African Human Rights Law Journal - Volume 7, Issue 2, 2007
Volume 7, Issue 2, 2007
Source: African Human Rights Law Journal 7, pp V –VII (2007)More Less
It is regrettable that we see another issue of the Journal appear without the African Court on Human and Peoples' Rights having become operational. One can only hope that the Court's Rules of Procedures will soon be finalised and that the Court will be up and running in 2008. In the meantime, the African Commission on Human and Peoples' Rights has undergone some significant changes.
Author Ben Kiromba TwinomugishaSource: African Human Rights Law Journal 7, pp 283 –306 (2007)More Less
Maternal mortality and morbidity are serious problems in Africa in general and in Uganda in particular. Evidence shows that emergency obstetric care can play a significant role in the alleviation of these problems. However, in Uganda, there is limited access to such care, prompting an exploration of judicial strategies to protect the right to access emergency obstetric care. The article argues that the absence of an express provision guaranteeing the right in the national constitution is not a bar to its protection by the judiciary. Arguments against the judicial protection of socio-economic rights, generally, and the right in question, in particular, are misguided. Through an examination of relevant constitutional provisions and case law from a number of jurisdictions, the article finds that, in certain circumstances, the Ugandan government may be held accountable in domestic courts for failing to ensure access to emergency obstetric care to all women who need it. The judiciary can - without necessarily undermining the separation of powers - enhance women's access to emergency obstetric care by creatively and purposively interpreting constitutional provisions with a view to holding the government accountable. Nevertheless, judicial strategies must be underpinned by legislative, budgetary and other measures in order to achieve a holistic protection of the right.
A rights-protection goldmine or a waiting volcanic eruption? Competence of, and access to, the human rights jurisdiction of the ECOWAS Community Court of JusticeAuthor Solomon T. EbobrahSource: African Human Rights Law Journal 7, pp 307 –329 (2007)More Less
In 2005, the Economic Community of West African States adopted an additional protocol to complement the 1991 Protocol establishing its Community Court of Justice. One of the high points of the 2005 Additional Protocol was the conferment of a human rights mandate on the Court. Since then, the Court has entertained some cases of a human rights nature. Basis on an analysis of the documents and jurisprudence of the Court, this article examines certain issues relating to the human rights competence of the Court and addresses the question of access to the Court.
Source: African Human Rights Law Journal 7, pp 330 –353 (2007)More Less
This article represents an initial attempt to identify research themes and topics of special relevance to the furtherance of children's rights in the African context in order to sharpen and strengthen our capacity to promote good practice and promising solutions. It surveys an array of possibilities for research to promote the implementation of children's rights in an African context. A number of theme areas are detailed, spanning from general legal reform processes and children's participation therein, to matters of social and economic policy in so far as they feed into the implementation and advancement of children's socio-economic rights. The article incorporates information from a number of different African jurisdictions, comparing and contrasting efforts at child reform in respect of children's rights.
Assessing the effectiveness of the African Peer Review Mechanism and its impact on the promotion of democracy and good political governanceAuthor Andre Mbata B. ManguSource: African Human Rights Law Journal 7, pp 354 –388 (2007)More Less
Since the inception of the African Union, which superseded the now defunct Organisation of African Unity, the legal and political landscapes on the African continent have changed and are set to change further. Unlike the OAU, the AU takes democracy, good political governance and human rights seriously. Democracy and good political governance feature prominently among the objectives and principles of the AU. They are also entrenched in the objectives and principles of the New Partnership for Africa's Development, which is an initiative of the AU devised to accelerate the development of the continent and to pave the way for the African renaissance project championed by many African leaders and intellectuals. The African Peer Review Mechanism was established to assess the extent to which AU member states participating in NEPAD comply with the principles and objectives of NEPAD. Key among them are democracy and good political governance which are stressed in the NEPAD Declaration on Democracy, Political, Economic and Corporate Governance. More than half of the AU member states have to date acceded to APRM and participate in NEPAD. This article aims to assess the effectiveness of APRM and its impact on the promotion of democracy and good political governance in AU member states. It argues that APRM is an unprecedented mechanism in international law and African politics. Despite shortcomings and challenges, it has the potential to impact positively on the promotion of democracy and good political governance on the African continent.
