Scielo RSS <![CDATA[African Human Rights Law Journal]]> vol. 16 num. 1 lang. <![CDATA[SciELO Logo]]> <![CDATA[<b>Editorial</b>]]> <![CDATA[<b>Incompatibility of national law with the African Charter on Human and Peoples' Rights: Does the African Court on Human and Peoples' Rights have the final say?</b>]]> This article considers the effect of a declaration by the African Court on Human and Peoples' Rights that a municipal law is incompatible with the provisions of the African Charter on Human and Peoples' Rights in light of the decision of the African Court in Tanganyika Law Society & Another v Tanzania. It argues that such a decision should have implications for all parties to the African Charter, especially those states that are also parties to the African Court Protocol. The article recognises that this effect is not automatic as the decisions of the Court are denied this expected effect under municipal law by several factors, one of which is the hostility of municipal institutions to an international court judgment that seeks to nullify the established municipal legal status quo. <![CDATA[<b>Peoples' rights, indigenous rights and interpretative ambiguities in decisions of the African Commission on Human and Peoples' Rights</b>]]> The evolving jurisprudence of the African Commission on Human and Peoples' Rights displays ambiguities in interpretations of the peoples' rights provisions of the African Charter on Human and Peoples' Rights. The article comparatively examines the Endorois and Southern Cameroon decisions adopted in 2009 in an effort to uncover the challenges faced by the African Commission in contextually applying peoples' rights provisions of the African Charter to particular collectives. In the Endorois case, the Commission made a positive finding on violations of applicants' claims of violations of their collective rights as an indigenous people. Conversely, in the Southern Cameroon case, the Commission made a negative finding on the applicants' arguments for remedial secession, using more or less the same collective rights provisions of the African Charter. The article contextualises the two cases in critically examining the African Commission's legal reasoning in both decisions. <![CDATA[<b>Rights away from home: Climate-induced displacement of indigenous peoples and the extraterritorial application of the Kampala Convention</b>]]> Existing accounts of the relationship between human rights and climate change are not explicit regarding the link between climate change and the displacement of indigenous peoples and its implications for their rights in Africa. Even if a link exists, legal redress is problematic in that an extraterritorial conduct or omission of a state within and outside Africa may feature in climate-induced displacement. Little is known on the way forward to address this challenge. The article demonstrates how climate change is linked to the displacement of indigenous peoples and how their rights are threatened in Africa. Underscoring the extraterritorial nature of activities underlying their displacement, the article examines the basis of the Kampala Convention and the way it may be applied extraterritorially to enhance the protection of indigenous peoples facing climate-induced displacement and the threat to key rights in Africa. <![CDATA[<b>The right not to be arbitrarily displaced under the United Nations Guiding Principles on Internal Displacement</b>]]> Globally, the issue of internal displacement has over the years emerged as one of the most pressing human rights concerns. For many years, millions of people have been displaced for various reasons, including conflicts, natural disasters and development projects. Recognising the need to address the issue of internal displacement, the United Nations developed a set of Guiding Principles in 1998. One significant provision of the Guiding Principles is their recognition of a right not to be arbitrarily displaced, which requires states to ensure the protection of persons in displacement situations with reference to fundamental human rights safeguards. However, the Guiding Principles are not clear on the yardstick against which to assess compliance by states with the duty. In light of the foregoing, the article explores the normative content of the right not to be arbitrarily displaced under the United Nations Guiding Principles on Internal Displacement. <![CDATA[<b>The legacy of the <i>Kenyatta </i>case: Trials <i>in absentia </i>at the International Criminal Court and their compatibility with human rights</b>]]> As a consequence of the African Union's pressure on the Assembly of States Parties (ASP) to the International Criminal Court (ICC), the ASP modified the Rules of Procedure of the ICC to permit the accused to be tried in absentia. This article examines the general requirements under which trials in absentia are possible in light of the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples' Rights and the European Convention on Human Rights, and whether the new in absentia provisions of the ICC are consistent with international fair trial standards developed by the Human Rights Committee, the African Commission on Human and Peoples' Rights, the African Court on Human and Peoples' Rights and the European Court of Human Rights. The article demonstrates that the increasing acceptance of in absentia trials by international criminal courts tends to overlook the rights and roles of victims in international criminal proceedings. To this end, the article considers whether the macro-criminal character of international crimes may require that victims and witnesses have a public interest to trials in the presence of the accused. <![CDATA[<b>Children's