Engaging the paradoxes of the universal and particular in human rights adjudication: The possibilities and pitfalls of 'meaningful engagement'
This article examines the disjunctures between the universal aspiration of human rights norms and the complexity of their interpretation and application in diverse and pluralistic contexts. It examines the extent to which a deliberative model of democracy can assist in promoting a more dialectical relationship between the universal and particular in human rights constitutional adjudication. The article further evaluates the potential of the mechanism of meaningful engagement employed by the South African Constitutional Court in the context of evictions jurisprudence to negotiate the tension between the universal normative values and purposes of human rights, and the democratic ideal of popular participation in the making of decisions which affect people's daily lives.
Evaluating a decade of the African Union's protection of human rights and democracy: A post-Tahrir assessment
When the African Union was established, replacing the Organisation of African Unity, many were enthusiastic that it would champion the cause of human rights and democracy, one of the areas in which its predecessor had failed. Among the reasons for optimism was the fact that the African Union's Constitutive Act was a lot more empathetic for the cause of human rights and democratic ideals. This article contends that, while the Constitutive Act might be potentially important, it is but one among many conditioning factors for the Union's actions. The article argues that the most important determining factor for the Union's success or failure is the human rights track record of member states and the perceived or real dependence of elites within these states on human rights violations. Other conditioning factors, such as international legal obligations created by the Constitutive Act and other treaties, pressure from pan-African sentiment within the AU, and pressure from the AU's human rights organs play only a secondary and a comparatively minor role in affecting the AU's behaviour.
The article argues that, in spite of recent attempts to marry human rights to development, such a marriage remains one of convenience or, rather, to the inconvenience of minority or indigenous peoples who are the focus of discussion. The article asserts that, contrary to the claim that the relationship between rights and development is non-existent to begin with, such a relationship does exist. The crucial issue, however, is the category of people who are allowed to enjoy rights to development and to enjoy the fruits thereof. This analysis is grounded in three types of relationship between rights and development. These are identified as positive, negative and passive relationships. The article contends that the positive relationship is captured and colonised by the political and economic elite who control and direct how and when those under their control should benefit from a negative or passive relationship approach between rights and development. It is contended that the negative and positive relationship perspectives have continued to dominate the dynamics of economic development from the Enlightenment era, through colonialism, post-colonialism and the globalisation era. In the context of promoting effective minority rights which lies at the heart of peace and stability in Africa, the article suggests a re-visioning of the relationship between rights, democracy and development in Africa which challenges the current notion of 'market democracy', and 'liberal international orthodoxy', among other mantras. The analysis tackles ways in which the effective promotion of minority rights can be realised.
The rule of law: Approaches of the African Commission on Human and Peoples' Rights and selected African states
The African Commission on Human and Peoples' Rights is empowered to promote and protect human rights in Africa. Although the African Charter on Human and Peoples' Rights does not expressly use the phrase 'rule of law', the African Commission has interpreted its mandate under the African Charter as allowing it to promote and protect the rule of law in Africa. The article looks at four mechanisms through which the African Commission has attempted to promote the rule of law – in its resolutions, individual communications, promotional missions and through the periodic reports of state parties to the African Charter. The article shows that the African Commission has given different meanings to the concept of the rule of law. The article shows that, in their periodic reports to the African Commission, different African states have different understandings of the rule of law and have taken different measures to promote the rule of law in their jurisdictions. What is apparent is that the promotion and protection of human rights are crucial elements in rule of law discourse.
Caught between progress, stagnation and a reversal of some gains: Reflections on Kenya's record in implementing children's rights norms
The enactment in 2001 of the Children's Act was a significant development in the implementation of international children's rights norms in Kenya. The Act still stands as the first statute which substantially attempts to domesticate Kenya's obligations under any human rights treaty (in this case, the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child). Almost a decade since the Act entered into force, there is a poignant lesson to be learned. This is that in contexts such as Kenya's, where full compliance with international child rights norms requires a process of comprehensive audit of existing laws and policies, not even the enactment of a consolidated law such as the Children's Act suffices. Rather, the process requires a continuous review of all laws, on the one hand, and the putting in place of administrative and other practical measures, on the other. A significant development is the passage of a new Constitution, 2010. However, realising this potential under the new dispensation will require decisive political commitment to ensure the allocation of resources and the institution of practical measures for the implementation of child rights-related laws. The Free Primary Education programme still stands out as an example of a positive measure geared towards addressing the situation of some of Kenya's poor children. The challenge remains of replicating its example to other key areas, including health and child support to poor families. The need for further legal provisions, for example in the area of juvenile justice, the required repeal of laws such as in relation to corporal punishment and the gaps in enforcing existing laws mean that the process of harmonising Kenyan law with CRC and the African Children's Charter is far from complete.