Author Daniel R. MekonnenSource: African Human Rights Law Journal 7, pp 389 –411 (2007)More Less
Female circumcision is one of the predominant and most prevalent forms of violence against women in Eritrea. In an effort to tackle the formidable challenges of such a harmful traditional practice, a growing international awareness has emerged in the last few decades, resulting in the adoption of international conventions and declarations at the international level, and policies and legislation at the national level. Eritrea has recently adopted legislation banning female circumcision, joining the ranks of a few African countries which have adopted similar mechanisms to eradicate female circumcision as a form of violence against women. This article critically discusses the shortcomings of the new legislation and the overall strategy of the Eritrean government in the eradication of female circumcision. It is submitted that, in countries such as Eritrea where female circumcision is culturally deeply rooted, outright criminalisation without effective accompanying mechanisms is not always advisable. Female circumcision can only be eradicated by a multidimensional approach. Such an approach must encompass, among other things, meaningful and comprehensive education and campaign programmes, the involvement of independent democratic institutions and processes, as well as community and civil society engagement, all of which are vitally important in the eradication of female circumcision.
Lubanga, the DRC and the African Court : lessons learned from the first International Criminal Court caseAuthor Rebecca BowmanSource: African Human Rights Law Journal 7, pp 412 –445 (2007)More Less
Thomas Lubanga Dyilo will be the first person tried under the jurisdiction of the International Criminal Court. His case will have an important effect, not only on his home country, the Democratic Republic of the Congo, but on the world. Through an analysis of Lubango's case and the current development of the International Criminal Court's case load, the positives and negatives of International Criminal Court jurisdiction become apparent, particularly in relation to national or international primary jurisdiction. While the International Criminal Court is crucial for the development of international judicial authority, the Court is extending its reach too eagerly and willingly. In so doing, the Court is destroying the autonomy and development of governments and judicial systems in African countries. Therefore, the International Criminal court should show more restraint in its acceptance of cases and instead pursue alternative methods of bolstering national judiciaries. To be effective, the Court's mission must first focus on teaching and encouragement of local rule of law. The Court should focus on judicial decision making only as a secondary option. Finally, the Court should be increasingly subject to United Nations Security Council referrals than to state referrals or the prosecutor's own powers.
Access to anti-retroviral drugs as a component of the right to health in international law : examining the application of the right in Nigerian jurisprudenceAuthor Cheluchi OnyemelukweSource: African Human Rights Law Journal 7, pp 446 –474 (2007)More Less
Nigeria has a significant number of people living with HIV / AIDS. Access to anti-retroviral drugs is important to enable such persons to live a healthy life. This paper examines access to anti-retroviral drugs as part of the right to health under international law. It locates the right of health, its scope and content in international human rights instruments and attempts to draw the connection between access to anti-retroviral drugs and the right to health. It examines the interpretation of the right to health in the broader context of socio-economic rights in Nigerian jurisprudence. It concludes that the jurisprudence leaves much to be desired with respect to the protection of the right to health and specifically to access to anti-retroviral drugs.
Author Clement MashambaSource: African Human Rights Law Journal 7, pp 475 –495 (2007)More Less
This article examines the judicial protection of the right to work in Tanzania. First, it traces the historical basis of the struggle for the promotion and protection of workers' rights by looking at the early struggle in this regard, championed by early trade unions. It also discusses the implications of the partnership between trade unions leaders and politicians for the development of a vibrant trade union movement that would assist in the promotion of workers' rights. In the main, the article examines the effect of party supremacy by the ruling party on the legislation and the practice of labour rights in Tanzania. The article further examines the recent economic liberalisation and its impact on the promotion and protection of the right to work. In conclusion, it reviews a number of cases where the courts in Tanzania protected the right to work positively.