rights, domestic alternative care frameworks and judicial responses to restrictions on inter-country adoption: A case study of Malawi and Uganda</b>]]> As the problem of a lack of parental care over the years has worsened in Africa, states have not adopted sufficient alternative care measures to address the needs of the children involved. To date, many countries in Africa remain suspicious of inter-country adoption and, hence, consider it as a subsidiary means of providing alternative care to children deprived of a family environment. Through a study of the legal frameworks and court decisions of Malawi and Uganda, the article demonstrates that some of the most common restrictions on inter-country adoption do not serve the best interests and rights of the child. As a result, the courts in these countries have gone out of their way to bypass or ignore these restrictions, and have sanctioned inter-country adoptions. In doing so, the courts have put themselves at risk of being accused of law making. Due to the absence of an appropriate legal framework, these courts have also struggled to make inter-country adoption orders that are capable of being effectively monitored and supervised by the state authorities in the sending and receiving states. The protection of the rights of children in need of parental care requires that states treat inter-country adoption as a worthy alternative care option that should not be subjected to undue restrictions, but regulated sufficiently to protect and promote the best interests and rights of the child. <![CDATA[<b>A family home, five sisters and the rule of ultimogeniture: Comparing notes on judicial approaches to customary law in South Africa and Botswana</b>]]> Given the striking commonalities between the legal systems of South Africa and Botswana, both in terms of its common and customary law, and considering the propensity of the Botswana courts to engage with South African case law, a recent case of Botswana is of particular interest. In September 2013 in the Ramantele case, the Botswana Court of Appeal ruled on a customary law dispute that had been drawn out for more than seven years. The litigation history reads like a jurisprudential chronicle and demonstrates how traditional justice operates on various levels in a pluralistic justice system, and is a perfect example of legal pluralism in action. The case is interesting for a variety of reasons. First, it considers important principles regarding the meaning, status and ascertainment of customary law. Second, it discusses the influence of the Constitution on customary law and, third, it deals with the very important question as to the application of the Botswana Constitution on customary law. Lastly, it reflects on the role of the judiciary in solving customary disputes which, according to Lesetedi jA, is limited to the interpretation of 'the law to be applied in the dispute' and not to 'traverse issues that do not directly arise ... however important they may be'. In light of the fact that the Botswana legal system follows the principle of stare decisis and the fact that courts engage with the judgments of other jurisdictions, this case has the potential to influence the outcome of future cases of a similar nature. Against this background, this contribution investigates the contrasting approaches to constitutional adjudication in the context of customary law in the Botswana High Court and Court of Appeal, especially with reference to the approach followed by the South African Constitutional Court in the Bhe case. <![CDATA[<b>The court record and the right to a fair trial: Botswana and Uganda</b>]]> The court record is everything to the judicial process. Budgetary constraints and administrative challenges facing judicial services in the African countries studied here leave courts with inefficient modes of generating and maintaining full and reliable court records, hence defeating the ends of justice. Evidence is lost in the process of recording and during the preservation of court records through fires and malpractices. The court record is the basis for a fair trial. Any determination of a court is founded on the material in the record and such decision is placed and preserved on the face of the record. Fair trial guarantees of appeal and review are initiated by the court record. An appeal is a trial of the record. The competence of a court that cannot accurately record its proceedings and preserve the records to guarantee a fair trial is questionable. There is a need to facilitate a reliable mode of producing and maintaining the court record, towards a culture of fulfilling the right to a fair trial in Africa. This analysis focuses mainly on the experiences of the courts of Botswana and Uganda. <![CDATA[<b>Interpreting the human right to water as a means to advance its enforcement in Uganda</b>]]> The water supply and mechanisms for the delivery of water currently available to improve access to water for citizens remain a challenge for many African states. In Uganda, although executive policy has made some progress in alleviating the various impediments to enjoying access to water, these impediments have not been completely removed. Evidence from other jurisdictions has shown that the judicial interpretation of socioeconomic rights may go a long way to crystallise the exact nature and scope of these rights and, thus, contribute to removing barriers to the enjoyment of these rights. The article explores the manner in which the right to water currently is spelt out in Uganda's Constitution. The article explores how the Constitutional and Supreme Courts of Uganda have used interpretive paradigms as a strategy to better