In this article, the authors evaluate the implications of the Children's Act 38 of 2005 for ukuthwala. Ukuthwala is a practice whereby, as a preliminary procedure to a customary marriage, a young man forcibly takes a girl to his home. In recent times, the practice has taken on other dimensions, including very young girls being married to older men and charges of abduction being laid. Questions arise relating to the impact of constitutional principles upon this customary law and practice. It is suggested that, instead of adopting an a priori prohibitionist stance towards customs that seem to violate human rights norms, benign accommodation that promotes the positive aspects of culture should be sought. This approach leads to a conclusion that South African law should recognise those forms of ukuthwala where the requirement of the consent of the 'bride' is met. The implications of the prohibition on social and cultural practices detrimental to child well-being in the Children's Act 38 of 2005 are framed in this context.
Revisiting corporate violations of human rights in Nigeria's Niger Delta region: Canvassing the potential role of the International Criminal Court
The international community awakened to the bitter reality of the failure of traditional international legal system to anticipate and embrace non-state actors at the early conceptualisation of their norms. This reality relates to the fact that transnational corporations that often wreak havoc in host states appear to be outside the ambit of international law, and therefore beyond its control. However, since the last two decades, governments and international business organisations have attempted to develop initiatives to fill the perceived gap. At the same time, the academic community has engaged in a discourse about the appropriate legal framework that may be deployed to ensure that transnational corporations are confined within a defined scope of international human rights obligations. Focusing on Africa, particularly on the oil-rich Niger Delta region of Nigeria, the article aims to engage in the debate. It takes a nuanced approach to the issue, and argues that an extension of the International Criminal Court's jurisdiction to transnational corporations is imperative. This would be a meaningful way of ensuring respect and compliance with human rights obligations by transnational corporations.
Disentangling illness, crime and morality: Towards a rights-based approach to HIV prevention in Africa
An increasing number of African states criminalise HIV transmission. In addition, several states criminalise private conduct traditionally associated with the risk for such transmission, such as homosexuality, sex work and drug use. However, there is increasing evidence that punitive responses to the HIV epidemic are inappropriate and counterproductive. They also fuel stigma and violate individual rights, especially those of members of marginalised groups. Relying on literature canvassing the content and effects of stigma pertaining to HIV, sex, perceived moral deviance and criminality and on studies questioning the effectiveness of criminal law in this context, this article disputes the appropriateness of employing the criminal law in relation to the transmission of HIV, as well as in relation to vulnerable or marginalised groups. Rather, the article argues for a human rights-infused, public health approach to HIV that upholds the rule of law, procedural justice and the principle of proportionality. Ultimately, the article asserts that, given the systemic causes of the African HIV and AIDS pandemic, solutions thereto should be similarly systemic in nature, rather than focused on individual instances of transmission.
In light of the global trend towards the abolition of the death penalty and the stand of the United Nations on the matter, it is not surprising that the maximum penalty available under international criminal law is life imprisonment. However, during the negotiations for the penal aspects of the Rome Statute, some delegates contended that life imprisonment is a violation of human rights such as human dignity and the prohibition against cruel, inhuman and degrading treatment or punishment. On the other hand, some delegates felt that excluding life imprisonment from the International Criminal Court's competence where the death penalty was not available would handicap its mandate to punish gross human rights violators. Adopting a human rights perspective, the article revisits this debate by critically examining the penalty of life imprisonment under international criminal law. It argues that no clear justification has been given for the imposition of life imprisonment and that the release mechanism for lifers needs to be improved. Focusing on the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court, the article analyses the relevant statutes and rules and the manner in which life imprisonment has been imposed by these tribunals. Further consideration is given to the enforcement of sentences with respect to the prospect of release for 'lifers'. The article concludes by stressing the need for a more focused and cautious approach to life imprisonment and the enforcement of sentences under international criminal law.
Many migrants from Southern Africa come to South Africa every year in search of a better life. This article explores the extent to which foreign African migrants are covered or excluded by the social protection regime in South Africa, using the situation of Malawian migrants as a case study. The article demonstrates that there are both normative (or formal) exclusions, as well as practical exclusions from social protection faced by these migrants. In light of this grim reality, the article explores the various survival strategies that these migrants adopt in order to hedge against the risk of socio-economic shocks. The article shows that there are well-developed informal social protection networks largely based on nationality and kinship. Another key finding in the study is that, for many migrants, the movement to South Africa is in itself a social protection measure to protect against existing or future socio-economic risks and vulnerabilities in their native state. The article suggests that the experiences of Malawian migrants in Johannesburg are similar to the experiences of foreign migrants in various metropolitan societies in Eastern and Southern Africa.
