Scielo RSS <![CDATA[African Human Rights Law Journal]]> http://www.scielo.org.za/rss.php?pid=1996-209620140001&lang=pt vol. 14 num. 1 lang. pt <![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=S1996-20962014000100001&lng=pt&nrm=iso&tlng=pt <![CDATA[<b>A sexual rights approach to addressing gender-based sexual violence among male prisoners in Malawi</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100002&lng=pt&nrm=iso&tlng=pt Sexual violence and abuse in prison are largely ignored in Malawi. There has been some advocacy focusing on HIV and AIDS in prisons, and discussions about providing condoms to prisoners, but the issue of sexual violence has for the most part been ignored. However difficult or controversial the issue of sexuality in prison might be, the government has a duty to protect prisoners from sexual violence. It is illusory to think that sexual violence in prisons may be controlled merely by repressing sexual activity. This article suggests that the best way to respond to sexual violence in prison is to follow the expert counsel of the Technical Consultation on Sexual Health convened by the World Health Organisation and World Association of Sexology in 2002. The Consultation suggested that to achieve sexual health, sexuality and sexual relationships should be approached positively and respectfully. Further, the sexual rights of every person must be protected. Sexual rights are already recognised in national laws and policies, international human rights instruments and consensus documents. They include the right of persons to be free from coercion, discrimination and violence in their sexual relationships. Malawi has a panoply of laws and policies designed to advance sexual health and curb gender-based violence, including the Gender Equality Act, the National Policy on Sexual and Reproductive Health and Rights and sexual offences legislation. In order to end sexual violence and abuse in prisons, these laws and policies must be applied to and implemented in prison. Moreover, these laws and policies must reflect a positive and respectful approach to sexuality and sexual relationships, including those among prisoners. <![CDATA[<b>Capital sentencing discretion in Southern Africa: A human rights perspective on the doctrine of extenuating circumstances in death penalty cases</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100003&lng=pt&nrm=iso&tlng=pt In 1935, South Africa reduced the harshness of the common law mandatory death penalty for murder with the passage of the doctrine of extenuating circumstances. A judge was permitted to substitute a lesser sentence if the accused proved the existence of a mitigating factor at the time of the offence. The doctrine, which operated as a rebuttable presumption in favour of death, passed to the criminal law of Botswana, Lesotho, Namibia, Swaziland, Zambia and Zimbabwe, as well as to the South Pacific nation of Papua New Guinea. The doctrine lacked the analytical rationality of an American or Indian-style discretionary death penalty, which required a judge to articulate an aggravating factor in order to sentence an accused to death, with the burden of proof on the prosecution. The doctrine has now been abolished in South Africa, Namibia, Papua New Guinea, Swaziland and Zimbabwe, and modified in Botswana and Lesotho. The decline of the doctrine of extenuating circumstances accords with the international consensus that the death penalty should be restricted only to the most serious crimes and only based on the circumstances of the individual offence and the characteristics of the individual offender. <![CDATA[<b>Weak extraterritorial remedies: The Achilles heel of Ruggie's 'Protect, Respect and Remedy' Framework and Guiding Principles</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100004&lng=pt&nrm=iso&tlng=pt The United Nations Protect, Respect and Remedy Framework and its Guiding Principles were adopted at the back of a long history of failed UN attempts to deal with corporate-related human rights abuses and ineffective corporate initiated voluntary measures. The need for the Framework and Guiding Principles was heightened by the current climate of neo-liberal globalisation which allows powerful multinational corporations to operate in countries that are sometimes unable to rein them in due to various factors, including sheer corruption; the need to attract and retain foreign direct investment; and archaic legal systems that are unable to deal with intricate corporate structures. This article critically examines the availability of remedies for victims of corporate-related abuses who, for one or more of the above reasons, are unable to access justice in the host state and look towards the home state for a remedy. It argues that by failing to address hurdles to accessing home state remedies, such as the principle of forum non conveniens, state sovereignty, separate legal personality and limited liability, the Framework and Guiding Principles have failed to clearly define circumstances under which, and means by which, multinational corporations will be held liable under the laws of their home states for human rights violations committed beyond their home borders - by their subsidiaries