African Human Rights Law Journal - Volume 10, Issue 1, 2010
Volume 10, Issue 1, 2010
Source: African Human Rights Law Journal 10, pp V –VI (2010)More Less
This volume of the Journal appears as the African Union (AU) is embarking on the elaboration of an 'African Human Rights Strategy'. This process is unfolding in parallel with a quest by the AU to reflect upon and identify the common values that should guide the process of greater integration in Africa. The identification of shared values is important to give substance and impetus to the process of integration, and to make it more people-centred. However, such a process should be inclusive, and the value system should be based on the framework of AU and other international human rights instruments. Over the almost ten years of its existence, this Journal has given coverage and fostered debate and discussion on many of these values. From our perspective, the values of tolerance for diversity (which are found in articles 28 and 29(7) of the African Charter) and protection of and respect for the most marginalised should be given prominence in the AU process.
Author Werner ScholtzSource: African Human Rights Law Journal 10, pp 1 –25 (2010)More Less
The African continent is vulnerable to the consequences of climate change. Climate change poses a serious threat to peace and security on the African continent since it may, for instance, result in competition for and conflict about scarce resources. The capacity to adapt may reduce potential conflict, but there are various constraints on the capacity of African countries. Thus, support for climate change adaptation is essential. Africa may increase their adaptive capacity through international negotiations, but African states lack the resources to pursue this goal. The African Union has therefore facilitated the establishment of a common African position on climate change aimed at international climate change negotiations. Accordingly, the main aim of the article is to discuss the pursuit of the enhancement of adaptive capacity and therefore environmental security of African states through Africa's common position on climate change.
Beyond paper-based affiliate status : national human rights institutions and the African Commission on Human and Peoples' RightsAuthor Bonolo R. DinokopilaSource: African Human Rights Law Journal 10, pp 26 –52 (2010)More Less
An extensive literature has evolved around the relationship between the African Commission on Human and Peoples' Rights and non-governmental organisations with observer status. Not much has been written about the nature of the relationship between the African Commission and national human rights institutions. This article seeks to scrutinise this relationship. In particular, it examines the role of national human rights institutions in the activities of the African Commission and, concomitantly, how their role could be strengthened in order to enhance human rights protection in Africa. The paper further examines the rationale behind their greater participation in the workings of the African Commission and ascertains whether there is a need for a more elaborate and meaningful relationship.
Jurisdiction ratione materiae of the Uganda Human Rights Commission : making sense of the ambiguity in the jurisprudenceAuthor Henry OnoriaSource: African Human Rights Law Journal 10, pp 53 –77 (2010)More Less
In the first decade of its existence (1998-2008), the Uganda Human Rights Commission has dealt with a significant number of complaints and, in doing so, has invariably had to bear in mind its competence in terms of - although this terminology has never been employed - its jurisdiction ratione materiae. The jurisdiction ratione materiae of the Commission as a tribunal is primarily to deal with complaints alleging violations of human rights. This should not have been contentious since the bulk of complaints lodged with the Commission since 1998 prima facie concern human rights. However, from 2006, the uncertainty regarding the Commission's jurisdiction ratione materiae has been manifested in several decisions, especially in respect of complaints alleging violations of the rights to life and property. The Commission's jurisdiction ratione materiae has been contested in such complaints through preliminary objections raised on the part of the state and, although rejected in the early decisions up to 2005, the Commission has since 2006 exhibited a willingness to uphold the objections. The discourse over the Commission's jurisdiction ratione materiae has had implications for other aspects of the Commission's mandate (including its jurisdiction ratione personae and the limitation period for presentation of complaints). Ultimately, the ambiguity over the Commission's jurisdiction ratione materiae is essentially a conceptual one pertaining to the nature (and content) of claims presented before the Commission and its quasi-judicial character.
