African Human Rights Law Journal - Volume 9, Issue 2, 2009
Volume 9, Issue 2, 2009
Source: African Human Rights Law Journal 9, pp V –VIII (2009)More Less
As the last issue of 2009 is published, a new editorial team, comprising four co-editors, takes the helm of the African Human Rights Law Journal. Another change is that the Dean of the Faculty of Law at the University of Pretoria, Professor Christof Heyns, previously serving as co-editor, now chairs the international editorial advisory board. We trust that his appointment to this position will usher in an era of increased involvement of the advisory board in the activities of the Journal.
Prosecuting sexual violence in the Eastern Democratic Republic of Congo : obstacles for survivors on the road to justiceAuthor Joanna MansfieldSource: African Human Rights Law Journal 9, pp 367 –408 (2009)More Less
Sexual violence in eastern Democratic Republic of the Congo (Eastern DRC) has been described as the worst in the world. Despite the introduction of forceful legislative amendments to reduce the violence, the scourge of sexual violence still plagues Eastern DRC. Given that the Congolese state prosecutes very few cases, the paper identifies and explains the obstacles victims face when seeking the prosecution of sexual violence perpetrators in Eastern DRC. Based on interviews conducted in Eastern DRC with various vocational and demographic groups from May to August 2008, the paper reveals the magnitude of sociological, institutional, financial and legal factors hindering the prosecution of sexual offenders. The paper argues that the successful prosecution of sexual offenders in Eastern DRC faces a myriad of obstacles and requires an exceptionally lucky combination of a number of unlikely conditions. To overcome these obstacles, strategists must concentrate on what underlies the sexual violence, namely, insecurity in Eastern DRC, as well as strengthening the capacity of the judicial sector.
Author Ademola JegedeSource: African Human Rights Law Journal 9, pp 409 –433 (2009)More Less
This article focuses on the establishment of the Panel of the Wise in the African Union peace and security architecture. It examines the basis, design and role of the Panel, and explores the possibilities that can be employed by the Panel in promoting the internalisation of peace and security in Africa. The writer makes recommendations in respect of the membership, norms and mandate scope of the Panel, and expresses confidence that, if properly designed and operationalised, the Panel will make a difference in the peace and security architecture of the African Union.
The SADC Protocol on Gender and Development : duplication or complementarity of the African Union Protocol on Women's Rights?Source: African Human Rights Law Journal 9, pp 434 –458 (2009)More Less
This paper is written from the perspective that universal human rights treaties provide minimum standards and that any subsequent regional instruments must not provide for anything less than what was already envisaged in universal treaties. With regard to the protection of women's rights, at the global level, the United Nations adopted the Convention on the Elimination of All Forms of Discrimination Against Women. However, this instrument is inadequate when it comes to the protection of women's rights in Africa. Consequently, the African Union adopted the Protocol to the African Charter on the Rights of Women to cater for prejudices peculiar to African women. In 2008, SADC adopted a Protocol on Gender and Development, to some extent duplicating the AU Protocol on the Rights of Women. The paper seeks to ascertain whether the SADC Protocol on Gender and Development complements or duplicates the AU Protocol on the Rights of Women. It is argued that SADC, in its efforts to pursue regional integration and the consolidation of all instruments that protect women, duplicated the AU Protocol on the Rights of Women. While the SADC Protocol on Gender and Development does introduce some new rights and state obligations, its overall effect is that these rights and state obligations do not serve to dramatically enhance the regime for the protection of the human rights of women in the SADC sub-region and, in fact, either merely maintain the status quo or undermine some of the achievements of the AU Protocol and CEDAW. The paper finally suggests that SADC could have adopted a plan of action or adopted robust implementation strategies to give meaningful effect to the imperative of securing the rights of women and the thus far-neglected theme of gender, rather than formulating and adopting a protocol, since the process of adopting a protocol is very costly, especially given the fact that a comprehensive instrument that safeguards the rights of women in Africa already exists.