or so-called 'foreign hands'. Consequently, victims are likely to be without remedies which are unavailable in the host state. Thus, for victims of corporate-related abuses, the more things change, the more they stay the same. <![CDATA[<b>Foreword: Law and religion in Africa - Comparative practices, experiences and prospects</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100005&lng=pt&nrm=iso&tlng=pt The United Nations Protect, Respect and Remedy Framework and its Guiding Principles were adopted at the back of a long history of failed UN attempts to deal with corporate-related human rights abuses and ineffective corporate initiated voluntary measures. The need for the Framework and Guiding Principles was heightened by the current climate of neo-liberal globalisation which allows powerful multinational corporations to operate in countries that are sometimes unable to rein them in due to various factors, including sheer corruption; the need to attract and retain foreign direct investment; and archaic legal systems that are unable to deal with intricate corporate structures. This article critically examines the availability of remedies for victims of corporate-related abuses who, for one or more of the above reasons, are unable to access justice in the host state and look towards the home state for a remedy. It argues that by failing to address hurdles to accessing home state remedies, such as the principle of forum non conveniens, state sovereignty, separate legal personality and limited liability, the Framework and Guiding Principles have failed to clearly define circumstances under which, and means by which, multinational corporations will be held liable under the laws of their home states for human rights violations committed beyond their home borders - by their subsidiaries or so-called 'foreign hands'. Consequently, victims are likely to be without remedies which are unavailable in the host state. Thus, for victims of corporate-related abuses, the more things change, the more they stay the same. <![CDATA[<b>Law and religion in Africa: Living expressions and channels of co-operation</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100006&lng=pt&nrm=iso&tlng=pt Drawing on Anglo-American legal and literary classics and the contemporary situation of Africa, this article discusses the unity of law and religion, the demand for justice, the importance of context, the power of law and religion as living expressions of a people's humanity, and the centrality of the moral agent. It concludes with observations about the need to nurture spirituality and morality in Africa in order to strengthen both legal and religious norms. <![CDATA[<b>Religion and the republican state in Africa: The need for a distanced relationship</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100007&lng=pt&nrm=iso&tlng=pt This article argues for a separation of religions from governance in the republican states. In this era of expansion of the concept of sovereignty and the generalisation of human rights, the influence of dominant religions on legislation and governance cannot be justified. Religion, if it is to be true to itself, should not allow its use for political gain and neither should it seek to usurp political power to advance its goals. To do otherwise will set the stage for the abuse of the rights of sections of citizens. The majority of African states are republican and it is argued that, having regard to the diverse nature of these states, it will be better for national cohesion if religions are excluded from the political and legal systems. <![CDATA[<b>From social hostility to social media: Religious pluralism, human rights and democratic reform in Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100008&lng=pt&nrm=iso&tlng=pt This article examines the new terrain of religious freedom and human rights in Africa, with particular attention to the role of social hostilities in restricting religions. In the current environment of 'post-secularism' and the global resurgence of religion, the relationship between government restrictions and social hostilities is particularly complex in Africa, in light of the high degree of religiosity and the notably-intertwined relationship of religion, culture, politics and law, in marked contrast to the secularist and separationist paradigms that prevail in Europe and North America. Paradoxically, though the restrictions on religious freedom in many African nations stem from or have been exacerbated by social hostilities, including pernicious and inflammatory uses of social media, solutions to social hostilities may depend a great deal on empowering religious and civil society groups in the creative and constructive use of social media to change the normative perceptions, attitudes and values that underlie successful constitutional and democratic reform. Indeed, some of these creative uses of social media are already happening, but are threatened by crackdowns on freedom of expression and social media by the state. This article examines uses of social media both to inflame and to reduce social hostilities in recent elections and constitutional referenda in Kenya, Tanzania and Zambia and argues the need for a 'socio-legal' paradigm