Marriage under African customary law in the face of the Bill of Rights and international human rights standards in MalawiAuthor Lea MwambeneSource: African Human Rights Law Journal 10, pp 78 –104 (2010)More Less
Contracting a marriage under African customary law in Malawi poses difficulties and challenges in the light of the Bill of Rights and international human rights standards. There are bound to be conflicts which, seen from a human rights perspective, amount to violations of women's human rights. The article explores the nature of the conflict between human rights and a plethora of principles, rules and practices pertaining to marriage under African customary law in Malawi. The article also shows strong support from both men and women for cultural practices that conflict with women's human rights. It is therefore argued that efforts to eradicate these cultural practices, however well-intended, must be undertaken with a very high level of cultural sensitivity. It is suggested that, instead of a formal approach to the realisation of human rights, a substantive approach which is inclusive of the reasons behind the support for cultural beliefs and values, be adopted in order to address those aspects of a particular cultural practice that violate human rights.
The right to health care in the specific context of access to HIV / AIDS medicines : what can South Africa and Uganda learn from each other?Source: African Human Rights Law Journal 10, pp 105 –134 (2010)More Less
Unlike many other African countries, which either exclude socio-economic rights from their constitutions or include them in the Preamble or the section on Directive Principles of State Policy, the South African Constitution is well known for its inclusion of this category of rights in its Bill of Rights. For example, while the right to health care services is specifically provided for in the South African Constitution, the Ugandan Constitution merely requires the state to 'take all practical measures to ensure the provision of basic medical services to the population'. In the specific context of access to HIV / AIDS medicines, it is interesting to note that, in spite of the disparity in the measure to which the right to health care is constitutionally protected, Uganda is renowned for having taken the lead in the roll-out of anti-retroviral treatment. South Africa has been widely criticised for its initial disastrous approach towards HIV / AIDS treatment, an approach that led to the loss of millions of lives that could have been saved with the early roll-out of anti-retroviral treatment. The article looks at the different approaches adopted by the two countries in terms of access to HIV / AIDS medicines and the implications for the right to health care. Apart from identifying the lessons Uganda and South Africa can learn from each other, the article explores the important question of accountability for the violation of the right to health care occasioned by inadequate access to HIV / AIDS medicines.
Author Sabelo GumedzeSource: African Human Rights Law Journal 10, pp 135 –160 (2010)More Less
This article discusses how the African Union, as a major contributor to peace and security, has embraced and further entrenched the concept of the responsibility to protect. It traces the concept from the time when the former Secretary-General of the United Nations, Kofi Annan, challenged the international community to agree on the basic principles and processes of when intervention should occur in order to protect humanity against gross violations of human rights. It further discusses how the government of Canada responded to this challenge through the establishment of the International Commission on Intervention and State Sovereignty, which undertook extensive work in an attempt to unpack the meaning of the concept. The article makes reference to the 2005 World Summit where the Heads of State and Government of the United Nations unanimously affirmed the concept of the responsibility to protect, as well as to the 2005 Common African Position on the Proposed Reform of the United Nations (Ezulwini Consensus) wherein the Executive Council of the African Union affirmed this concept. The article further makes linkages between the concept of the responsibility to protect and the notions of human rights, human security and international security. Focusing on the African Union, the article discusses how the concept has over the years evolved in the African context. Devoting particular attention to article 4(h) of the Constitutive Act of the African Union, the article gives an understanding on how this article gives effect to the responsibility to protect. It elaborates on the notions of collective intervention and universal jurisdiction, among other things. The article also considers the processes to be undertaken by the African Union, as a means of giving effect to the responsibility to protect, following requests for intervention by its member states and occurrences of undesirable unconstitutional changes of government.
Who does the law seek to protect and from what? The application of international law on child labour in an African contextSource: African Human Rights Law Journal 10, pp 161 –196 (2010)More Less
Since time immemorial, African indigenous societies have viewed childhood in terms of intergenerational obligations of support and reciprocity, and deemed the period of childhood as that for acquiring the social and technical skills necessary to perform the future roles of adulthood. Children represent lineage continuity and, most importantly, the material survival of their families and the communities at large. International human rights instruments embody a contemporary approach to childhood which views it as a distinct and separate stage of innocence, physical weakness, mental immaturity and general vulnerability - a period ideologically excluded from the production of value. With these differences in the approaches to child development, the potential for discordance between African customary laws and practices on the one hand and the objectives of the international children's rights instruments, on the other hand, is real. Can a world of such social and cultural diversity possibly attain universal interpretation, application and acceptance of the international norms of children's rights? The article highlights the challenges involved in applying the international prohibition on child labour to traditional societies of Southern Africa and offers a few compromises for a relevant regime for the region.
