S1996-20962009000100016&lng=en&nrm=iso&tlng=en The 12th and 13th meetings of the African Children's Committee were held in November 2008 and April 2009 respectively. With the African Children's Charter entering its 10th year since entry into force, the real work of the African Committee is now beginning. With the consideration of the first country reports to the African Committee, the benefits of a regionally-specific child rights treaty has begun to become apparent. The recent establishment of a formal grouping of civil society organisations and individuals dedicated to furthering the regional influence of the African Children's Charter (first mooted in 2004!) comes at an opportune time. Despite some of the recurring shortcomings in the work of the Committee, it is hoped that the development of a strategic plan for the Committee's work for the period 2010 to 2014 will lay some of these concerns to rest. <![CDATA[<b>J Sloth-Nielsen (ed) <i>Children's rights in Africa: A legal perspective</i></b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962009000100017&lng=en&nrm=iso&tlng=en The 12th and 13th meetings of the African Children's Committee were held in November 2008 and April 2009 respectively. With the African Children's Charter entering its 10th year since entry into force, the real work of the African Committee is now beginning. With the consideration of the first country reports to the African Committee, the benefits of a regionally-specific child rights treaty has begun to become apparent. The recent establishment of a formal grouping of civil society organisations and individuals dedicated to furthering the regional influence of the African Children's Charter (first mooted in 2004!) comes at an opportune time. Despite some of the recurring shortcomings in the work of the Committee, it is hoped that the development of a strategic plan for the Committee's work for the period 2010 to 2014 will lay some of these concerns to rest.