The protection of asylum seekers and refugees within the African regional human rights system
by Gina Bekker
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The first treaty with a human rights focus adopted under the auspices of the Organisation of African Unity (now the African Union) was the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa adopted in 1969. Seventeen years later, the African Charter on Human and Peoples’ Rights, which elaborated on the rights of asylum seekers and refugees in Africa, came into force. The next two decades would see two further instruments adopted under the auspices of the OAU/AU in which the rights of asylum-seeking women and children would be spelt out further. This article considers not only the legal framework providing for the promotion and protection of the rights of asylum seekers and refugees within the African regional human rights system, but also the manner in which the institutions charged with supervising the implementation of these treaties have interpreted the rights afforded to asylum seekers and refugees within the African regional human rights system.
The ECOWAS Community Court of Justice and the horizontal application of human rights
by Enyinna S Nwauche
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In three cases, Peter David v Ambassador Ralph Uwechue, The Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v The President of the Federal Republic of Nigeria and Tandja v Djibo and Another, the ECOWAS Community Court of Justice (ECCJ) has ruled that only ECOWAS member states and community institutions may be sued before it. This article reviews the conclusions of the ECCJ against the background of its dual mandate as a court of integration and human rights as it pertains to the articulation of community freedoms and human rights, and argues for a more integrated approach in the elaboration of the dual mandate of the ECCJ, which should recognise the horizontal application of human rights in the protection of community freedoms such as the free movement of goods, services, persons and capital.
Achieving social justice in the human rights/intellectual property debate: Realising the goal of access to medicines
by Yousuf A Vawda and Brook K Baker
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What happens when the assertion of intellectual property rights by their holders impacts on the human rights of consumers, in particular, their right to access health care and health products such as medicines? Proponents of access to medicines as a human right reference the soft law of human rights and the broad ethical frameworks within which human rights understandings are situated but, paradoxically, the pharmaceutical companies that hold proprietary interests in medicines also claim human rights to their medical discoveries. They argue that the ecology of research and development on medicines is inextricably linked to the possession of exclusive rights in the form of patent and data protections. The proprietary interests of pharmaceutical companies are stringently pursued and enforced by global powers via their trade policy and otherwise. Thus, this article argues that human rights must trump those proprietary rights, for a number of reasons, and seeks to introduce a social justice perspective on the human rights/intellectual property debate. It begins by reviewing the competing paradigms of the right to health versus proprietary intellectual property rights, showing how the human rights regime has achieved superiority in theory, but inferiority in practice. It proceeds to delineate the context in which essential medicines have increasingly
become endangered global public goods. This is primarily because of strong intellectual property protections afforded to pharmaceutical companies with the advent of the TRIPS Agreement, TRIPS-plus bilateral and regional trade agreements between the USA and the European Union and developing countries, and other measures designed to broaden, strengthen and lengthen intellectual property protections worldwide. The article then explores the potential for lobbying, advocacy, law reform measures and activism in achieving the objective of ‘access to medicines for all’, and demonstrates the extent to which human rights advocacy programmes can contribute to doing so through the delivery of rights-based education and training to targeted audiences.
Power and constraints in the Constitution of the Republic of South Africa 1996
by Karthy Govender
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This article starts with the trite proposition that a constitutional democracy functions optimally when adequate power is afforded to elected representatives on condition that the power is exercised in accordance with constitutional checks and balances. The article emphasises the importance of the constitutional constraints on the exercise of public power. Section 1 of the South African Constitution presents the fundamental premises of the Constitution and sets out a vision of the type of society that the Constitution seeks to attain. The meaning of the rule of law and notions of responsive, accountable and open governance are explored through case law dealing with PAJA and the concept of legality. The ultimate thrust of these judgments is to ensure rationality, propriety and respectful governance. While they constrain the exercise of power, they do so in a manner that accords with the vision set out in section 1 of the Constitution. The article examines the duty to give reasons and analyses some instances where there is cynical compliance with the constitutional obligation to provide reasons and how this detracts from broader constitutional objectives. The Public Protector plays a vital role in ensuring the proper exercise of public power. The article examines two investigations by the Office of the Public Protector. In the PetroSA investigation, the Public Protector simply capitulated and surrendered in the face of power by adopting an irrationally-narrow interpretation of its mandate. In the SAPS lease investigation, a different Public Protector
properly investigated and two high-profile functionaries lost their jobs. The consequences for the office of the Public Protector and the effect that these investigations have on the project of realising the type of society promised in section 1 of the Constitution are examined. In the conclusion, questions are asked as to why the jurisprudence of the Constitutional Court and Supreme Court of Appeal are being scrutinised when they have sought, more than other institutions, to attain the objectives of section 1 of the Constitution.
