Scielo RSS <![CDATA[African Human Rights Law Journal]]> vol. 17 num. 1 lang. <![CDATA[SciELO Logo]]> <![CDATA[<b>Editorial</b>]]> <![CDATA[<b>Homicide in traditional African societies: Customary law and the question of accountability</b>]]> The article discusses the attitudes of traditional African societies towards the taking of human life, aiming to understand the incidence, nature and causes of killing in traditional society. The article explores the responses of these societies to homicide, seeking to unearth legal, religious or other norms, if any, governing the taking of human life. The article interrogates the issue of accountability, to discover whether traditional societies recognised any obligation to ensure that a killer was made to account for his or her act - thereby inevitably raising questions about the right to life. The article concludes that in the customary law of these societies values and norms in respect of killing existed and that notions of accountability were indeed recognised, although (being drawn from strong communitarian foundations and a widespread belief in the supernatural) they differed significantly from modern human rights norms. <![CDATA[<b>The essence vindicated? Courts and customary marriages in South Africa</b>]]> This article describes different approaches in which courts have determined the validity of customary marriages under the Recognition of Customary Marriages Act in order to address the historical injustices of vulnerable parties in a customary marriage. These approaches are drawn from selected cases decided after the Act came into effect and consist of two scenarios, namely, 'judicial notice' and 'proof' of customary law. These approaches produce considerably distinct results. On the one hand, where courts adopt the approach of 'judicial notice' and apply official customary law, the inevitable result has been the invalidation of marriages. On the other hand, if the approach has emphasised the recognition of the essence of customary law, courts have validated these marriages and protected vulnerable parties. These results may support (at least partly) the theory by various scholars that the Constitution envisaged that courts will be applying living customary law in order to fulfil their constitutional obligations. <![CDATA[<b>The foundations of 'peace' as a value for the promotion of human rights in Africa</b>]]> This article identifies 'peace' as a strategic value in promoting human rights in Africa. The objective is to juxtapose the theoretical and practical foundations of 'peace' as a conceptual basis for the promotion of human rights into a substantive reality. The article does not examine the status of Africa's political context as such, an undertaking which will redirect the envisaged assumption of the stability ofAfrican governments in the regulation of state authority. The article is premised on the notion that such stability may provide a foundation for 'peace' as a value that is likely to create an environment conducive to greater respect for all human rights. <![CDATA[<b>An unintended legacy: Kwame Nkrumah and the domestication of national self-determination in Africa</b>]]> In the early 1950s, the right to self-determination was a concept rich with disruptive potential for pre-independence Africa. Some saw the application of self-determination as an opportunity to redraw the continent's colonial borders; others believed it would lead to a pan-African union of states. Through an analysis of legal, historical and political material, this article argues that between 1958 and 1964 Ghana's first President, Kwame Nkrumah, although ideologically a pan-Africanist, played a pivotal but unintentional role in entrenching colonial era borders in Africa. The article identifies three key ways in which Nkrumah shaped the law of self-determination in Africa: first, by actively campaigning against 'tribalism' in Ghana; second, by enlisting the UN to prevent the secession of Katanga in 1960, thereby creating a crucial precedent; and, third, by playing a leading role in establishing the OAU in 1963, which went on to endorse the legal validity of colonial frontiers. In this way, Nkrumah helped settle arguments around the authentic self-determination unit in Africa, forging an unintended legacy that continues to shape the legal and political contours of the continent to the present. <![CDATA[<b>Domestic servitude and ritual slavery in West Africa from a human rights perspective</b>]]> The article examines two examples of human rights violations, namely, domestic servitude and ritual slavery, which are considered forms of contemporary slavery, as they involve the exploitation of labour and the violation of the right to property. It is argued that the current international protection of children's rights is incapable of abolishing ritual slavery and domestic servitude in countries of West Africa, as children and teenagers are still threatened by the practice of vidomegon in Benin, trokosi in Ghana, and vudusi in Togo. The purpose of the article is to analyse West African forms of ritual slavery and domestic servitude and to demonstrate that the shortcomings of the international children's rights protection system emanate from the inconsistency of international and African perceptions of childhood. With this in mind, the focus is on the conceptual differences between the UN Convention on Children's Rights, the relevant ILO Conventions, the African Charter on the Rights and Welfare of the Child and the shortcomings in the definition of slavery in the Slavery Convention of 1926, as well as the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. <![CDATA[<b>Violent attacks against persons with albinism in South Africa: A human rights perspective</b>]]> South Africans living with albinism are among the most marginalised and vulnerable of the country's citizens, yet very little attention is given to protecting them from human rights violations, threats and violent crime. Although the extent of violent crimes targeting South Africans with this condition has not reached the levels encountered in other African countries, new evidence indicates a surge in violent crimes against persons with albinism. The vulnerability of these persons requires immediate attention before it spirals out of control. It is clear that a case is to be made for compelling, in particular, the state to intervene. Based on the groundbreaking decision of the South African Constitutional Court in the Carmichele case, this article begins a debate on the state's affirmative duty to prevent, investigate and punish violent