African Human Rights Law Journal - Volume 8, Issue 1, 2008
Volume 8, Issue 1, 2008
Source: African Human Rights Law Journal 8, pp V –VI (2008)More Less
This issue of the Journal appears against the background of xenophobic violence in South Africa. Previously a symbol of transcending race and racism, South Africa's reputation has now become seriously tainted. The recent wave of violent xenophobia is a contradiction of the ideals of pan-Africanism.
Author Fareda BandaSource: African Human Rights Law Journal 8, pp 1 –22 (2008)More Less
This article celebrates the gains that have been made by women in the field of human rights as they pertain to issues of violence. It provides an overview of international and regional initiatives illustrated with reference to case law. The focus of the article is on provisions in the African Protocol on Women's Rights tackling violence. While acknowledging that normative recognition of rights is not by itself the panacea for the pervasive discrimination that affects women, the article argues that the almost universal recognition of violence against women as constituting a violation of their fundamental rights is cause for celebration, not least because it provides the framework for dealing with the problem and provides states with concrete goals.
Strict positivism, moral arguments, human rights and the Security Council : South Africa and the Myanmar voteAuthor Dire TladiSource: African Human Rights Law Journal 8, pp 23 –36 (2008)More Less
Much has been made about the positions adopted by South Africa during its non-permanent tenure on the United Nations Security Council. In particular, much criticism has attached to the position adopted by South Africa with regard to a resolution introduced in the Council relating to human rights violations taking place in Myanmar. South Africa voted against the resolution on the grounds that the situation in Myanmar did not amount to a threat to international peace and security. This position, which relies on the text of article 39 of the UN Charter, has been criticised as representing an unduly restrictive and legalistic (or positivistic) approach. The essence of the critique is that human rights violations per se should be seen as constituting a threat to international peace and security. While undoubtedly the position adopted by South Africa relies on the text of the UN Charter, the question posed by this article is whether this approach is necessarily a positivistic approach. This article does so by reflecting on the limits of the powers of the Security Council. It suggests that understanding the limits of the power of the Security Council and, in particular, the rationale for the limits of the power of the Security Council, is central to determining whether the position is indeed excessively legalistic. Finally, the views contained here are inspired by the need to develop the rule of law as well as the coherence of the international legal system.
Migration and the portability of social security benefits: the position of non-citizens in the Southern African Development CommunityAuthor Daleen MillardSource: African Human Rights Law Journal 8, pp 37 –59 (2008)More Less
The Southern African Development Community (SADC) region currently experiences spontaneous migration of citizens across borders in search of job opportunities and a better standard of living. Generally, freedom of movement across borders which manifests in migration, is a distinguishing feature of globalisation and should be respected as a basic human right. However, what is of growing concern in SADC is the portability of migrants' social security benefits. Do the current SADC structures allow migrants to preserve, maintain and transfer social security benefits such as pension benefits independent of their nationality or country of origin? This article explores the social security measures in individual SADC member states and the extent to which these national measures provide protection for migrants in SADC. Comparing the situation within SADC to that in the European Union, the article concludes that, although there is no simple solution to the problem, it is imperative that SADC member states recognise international standards pertaining to migrants and, more importantly, standards pertaining to the portability of benefits. Ideally, SADC member countries should gradually extend social protection to non-citizens who contribute to their economies through their labour and thereby enhance the right to freedom of movement.
Author Nicole O'NealSource: African Human Rights Law Journal 8, pp 60 –78 (2008)More Less
The use of corporal punishment within the public educational system of African states is unlawful, detrimental to the health and welfare of the children, and an unnecessary impediment to educational excellence in the region. Public school corporal punishment violates several international and regional human rights treaties, customary international law, and may breach jus cogens norms prohibiting torture and recognising a fundamental right to respect for human dignity. The United Nations Convention on the Rights of the Child, the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples' Rights expressly condemn all forms of corporal punishment. In addition, the Universal Declaration of Human Rights, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the African Charter on the Rights and Welfare of the Child can also be interpreted to prohibit the practice of public school corporal punishment. Most African states have ratified these international and regional human rights instruments; therefore, laws authorising this practice should be repealed and alternative methods should be encouraged through legal reform. This article explains how laws authorising public school corporal punishment breach human rights law, and calls for law reform in African states. In addition to the repeal of such laws, this article suggests legislation that could be implemented domestically to condemn and prohibit this practice.
Oil on troubled waters : multinational corporations and realising human rights in the developing world, with specific reference to NigeriaAuthor Hakeem O. YusufSource: African Human Rights Law Journal 8, pp 79 –107 (2008)More Less
This article examines the current state of tension in the Niger Delta of Nigeria. It locates the current unrest in the continued denial of economic, social and cultural rights to the oil-rich communities in the area. The author argues that this denial happened with the complicity and acquiescence of the international community. The Nigerian government as well as multinational corporations operating in the area have not been responsive to the development needs of the people. The article argues that, although the primary obligation for realising the economic, social and cultural rights of host communities rests on the government, multi-national corporations in developing countries, considering their awesome resources and influence on government policies, should be similarly obligated to respect, promote and protect those rights.