articulate other constitutional socio-economic rights. The article finds that a teleological approach to interpreting socio-economic rights has not been utilised fully by Ugandan courts. It proposes that, if such an expansive approach to the interpretation of implicitly-protected human rights is adopted, it may enhance current conceptualisations and ultimately improve citizens' enjoyment of the right to water. <![CDATA[<b>A South African reflection on the nature of human rights</b>]]> This article argues that continued structural inequality in South Africa should give us pause to reflect on the efficacy of the country's rights discourse. It is not so much concerned with the ineffective application of rights (particularly socio-economic rights) as with the actual nature of the rights. My argument is pursued as follows: The notion of 'right' as we have it today is rooted in the same paradigm that fosters commodification; this lends rights an inherent indeterminacy and they are deployed not only to challenge hegemonic interests, but to defend them as well. This indeterminacy is also tied to the fact that rights are really preferences that cultivate particular types of subjectivity. Such recognition of the nature of rights will generate, I believe, a more sober view of its potential to correct society's iniquities. <![CDATA[<b>The importance and relevance of <i>amicus curiae </i>participation in litigating on the customary law of marriage</b>]]> With the South African Constitution recognising customary law as part of South Africa's legal system, debates arose as to the application of the equality principle within custom, as many customary practices were seen as discriminatory. The Recognition of Customary Marriages Act 120 of 1998 was the first piece of legislation that was enacted to address gender inequality within customary law, specifically customary marriages. Future litigation on the topic was deemed to be straightforward, entailing the mere interpretation and application of applicable provisions. However, what has emerged from litigating on the customary law of marriage is how litigators, and especially the participating amicus curiae, diverge on the litigation strategy to use. The article explores the relevance and importance of amicus curiae participation within a constitutional framework and establishes whether such participation has contributed to ensuring that women living under customary law's claims to culture and equality are understood in the right context. <![CDATA[<b>The King can do no wrong: The impact of <i>The Law Society of Swaziland v Simelane NO & Others </i>on constitutionalism</b>]]> In mid-2014, the High Court of Swaziland issued a controversial judgment in which it dismissed an application challenging the powers of the King to appoint judges. This was the case of The Law Society of Swaziland v Simelane NO & Others, which has far-reaching consequences for constitutionalism and the rule of law in Swaziland. The main finding of the Court was that the lawsuit was frivolous because the applicants knew that the King enjoyed immunity from all legal suits for everything under the sun which he does or omits to do. In finding that the King's actions could be challenged as the King was considered to be unerring, the Court further relied on an archaic customary idiom, umlomo longacali manga (the mouth that does not lie). The net effect of this is that any exercise of public power by the King, or anyone acting on behalf of the King, cannot be challenged as unconstitutional. This article traces the origins of the judicial problems currently afflicting Swaziland, and demonstrates that, to a large extent, the judiciary has been suffering from inside, rather than external forces, before making recommendations on how to remedy this unfortunate situation. <![CDATA[<b>Legal formalism and the new Constitution: An analysis of the recent Zimbabwe Supreme Court decision in <i>Nyamande & Another v Zuva Petroleum</i></b>]]> This is an analysis of the recent decision by the Supreme Court of Appeal in the case of Nyamande v Zuva Petroleum. The article critiques the formalistic and conservative approach used by the Supreme Court in reaching its decision, as the Court failed to consider the important role now played by the Constitution of the Republic of Zimbabwe. This is because Zimbabwe passed a new Constitution in 2013. The article briefly discusses the facts of the case, the reasoning and ruling by the Supreme Court and, in some detail, the failure by the Court to consider a number of fundamental human rights and freedoms which are embodied in the Zimbabwean Constitution. The article also outlines some important rights and principles that the Supreme Court ought to have considered but failed to do. It additionally briefly considers the legislative framework governing labour relations in Zimbabwe, particularly the Labour Act of Zimbabwe, with the aim of interrogating the correctness of the decision in light of the constitutional and legislative framework governing labour relations in Zimbabwe. Although the legislature has subsequently rectified the matter, it is still important to reflect on the mistakes made by the Supreme Court in order to prevent it from erring in the same manner in the future. It is important to note that there has to be some level of change regarding the manner in which judges interpret the law, particularly in light of the new Constitution. If the Constitution is to be worth anything more than the piece of paper it is written on, the judiciary ought to ensure that in all cases they adjudicate on the Constitution is considered. The Constitution should permeate all law, including statutory and common law.