Author Melron C. Nicol-WilsonSource: African Human Rights Law Journal 7, pp 496 –521 (2007)More Less
The right to bail, as provided for under some United Nations and regional human rights instruments, has in recent times been applied by international tribunals. This article reviews the implementation of this right by the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, before focusing in more detail on the incorporation of this right into the Statute of the Special Court for Sierra Leone and its implementation by the Special Court. In conclusion, some suggestions are offered to ensure the more effective realisation of the right to bail at the Special Court for Sierra Leone.
Source: African Human Rights Law Journal 7, pp 522 –544 (2007)More Less
It is no secret that the African regional human rights system has severely underperformed its mandate and has not met the expectations of the people of the continent. The time of hushed criticisms of the weaknesses of the institutions, mechanisms and structures is long gone. Moreover, the African Charter system has routinely been subjected to stringent criticism due to its apparent inability to improve the situation. However, Africans need and deserve well-functioning institutions. It is within this context that the African Union (AU) is heralded as offering some hope, since it has as its distinct purpose the integration of `political, economic and human rights priorities'.
The 9th ordinary session of the African Committee of Experts on the Rights and Welfare of the Child : looking back to look ahead : recent developmentAuthor Benyam D. MezmurSource: African Human Rights Law Journal 7, pp 545 –575 (2007)More Less
The African Children's Committee of Experts on the Rights and Welfare of the Child (African Children's Committee) monitors the implementation of the African Charter on the Rights and Welfare of the Child (African Children's Charter). The 11-member African Children's Committee held its 9th meeting at the African Union (AU) Conference Centre in Addis Ababa, Ethiopia, from 29 to 31 May 2007. The Committee meets in bi-annual ordinary sessions, in spring and fall respectively.
Author Magnus KillanderSource: African Human Rights Law Journal 7, pp 576 –581 (2007)More Less
In his article 'From mandates to economic partnerships: The return to proper statehood in Africa', Professor Hennie Strydom sets out to show how the Economic Partnership Agreements (EPAs) currently being negotiated between the European Union (EU) and groups of countries belonging to the African, Caribbean and Pacific (ACP) group of states would help establish stronger states in Africa. In this reply to Strydom's article, I set out why the EPAs are unlikely to play the role he foresees.
From human rights to international criminal law : Studies in honour of an African jurist, the late Judge Laïty Kama, E. Decaux, A. Dieng & M. Sow (Eds.) : recent publicationAuthor Mirelle EhrenbeckSource: African Human Rights Law Journal 7, pp 582 –585 (2007)More Less
From human rights to international criminal law : Studies in honour of an African jurist, the late Judge Laïty Kama is in honour of Judge Laïty Kama who served as President of the International Criminal Tribunal for Rwanda from 1995 to 1999. On the whole, the compilation contains articles on various aspects of international criminal law, using the International Criminal Tribunal for Rwanda (ICTR) as the starting point for most of the articles.
Author Ntombizozuko DyaniSource: African Human Rights Law Journal 7, pp 585 –589 (2007)More Less
Generally, the term 'genocide' conjures up images of Adolf Hitler and the Nazi's, the Yugoslavia and Rwanda atrocities and the recent events in Darfur, Sudan. However, can the new methods of warfare, such as aerial bombings and nuclear weapons, constitute genocide? Is it possible to commit genocide by mistake? These are some of the questions that are tackled by John Quigley in his book, The Genocide Convention: An international law analysis.
The role of national human rights institutions at the international and regional levels. The African experience, R. Murray : recent publicationAuthor Michelo HansunguleSource: African Human Rights Law Journal 7, pp 589 –593 (2007)More Less
Rachel Murray's book is probably the first of its kind solely to focus on national human rights institutions (NHRIs) in Africa. Previous works on the subject have generally looked at the NHRIs worldwide. In any case, there is a famine in Africa on works such as this on subjects that are practical to the African project.