for understanding both perceptions of religious hostilities and religious human rights claims in their full social, political and cultural context. <![CDATA[<b>Constitution, Charter and religions in South Africa</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100009&lng=pt&nrm=iso&tlng=pt This article discusses the status of religious rights and freedoms under the South African Constitution and the South African Charter of Religious Rights and Freedoms. Following a discussion of the demographics of religious and ethnic pluralism in South Africa, the article discusses the relevant provisions of the Constitution and the Charter and historical antecedents in common law and Roman-Dutch law and the historical and contemporary influence of African traditional religion and customary law that have shaped the current relationship of the Christian church to the South African state. The article concludes with an argument for the recognition of a plurality of religions and religious legal systems in Africa. <![CDATA[<b>African traditional religion and the Catholic Church in light of the Synods for Africa: 1994 and 2009</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100010&lng=pt&nrm=iso&tlng=pt This article describes the relationship between African traditional religions and the Catholic Church as it has evolved following the two Synods for Africa in 1994 and 2009, which themselves followed from and reflected the new openness to interreligious dialogue in the wake of the Second Vatican Council. The article chronicles the various actions and pronouncements of the Pontifical Council for Interreligious Dialogue concerning relations with ATR, as well as the post-Synodal exhortations of Pope John Paul II and Pope Benedict XVI on evangelisation and African religions. <![CDATA[<b>Exploring the contours of African sexualities: Religion, law and power</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100011&lng=pt&nrm=iso&tlng=pt This article explores of the diverse ways through which organised religion, personal spiritual convictions, culture and the law shape, challenge and potentially transform the sexualities of African peoples. I argue that, through the intersection of religion, statutory law and reinterpreted traditional customs, the complexity of African sexualities (particularly those of women) is instrumentalised, controlled and regulated by the patriarchal state. As sources of power, the institutions of culture, religion and law structure sexual morality in such a way that it congeals into states of domination. Attempts to assert sexual citizenship have spawned social movements on the continent, challenging the dominant sexual discourses and demanding increased sexual autonomy and freedom. These movements have the potential to profoundly reshape our understanding of the links between sexualities and religion. <![CDATA[<b>Theologising the mundane, politicising the divine: The crosscurrents of law, religion and politics in Nigeria</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100012&lng=pt&nrm=iso&tlng=pt From the embers of several ethnic groups colonially conjoined and subsequently amalgamated for sheer administrative convenience, modern Nigeria has emerged with internal contradictions. Unlike what happens in other climes, where many years of living together promote social harmony and mutual co-existence, Nigeria appears to be perpetually a tinderbox. Nationhood is threatened and politics defined along religious lines and religion itself highly politicised. This article highlights the critical factors responsible for the complexity of the Nigerian situation. These include socio-economics, religion, law, politics and education, among others, the interplay of which defines contemporary Nigeria, where insecurity is a national menace. In addition to offering a holistic analysis of general Nigerian and Nigerian Islamic perspectives on a number of issues that account for the near absence of positive and negative peace in the country, the article emphasises the imperative of a peaceful world, based on principles of justice and fair play in the distribution of resources, the promulgation of law, religious practice, media reporting and social commentary. <![CDATA[<b>The Nigerian police force and the enforcement of religious criminal law</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100013&lng=pt&nrm=iso&tlng=pt The argument of this article is that the Nigerian police force is responsible by the tenor of the provisions of the 1999 Constitution of the Federal Republic of Nigeria for the enforcement of criminal law in Nigeria, whether they are religiously inspired or not. Accordingly, the Nigerian police force has a constitutional responsibility to enforce the Islamic penal codes introduced in 12 Northern Nigerian states in the wake of Nigeria's fourth republic from 1999. <![CDATA[<b>Insurgency in Nigeria: Addressing the causes as part of the solution</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100014&lng=pt&nrm=iso&tlng=pt Taking a cue from recent pronouncements by Chief Justice Dahiru Musdapher on the current precarious situation in Nigeria, this article examines the issues raised by the learned Chief Justice and concludes that