Source: African Human Rights Law Journal 9, pp 459 –481 (2009)More Less
The imposition of the death sentence seems to be a common method of punishing grave offenders in Africa. In Tanzania, the most famous case involving capital punishment is Republic v Mbushuu, where the accused were convicted of murder and sentenced to death in 1994. Yet, there seems to be a new trend - among other things sparked by developments in international criminal justice - to work towards the abolishment of capital punishment. The article gives insights into legal and interdisciplinary considerations from an African-European perspective and calls for a progressive approach to the death penalty debate that works hand in hand with the legal understanding of the international community.
The development of a fledgling child rights jurisprudence in Eastern and Southern Africa based on international and regional instrumentsAuthor Ann SkeltonSource: African Human Rights Law Journal 9, pp 482 –500 (2009)More Less
This article charts the development of a child law jurisprudence that is emerging in Eastern and Southern Africa. The article records how judgments are beginning to make reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, and even to less prominent instruments such as the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption (1993) and the Hague Convention on Civil Aspects of International Child Abduction. Attention is paid to certain textual differences between the UN Convention and the African Children's Charter, and the extent to which these discrepancies have played a role in the development of a child law jurisprudence that might be described as uniquely African. The article considers judgments in the region that have expressly dealt with the 'best interests' principle. Examples from Botswana, South Africa and Kenya are described. The second area discussed is the imprisonment of children's primary care givers, in relation to which article 30 of the African Children's Charter, dealing with the children of imprisoned mothers, is highlighted. Other examples arise in relation to differences in the wording of the UN Convention and the African Children's Charter regarding inter-country adoption, which is the third area of case law discussed. High-profile cases relating to adoption applications brought by Madonna before the Malawian courts are amongst those examined. The article concludes that there is evidence of the beginnings of a specifically African jurisprudence in child law. It is noted, however, that more can be done to promote children's legal rights in the region through the ratification by more African countries of the Hague Conventions, and also through courts in the Eastern and Southern African region taking note of each other's jurisprudence.
Author Yonatan Tesfaye FesshaSource: African Human Rights Law Journal 9, pp 501 –523 (2009)More Less
The success of a federal arrangement in accommodating ethnic diversity cannot be measured solely on the basis of its language rights regime. However, it is generally agreed that a well-designed language rights regime goes a long way in contributing either to the effective reconciliation, unity and diversity or to the eventual polarisation of cultural communities. This article focuses on the challenges of adopting an inclusive language policy in multi-lingual states. Using two case studies, South Africa and Ethiopia, it examines the different policy alternatives for accommodating linguistic communities.
The African regional human rights system and HIV-related human experimentation : implications of Zimbabwe Human Rights NGO Forum v ZimbabweAuthor Annelize NienaberSource: African Human Rights Law Journal 9, pp 524 –545 (2009)More Less
The article investigates the protection by the African regional human rights system of participants in HIV-related human experimentation. It assesses the scope of the protection afforded by the system, and draws upon the jurisprudence of the African Commission on Human and Peoples' Rights in the communication of Zimbabwe Human Rights NGO Forum v Zimbabwe in order to argue that a failure on the part of African states to act to prevent the abuse of research participants will render those states liable for a finding by the African Commission of a violation of their obligations under regional human rights law.
Enforcement of fundamental rights and the standing rules under the Nigerian Constitution : a need for a more liberal provisionAuthor Elijah Adewale TaiwoSource: African Human Rights Law Journal 9, pp 546 –575 (2009)More Less
This article explores the scope of standing rules in section 46 of the 1999 Nigerian Constitution. It is observed that the section contains a restrictive and narrow provision on locus standi. The article finds that this narrow provision has the regressive effect of limiting access to court and it invariably constitutes an impediment or constraint on the enforcement of fundamental human rights in the country. Many common law countries, such as England, Australia, Canada, India and South Africa, have jettisoned this anachronistic position on standing for a more liberal and expansive interpretation. In contrast, the Nigerian Constitution still maintains restrictive and outdated rules of standing. This is inconceivable at a time like this when other common law jurisdictions are enthusiastically adopting a liberal approach to the concept.
