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Abstracts - Vol 4 no 1 2004

The death penalty in Africa
by Dirk Van Zyl Smit
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This article examines the situation of the death penalty in Africa. It does so by addressing three main questions: First, to what extent is the death penalty in Africa in fact an issue about which one should be particularly concerned? Second, what are the restrictions on the death penalty in Africa? Third, what is to be done to strengthen the restrictions on the death penalty in Africa? In addition, the article examines the question whether article 4 of the African Charter on Human and Peoples' Rights and its related provisions will inspire the abolition of the death penalty. It is suggested that challenging mandatory death sentences, advancing procedural challenges, open debate on alternatives to the death penalty, and improving the national criminal justice system will strengthen restrictions on the death penalty in Africa. The article concludes that positive criminal justice reform rather than moralistic condemnation is the most effective route to the eventual abolition of the death penalty in Africa.


A framework law on the right to food — An international and South African perspective
by Fons Coomans and Kofi Yakpo
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It is a well-known fact that millions of people all over the world do not have access to food on a daily basis or face hunger, malnutrition and starvation, despite the fact that their governments have ratified international treaties in which the right to food takes a prominent place. There is thus a big gap between rhetoric and reality, between theoretically having the right to food and enjoying it in practice. The present contribution deals with ways in which to realise the right to adequate food. It suggests the adoption of a framework law as a means of strengthening the implementation of the right to food at the domestic level. In the first part, the article discusses the right to adequate food from an international human rights perspective. It deals, amongst others, with the background, aim and contents of a national framework law on the right to food. In the second part, attention is given to the role of civil society in the promotion of a framework law. This is illustrated by using the example of South Africa, where the lack of availability and accessibility of food to the poor would justify the adoption of a framework law.


A path to realising economic, social and cultural rights in Africa? A critique of the new partnership for Africa's Development 
by Christopher Mbazira
by Christopher Mbazira
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The article first sets out the legal framework for the protection of socio-economic and cultural rights in Africa. Some of the reasons that have been advanced for the non-realisation of socio-economic rights as compared to civil and political rights are discussed. Thereafter the article highlights the background of New Partnership for Africa's Development (NEPAD) and gives a brief description of its objectives and framework. It proceeds to look at the institutional set-up of NEPAD, including the operation of the African Peer Review Mechanism as an implementation strategy of NEPAD's objectives. The article examines how NEPAD intends to address the issue of socio-economic rights through, for instance, ensuring an end to conflicts, democracy and good governance, and improvement of infrastructure and education. The article looks at NEPAD's commitment to ensure improved health and protection of the environment. It discusses NEPAD's approach to the advancement of culture and makes a critique of NEPAD's human rights component. NEPAD is Africa's hope for sustainable development and is a programme that commits African leaders to a number of positive undertakings, but NEPAD needs to be integrated with the African human rights system.


The new Pan-African Parliament: Prospects and challenges in view of the experience of the European Parliament
by Tsegaye Demeke
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This article starts by tracing the history of the establishment of the Pan-African Parliament through the OAU/AU system. It proceeds to look at the main features of the Pan-African Parliament. It focuses on its functions and powers, appointment and composition of the Parliament. It also pays attention to the question of immunity, multilingualism and the not yet decided question of where the Pan-African Parliament will be situated.

While looking at the development of the Pan-African Parliament, the article also looks at the stages of development that the European Parliament has gone through, especially with regard to how the Pan-African Parliament could benefit from its experience.


The African union Convention on Preventing and Combating Corruption: A critical appraisal 
by Kolawole Olaniyan
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This article analyses the Convention on Preventing and Combating Corruption that was adopted at the African Union summit in Maputo in July 2003. While recognising that the Convention represents a significant step in the efforts to counteract corruption across Africa, the author argues that the strong link between corruption and the violation of human rights is not sufficiently emphasised in the Convention. The Convention also suffers from excessive use of claw-back clauses and lacks a serious and effective mechanism for holding states accountable. The author suggests that the Convention should be amended to become a protocol to the African Charter on Human and Peoples' Rights, thus bringing the provisions under the supervision of the African Commission and the African Human Rights Court.


Towards a new approach to the classification of human rights with specific reference to the African context 
by John C Mubangizi
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Departing from the premise that human rights are those rights possessed by virtue of being human, this contribution revisits the traditional classification of human rights into three 'generations' of rights. The author criticises aspects of this division from an African perspective, such as the prioritisation of civil and political ('first generation') rights above other 'generations', as well as the inappropriate classification of the right to culture with other socio-economic ('second generation') rights and the right to development as a 'third generation' right. A proposal is then made for the reconfiguration of rights into the following four categories: civil and political rights, social and survival rights, economic, developmental and environmental rights and cultural and spiritual rights.


The African Commission on Human and People’s Rights and the Inter American Commision on Human Rights: Addressing the right to an impartial hearing on detention and trial within a reasonable time and the presumption of innocence 
by Robert P Barnidge JR
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Due process rights include the right to an impartial hearing, trial within a reasonable time and the presumption of innocence. This contribution considers the interpretation of these rights by two regional human rights treaty bodies, the African Commission Human and Peoples' Rights and the Inter-American Commission on Human Rights. The author concludes that the two bodies have developed a jurisprudence appropriate to the particular situation in Africa and the Americas, respectively.

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