Scielo RSS <![CDATA[African Human Rights Law Journal]]> vol. 15 num. 1 lang. pt <![CDATA[SciELO Logo]]> <![CDATA[<b>Editorial</b>]]> <![CDATA[<b>The protection against discrimination based on sexual orientation under the African human rights system</b>]]> Recent legislation proposed or passed in Nigeria, Uganda and The Gambia has put the spotlight on the plights of homosexual persons living in sub-Saharan Africa. In Nigeria, discriminatory laws prohibit same-sex marriages and ban gay clubs and organisations. In Uganda, the Prohibition of the Promotion of Unnatural Sexual Practices Bill of 2014, with contents similar to the notorious Anti-Homosexuality Act, is being considered after a ruling by the Ugandan Constitutional Court rendering the Anti-Homosexuality Act unconstitutional. In The Gambia, the Penal Code has been amended recently to add the crime of 'aggravated homosexuality' with a lifetime prison sentence for any person found guilty. The rights to dignity and equality are protected under the African Charter on Human and Peoples' Rights; however, competing local and global values are arguably growing in Africa, challenging this right. This article explores two main problems: first, how the rights to dignity, equality and non-discrimination should generally be interpreted and applied under the regional African human rights system when related to sexual orientation. In this regard I draw on the interpretation of these rights under international human rights law as well as the jurisprudence of the European Court of Human Rights and its Inter-American counterpart. Second, it analyses the procedural or other hurdles that may stand in the way of brining a claim of discrimination based on sexual orientation to the African Commission on Human and Peoples' Rights or the African Court on Human and Peoples' Rights. In this regard, I specifically consider the general restrictions placed on individuals and NGOs in bringing complaints to the Court and the real potential of the Commission to act as a conduit to the Court in cases involving rights related to sexual orientation, bearing in mind its inconsistent approach to same-sex sexuality. The article addresses these questions by analysing some key developments by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The main objective is to utilise the approach of these institutions to explore both the legal avenues under the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights and the rights and obligations under the African Charter available to anyone who would want to challenge any domestic law criminalising same-sex consensual sexual acts and/or any of the other related prohibitions. <![CDATA[<b>Debating love, human rights and identity politics in East Africa: The case of Uganda and Kenya</b>]]> In the wake of the furore surrounding the passing of the Anti-Homosexuality Act and the declaration of its unconstitutionality by the Constitutional Court in Uganda, the issue of sexual orientation and gender identity has assumed heightened prominence in East Africa. As is the case in many countries around the world, courts of law have become particularly prominent arenas within which the struggles over these issues are being fought. That development raises fundamental questions not only about the suitability of judicial arenas for such encounters, but also about the efficacy of a legal strategy in addressing an issue linked to deeply-held social, cultural and religious structures and beliefs. This article reviews recent developments concerning the situation of lesbian, gay, bisexual, transgender and intersex individuals through legislation and in the courts of law of Uganda and Kenya, exploring the implications for the wider struggles by sexual minorities for enduring legal recognition and accommodation. <![CDATA[<b>Realisation or oversight of a constitutional mandate? Corrective rape of black African lesbians in South Africa</b>]]> Corrective rape is a form of sexual punishment by men towards lesbians in order to cure them of their sexual orientation. Black African lesbians are victims of corrective rape, particularly those in townships who are seen to challenge patriarchal gender norms. Therefore, discrimination on the basis of gender, race, sex and sexual orientation is called into play. The impact of discrimination is rendered more serious and their vulnerability increased by the fact that the victims are also seen as a threat to patriarchy and hetero-normativity which demarcate women's bodies as male property. The article focuses on how South Africa balances its constitutional mandate in relation to black African lesbians affected by corrective rape. The article argues that it is necessary to define corrective rape as a hate crime and not merely a crime of rape for victims of corrective rape to be adequately protected. <![CDATA[<b>Evidence obtained through violating the right to freedom from torture and other cruel, inhuman or degrading treatment in South Africa</b>]]> Although South African courts have expressly held that any evidence obtained through torture is always inadmissible, the author is unaware of a decision from a South African court to the effect that evidence obtained through cruel, inhuman and degrading treatment is, like evidence obtained through torture, inadmissible in all circumstances. In this article, the author first deals with the issue of evidence obtained through torture and thereafter relies on the practice of international and regional human rights bodies, such as the Committee against Torture, the Human Rights Committee, the UN Special Rapporteur on Torture, the UN Special Rapporteur on the Independence of Judges and Lawyers, the European Court of Human Rights and the African Commission on Human and Peoples' Rights, and some of the sections of the South African Constitution, to argue that South Africa has an international obligation to exclude any evidence obtained through cruel, inhuman and degrading treatment. In support of this argument, the author relies on the jurisprudence of the South African Supreme Court of Appeal on the nature of the right to freedom from torture and argues that the same approach could be applied to the right to freedom from cruel, inhuman and degrading treatment. <![CDATA[<b>A rights-based approach to environmental protection: The Zimbabwean experience</b>]]> Stemming from the common law, international law and statute, Zimbabwean law has always recognised the prominent role that environmental rights should play in the environmental regulatory framework. In theory, this was based on recognition of the fact that the provision of such rights, and their full enjoyment by citizens, would allow Zimbabweans the opportunity to live in a clean and healthy environment. In addition, through exercising these rights, citizens could directly enforce environmental laws. In practice, however, it