African Human Rights Law Journal最新文献

{"title":"Realising the right of access to water for people living on farms: The impact of the KwaZulu-Natal High Court decision in Mshengu v uMsunduzi Local Municipality","authors":"Lisa Chamberlain, Kelebogile Khunou","doi":"10.17159/1996-2096/2021/v21n1a24","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n1a24","url":null,"abstract":"SUMMARY Access to water is a constitutionally-protected right in South Africa and an energetic flow of laws, policies and programmes have been initiated to address historical inequalities in the supply of water since the dawn of democracy. Yet despite this, millions of people living in South Africa still have inadequate access to water. Access to water is a particular challenge for people living on farms. By providing an analysis of the case of Mshengu & Others v uMsunduzi Local Municipality & Others, decided by the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg, this article seeks to make two key contributions. First, it highlights the challenges experienced by farm dwellers in realising their right to water and locates these challenges within a legal framework which places obligations on both municipalities and private land owners to provide access to water on farms. In particular, the mechanism of water services intermediaries envisaged in the Water Services Act 108 of 1997 is explored as a way to delineate and facilitate the role of private land owners in realising the right to water for farm dwellers. Second, drawing on debates around how the value of public interest litigation can be understood, the article interrogates the value of the litigation in the Mshengu case. Key words: right to water; water services intermediaries; farm workers; labour tenants; public interest litigation","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67473169","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The right to return to one's country in Africa: Article 12(2) of the African Charter on Human and Peoples' Rights","authors":"J. D. Mujuzi","doi":"10.17159/1996-2096/2021/v21n1a11","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n1a11","url":null,"abstract":"SUMMARY At the height of the COVID-19 pandemic many African countries barred people, including citizens and foreign nationals, from entering or leaving their territories. This was the case although article 12(2) of the African Charter on Human and Peoples' Rights provides that '[ejvery individual shall have the right to leave any country including his own, and to return to his country'. However, article 12(2) also provides that '[t]his right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality'. Article 12(2) of the African Charter provides for the rights both to leave and to return to one's country. In this article the discussion is limited to the right to return. Unlike other regional human rights treaties in Europe, the Americas and the Arab world where the right to return to or enter one's country is reserved for citizens only, the African Charter does not expressly limit this right to citizens. This raises the question of whether the right to return to one's country is reserved for citizens or nationals only. In answering this question, one of two arguments could be made. The first argument is that the right to return under article 12(2) is reserved for citizens only (the strict approach). The second argument is that it is applicable to both citizens and to a few categories of foreign nationals (the broader approach). The jurisprudence of the African Commission and the African Court shows that these bodies have adopted the strict approach. This could be attributed to the fact that the communications they have so far dealt with have been filed by citizens (de jure or de facto,) or on behalf of citizens. However, these bodies are likely to adopt a broad approach should the facts of the case(s) so require. In the constitutions of most African countries, states have also taken a strict approach. This article explains why it is better to take a broader approach when dealing with article 12(2) of the African Charter. This argument is made by partly comparing and contrasting article 12(2) of the African Charter with other regional and international instruments that protect the right to return. The article also demonstrates how the right to enter or return to one's county has been approached in the constitutions of different African countries. Key words: return; article 12(2); African Charter; one's country; entry; African Court; African Commission","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67473425","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Towards a transformative child rights discourse in Africa: A reflexive study","authors":"Musavengana WT Chibwana","doi":"10.17159/1996-2096/2021/v21n1a7","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n1a7","url":null,"abstract":"SUMMARY It has been 30 years since the adoption of the African Charter on the Rights and Welfare of the Child. This article takes the opportunity to reflect on where the child rights discourse is going to allow for proactivity in addressing emerging challenges and changing child rights context on the African continent. Using positional reflexivity as the methodology, I identify what I call six transformative promptings which are engendering a shift to the child rights discourse. I argue that for the discourse to be more erudite in ensuring the protection as well as well-being for children on the African continent, these six issues must be seriously considered. The first issue is a shift from child rights alterity to trans-disciplinarity. The second issue involves the evolution of the child rights promotional obligation. The third issue is on the nexus between exponential urbanisation on the African continent and fulfilment of children 's rights. The fourth issue is on the rise of the nebulous information communication technology. The fifth issue is on addressing cross border child rights violations and lastly the small matter of financing child rights using domestic resource mobilisation. Key words: positional reflexivity; children's rights; African Children's Charter","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67473759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The right to privacy under the Constitution of Kenya