Strange bedfellows: Rethinking ubuntu and human rights in South Africa
by Anthony O Oyowe
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Can an African ubuntu moral theory ground individual freedom and human rights? Although variants of ubuntu moral theory answer in the negative, asserting that the duties individuals owe the collective are prior to individual rights (since African thought places more emphasis on the collective), Metz’s recent articulation in this Journal of an African ubuntu moral theory promises to ground the liberal ideal of individual liberty. I pursue three distinct lines of argument in establishing the claim that Metz’s project fails to convince - that individual freedom and rights cannot be successfully grounded in a moral theory that already regards some extrinsic value (that is, communal harmony) as the most fundamental moral value. First, I suggest that Metz’s attempt to ground human rights in his ubuntu moral theory raises the problem of where the fundamental value lies in his theory. That is, in seeking to integrate two potentially-conflicting and non-instrumental values in his theory, Metz substantially modifies his original ubuntu ethical principle in such a way that the communitarian/ubuntu status of the theory is undermined. Second, I argue that, even if Metz’s theory were sufficiently communitarian/ubuntu-like, it could not possibly ground individual freedom as a non-instrumental value. Third, I argue that Metz employs a tendentious reading of the concept of human rights; in particular, that he erroneously construes rights as duties. Since this last argument rests on a subtle distinction between individual rights and duties, I try to suggest how the distinction can be made in spite of the fact that these concepts are strongly related. Although I do not directly address Metz’s treatment of specific human rights issues in South Africa, throughout I contend that these theoretical lapses cast enormous doubts on his overall project.
Courts and the enforcement of socio-economic rights in Malawi: Jurisprudential trends, challenges and opportunities
by Redson E Kapindu
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Socio-economic rights are of special significance in a developing country such as Malawi. The framers of the Malawian Constitution included the right to development in the country’s Bill of Rights. The right to development is not only included as a self-standing right, but is also a conduit for the guarantee of equal access to a range of other socio-economic rights. Regrettably, the record of judicial enforcement of these rights subsequent to 1994 is disappointing. Only in a few cases, largely focusing on a narrow range of rights such as property, work, economic activity and, to a lesser extent, education, have courts directly and significantly dealt with socio-economic rights. Such consideration has also been deficient as courts have failed to develop the content of the rights and to define the nature of the obligations of both the state as well as non-state actors in relation to socio-economic rights. There has been little or no attempt to apply norms of international human rights law and comparable foreign case law. Worse still, in some related cases, courts have stated that they will not deal with any issues that raise policy considerations as such matters are outside the province of judicial competence. This is a problematic approach that could stultify the development of socio-economic rights jurisprudence. The Masangano case, however, offers some hope as it represents the first real attempt to address key socio-economic rights issues such as access to food, clothing, adequate housing and healthcare, albeit in relation to prisoners. While the final decision ultimately turned on cruel, inhuman and degrading
treatment or punishment, the High Court of Malawi made some definitive affirmations of the guarantee of a number of these key rights and presented a first real attempt to fashion a time-bound remedy, that also required the state to take positive steps in allocating sufficient resources for the realisation of socio-economic rights for prisoners. The Masangano case represents a good stepping stone upon which courts can stand in developing more systematic and sophisticated jurisprudence on socio-economic rights in Malawi.
