Who's watching 'big brother'? Globalisation and the protection of cultural rights in present-day Africa
by Joe Oloka-Onyango
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The forces of globalisation operate in a contradictory, oppositional and even conflictual fashion. The results of the processes are mixed and varied. It is against this background that the author examines the influence of globalisation on the protection of cultural rights in Africa with the aid of analogies drawn from the influence of the 'Big Brother Africa' reality show on the African continent. The paper discusses the challenges posed by globalisation to cultural rights in Africa. In discussing the African human rights regime in relation to cultural rights, the author explores the role that can be played by the African Commission on Human and Peoples' Rights and civil society in preserving cultural rights. The author further highlights the interrelation between culture, globalisation and women's rights and the need to promote and protect the right to African traditional knowledge in a globalised world. The author concludes by making a call that the category of primary duty bearers in the protection of human rights must be widened to include transnational corporations, families and communities over and above the state.
The advisory Jurisdiction of the African Court on Human and Peoples' Rights
by AP Van Der Mei
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The entry into force of the Protocol to the African Charter on Human and Peoples' Rights on the establishment of the African Court of Human and Peoples' Rights on 25 January 2005 came as a huge achievement for the protection of human rights in Africa. The creation of an institution that would deliver binding decisions on human rights issues has evaded the African system since the advent of the African Charter. This article looks critically at the provision of the African Court Protocol, paying particular attention on the Court's competence to give advisory opinions. This is in the light of the fact that access to the Court is limited in that individuals and NGOs do not have direct access thereto. This article argues that individuals and NGOs can have access to the Court via seeking advisory opinions, as the provision dealing with this aspect is broadly worded. It is also observed that in exercising its advisory opinion powers, the Court can be able to address a wide range of human rights issues. In this article, three areas of the Court's advisory competence is looked into: Firstly, who can request an advisory opinion; secondly, what forms the subject matter of a request for an advisory opinion; and thirdly, what is the effect of an advisory opinion on the compatibility of domestic laws with international law. This article contends that due to the limited nature of access to the Court, the Court should adopt a very flexible approach in exercising its powers to enable more accessibility, because in any event the complaints procedure under the African Commission is virtually open to anybody.
Interpreting rights globally: Courts and constitutional rights in emerging democracies
by Nsongurua J Udombana
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Democracy has spread over Africa and with it new constitutions with justiciable bills of rights have been accepted. The main focus of the article is on constitutional interpretation and how a constitution should be interpreted in view of the fact that a constitution, and especially the bill of rights, is not only made up of clear-cut rules, but also of ideals and principles. Purposive and creative interpretations are particularly needed in Africa's emerging democracies. Creative constitutional interpretations are further enhanced when courts engage in comparative constitutional analysis. The article gives examples of how courts around the world have used comparative case law. The author further defends the approach of comparative constitutionalism in the light of the objections that have been raised against it.
The right to pre-trial silence as part of the right to a free and fair trial: An overview
by Tharien Van Der Walt and Stephen De La Harpe
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The right to pre-trial silence as part of the right to a free and fair trial is included in many international human rights treaties, albeit not expressly. The exact content of this right is, however, not clearly defined and the scope thereof differs in various jurisdictions. In this contribution, the provisions of the African Charter, decisions of the European Court of Human Rights and the position in South Africa are discussed. As a general rule, it can be stated that it is accepted that during the pre-trial stage the right to remain silent serves as a safeguard against the abuse of powers. There is, however, a difference of opinion as to what extent negative inferences can be drawn from pre-trial silence. We conclude that it ought to be impermissible to draw an adverse inference as to the guilt or the credibility of the accused from his pre-trial silence alone.