Author Stanley IbeSource: African Human Rights Law Journal 10, pp 197 –211 (2010)More Less
The article explores ways of overcoming challenges in the effective implementation of economic, social and cultural rights in Nigeria. It begins with a brief review of the legal architecture of economic, social and cultural rights. It examines challenges to implementing these rights, such as locus standi, justiciability and the doctrine of dualism. Finally, it identifies the opportunities provided by Nigeria's current constitutional review process; the debate on access to information legislation; legislative action; and citizens' education, empowerment and mobilisation.
Source: African Human Rights Law Journal 10, pp 212 –232 (2010)More Less
The year 2009 witnessed numerous human rights developments on the African continent. The African Union added a treaty on the protection of internally displaced persons to its already robust normative human rights framework. The African Commission reviewed and expanded its working groups, extended its reach to emerging issues, including climate change and the global financial crisis, and adopted reporting guidelines under the African Women's Protocol and a framework document on the abolition of the death penalty in Africa. For its part, the African Court handed down its first judgment, while the African Children's Committee further cemented its role in examining state reports under the African Children's Charter. This note provides an overview of these developments.
Author Solomon T. EbobrahSource: African Human Rights Law Journal 10, pp 233 –264 (2010)More Less
The year 2009 saw important judicial and non-juridical human rights developments within the framework of three of the most active regional economic communities in Africa. During the year, each of the three communities engaged in some form of standard-setting in the field of human rights. Further, in East Africa, thematic meetings relevant to human rights were convened. In Southern Africa and West Africa, the communities embarked on activities aimed at strengthening democracy. Sub-regional courts in Southern Africa and West Africa were also involved in human rights cases during 2009. These developments are reviewed to highlight their overall significance in the context of human rights in Africa.
Source: African Human Rights Law Journal 10, pp 265 –292 (2010)More Less
An overview of 2009 shows the dramatic influence of developments pertaining to international criminal justice in shaping not only legal but also political and human rights discourses in Africa. This contribution, which reviews selected events in 2009, includes a selective analysis of the work of two important international jurisdictions - the International Criminal Court and the International Criminal Tribunal for Rwanda. This year, the 'hybrid' Special Court for Sierra Leone concluded its last trial and appeal in Freetown and heard the testimony of Charles Taylor. Both are significant for the pursuit of justice in Sierra Leone. In Kenya, the failed efforts to establish a special tribunal and the attempts to prosecute suspected pirates apprehended off the coast of Somalia, shape the debate on the prosecution of international crimes in domestic judicial spheres. The first case before the African Court on Human and People's Rights, concerning Hissène Habré, and the attempts to establish a criminal chamber to try crimes defined under international law within the African Court are touched upon. Events in Sudan are highlighted, including the International Criminal Court's arrest warrant against the President of Sudan, and the report by the African Union Panel on Darfur.
Author Ebenezer DurojayeSource: African Human Rights Law Journal 10, pp 293 –308 (2010)More Less
The article examines data in relation to maternal mortality and the causes of death during pregnancy and childbirth. It analyses the United Nations Human Rights Council's Resolution on Maternal Mortality and its importance to the prevention of maternal deaths worldwide. The article argues that, although the Resolution of the Human Rights Council should have come sooner, nonetheless it remains a strong statement by a UN body to the international community, particularly poor regions such as Africa, to take adequate measures to address the causes of maternal deaths. The article concludes by commending the Human Rights Council for this Resolution and expresses the hope that greater attention will be given to the issue of maternal mortality by the international community in regions worst affected, such as Africa.
Author Enyinna NwaucheSource: African Human Rights Law Journal 10, pp 309 –314 (2010)More Less
This comment examines a decision of the Nigerian Court of Appeal that a Nigerian child is not entitled to refuse a blood transfusion. The comment notes that the decision was handed down at a time when the Child Rights Law was in operation and that, had this legislation been taken into consideration, the best interests of the child would have led to a more nuanced interpretation and guidance on conditions under which a Nigerian child, in furtherance of the right to freedom of religion, may refuse a blood transfusion.