African Human Rights Law Journal - Volume 10, Issue 2, 2010
Volume 10, Issue 2, 2010
Source: African Human Rights Law Journal 10, pp V –VIII (2010)More Less
With the publication of this issue of the African Human Rights Law Journal, the second of 2010, we mark the end of the first ten years of the Journal's existence. In reaching this milestone, we look back with satisfaction and celebrate the fact that we have to a great extent achieved our two main objectives: to provide a forum for African voices often not commonly heard; and to stimulate discourse on human rights in Africa. As the present editors, we warmly thank everyone who has made it possible for the Journal to reach this milestone: the international editorial advisory board, editorial assistants, subscribers, contributors, reviewers and readers. Three individuals must be singled out: Christof Heyns, now chairing the international editorial advisory board, and who was one of the driving forces behind the Journal and part of the initial editorial team; Isabeau de Meyer, whose title of 'Publication manager' spectacularly fails to do justice to her dedication and incalculable contribution to ensure the high quality and regular and timely publication of the Journal; and Annelize Nienaber, now part of the editorial team, who has been responsible for implementing the Journal's approach of working with authors on the language editing of their contributions, where required.
Author Mesenbet Assefa TadegSource: African Human Rights Law Journal 10, pp 325 –344 (2010)More Less
The right to development is one of the most contested rights, continuing to attract the attention of academics, international lawyers and scholars in the development discourse. Since the adoption of the United Nations Declaration on the Right to Development in 1986, the question whether a legal right to development exists, particularly in the context of states' rights, is unresolved. The article seeks to explore the challenges and prospects of recognising the right to development as a legal right. In making such an inquiry, the article discusses the legal framework governing the right to development, the theoretical controversies surrounding its articulation and the prospects of its implementation. Beyond reinvigorating the discussion on the right to development, the article aims to give the reader new insights on the subject.
The meaning of certain substantive obligations distilled from international human rights instruments for constitutional environmental rights in South AfricaSource: African Human Rights Law Journal 10, pp 345 –376 (2010)More Less
The South African Constitutional Court has not yet had sufficient opportunity to clarify the meaning of positive obligations of the state imposed by the environmental right contained in section 24 of the Constitution of the Republic of South Africa, 1996. The contribution attempts to determine some of the positive obligations of a substantive nature implied by this section. It does so by drawing inspiration from the way in which international (both universal and regional) human rights bodies have interpreted and applied relevant provisions of different human rights instruments within their respective jurisdictions. In addition, it illuminates the extent to which these obligations may have already been given effect to in domestic law. The human rights instruments that are considered for the purposes of this article include the International Covenant on Civil and Political Rights; the African Charter of Human and Peoples' Rights; the European Convention of Human Rights and Fundamental Freedoms; the American Declaration of the Rights and Duties of Man; and the American Convention of Human Rights.
Author Evelyne AsaalaSource: African Human Rights Law Journal 10, pp 377 –406 (2010)More Less
The eventful defeat of the Kenya African National Union political party in the 2002 general elections ushered in a new era for Kenya. With the change of regime an opportunity for transitional justice presented itself. A task force established by the Minister for Justice and Constitutional Affairs advised that there was a need for transitional justice. However, given the political differences among the political elite, this path of transitional justice proved not to be as easy as contemplated. The report and recommendations by the task force were shelved and the sentiments revived only in the aftermath of the December 2007 election violence. The period after the election violence witnessed the establishment of the Kenya National Dialogue and Reconciliation Committee which became the avenue through which the government and the opposition discussed an agenda for power sharing as well as specific issues in need of reform. The KNDRC adopted various measures to deal with the country's political crisis. These included a review of the Constitution; the investigation of the root causes of the violence; the setting up of a Truth, Justice and Reconciliation Commission; the need to establish a Commission of Inquiry into the Post-Election Violence; and numerous institutional reforms. This article investigates the necessity and utility of the various ongoing transitional justice initiatives. In particular, the article undertakes an assessment of prosecution and non-prosecutorial mechanisms of transition as well as the constitutional review process. Other key issues arising from this discourse which the article attempts to address are whether Kenya is a society in transition, the influence of the volatile political context currently obtaining in Kenya on transitional justice efforts; and Kenya's legal obligations on the subject of transitional justice.