Advancing refugee protection in Botswana through improved refugee status determination
by Elizabeth Macharia-Mokobi and Jimcall Pfumorodze
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Botswana’s Refugee (Recognition and Control) Act has been in force since 1967. It was promulgated before Botswana became a state party to the UN Refugee Convention and its Protocol and before its accession to the OAU Refugee Convention. Refugee status determination (RSD) procedures should reach human rights standards in procedural fairness as enunciated in the Universal Declaration on Human Rights. The United Nations High Commissioner for Refugees (UNHCR) has issued several documents concerned with procedural fairness in RSD. This article takes a critical look at RSD procedures in Botswana, measuring them against human rights standards and UNHCR recommendations for fair and effective RSD procedures. The article recommends that RSD procedures be improved in order to ensure procedural fairness and reduce the risk of refoulement in deserving cases.
Human rights developments in African sub-regional economic communities during 2012
by Solomon T Ebobrah
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In 2012, the abolition of individual access to the Southern Africa Development Community Tribunal all but put a final nail to the budding human rights regime that was growing in the region. However, the two other main sub-regional human rights regimes in Africa continued to grow from strength to strength: in East Africa under the East African Community framework and in West Africa under the Economic Community of West African States framework. With the increasing involvement of these sub-regional regimes in the field of human rights, the African Charter is being applied in an unprecedented way in a manner that penetrates the shield of national sovereignty and in areas where continental human rights structures may have taken time to reach. Taking the view that this trend calls for stakeholders to pay more attention to the work of these sub-regional human rights regimes in order to ensure quality control and maintain legitimacy of the overall African human rights system, this contribution undertakes a descriptive analysis of the most significant judicial and non-juridical human rights developments that occurred in these sub-regions during 2012.
LM and Others v Government of the Republic of Namibia: The first sub-Saharan African case dealing with coerced sterilisations of HIV-positive women - Quo vadis?
by Chantal J Badul and Ann Strode
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It has been argued that three factors characterise the HIV epidemic in sub-Saharan Africa - its female face; the implications it poses for sexual and reproductive health services (particularly those provided to women); and the pervasive discrimination following those who are infected. These factors also form the context within which there have been an increasing number of reports of HIV-positive women being coerced or forced into being permanently sterilised in order to prevent future pregnancies. The recent decision in LM and Others v Government of the Republic of Namibia deals with the alleged discriminatory and coerced sterilisation of three women living with HIV. This article describes and critiques the LM judgment. It concludes with brief comments on the way forward for similar litigation in other Southern African countries.
Gender equality in Botswana: The case of Mmusi and Others v Ramantele and Others
by Obonye Jonas
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On 12 October 2012, the High Court of Botswana declared the Ngwaketse rule of customary law, which provides that only the last-born son may inherit his parents’ dwelling house, as unconstitutional. The rule excludes women from inheriting their parents’ dwelling house regardless of their rank in the birth order. This article examines the decision of the Court. It notes with commendation that, although the decision will not of itself stop the disempowerment of women in Botswana, it constitutes a critical step towards gender mainstreaming in the country. The article also lauds the Court for its extensive use of comparative human rights jurisprudence and international human rights law in the determination of the claim. The advantage of this approach is that it sets the growth of Botswana’s human rights jurisprudence in line with international standards and best practices. Nevertheless, this article notes that the judge failed to reconcile the two conflicting constitutional provisions that were at issue in the case: section 3, which affords the applicants equal protection of the law, and section 15, which permits discrimination in inheritance and other matters governed by one’s personal law. The article suggests that the judge should have adopted and applied the harmonisation approach to settle this tension. Further, the article notes that the judge misapplied precedents on the question of the role of public opinion in the determination of constitutional disputes before him. Be that as it may, the abolition of the concerned Ngwaketse rule of customary law is cause for celebration for women of Botswana, Africa and beyond.