acts against persons with albinism, as it is feared that the incidents reported in South Africa may trigger copycat crimes. Provisions from international and regional human rights instruments relevant to the issues faced by persons with albinism highlighted in the article are explored briefly. <![CDATA[<b>Establishing state liability for personal liberty violations arising from arrest, detention and malicious prosecution in Lesotho</b>]]> This article seeks to analyse the case law relating to infringements of the personal liberty rights of the individual through the traditional common law actions for damages for wrongful arrest, unlawful detention and malicious prosecution. These rights are often violated by the police - the principal law enforcement agents of government. Sometimes, too, non-law enforcement personnel of the Lesotho army unwittingly get embroiled in law enforcement duties, thereby involving the government in incurring liability in damages for the numerous human rights violations that trail their encounter with members of the public. Although there are provisions in the Constitution of Lesotho of 1993 through which the individual may ventilate his or her entrenched fundamental rights, victims of these breaches tend to enforce their security of the person and human dignity rights in the courts in Lesotho by way of the common law damages in delict. In an attempt to establish the liability of the state in this instance, one witnesses the interplay of the constitutional guarantee of rights, the protections afforded the individual through the Criminal Procedure and Evidence Act of 1981 and the common law cause of action. The present investigation concentrates on the primary problem of establishing the liability of the state first and foremost, as an assessment of the quantum of the damages recoverable is an exercise a court can undertake only after the liability issue has been resolved or ascertained. This contribution, therefore, examines the many instances whereby, in the purported performance of law enforcement duties of the state, the police and army personnel have infringed the rights of the citizens and, in the process, expose the brutal nature of the injuries the victims have suffered and the role the courts have played in their endeavour to uphold the rights to security of the person and human dignity as well as to maintain the rule of law in Lesotho. <![CDATA[<b>Socio-economic rights in Zimbabwe: Trends and emerging jurisprudence</b>]]> In a country such as Zimbabwe where many are deprived of opportunities and resources owing, in part, to injustices of the past, socio-economic rights are of the outmost importance. As a result, the new Constitution of Zimbabwe, adopted in 2013, expressly provides for socio-economic rights. While these are yet to be extensively tested, two cases discussed in the article illustrate the willingness of the courts to enforce these rights. In the Mushoriwa case, it is shown that state as well as non-state actors have to refrain from negatively interfering with constitutionally-protected and enforceable socio-economic rights. The Hopcik case shows that there is a positive obligation on the state, which may involve the allocation of resources, to ensure that socio-economic rights are realised. These two cases serve as a good platform from which the courts can continue to develop the jurisprudence on socio-economic rights in Zimbabwe. It is suggested that guidance in dealing with more complex socio-economic rights cases can also be obtained from South African jurisprudence, particularly from the Grootboom case. <![CDATA[<b>The rights to life, health and development: The Ebola virus and Nigeria</b>]]> The Ebola virus disease outbreak in West Africa which started in Guinea in December 2013, as confirmed by the World Health Organisation in March 2014, was reported to have killed approximately 11 310 people in Guinea, Liberia and Sierra Leone between December 2013 and March 2016. On 20 July 2014, the virus was imported into Nigeria through an infected Liberian-American citizen who had travelled from Liberia to Nigeria, arriving at the Murtala Mohammed International Airport in Lagos. The article examines the duty of the Nigerian government to protect Nigerian citizens from contracting and dying from Ebola by ensuring, in practical terms, that the right to life of every Nigerian, as enshrined in section 33 of the Constitution of the Federal Republic of Nigeria 1999, is protected. Furthermore, it is argued that the Nigerian government owes a duty of care to its citizens to a level that ultimately ought to enable each Nigerian to enjoy adequate medical services and infrastructural development in the healthcare sector. This duty of care can be traced to article 22 of the African Charter on Human and Peoples' Rights which confers a legally-binding right to development on African peoples. The article examines the justiciability of these rights under domestic and international law and identifies the potential legal liability of the Nigerian government, as well as the possible remedies available to the relatives of victims of the virus in Nigeria in the event of such liability. More broadly, the authors use Ebola to explore the notion of 'pragmatic development' - and ask what this means (or ought to mean) in a contemporary African context, within Nigeria's socio-economic rights framework, and the role that international human rights law can play in helping to solve Nigeria's chronic healthcare services and infrastructural deficit. <![CDATA[<b>A step forward in the protection of urban refugees: The legal protection of the rights of urban refugees in Uganda</b>]]> Forced displacement and rising numbers of urban refugees over the past three decades have emerged as a burning human rights concern. The rights of refugees and their protection by states have long been recognised by international law. The primary international human rights instruments that promote and protect the rights of refugees in Africa are the 1951 UN Convention Relating to the Status of Refugees, its 1967 Protocol, and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. Uganda, a state party to the 1951 Convention and the 1969 Convention, has adopted laws to promote and protect the rights of refugees in this country. These include the 1995 Constitution, the Refugees Act of 2006 and the Refugees Regulations of 2010 which guarantee the rights of refugees to reside in on-camp settings, and to work and make a living. However, it is argued that one of the gaps in the national framework is the protection of the rights of refugees