Author Simon M. WeldehaimanotSource: African Human Rights Law Journal 8, pp 108 –137 (2008)More Less
Between 1993 and 1997, Eritrea was engaged in a constitution-making process. In accordance with the legal framework set to guide the process, the constitution-in-the-making was finalised on 23 May 1997. There is disagreement about the status of this Constitution. Although it remained supportive throughout the constitution-making process, the transitional government of Eritrea has declined to implement the Constitution more than ten years after the Constitution had been ratified. The government of Eritrea's reluctance is ascribed to the absence of an entry into force clause in the Constitution and the 1998-2000 border conflict between Eritrea and Ethiopia. The government used this as a pretext and as a result, constitutional development in Eritrea has been arrested for a period of ten years. This article investigates the factors affecting the status of the Constitution and concludes that, in spite of certain flaws in the constitution-making process, the Constitution is a legitimate pact that has been in force since the date it was ratified.
The protection of participants in clinical research in Africa : does domestic human rights law have a role to play?Author Annelize NienaberSource: African Human Rights Law Journal 8, pp 138 –162 (2008)More Less
This article investigates the protection of clinical research participants in sub-Saharan Africa by domestic human rights instruments. It assesses the weaknesses in the existing regulatory framework in the form of international and national ethical guidelines, and surveys domestic human rights law in selected African countries to ascertain whether domestic human rights law may be used to augment and enhance the existing system of protection. It concludes that domestic human rights law has an important (if hitherto unutilised) role to play in the protection of clinical research participants in sub-Saharan Africa.
Why the Supreme Court of Uganda should reject the Constitutional Court's understanding of imprisonment for lifeAuthor Jamil Ddamulira MujuziSource: African Human Rights Law Journal 8, pp 163 –186 (2008)More Less
The issue of life imprisonment is always a contentious one. Some people argue that life imprisonment should mean what it means, namely 'whole-life'. In Uganda, life imprisonment continues to mean imprisonment of 20 years. However, in 2005 the Constitutional Court ruled that life imprisonment should mean 'the whole of a person's life'. This decision is not yet law, because the particular case is on appeal before the Supreme Court, which will either uphold the Constitutional Court's ruling or not. This article deals with the constitutionality of long prison sentences that the Constitutional Court suggested could be imposed to avoid prisoners being released after 20 years. It also argues that the Supreme Court should reject the Constitutional Court's ruling that life imprisonment should mean the whole of the prisoner's life. The human rights and administrative implications of 'whole-life' imprisonment are discussed in detail to support the view that life imprisonment should remain as is, that is, 20 years in prison. The author draws inspiration from other domestic jurisdictions and international law to support his argument. In particular, the author looks at jurisprudence from Germany, South Africa, the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the Former Yugoslavia, the Special Court for Sierra Leone, the International Criminal Court and the European Court of Human Rights. Where applicable, the views of the African Commission on Human and Peoples' Rights are highlighted.
Author Takele Soboka BultoSource: African Human Rights Law Journal 8, pp 187 –206 (2008)More Less
Conflict of a magnitude that happened in Rwanda owes its causes to a multitude of factors, and ultimately require multi-dimensional responses, each of which plays a role in addressing the underlying roots of the genocide. A legal response to the problem, the Constitution of Rwanda, was adopted by a referendum in May 2003. This contribution is an attempt to gauge the role of the Constitution in reordering Rwandan society along a new social equilibrium. Seen against the backdrop of the genocide that decimated a tenth of the country's population, this contribution focuses on the identification of the causes of the genocide and the evaluation of the substantive, procedural and institutional innovations of the Constitution in its attempt to build a new path for post-genocide Rwanda.
Win some, lose some : the 10th ordinary session of the African Committee of Experts on the Rights and Welfare of the ChildSource: African Human Rights Law Journal 8, pp 207 –220 (2008)More Less
The African Committee of Experts on the Rights and Welfare of the Child, the monitoring body of the African Charter on the Rights and Welfare of the Child, held its 10th ordinary session in October 2007. This discussion highlights the inertia of the Committee, exemplified by its failure to examine any of the state reports submitted to it. Some cause for optimism may be derived from the appointment of a permanent Secretary to the Committee.
Upholding the Rastafari religion in Zimbabwe: Farai Dzvova v Minister of Education, Sports and Culture and OthersAuthor Mtendeweka Owen MhangoSource: African Human Rights Law Journal 8, pp 221 –238 (2008)More Less
This discussion deals with a unanimous decision by the Supreme Court of Zimbabwe, ruling that the expulsion of six year-old Farai Dzvova from the Ruvheneko Government Primary School because of his expression of his religious belief through wearing dreadlocks is a contravention of section 19 of the Constitution of Zimbabwe. This contribution argues that the judgment in Farai is progressive and should be welcomed. It further argues that the reasoning by Cheda J, demonstrating why Rastafari qualifies as a religion under section 19 of the Constitution of Zimbabwe, should be welcomed particularly as progressively realising and promoting religious rights in Zimbabwe, and that it adds to the growing progressive religious jurisprudence in Southern Africa. It is further noted that the decision will likely have the effect of reversing similar rules or regulations which prohibit Rastafari learners from attending public schools on account of their dreadlocks in Southern Africa. The contribution criticises previous decisions by the Zimbabwe Supreme Court and the South African Constitutional Court that recognised Rastafari as a religion without explaining why this was done.
Author Pieter CarstensSource: African Human Rights Law Journal 8, pp 239 –242 (2008)More Less