Reconceptualising the 'paramountcy principle': Beyond the individualistic construction of the best interests of the child
This article laments the individualistic construction of the best interests of the child principle. Decision making in a family context goes beyond a mere trumpeting of the interests of the individual child and involves balancing various competing interests. Decisions often claimed to be made in the interests of children are not just about children – they are an attempt to balance the competing interests of family members. A child's best interests are often limited by the broad interests of the community (especially in communitarian societies) and the rights of others, particularly the rights and interests of parents, siblings, caregivers and other persons exercising parental responsibilities. Consequently, decisions made in a family context usually seek to balance different family members' rights and interests. Drawing inspiration from literature on the subject, the article advocates the adoption of a holistic approach to the welfare principle. It is shown, towards the end of the article, that the South African courts and legislature have rightly endorsed the notion that the fact that the best interests of the child are 'paramount' does not mean that it is not limitable. Much depends on the competing interests at stake, the factors that must be weighed in the process of making a value judgment and the weight to be accorded to each factor in light of the facts of each case.
The human right to health in Africa and its challenges: A critical analysis of Millennium Development Goal 8
This article seeks to locate the right to health within the broader frameworks of socio-economic development and political governance. It identifies two critical factors as fundamentally responsible for the dismal state of health and well-being of Africans, despite a robust regional human rights regime that explicitly proclaims health as a human right. First, there is a lack of access to health services – the result of spiralling and crippling poverty amongst the general population. Second, governments in the region are either unwilling or unable to come to the aid of people in their jurisdictions. These unmet challenges ground the need for international intervention, an instance of which is the establishing of the Millennium Development Goals (MDGs). MDG 8 explicitly requires international co-operation and recognises that without enormous assistance, poor countries would be unable to attain the various benchmarks of the MDGs. However, although MDG 8 could have a transformative impact on health in Africa, given its potential to supply the missing link in the struggle toward improving population health (resources), there are structural and operational difficulties that could undermine this possibility. The article critically analyses these difficulties and offers suggestions on how to surmount them.
This article considers human rights developments in the African Union (AU) during 2010 and 2011; two years that saw the work of the leading human rights institution on the African continent, the African Commission on Human and Peoples' Rights (African Commission), stagnate, in particular in its work on individual communications. Despite increased resources, the Commission and its Secretariat have been unable to increase the visibility and impact of its work. This situation was exacerbated by the interference with the work of the Commission by the political organs of the AU, most prominently by refusing to publish the Activity Report of the Commission. This delayed the publication of the 29th Activity Report by a year. The African Court on Human and Peoples' Rights is off to a slow start, spending much time and resources on trying to convince states to ratify the Protocol and make the declaration allowing individuals and NGOs to submit cases to the Court. The article also covers developments in the African Committee on the Rights and Welfare of the Child, which for the first time adopted a decision on a communication, the African Peer Review Mechanism and the AU policy organs.
During 2011 there were both negative and positive developments in the human rights work of African sub-regional economic communities. From the negative perspective, the travails of the Southern Africa Development Community Tribunal in 2011 stand out as the most notorious as they brought about a limitation in the effectiveness of this erstwhile budding human rights regime in Southern Africa. Arguably, as a consequence of the suspension of the Tribunal, there was very little human rights activity from Southern Africa to report on. Thus, the focus in this contribution is squarely on developments that occurred in the human rights regimes in East Africa and West Africa. Significantly, there was an increase in human rights litigation activity before the sub-regional courts in both regions. Activities in the judicial sector and other non-juridical human rights activities in the respective regimes of the East African Community and the Economic Community of West African States are analysed critically in this contribution. Developments during 2011 demonstrate the growing confidence of actors and institutions in the human rights regimes of the two sub-regions.
Africa experienced seismic political shifts in 2011 that had a significant effect on the development of international criminal justice on the continent. The year 2011 saw the finalisation of several noteworthy cases before the International Criminal Tribunal for Rwanda and the conclusion of the case against Charles Taylor before the Special Court for Sierra Leone. The International Criminal Court was also in the spotlight, because of new events – the second referral by the Security Council of a head of state before the ICC; the transfer of the former head of state of Côte d'Ivoire to the ICC; as well as existing events – a co-operation request in the ICC situation in Kenya against the background of an upcoming general election; the ongoing proceedings in the situation in the Democratic Republic of Congo and continuing complexities in the situation in Darfur. The article reviews the developments in these courts as well as the international community's response aimed at combating piracy off the coast of Somalia.