International human rights law and foreign case law in interpreting Constitutional rights : the Supreme Court of Uganda and the death penalty question : recent developmentsAuthor Jamil Ddamulira MujuziSource: African Human Rights Law Journal 9, pp 576 –589 (2009)More Less
On 21 January 2009, the Supreme Court of Uganda handed down a judgment in which it held that the death penalty was constitutional, that a mandatory death sentence was unconstitutional, that hanging as a mode of execution was not cruel and inhuman, and that the death row phenomenon is cruel and inhuman and therefore unconstitutional. Although the Constitution of Uganda does not empower or require the Court to refer to international law or foreign case law in interpreting the Constitution, the Court relied heavily on international human rights treaties and jurisprudence in arriving at its decision. This article has three purposes: one, to show how the Ugandan Court used international law and foreign case law in its judgment; two, to analyse the Court's orders; and third to recommend that the Constitution of Uganda be amended to empower or require courts to refer to international law and foreign case law in interpreting the country's Constitution.
Defending human rights and the rule of law by the SADC Tribunal : Campbell and beyond : recent developmentsAuthor Admark MoyoSource: African Human Rights Law Journal 9, pp 590 –614 (2009)More Less
On 28 November 2008, the Southern African Development Community Tribunal handed down judgment directing Zimbabwe to cease its racially discriminatory land reform programme and to compensate farmers whose land had been compulsorily acquired as a result. Apart from confirming and extending the Tribunal's groundbreaking findings in Mike Campbell (Pvt) Ltd and Others v Republic of Zimbabwe, the article argues that the sorry state of the Tribunal's superficial reasoning on jurisdiction could have been enhanced by considering the approach of other international institutions. Drawing inspiration from international law and the jurisprudence of the South African Constitutional Court, the article argues that racial discrimination cannot solely be established by having regard to the impact of a contested law on a particular racial group. Much depends on the historical context and the fairness of the remedial mechanisms adopted to address prevailing socio-economic disparities between racial groups. The article concludes that the observance of human rights and the rule of law in the region, and the future relevance of the Tribunal, will be determined by the Summit's response to Zimbabwe's disregard of the legal process.
Towards the adoption of guidelines for state reporting under the African Union Protocol on Women's Rights : a review of the Pretoria Gender Expert Meeting, 6-7 August 2009 : recent developmentsAuthor Japhet BiegonSource: African Human Rights Law Journal 9, pp 615 –643 (2009)More Less
The article examines the results of and insights from the Pretoria Gender Expert Meeting which was convened with the primary purpose of developing state reporting guidelines under the African Women's Protocol. The focus of the article is the draft guidelines that were adopted at the end of the meeting, and the process and deliberations that yielded that draft. The Pretoria Draft Guidelines clears up the uncertainty regarding how a report under the Protocol should be grafted into a report under the African Charter in terms of article 26 of the Women's Protocol. As a set of guidelines, it seeks to achieve clarity and precision in three ways: by requiring states to report in terms of a list of measures of implementation; by drawing a clear distinction in the nature of information required in respect of first and subsequent reports; and by grouping the provisions of the Protocol into thematic clusters for reporting purposes. In the final analysis, it is concluded that the Pretoria Draft Guidelines provide a promising platform for the invigoration of the African Commission's state reporting mechanism and, by extension, the promotion and protection of women's rights in Africa. However, it has been noted that the effectiveness and impact of the reporting guidelines (and that of the reporting system as a whole) will depend on at least three other factors: the effective dissemination of the guidelines; the harmonisation of reporting guidelines; and the general reform of the African Commission's reporting mechanism.