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Abstracts: Volume 12 No 2 2012

Ten years of the Robben Island Guidelines and prevention of torture in Africa: For what purpose?
by Debra Long and Rachel Murray
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In 2002 the African Commission on Human and Peoples' Rights adopted a resolution containing the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines). This is the first instrument adopted by the African Commission focused solely on preventing torture and other forms of ill-treatment. Ten years on, the article aims to examine the background to the adoption of the Robben Island Guidelines in order to explore the motives behind their development and to identify reasons for their subsequent lack of impact. The article will demonstrate that the context and institutional setting within which the Robben Island Guidelines were developed have had an impact on their level of implementation. The article arises out of a four-year research project, funded by the Arts and Humanities Research Council in the United Kingdom, which is examining the implementation of soft law through an analysis of the use of the Robben Island Guidelines in practice. Through an analysis of this one document, the article hopes to offer some lessons for the drafting, use and relevance of other soft law documents in human rights law.


African civil society and the promotion of the African Charter on Democracy, Elections and Governance
by André Mbata Mangu
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When the African Charter on Democracy, Elections and Governance was adopted on 30 January 2007 in Addis Ababa, Ethiopia, most African countries were governed by leaders who came to power or were clinging to power by coups d'état, constitutional manipulations, human rights violations or vote rigging. Africa continues to be subject to authoritarian and corrupt governance, which impact negatively on its development and on the living conditions of its people. Under these conditions, the adoption of the African Democracy Charter by those very same African leaders who were rightly or wrongly blamed for their authoritarian and corrupt governance was a miracle. The Charter came into force on15 February 2012. In light of this, the article reflects on the African Democracy Charter, its significance, its shortcomings as well as the prospects for its implementation and the particular role that civil society organisations can and should play in promoting its values.


Towards defining the 'right to a family' for the African child
by Ekanem Okon
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Most international instruments and national legislation dealing with children recognise the need for children to grow up in a family environment – in an atmosphere of love and understanding. In different regions around the world there are various family structures and patterns – traditional families with the heterosexual marriage form as the cornerstone; extended families with up to four generations in one household; and a mixture of family forms (cohabitation, homosexual ('lesbigay') unions, non-residential father households, single parented households, child-headed households, to mention a few). This article argues that every child has a right to a family which includes other familial rights, such as the right to family life and the right to a family environment. It begins with a brief overview of existing family forms, followed by an examination of the functions of the family. From that premise, it explains the need for understanding family from a functional rather than a structural viewpoint. It argues that, for the effective realisation of all familial rights enjoyable by the child, the concept 'family' must be defined. The definition must be based on its function, and tailor-made by each state to suit its societal circumstances. The article concludes that such a definition would provide clarity to the concept and aid in avoiding the legal limbo which sometimes affects children's familial status. Legal references in the article are mainly to international documents, regional documents and legislation from selected African countries.


South Africa, the African Union and the responsibility to protect: The case of Libya
by Sandy Africa and Rentia Pretorius
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International relations are regulated by a system of norms and laws that has evolved over a long period. The responsibility to protect is an evolving normative framework shared by a significant number of international actors, but it failed to create normative cohesion and unity of action during the Libyan crisis in 2011 due to issues of interpretation and application. The article examines the application of the responsibility to protect framework when violence broke out in Libya. Contradictory strategies by the United Nations and the African Union divided the international community and rekindled old divisions and mistrust, resulting in claims by some within the AU – South Africa particularly – that the African effort was being undermined. The international community must urgently strengthen the common understanding and institutional framework for the responsibility to protect.


A truth commission for Uganda? Opportunities and challenges
by Prudence Acirokop
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The The article addresses challenges and opportunities that a truth-telling process presents to Uganda after the two-decade-long conflict between the Lord's Resistance Army and the national army. The article specifically analyses the appropriate features of legislation regarding a truth-telling process that it argues account for its success. It makes reference to the National Reconciliation Bill, 2009, drafted by civil society groups in Uganda, which is the only comprehensive document relating to a possible truth-telling process in Uganda. The article argues that a truth-telling process will give Uganda an opportunity to confront its past, official denials and imposed silences, and will provide victims with public validation of their suffering and make unquestionable the state's obligation to provide integral reparations. The article, however, questions the extent to which individuals with state authority and state institutions will allow a truth-telling process to exercise its powers and publicly question their conduct with a looming threat of prosecutions. The article further questions whether the National Resistance Movement government will accept that its rule has been tarnished by decades of conflict and that state institutions are in need of reform, or whether it will set its sights on justifying policies, hiding complicity and rejecting blame. The article concludes that a political will and commitment are essential to ensure adequate investment in technical, material and financial resources and that non-interference of the government in the work of the Truth Commission will ensure success. It further finds that with such political will and commitment, and robust consultation with stakeholders, including victim groups, and the creation of alliances locally, nationally, regionally and internationally, a truth-telling process will lead to justice, truth, reparations, reintegration and reconciliation in Uganda.