Author Adem K. AbebeSource: African Human Rights Law Journal 10, pp 407 –431 (2010)More Less
This article analyses the legal regime governing standing to enforce constitutional rights in Ethiopia. It reiterates the direct link between standing rules and the right of access to justice. It observes that, although the laws of several states still require a personal interest in the action one wants to litigate, there is a developing trend towards the liberalisation of standing rules, particularly regarding human rights issues. It considers the activism of the Indian judiciary and the innovative changes introduced by the South African Constitution, recognising public interest litigation. With regard to Ethiopia, the article considers the rules governing standing in ordinary courts, the House of Federation and the Council of Constitutional Inquiry, the Human Rights Commission and the institution of the Ombudsman. It concludes that the current standing law regime is too restrictive as it requires the actual violation of personal rights and interests in a particular claim. The issue of standing is still governed by archaic rules which do not take into account the interest at stake and the individual circumstances of the victims. It recommends the liberalisation of standing rules to ensure that the constitutional guarantees can be enforced via, amongst others, public interest litigants.
Author Isaac Terwase SampsonSource: African Human Rights Law Journal 10, pp 432 –456 (2010)More Less
Demonstrations or civil protests personify the popular right to freedom of expression as well as the right to freedom of peaceful assembly and association, all guaranteed under the Universal Declaration of Human Rights, regional instruments on human rights as well as the constitutions of many states. It is widely accepted that the expression of dissent through demonstrations or public processions is an acceptable democratic practice; provided that it is exercised in accordance with the law. In Nigeria, however, the predominance of military regimes in the country's political history has produced a culture of intolerance to any exertion of this democratic right. The country's return to civil rule in 1999, however, witnessed a resurgence of civil protests which were expectedly met with state repression. This article examines the legality of the right to demonstrations and civil protests in Nigeria, the nature of the police's response to the exercise of this right as well as the factors that underpin the nature of state response. It argues that the right of demonstrations and civil protests is a genuine democratic right guaranteed under international law as well as Nigeria's municipal law. It is further contended that derogations or restrictions to the exercise of this right must be in tandem with fundamental rights and freedoms which allow democracy to run its course while enforcing law and order and protecting the rights of others. The article concludes by proffering recommendations for the effective and harmonious policing of demonstrations in a democratic Nigeria.
The right to inclusive education in Nigeria : meeting the needs and challenges of children with disabilitiesAuthor Bukola Ruth AkinbolaSource: African Human Rights Law Journal 10, pp 457 –477 (2010)More Less
The article examines the right to inclusive education in Nigeria. It asserts that the essence of the right to education is that it should be provided to all and without discrimination. It posits that, under Nigerian law, children with disabilities suffer many prejudices, including seclusion and discrimination in terms of education. It argues that such practices amount to a violation of the Nigerian commitments and obligations under international law to provide education for all and without discrimination. The article calls on the Nigerian government to put in place adequate laws and policies advancing the right of children with disabilities within its territory.
