African Human Rights Law Journal - Volume 5, Issue 2, 2005
Volume 5, Issue 2, 2005
Source: African Human Rights Law Journal 5, pp IV –V (2005)More Less
At its fifth meeting in Sirte, Libya, the African Union (AU) Summit decided that the merger of the African Court on Human and Peoples' Rights and the African Court of Justice needs to be completed. It also decided that 'all necessary measures for the functioning of the Human Rights Court be taken, including particularly the election of the judges, the determination of the budget and the operationalisation of the Registry' (Assembly AU/6(V)). One can only express the hope that the African Human Rights Court, which was already ready to be established early in 2004, should by early 2006 become a reality.
Source: African Human Rights Law Journal 5, pp 195 –220 (2005)More Less
This paper reflects the significance of ubuntu in South African constitutional law and proceeds by discussing the complex question of African identity, as this is relevant for the study of African jurisprudence and legal ideals. To show the practical significance of ubuntu and what it might mean jurisprudentially, the authors examine Mokgoro J's recent opinion in the Khosa case and how it could be applied as a principle in that case.
The Convention on the Rights of the Child and the cultural legitimacy of children's rights in Africa : some reflectionsAuthor Thoko KaimeSource: African Human Rights Law Journal 5, pp 221 –238 (2005)More Less
The Convention on the Rights of the Child has been almost universally ratified. The author argues that its implementation depends to a large extent on the level of cultural legitimacy accorded to children's rights norms in a society. In Africa, children are seen as a valuable part of society. Despite this, cultural practices that are detrimental to children exist, such as female genital mutilation and inappropriate initiation rites. The Convention is underpinned by four principles: non-discrimination, participation, survival and development and the best interests of the child. Each of these principles can come into conflict with cultural practices. However, culture is not static and harmful practices can be overcome. This requires that the reasons for the existence of a practice are clearly understood, that solutions are found in consultation with practising communities and that adequate social support is given to individuals who choose to abandon the practice.
Author Daniel AguirreSource: African Human Rights Law Journal 5, pp 239 –265 (2005)More Less
This article investigates corporate social responsibility and its importance for human rights law. It outlines the international trend of multinational corporations to conform to human rights and other international law standards set by the international community. Corporations, especially multinationals, are increasingly responsible for human rights on the African continent. The author stresses that, while multinational corporations must accept responsibility for their increased power and privilege in international law, the prime responsibility remains that of the state to protect and fulfil human rights.
Author Sabelo GumedzeSource: African Human Rights Law Journal 5, pp 266 –286 (2005)More Less
The article begins by discussing the political landscape of Swaziland and explains the tensions between traditional and modern forms of government in the country. It proceeds to look at the involvement of the monarchy in entrenching its authority and the impact that this has had on the doctrine of separation of powers in the country. The article investigates the fact that the ratification of numerous international human rights instruments has not had much impact on human rights adherence Swaziland. It also assesses the impact of the absolute power of the Swazi King on other organs of state responsible for upholding human rights, such as the judiciary. A discussion of constitutional developments in Swaziland follows. Finally, the author addresses the principle of the 'rule of law' and how this applies to Swaziland.
Source: African Human Rights Law Journal 5, pp 287 –307 (2005)More Less
This article focuses on the right to health under international and regional human rights instruments and issues affecting access to HIV / AIDS treatment in Nigeria. Although the Constitution of Nigeria does not recognise the right to health, Nigeria has ratified international and regional human rights instruments which guarantee the right to health as a fundamental human right. Arguing that access to treatment is a fundamental right, the authors focus on factors militating against access to treatment in Nigeria, such as the high cost of drugs, poor facilities in the health care sector, lack of respect for patients' rights, and stigma and discrimination associated with HIV / AIDS . A comparative analysis with other countries, such as South Africa, and possible suggestions for the way forward are then made.
Source: African Human Rights Law Journal 5, pp 308 –320 (2005)More Less
There are three regional systems for the protection of human rights; namely, the African, Inter-American and European systems. This contribution provides a comparative overview of their salient features and focuses on key procedural and institutional aspects of these systems.
Challenges in establishing the accountability of child soldiers for human rights violations : restorative justice as an optionAuthor Godfrey M. MusilaSource: African Human Rights Law Journal 5, pp 321 –334 (2005)More Less
This paper considers the question of the criminal responsibility of child soldiers for atrocities committed in armed conflict. It highlights the innovation introduced in international criminal law by the Statute of the Special Court for Sierra Leone, which permits the prosecution of children aged 15 and above. In viewing child soldiers not only as perpetrators but also as victims of human rights abuses, it argues that the existing mechanisms of criminal sanction for human rights violations that focus on punishment of the perpetrator are inadequate and that elements of restitutive justice, which are already asserted to a limited extent in recent developments in international human rights law regarding juvenile justice, should be included in the criminal prosecution process. Such an approach would satisfy the minimum requirements of justice while ensuring that child soldiers, who are often themselves the victims of human rights abuses, are appropriately sentenced.