Military courts and human rights: A critical analysis of the compliance of Uganda's military justice with the right to an independent and impartial tribunal
by Ronald Naluwairo
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The United Nations Human Rights Committee has emphasised that the right to a fair trial (which includes the right to an independent and impartial tribunal) applies in full to military courts as it does to the ordinary civilian courts. Based mainly on Uganda's military justice legal framework, this article critically examines the compliance of the country's military courts with the right to an independent and impartial tribunal. It is established that Uganda's military courts fall far short of meeting the essential objective conditions for guaranteeing the right to an independent and impartial tribunal. First, they do not have adequate safeguards to guarantee their institutional independence, especially from the military chain of command. Second, the judge advocates appointed to Uganda's military courts do not have adequate security of tenure. Third, the judge advocates and members of Uganda's military courts do not have financial security. To address these deficiencies, a number of recommendations are made, including establishing the office of an independent principal military judge to be in charge of appointing judge advocates to the different military tribunals; establishing the office of an independent director of military prosecutions to be in charge of prosecutions within the military justice system, including appointing prosecutors to the different military tribunals; providing the judge advocates with security of tenure; and prohibiting the performance of a judge advocate or member of a military court from being used to determine his or her qualification for promotion or rate of pay.


Nothing but a mass of debris: Urban evictions and the right of access to adequate housing in Kenya
by Laurence Juma
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The article explores the opportunities that the new constitutional dispensation in Kenya has created for the protection against unlawful eviction of poor populations living in urban centres. It analyses the content of the right to accessible and adequate housing as provided for in article 43 of the Constitution of Kenya and articulated in various international instruments, and traces how this provision has been applied in the eviction cases that the Kenyan courts have decided. From this analysis, the article suggests that the new constitutional dispensation has opened up possibilities for rights enforcement that the courts as well as administrative organs should take advantage of. It also makes tangible suggestions on how to improve rights litigation in this regard, such as affirming the rights of access to courts and seeking further judicial oversight prior to any eviction and the promulgation of enabling legislation.


Press freedom and democratic governance in The Gambia: A rights-based approach
by Aboubacar Abdullah Senghore
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The article explores the relationship between democratic governance and the free and independent press in The Gambia since the inception of the Gambian First Republic in 1970. It supports the rights-based approach which perceives the issues of democracy, good governance, and a free and independent press as related to the concept of human rights and fundamental freedoms. Put differently, a free and independent press is not only a mirror of good governance, but also one of the essential elements of democratic governance. This article represents a modest contribution to the existing literature on the questions of governance, democracy, press freedom and human rights, with particular reference to The Gambia.


Ballot or bullet: Protecting the right to vote in Nigeria
by Basil Ugochukwu
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This article aims to construct a new paradigm for understanding the right to vote in Nigeria. Following strong indications that the 2011 Nigerian elections were managed better than in previous years, it is to be hoped that future elections can be built on its relative success. Therefore, as the country appears to have a handle on its electoral pathologies (albeit relatively speaking), the article examines one way of providing this assurance by placing the Nigerian voter at the centre and not the margins of the electoral process. It analyses the right to vote and what it means to the average Nigerian voter. Its starting position is that the right to vote is nowhere explicitly enshrined in the Nigerian Constitution or its electoral laws. Where, universally speaking, to vote is either a legal or constitutional right, the article argues that in none of those conceptions does such a right exist in Nigeria. Further, it shows how the Nigerian legal and electoral systems inordinately prioritise the rights of political parties and their candidates in elections over and above those of the ordinary voter, an issue which it is contended has to be satisfactorily addressed to meaningfully build upon the gains of the 2011 elections.