none of those issues, working alone, is capable of making Nigeria a failed state. The one exception is the issue of insurgency, which is growing in strength and sophistication and becoming quite ominous for Nigeria. The article examines the growth of various insurgency movements in Nigeria, noting the strengths and impact of each and their potential to destabilise the country to the point of state failure and possible disintegration. The article then addresses the causative factors of insurgency in Nigeria, including the religious and ideological discontent which appears to be propelling the current conflict in Northern Nigeria. The article then considers some of the policy options for addressing these causes and conflict and recommends, among other measures, the establishment of a constitutional body - a supreme council for interreligious conflict - to function as a final arbiter in all interreligious conflicts that are potentially explosive conflicts that threaten a serious breach of the peace. <![CDATA[<b>The troubled relationship of state and religion in Eritrea</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100015&lng=pt&nrm=iso&tlng=pt Eritrea is a multi-ethnic, multi-lingual and multi-religion country. The country does not have an official state religion. However, since the country's independence in 1991, the relationship between state and religion has been a troubled one. At least four religions are officially recognised by the state: Islam, of the Sunni rite; the Eritrean Orthodox Tewahdo Church, part of the worldwide Coptic Orthodox Church of the eastern rite; the Eritrean Catholic Church, part of the worldwide Roman Catholic movement; and the Eritrean Evangelical Church, part of the Lutheran World Federation. There are also a number of religious beliefs which are not formally recognised by the state. Members of these religious groups practise their belief clandestinely at the risk of insurmountable levels of persecution: If caught practising their religion in whatever form, they are treated harshly. The persecution of these groups takes place mainly in the form of coerced repudiation of one's religion. This is routinely accompanied by various forms of human rights violations, such as prolonged arbitrary detention and solitary confinement, including torture. In extreme cases it also entails extrajudicial execution. In this context, freedom of religion is severely restricted in Eritrea due to the excessive levels of state intervention in matters of personal belief or creed. As such, Eritrea has become a major example of religious persecution in the world. This has prompted, amongst other things, the description of Eritrea as one of the worst abusers in the world, along with North Korea. The relationship between the state and religion has been particularly problematic since the Eritrean government introduced a new policy in 2002 ordering the 'closure' of all other religions except the four officially-recognised beliefs. This article critically analyses the troubled relationship of state and religion in Eritrea and, in so doing, it addresses the challenge from a human rights perspective. <![CDATA[<b>Freedom of belief for minorities in states with a dominant religion: Anomaly and pragmatism</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100016&lng=pt&nrm=iso&tlng=pt This article provides a European perspective on church and state that may be instructive in understanding current developments in Africa. In particular, the article explores the fragile inter-dependency of minority and majority religions within national systems. It examines various ways of defining dominant and minority religions and various paradigms of church-state relations. The article provides a comparative case study of the English religious establishment model for understanding these concepts and argues for both the inclusion of religion in public discourse and the protection of religious minorities in the ongoing development of law and religion in Africa. <![CDATA[<b>Human rights developments in the African Union during 2012 and 2013</b>]]> http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962014000100017&lng=pt&nrm=iso&tlng=pt Positive developments in 2012 and 2013 included an increased impetus by the African Commission to reach decisions on petitions submitted to it and measures, such as hearings, to promote the implementation of its decisions. Concerns include the lack of publication of numerous decisions on individual cases and the lack of referral of cases from the Commission to the African Court in 2013. Despite the lack of referrals, the African Court now has a substantial docket and can focus on judicial work rather than the promotional work it has been focusing on over the last few years. The African Union political bodies continue to provide inadequate support, in particular to ensure sufficient staffing of the Commission and ensuring peer pressure in relation to the implementation of findings of the monitoring bodies. Projects such as expanding the mandate of the African Court to become a regional alternative to the International Criminal Court should be shelved until such time that a clear commitment to the existing institutions becomes evident.