Author Kwadwo Appiagyei-AtuaSource: African Human Rights Law Journal 5, pp 335 –357 (2005)More Less
The author discusses two schools of African philosophy: the holistic and the contemporarist. The holistic school looks into the past and present to find solutions to Africa's contemporary problems, while the contemporarist school looks at a Western standard of philosophy and ideas of civil society, human rights and development. The contemporarist school does not incorporate the cultural past of African traditions into African philosophy. The emphasis put by the contemporarist school on science and technology and rights as the originators of development is questionable. The author supports the holistic school in which African proverbs form part of African philosophy. The author uses Akan proverbs to illustrate how these are part of an African philosophy of human rights. Modern African philosophy should be diverse in outlook, but have a common core in the traditions that African societies have in common. In using African philosophy in the African rights struggle, it must become a tool that can be used by the oppressed, the deprived and the marginalised to regain their status in the development structures of their countries. The language of rights should be used as a tool for development, unmasking the disempowering effect of enjoying abstracted civil and political rights disconnected from the struggle for economic justice.
Author Karen StefiszynSource: African Human Rights Law Journal 5, pp 358 –386 (2005)More Less
This paper provides an overview of the various structures of the African Union in terms of the challenges and opportunities they present for women's rights advocacy. The following structures are discussed in relation to the African Union's declared commitment to gender equality as one of its governing principles: the Assembly of the Union; the Executive Council; the Commission; the Pan-African Parliament; the African Court of Justice; the Economic, Social and Cultural Council; the Peace and Security Council; the African Commission on Human and Peoples' Rights; and the African Court on Human and Peoples' Rights. The discussion reveals that women are unrepresented or under-represented in the main decision-making bodies of the African Union. Recommendations are offered for advocacy to remedy the present imbalance and to advance women's rights generally.
A human rights approach to World Trade Organization trade policy : another medium for the promotion of human rights in AfricaAuthor Omphemetse SibandaSource: African Human Rights Law Journal 5, pp 387 –405 (2005)More Less
In this article, the author examines the human rights approach to trade policy within the framework of the World Trade Organization. In this regard, the author outlines the rationale and the basis for the assertion that the World Trade Organization should embrace the human rights approach. The author argues that such an approach to trade policy can play a vital role in the promotion of a human rights culture in Africa. African countries seem to be increasingly embracing a human rights approach to trade and are also party to bilateral trade arrangements, which emphasises the need for a good relationship between international trade and human rights.
A dilemma of the twenty-first century state : questions on the balance between democracy and securityAuthor Bernard BekinkSource: African Human Rights Law Journal 5, pp 406 –423 (2005)More Less
Across the globe, states face acts of terrorism and violent crimes. The terror attacks upon the United States of America were a wakeup call to the modern world regarding the protection of its security and citizens. In response, many states have opted to enact anti-terrorism laws aimed at combating terrorism and protecting their people. These laws are controversial since they seem to limit widely accepted fundamental rights. Many regard them to be Orwellian in nature, compromising democratic progress and individual freedoms. However, states have specific duties and responsibilities towards their citizens, one being to protect and shield them from public and private violence. To achieve this, a state has to balance its tasks of providing security and ensuring democracy. Achieving such a balance is not easy, more often than not creating a dilemma for the twenty-first century state.
The embargo against Burundi before the African Commission on Human and Peoples' Rights (Note on Communication 157/96, Association for the Preservation of Peace in Burundi v Tanzania, Kenya, Uganda, Rwanda, Zaire and Zambia) : recent developmentsAuthor Alain Didier OlingaSource: African Human Rights Law Journal 5, pp 424 –432 (2005)More Less
The African Commission on Human and Peoples' Rights (African Commission) should be lauded for placing the 1981 African Charter on Human and Peoples' Rights (African Charter) firmly on the road to effectiveness, departing from what had initially been considered the organised ineffectiveness of 1981, with a quantitatively respectable and qualitatively ever richer jurisprudence. Nevertheless, one cannot fail to express the opinion that much remains to be refined in the Commission's interpretative procedures, particularly when it gives a ruling on a contentious issue.