and the criminalisation of consensual sex between same-sex adults","authors":"Nicole Treyson Koske, Tomasz Milej","doi":"10.17159/1996-2096/2021/v21n1a18","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n1a18","url":null,"abstract":"SUMMARY This article argues that the provisions of the Kenyan Penal Code (sections 162 and 165) criminalising consensual sex between partners of the same sex limit the right to privacy enshrined in article 31 of the Constitution of Kenya of 2010. This limitation is not justifiable according to the Bill of Rights limitation clause in article 24 of the Constitution. Article 45(2) of the Constitution, which provides for a right to 'marry a person of the opposite sex', also does not justify this limitation. Embracing the idea of an open and democratic society, the Constitution precludes the state from imposing upon the individual moral choices, provided that those choices do not harm others. Therefore, the decision whether or not consensual sex is moral must be left to the individual concerned. By refusing to declare sections 162 and 165 unconstitutional in 2019, the High Court of Kenya misinterpreted the Constitution and consequently failed in its mandate to uphold the right to privacy of homosexual persons in Kenya. Key words: right to privacy; Constitution of Kenya; rights of LGBT+ persons; open and democratic society; criminalisation of same-sex relationships; right to marry","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67473134","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Sen-Nussbaum diagram of article 11(3) of the African Charter on the Rights and Welfare of the Child: Facilitating the relationship between access to education and development","authors":"T. Khoza","doi":"10.17159/1996-2096/2021/v21n1a2","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n1a2","url":null,"abstract":"SUMMARY The right to education is an infinitely important right, the benefits of which are boundless. In the case of children, this position is even more emphasised. The right to education has been described as a 'gateway right', which leads to the realisation of a plethora of other rights. Although often done from an economics point of view, many authors have also written about the nexus between education and development. The realisation of the right to education, thus, has been shown to play a positive role in the realisation of developmental goals, both for children, as individuals, and for communities, as a whole. Regarding development, the works of Sen and Nussbaum have helped us to understand development in a marked way, which considers more than the gross national product. These authors, notably, introduced us to the language of 'unfreedoms' and 'capabilities'. With its focus on the rights of the African child, this article begins by tracing some of the notable developments that have occurred since the adoption of the African Charter on the Rights and Welfare of the Child. Thereafter, the article focuses specifically on the realisation of the child's right to education in Africa, as guaranteed in article 11(3) of the African Children's Charter, through the lens of the theories of Sen and Nussbaum. Key words: children's rights; right to education; development in Africa; Sen and Nussbaum, African Children's Charter","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67473202","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Is the forfeiture of criminally-acquired property in Tanzania compliant with the Constitution?","authors":"A.O.J. Kaniki","doi":"10.17159/1996-2096/2021/v21n1a22","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n1a22","url":null,"abstract":"SUMMARY Asset recovery, which involves the forfeiture of criminally-acquired property, is considered to be an effective mechanism of addressing serious and organised crime within national boundaries and across international frontiers. This is a paradigm shift from penal law and policy-making bodies of concentrating on persons only to also address their minds to property. The current legal position is that asset recovery in Tanzania is conviction based. This means that forfeiture orders must be preceded by the conviction of an accused. When carried out as expected, the mechanism has an impact of depriving criminals of their ill-gotten wealth, thereby striking them at a point where it hurts most. All this is aimed at ensuring that the convict is denied the enjoyment of the fruits of his criminal acts, serving as a deterrent and an attempt by the state to suppress the conditions that lead to unlawful activities. It disrupts criminal activities and prevents the possibilities of using the proceeds of crime to reinvest in other forms of crime. Tanzania has a legal and institutional framework that deals with the forfeiture of criminally-acquired assets. However, the basic question into which this article enquires is whether this framework is human rights compliant. To respond to this question, the discussion looks at the provisions of the Bill of Rights as entrenched in the country's Constitution in relation to the asset recovery legal regime and inquires whether the latter reflects those constitutional provisions. Despite some limitations that are apparent in the course of enforcing legal provisions on asset recovery, the article concludes that all Tanzanians, including suspects, are treated equally before the law. As such, they are all expected to enjoy the rights and freedoms that are contained in the Constitution. There are avenues through which those who feel aggrieved can pursue their complaints. Key words: forfeiture; illegally-acquired property; concealing profits from crime; Constitution; human rights compliance","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67473604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The 'Africa we want' in the African Union's Agenda 2063 on the realisation of women's human rights to access justice","authors":"Nomthandazo Ntlama-Makhanya, Nombulelo Lubisi-Bizani","doi":"10.17159/1996-2096/2021/v21n1a13","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n1a13","url":null,"abstract":"SUMMARY This article examines the envisioned design of the 'Africa we want' through the lens and intersection of the principles of the rule of law and access to justice in the elimination of the barriers that compromise the promotion of