appears that deficiencies in the environmental regulatory framework at the institutional level precluded Zimbabweans from fully exercising or enjoying their environmental rights. It was against this backdrop that Zimbabwe in 2013 enacted a new Constitution which entrenched environmental rights in the Declaration of Rights. This was a welcome development which aligned Zimbabwean law with developments across various other jurisdictions which have accorded environmental rights constitutional importance. Importantly, and in light of the seeming deficiencies in the environmental law regulatory framework at the institutional level, which manifested in Zimbabweans not fully exercising, or enjoying, their environmental rights prior to the inception of the Constitution, this article explores whether the inclusion of environmental rights in Zimbabwe's Constitution has been accompanied by sufficient efforts to put in place institutional measures to ensure that citizens exercise and enjoy their rights. <![CDATA[<b>Cultural rights versus human rights: A critical analysis of the <i>trokosi </i>practice in Ghana and the role of civil society</b>]]> In this article, I examine critically the culture versus human rights debate, and the crucial role and tactics of civil society organisations, drawing on insights from transnational advocacy networking, in the struggle to extend human rights to vulnerable people with reference to the trokosi practice in Ghana. This trokosi system turns virgin girls into slaves of the gods to atone for crimes committed by their family members. Theoretically, universal human rights must take precedence over any demand for cultural rights. In practice, however, the actual enforcement of human rights laws that conflict with other cultural values and practices can be more messy and complex than it is often conceptualised. Essentially, universal human rights accommodate, recognise and promote cultural rights; however, the latter ends at a point where its observance is likely to result in the violation of the fundamental human rights of others. I conclude that, although the call for cultural pluralism and the need to celebrate and respect the diversity of cultures sound legitimate, this demand cannot be allowed to trump the minimum package of the fundamental human rights that protect human dignity, wellbeing and integrity within the context of human rights protocols that state parties already have ratified. Yet, for this to materialise, stronger civil society organisations with a solid broad-based networking capacity and tenacity of purpose are crucial. This article helps to extend our current knowledge of human rights struggles and the implications these have for the furtherance of universal human rights. <![CDATA[<b>Lessons from Ghana and Kenya on why presidential election petitions usually fail</b>]]> Most presidential election disputes have been unsuccessful. Although the petitioners almost invariably have adduced evidence of non-compliance with electoral laws, so far the judiciary has hardly been persuaded that the alleged infractions against electoral laws have had any adverse impact on the validity of disputed presidential election results. The article examines the burden and standard of proof which must be discharged in presidential election disputes, and then, based on relevant national case law, it discusses the circumstances under which the courts would invalidate presidential elections results. It concludes with the observation that, although the Raila Odinga case confirms the reluctance of judges to overturn election results, the narrow win in the Nana Akufo-Addo case suggests that the era of unsuccessful presidential election petitions may be drawing to a close. <![CDATA[<b>Public participation in decentralised governments in Africa: Making ambitious constitutional guarantees more responsive</b>]]> Following the example of South Africa, Kenya, Tunisia and Zimbabwe have recently adopted constitutions that contain bills of rights, embrace the ideals of decentralisation and profess a commitment to participatory democracy. In these countries, different forms of local government are constitutionally protected and accorded some degree of self-governing powers. As part of the state's overarching governance machinery, these governments are obliged to contribute towards the realisation of constitutionally-defined objectives, including a variety of constitutionally-entrenched rights, the pursuit of social justice and sustainable development. As the level of government closest to communities, a local government is constitutionally obliged to facilitate public participation in local governance. In South Africa, the Constitutional Court has interpreted the scope of the government's obligation to facilitate public participation in policy formulation and law-making processes extensively. The article explores the Court's jurisprudence on the nature and extent of the duty to facilitate public participation in order to distil lessons that could guide local authorities in Kenya, Tunisia and Zimbabwe to optimise the quality of public participation in local governance. I argue that, if implemented, guidelines distilled from the Court's jurisprudence could help optimise the quality of public participation at the local level in the various countries. <![CDATA[<b>Striking a balance between community norms and human rights: The continuing struggle of the East African Court of Justice</b>]]> The article exposes the difficult position in which the East African Court of Justice (EACJ) finds itself when faced with matters containing human rights allegations, which the Court is barred from deciding as such. The EACJ is often called upon to draw a line between what might constitute a human rights case and a claim relating to an East African Community (EAC) norm which is not barred under article 27(2) of the East African Community Treaty. As the main judicial mechanism of the EAC, the EACJ is primarily mandated to interpret and apply EAC law, of which human rights form part. Despite the existing limitations, the EACJ has clearly laid down its position that it cannot 'abdicate' exercising its interpretive mandate, even if a matter before it contains allegations of human rights violations. In doing so, the EACJ has indirectly protected human rights in the EAC through other forms of cause of actions, such as the rule of law and good governance. This contribution advances two key arguments: First, the EAC Treaty contains human rights norms that the EACj cannot escape from interpreting. Second, due to the continuing restrictions in adjudicating human rights, as well as the existing human rights norms in the EAC Treaty, the EACJ is trapped in precarious attempts to balance the advancing of EAC norms, on the one hand, and adhering to the Treaty restrictions in adjudicating human rights, on the other.