Making a first impression: An assessment of the decision of the Committee of Experts of the African Children's Charter in the Nubian Children communication
by Ebenezer Durojaye and Edmund Amarkwei Foley
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The article analyses the Nubian Children communication, the very first case to be finalised by the African Committee of Experts on the Rights and Welfare of the Child. It critically reviews the progressive approach of the Committee of Experts with regard to its interpretation of the exhaustion of local remedies. The Committee ruled that the best interests principle should serve as an exception to the exhaustion of local remedies rule. While the approach of the Committee is commended, it is argued that this progressive approach should be lauded with caution. Further, the article argues that the African Committee of Experts' approach to the indivisibility of human rights guaranteed under the African Children's Charter in the Nubian children communication is progressive and capable of advancing human rights, particularly socio-economic rights, of children in the region. While this decision serves as an important precedent for advancing children's rights in the region, it misses an opportunity of adopting a gender-sensitive approach in the interests of the girl child.


The dearth of the rights of HIV-positive employees in Zambia: A case comment on Stanley Kangaipe and Another v Attorney-General
by Mumba Malila
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Recent years have seen increased human rights litigation in Southern Africa in the areas of HIV and AIDS. Unfortunately, there has been virtually no litigation around the many human rights issues involving HIV and AIDS in Zambia. This has resulted in a virtual absence of relevant domestic jurisprudence around issues involving human rights and HIV and AIDS. The contribution comments on the first-ever successfully-litigated case in this area in Zambia. The case of Kangaipe v Attorney-General necessitates commentary because for the first time a Zambian court added its voice to the chorus of recent obiter dicta from several jurisdictions in the African region which declared that HIV testing without consent is a violation of human rights as set out in international human rights treaties and other normative instruments. The article argues that the Kangaipe case has contributed to the expanding frontiers of human rights litigation in Zambia, particularly as far as HIV and AIDS are concerned, and that it was the perfect opportunity for the Zambian courts to develop and refine problems related to the applicability of local and foreign authorities. Regrettably, the court failed to exploit fully these opportunities. The article shows that, while some aspects of the approach by the court in Kangaipe are encouraging in principle, on balance the protection of the rights of people living with HIV and AIDS in an employment setting remains contingent on an innovative and activist approach by a trial court. Obstacles faced by practitioners in such cases remain considerable.


The Ugandan Transfer of Convicted Offenders Act, 2012 : A commentary
by Jamil Ddamulira Mujuzi
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Like many countries, Uganda is home to foreign nationals. The presence of foreign nationals in the prison of a country raises questions regarding their treatment. Countries are increasingly enacting legislation, ratifying or acceding to treaties, or signing agreements governing the transfer of such offenders to serve the last part of their sentences in their countries of nationality, citizenship or domicile. On 17 May 2012, the Ugandan Parliament passed the Transfer of Convicted Offenders Bill, 2007 into law. The Transfer of Convicted Offenders Act was assented to by the President of Uganda on 27 July 2012 and, once it comes into force, will regulate the transfer of convicted offenders between Uganda and other countries. The purpose of the article is to highlight the debates surrounding some provisions of the Bill, including the purpose of the Act; human rights issues, consent of offenders to transfer; the costs of the transfer; and pardon and amnesty.


Kenya's provisional warrant of arrest for President Omar al Bashir of the Republic of Sudan
by Phillip Apuuli Kasaija
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At the end of November 2011 a Kenyan High Court ordered that, if ever President Omar al Bashir of the Republic of Sudan steps on Kenyan territory, he should be arrested and transferred into the custody of the International Criminal Court (ICC). In pursuit of this ruling, the same court in January 2012 issued a provisional warrant of arrest for President Bashir. In issuing the ruling and the provisional arrest warrant, the Court observed that it was implementing the decision of the ICC, which issued warrants of arrest for Bashir in March 2009 and July 2010 for crimes against humanity and genocide, respectively, which he allegedly committed in the Darfur conflict. The contribution argues that, first, the Court missed an opportunity to clarify the issue of the tension existing between provisions of the Rome Statute, particularly article 27 relating to the irrelevance of official capacity, and article 98(1) relating to co-operation with respect to waiver of immunity and consent to surrender a head of state whose country is not a state party to the Rome Statute. Secondly, the Court's declaration that the principle of universal jurisdiction has acquired jus cogens status and its application to the Bashir case was not correct.

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