the rights of women in contemporary Africa as envisaged in Agenda 2063. The objective is to affirm the language of rights as an enabling environment that will advance the promotion of the rights of women in the regulation of state authority. The purpose of the article is grounded by many of the challenges faced by women of Africa in the enjoyment and fulfilment of their rights. The article raises questions on the improvement of access to justice by women, capacitation of the enforcement agencies and their contribution to socio-legal change. These questions are limited to the rights of women within the interrelationship that exists between the rule of law and access to justice. The article starts by setting the tone on the intersection of the two principles and their potential to advance the rights of women in Africa. It then focuses on the significance of the people-centred approach within the framework of the two principles in the advancement of the rights of women of Africa as envisaged in Agenda 2063. Key words: rule of law; justice; women; contemporary Africa; human rights; Agenda 2063; social change","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67473441","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sub-regional organisations and the responsibility to protect: A case for the localisation and normative repatriation of sub-regional authority for coercive measures","authors":"Henry Paul Gichana","doi":"10.17159/1996-2096/2021/v21n1a15","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n1a15","url":null,"abstract":"SUMMARY The adoption of the responsibility to protect by the United Nations General Assembly marked a key milestone in the advancement of human security and the international protection of human rights. The textual adoption by the UNGA, however, was skewed in favour of the world order as it existed at the adoption of the Charter of the United Nations. Key among the recommendations downplayed by the UNGA text is the place of regional and sub-regional organisations in the implementation of the responsibility to protect. The consequence has been that sub-regional organisations have often been sidelined and their position on conflicts overlooked by the United Nations Security Council in its authorisation of R2P-related interventions. This article utilises the differences between the original R2P concept and the R2P norm adopted by the UNGA as well as subsequent discourses and state practice flowing from these differences to argue for R2P's localisation in the African context and for the normative repatriation of the authority of sub-regional organisations to adopt coercive measures under R2P. The article uses the Economic Community of West African States to illustrate the potential for sub-regional organisations to implement R2P when accorded the requisite regional and international support. Key words: sub-regional organisations; responsibility to protect; norm localisation; norm repatriation; peace and security","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67473518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Understanding the nature, scope and standard operating procedures of the African Commission's special procedure mechanisms","authors":"Kennedy Kariseb","doi":"10.17159/1996-2096/2021/v21n1a8","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n1a8","url":null,"abstract":"SUMMARY Special procedure mechanisms form an important aspect of the human rights architecture of the African Commission. Although introduced gradually, these mechanisms have grown in both size and scope. This article considers the overall nature, scope and standard operating procedures of the African Commission's special procedure mechanisms in light of development and evolution by reference to its composition; selection and appointment ofmandate holders, code of conduct of mandate holders (that is, independence and conflict of interest), working modalities, immunities and privileges and procedure. It also identifies and analyses possible areas of reform in this system. Key words: African Union; African Commission; human rights; special procedure mechanisms; standard operating procedures","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67473770","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Evaluating the role of the African Committee of Experts on the Rights and Welfare of the Child in the COVID-19 era: Visualising the African child in 2050","authors":"R. D. Nanima","doi":"10.17159/1996-2096/2021/v21n1a4","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n1a4","url":null,"abstract":"SUMMARY Africa has gained much traction in recognising the rights of the child with an emphasis on his or her holistic environments. Three general environments that affect a child are identified: first, a peaceful environment informed by adequately functional institutions that aid the implementation of all laws that improve the position of the child; second, an environment punctuated by emergencies such as armed conflict, public health emergencies or humanitarian situations. The third environment is where a child who has moved from humanitarian situations seeks solace. This may include internally-displaced persons and refugees/asylum seekers. This article evaluates the role of the African Committee of Experts on the Rights and Welfare of the Child as the only regional human rights body that monitors the promotion and protection of the rights of children. The evaluation covers the third environment in the context of the COVID-19 era. It is argued that the current traction by the Committee after the outbreak of the pandemic can be used to improve the position of the child towards the 2050 aspirations. An evaluation of the effects of the pandemic on the child is done followed by a visualisation of the child in 2050. An analysis of the normative, institutional and jurisprudential framework of the Committee in the Covid-19 era follows. A juxtaposition of the use of Agenda 2040 to realise the 2050 visualised child is done. This informs a proposed model that the Committee may adopt, followed by a conclusion and recommendations. Key words: African Children's Committee; African Children's Charter; Agenda 2040; jurisprudence; normative; COVID-19","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67473672","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}