Author Susanna CoetzeeSource: African Human Rights Law Journal 10, pp 478 –501 (2010)More Less
Educators are agents of change and they have a mandate to change schools and classrooms into places where human rights are respected and taken into consideration when discretionary powers are exercised. Nigerian educators have a mandate to observe and promote human rights, not only because such rights are guaranteed in the Nigerian Constitution as the supreme law of the country, but also because the Nigerian government has committed itself to upholding human rights by ratifying and domesticating various international and regional human rights instruments. In this article the author argues for the suitability of a positive discipline approach as a way in which educators could fulfil their mandate to observe and foster children's rights. The author identifies human rights (with specific emphasis on children's rights) as found in international and regional human rights instruments as well as in domestic law that Nigerian educators must observe when establishing a disciplined classroom. Factors which hamper the implementation of human rights instruments such as the misinterpretation of the Constitution in the domestication of treaties and the respective legislative powers of the federal and state legislatures, the conflict between customary law and statutory law, the rejection of the supremacy of the Constitution by some religious groups, and the rejection of human rights instruments on the grounds of cultural and religious practices and customs, for example the traditional view of children as lesser beings and the view that corporal punishment is in the best interests of the child, are identified.
The Nigerian Fundamental Rights (Enforcement) Procedure Rules 2009 : a fitting response to problems in the enforcement of human rights in Nigeria?Author Enyinna NwaucheSource: African Human Rights Law Journal 10, pp 502 –514 (2010)More Less
This article reviews the Nigerian Fundamental Rights (Enforcement) Procedure Rules 2009 to determine whether it is a suitable response to the numerous problems arising in the course of two decades of the enforcement of fundamental human rights in Nigeria. Such problems include the highly technical and formally procedural nature of the Fundamental Human Rights (Enforcement Procedure) Rules 1979; the requirement of standing to sue; and the distinction between principal and accessory claims. Through a review of the procedural changes made by the 2009 Rules and the overriding objectives in the application of the 2009 Rules the article demonstrates that the 2009 Rules may be regarded as a suitable response if the Nigerian judiciary recognises that utmost flexibility must be the fundamental ordering principle of human rights enforcement.
Author Obeng MirekuSource: African Human Rights Law Journal 10, pp 515 –523 (2010)More Less
This case note examines the South African Constitutional Court's recent decision overturning the customary law rule of male primogeniture in a dispute as to whether a woman could succeed her late father as a tribal chief. The Court overruled the hitherto central doctrine of male primogeniture by upholding a woman's right to equality to become the first female chief to inherit a chieftaincy position since the advent of South Africa's new constitutional dispensation in 1994. The article welcomes the decision as it empowers appropriate traditional authorities to effect incremental developments which are necessary to keep customary law in line with the dynamic and evolving fabric of the South African constitutional state.
The treatment of homosexuality in the Malawian justice system : R v Steven Monjeza Soko and Tiwonge Chimbalanga KachepaAuthor Louise PriceSource: African Human Rights Law Journal 10, pp 524 –533 (2010)More Less
On 26 December 2009, two male Malawian nationals were arrested and charged with participating in a pre-nuptial engagement ceremony while of the same sex. This article is a trial observation by the author using the observational methodology of the United Nations Office of the High Commission for Human Rights. The article seeks to present an independent and impartial factual account of the trial of Steven Monjeza and Tiwonge Chimbalanga and to document the reaction to the trial by members of civil society. The aim is to examine the disjuncture between Malawian criminal law and the protection of human rights afforded by Malawi's Constitution, resulting in procedural and legal errors in the trial and the conviction of the two men.
Like running on a treadmill? The 14th and 15th sessions of the African Committee of Experts on the Rights and Welfare of the ChildSource: African Human Rights Law Journal 10, pp 534 –556 (2010)More Less
The 14th and 15th sessions of the African Committee of Experts on the Rights and Welfare of the Child were held in November 2009 and March 2010 respectively. The Committee has considered more reports and issued its first concluding observations. The continued engagement of the Civil Society Organisations Forum with the African Children's Committee offers an example of positive progress towards supporting the implementation of the African Children's Charter. The development of a relatively well thought-out strategic plan for the African Children's Committee's work for the period 2010 to 2014 (with a better level of participation from stakeholders) also offers an advance in the work of the Committee. Despite these, there remains some room for improvement in order to allow the African Committee to achieve its mandate of the promotion and protection of children's rights in Africa.