Breaking new ground: The need for a protocol to the African Charter on the abolition of the death penalty in Africa
by Lilian Chenwi
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The 1980s saw the drafting and adoption of international treaties on the abolition of the death penalty. In the European and Inter-American human rights systems, steps have been taken to abolish the death penalty by means of the adoption of protocols to their respective human rights treaties. Therefore, the African continent is the only region with a human rights treaty that does not have a protocol on the abolition of the death penalty. Human rights systems need to be constantly adapted to match changing conditions. Accordingly, in view of the international human rights developments and trends towards the abolition of the death penalty, this article addresses the need for a protocol to the African Charter on Human and Peoples' Rights on the question of the abolition of the death penalty in Africa.
A comparative study of the implementation in Zimbabwe and South Africa of the international law rules that allow compulsory licensing and parallel importation for HIV/AIDS drugs
by Solomon Frank Sacco
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The HIV/AIDS pandemic poses a great threat to the livelihood of people living in sub-Saharan Africa. Within Southern Africa, Zimbabwe and South Africa are some of the countries worst hit by the pandemic. While the HIV/AIDS pandemic ravages these two countries, there are in existence drugs that can treat the symptoms of HIV/AIDS and also lower the communicability of the virus. The availability of these drugs in the two countries, however, is problematic particularly because of the international patents law regime. The result is that the drugs are very expensive when imported into the countries and therefore unavailable to the people that need them the most. The present article discusses how Zimbabwe and South Africa can effectively guarantee the availability of cheap anti-retroviral drugs to their populations by utilising the flexibilities in the TRIPS agreement to allow compulsory licensing and parallel importation of cheap anti-retroviral drugs. The article also examines the legal framework in the two countries to determine how they may best be utilised to secure the right to health in the present dispensation. The paper posits that the governments in these two countries can further the citizenry's right to health in the by fully utilising the flexibilities of the TRIPS agreements to facilitate the availability of cheap anti-retroviral drugs.
Cultural authoritarianism, Women and human rights issues among the Esan people of Nigeria
by Christopher E Ukhun and Nathaniel A Inegbedion Esq
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This paper seeks to address discrimination against women on cultural grounds. The issues of human and women's rights in African countries have always been complex. This is so, not because of a lack of recognition of these rights, but rather because of cultural barriers and practices that have made the realisation of these rights a rather more difficult task in Africa than is the case in the western world. These cultural barriers are termed 'cultural authoritarianism' within the context of this paper. This paper deals in particular with two such cultural barriers, namely burial and inheritance culture amongst the Esan people of Nigeria. The paper advances the argument that, in spite of its feeble attempts to do so, the state has not succeeded in putting in place sufficient measures to eliminate cultural practices that discriminate against women and has rather displayed an attitude of reluctance or lack of commitment or at other times, prevarication on women's rights.
Justice for the people: Strenthening primary justice in Malawi
by Joseph DeGabriele and Jeff Handmaker
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In Africa, primary justice, or the way people resolve disputes and access justice within their own social and cultural contexts, has, perhaps by default, been wrongly perceived as exclusively comprising 'customary justice', upheld and administered by traditional leaders. These perceptions are, however, changing with a growing realisation that people are questioning the roles of traditional leaders and developing their own community-based justice mechanisms. Primary justice involves a much broader set of stakeholders, including faith-based organisations and institutions, community-based organisations and non-governmental organisations. Extending the scope of primary justice and supporting capacity-building among primary justice organisations can enable communities to reclaim justice for themselves in ways that respect human rights, reach far more people than formal justice systems, and have the potential to be powerful and peaceful mobilising forces for social change.
Circumcision and the rights of the Kenyan boy-child
by Patricia Mande Nyaundi
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The adoption of the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child strengthened the protection of the rights of children. Although Kenya has ratified both instruments and enacted the Children's Act, all instruments prohibiting practices that are prejudicial to the rights of children, circumcision of the boy-child for purely cultural reasons still takes place in the country, sometimes with severe consequences, such as deaths. This article demonstrates that the circumcision of non-consenting boys under the age of 18 violates their basic human rights, particularly the right not to be discriminated against, the right to health, the right to privacy and bodily integrity, and the right not to be subjected to cruel and inhuman treatment. The article concludes that the human rights implications stemming from male circumcision necessitate positive action against this practice by the government.