The utility of environmental rights to sustainable development in Zimbabwe: A contribution to the constitutional reform debate
The current economic situation in Zimbabwe was caused by a number of factors, including legitimate attempts to redress historical imbalances in the ownership of land. Land is part of the natural resources of a country and without sustainable management and use of natural resources, a country may not be able to promote and fulfil other human rights. By now, Zimbabwe could have been almost out of its economic whirlpool if only it was able to sustainably manage its natural resources, in spirit of the state's trusteeship over natural resources. The constitutional reform process in Zimbabwe presents a timely opportunity to lobby for the inclusion of environmental rights in the new Constitution. It is crucial to understand why such rights should be included and what benefit they may bring to the people of Zimbabwe. Environmental rights are crucial to sustainable development and the fulfilment of other human rights, especially socio-economic rights, that depend on the availability of resources. All human rights are therefore interdependent and complementary. Nevertheless, environmental rights will only thrive in an environment where the rule of law and good governance are respected. By incorporating environmental rights in the new Constitution, Zimbabwe will be following not only developments in South Africa, but also trends in international environmental law and the regional protection of human rights, especially in Africa.
Local government and human rights: Building institutional links for the effective protection and realisation of human rights in Africa
There is increasing recognition of the role of local government in the protection and realisation of human rights obligations. Recent studies on links between local government, decentralisation and human rights are evidence of this growing recognition. In Africa, there are newly-formed pan-African institutions on local government. Local authorities and national local government associations have also formed a regional association. National ministries in charge of local government have formed a regional inter-ministerial forum on local government and decentralisation. This trend is replicated at sub-regional levels in Africa. While the place and role of local government in international human rights law are not yet fully understood, the formation of these institutions provides an appropriate avenue for the same. The article makes a case for institutional collaboration between these regional institutions, sub-regional institutions and the African Commission on Human and Peoples' Rights in order to achieve more effective rights protection. While this article presumes that such institutional collaboration will lead to better protection of human rights, it makes a further argument that this will only happen where the specific gaps identified are addressed to strengthen the role of local government in human rights.
Cameroon is party to all international and regional instruments providing for the right to education, and compulsory and free primary education in particular. The article examines Cameroon's compliance with the right to free education, based on the normative content of the right to education, defined by the United Nations Committee on Economic Social and Cultural Rights as compulsory and free universal access to primary education that is available, accessible, acceptable and appropriately adapted (known as the '4 A's'). The article reviews to what extent primary education is compulsory and free to all children in Cameroon; it focuses on the 4 A's framework and assesses the justiciability of the right. The article concludes that, although primary education is compulsory in the country, it is not yet available, accessible and adaptable, but is largely acceptable when it is available. Furthermore, the justiciability of the right to primary education is hindered by constitutional practices such as the lack of standing in court for private individuals, the lack of constitutional remedies in case of a violation of rights, and weak separation of powers, characterised by the pre-eminence of the executive.
The Inter-American human rights protection system: Structure, functioning and effectiveness in Brazilian law
The article provides a brief background to the Inter-American system of human rights and its monitoring organs, the Inter-American Commission and the Inter-American Court of Human Rights. It then focuses on the relationship between the two institutions, looking in particular at how cases are instituted before the Court. Against this background, the process of ensuring effective domestic enforcement of the Court's judgments in Brazil is investigated with reference to two decided cases and a draft Bill pending before Congress.
In 2010, judicial and non-juridical human rights developments continued to grow within the framework of three of the most active regional economic communities in Africa, albeit at different paces. During the year, the East African Community and Economic Community of West African States structures sought to consolidate their existing human rights work. The East African Court of Justice tried to establish itself as a human rights court, making pronouncements that will shape the direction of human rights litigation before it. The EACJ continued to assert its role despite the non-adoption of the protocol required to expressly confer human rights jurisdiction upon it. In Southern Africa, while the Summit endeavoured to shape the democratic culture in the region, the Southern African Development Community Tribunal faced a serious challenge to its continued existence and operation as a forum for human rights realisation. These developments are analysed against the background of their overall significance to human rights in Africa.
2010 was a significant year in the development of international criminal jurisprudence in Africa. The continent is approaching the closure of two of its greatest champions in this area of international law — the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL). The article provides an overview of the ICTR's successor, the Residual Mechanism, as well as the complexities of the transition. With regard to the SCSL, a brief analysis is given of the Charles Taylor trial and the contribution of its 'infamous' witnesses. In relation to the International Criminal Court, the Review Conference and the Situations in the Democratic Republic of Congo, Darfur, Sudan and Kenya dominate the discussion, which focuses primarily on the enforcement of ICC warrants of arrest, the amendments to the Rome Statute and the practical application of the principle of complementarity. Developments related to the international community's responsibility to combat piracy off the coast of Somalia are also reviewed.
The Botswana Court of Appeal has recently pronounced on the right of the Basarwa, resident in the Central Kalahari Game Reserve, to water. This case note looks at this decision of the Court of Appeal pertaining to the refusal of the government to allow the Basarwa to recommission, at their own expense, an existing borehole. It examined the arguments that were placed before both the High Court and the Court of Appeal by the parties as well as the decisions of the courts. The note provides insight into the possible implications of the decision on the judicial enforcement of socio-economic rights in Botswana.
In October 2010, the Rwandan Law Relating to Serving Life Imprisonment with Special Provisions came into force. As the name suggests, the law is applicable to offenders sentenced to life imprisonment with special provisions. This article highlights the gaps in that law and suggests ways through which those gaps could be eliminated.