residing in urban settings. The international and regional refugee laws are not clear on the benchmark against which to appraise state compliance. In light of the foregoing, the article explores the normative content of the 1995 Constitution and Ugandan Refugee Act of 2006, and observes that these laws and policies are progressive and yet generally fall short of most international human rights standards and best practices. Therefore, it argues that the progressive legal framework is not sufficient if not backed by a responsive and appropriate administrative system that is procedurally fair and just. <![CDATA[<b>The responsibility of businesses to prevent development-induced displacement in Africa</b>]]> Business-related development-induced displacement is a growing challenge in Africa. Thousands of individuals have been displaced due to private investment projects in various sectors, including the extractive industries, agriculture and infrastructural development. While much attention has been given to the responsibility of states as primary duty bearers in international law, the matter of the responsibility of businesses within the context of development-induced displacement has not been discussed. Utilising the United Nations Guiding Principles on Business and Human Rights, this article discusses the responsibility of businesses in preventing arbitrary development-induced displacement in Africa. <![CDATA[<b>Rule of law or <i>realpolitik? </i>The role of the United Nations Security Council in the International Criminal Court processes in Africa</b>]]> At its inception in 1998, the International Criminal Court was perceived as a permanent solution to the problem of lack of accountability for past crimes. Despite their initial excitement about the Court, the African Union and its state parties have made an about-turn and they now seek an African solution to Africa's problem of impunity. Central to this ICC-AU collision is the role played by the United Nations Security Council in the Court's processes. The UNSC has failed to apply the doctrines of referral and deferral equally. According to the AU, it has selectively exercised its referral powers with respect to African-based situations, yet heinous crimes committed in other areas go unnoticed. The UNSC has also been selective in the recognition and waiver of immunities for international crimes in favour of the interests of its permanent members. While it is a reality that international criminal justice operates in an environment instilled with politics, such politics seldom reflect Africa's interests. These factors have heavily compromised the legitimacy of UNSC's role in the Court processes. Thus, in its own legal framework, the AU asserts that its heads of state enjoy absolute immunity from prosecution. This position, however, is problematic for several reasons. For example, how does one reconcile a state's obligations under the Rome Statute, which abhors immunities, and that of the Malabo Protocol, which upholds immunities? Second, the Malabo Protocol lacks a clear distinction between immunity ratione personae and immunity ratione materiae. The Protocol also is not clear on the nature of its immunity ratione materiae. However, although the AU and its member states are vehemently opposed to impunity, it does little to combat the vice. It is in this context that the article critically analyses the role of the UNSC in the processes of the ICC and how this has impacted on Africa's perception of the Court. <![CDATA[<b>Human rights developments in the African Union during 2016</b>]]> During the year 2016 several significant normative developments were recorded in the African human rights system. The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Older Persons in Africa was adopted but is yet to be ratified by any member state. The African Court delivered three merit decisions dealing with the right to fair trial and the right to political participation: a judgment on reparations; one ruling on jurisdiction; and one ruling on a review application. Despite this positive outlook, Rwanda's withdrawal of its article 34(6) declaration allowing direct access by individuals and NGOs posed a real challenge to the Court's legitimacy in cases with sensitive political implications. Both the African Commission and African Children's Committee made progress on the examination of state reports. As faras communications are concerned, the African Commission delivered seven merit decisions, while the African Children's Committee delivered two decisions on the merits and one ruling on admissibility. The African Children's Committee's decision on the age of childhood in Malawi, which was reached through an amicable settlement, led to constitutional amendments increasing the age of adulthood from 16 to 18 years. Finally, the trial and conviction of former Chadian dictator, Hissène Habré, by the Extraordinary African Chambers served as a breath of fresh air in the fight against impunity for human rights violations in Africa. <![CDATA[<b>Form over substance: The African Court's restrictive approach to NGO standing in the SERAP Advisory Opinion</b>]]> This article considers the long-awaited decision of the African Court on Human and Peoples' Rights in response to the application brought by the Nigerian NGO, Socio-Economic Rights and Accountability Project (SERAP), which sought guidance on the locus standi of NGOs to seek advisory opinions from the Court on the meaning of certain provisions of the African Charter. The Court's decision endorses the access of the NGO sector in principle, but imposes a stringent procedural precondition of formal observer status accredited by the African Union, rather than a broader test of official status before other relevant bodies, such as the African Commission. The effect of this procedural restriction in practice limits the number of NGOs able to seek Advisory Opinions from the Court to a small subset of the NGOs active in human rights protection in Africa. The article considers whether the Court's approach in adopting this limitation is theoretically coherent and lawful, concluding that it is inconsistent with the proper approach to treaty interpretation at international law. Further, the article considers the broader implications of the Court's decision, and the risk that it will discourage NGOs from using the African Court as the authoritative forum to determine the meaning of the African Charter in favour of other tribunals with less restrictive standing requirements, raising the potential forthe fragmentation of African human rights jurisprudence.