The tensions between power sharing, justice and human rights in Africa’s ‘post-violence’ societies: Rwanda, Kenya and the Democratic Republic of the Congo
In recent years, power sharing has been used in Africa as a strategy to ensure national unity and social cohesion in a context of extreme ethnic polarisation (Rwanda), as a peace-making tool designed to end a stale-mated civil war (Democratic Republic of the Congo), and a mechanism to overcome a situation of inter-community violence and socio-political instability created by the mishandling of an electoral process (Kenya). This article argues that power sharing as a result of a stale-mated civil war and a mishandled electoral process tends to undermine the pursuit of justice and the protection and promotion of human rights; and power sharing in the context of a civil war that ended in a military victory is usually unbalanced and promotes victors’ justice.
Combating sexual violence in schools in sub-Saharan Africa: Legal strategies under regional and international human rights law
Although schools are generally regarded as a ‘safe haven’ for children, the reality for many girls is that schools can be a place of sexual discrimination, harassment and violence, perpetrated by fellow male students and teachers alike. The widespread problem of sexual and gender-based violence, particularly sexual violence, in schools has been well-documented in a range of studies and reports in sub-Saharan Africa. Sexual and gender-based violence in schools not only violates girls’ fundamental rights to dignity and equality, and their rights to be free from violence, but it also undermines their rights to education, particularly when, as is often the case, states fail to take measures to protect girls. Although there is a growing body of empirical research documenting the nature and extent of this problem, particularly in various sub-Saharan African countries, how regional and international human rights law applies to protect girls in this situation appears to have received limited consideration. This article attempts to fill this gap in the literature, by providing an analysis of the problem of sexual and gender-based violence in schools within the framework of regional and international human rights law. The article’s objective is to identify and discuss rights-based legal strategies to combat this pervasive human rights violation, specifically within the sub-Saharan African context, with an emphasis on regional developments and regional responses.
The Pan-African Parliament and African Union human rights actors, civil society and national human rights institutions: The importance of collaboration
This article looks at possible areas of collaboration between the Pan-African Parliament and other human rights bodies within the African human rights system, national human rights institutions and civil society. This is done with reference to the manner in which the Pan-African Parliament has and is likely to co-ordinate its human rights activities.
Transitional justice in Kenya and the UN Special Rapporteur on Truth and Justice: Where to from here?
Transitional justice in Kenya responds predominantly to the two-month period of violence that devastated Kenya in the aftermath of disputed presidential elections in December 2007. Post-election violence left over 1 300 dead and hundreds of thousands displaced; many suffered abductions, illegal detentions, torture and ill-treatment, sexual violence and property rights violations. In this context, transitional justice endeavours to, among other objectives, bring accountability for human rights violations, promote victims’ rights, and achieve national healing and reconciliation. The outcome of Kenya’s 4 March 2013 general elections, with the election of Uhuru Muigai Kenyatta and William Samoei Ruto as Kenya’s President and Deputy-President respectively, raised the stakes for transitional justice in Kenya. Both Kenyatta and Ruto have been indicted by the International Criminal Court, accused of crimes against humanity. While Ruto’s trial began on 10 September 2013, as this article goes to print there is some consternation as to whether Kenyatta will co-operate with the ICC. His trial is scheduled to begin on 12 November 2013. Significantly, on 29 September 2011 the United Nations Human Rights Council, pursuant to Resolution 18/7, resolved to establish the mandate of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence. The Special Rapporteur is mandated to deal with situations in which there have been gross violations of human rights and serious violations of international humanitarian law; and to promote truth, justice, reparation and guarantees of non-recurrence in such contexts. This article considers the significance for Kenya of the Special Rapporteur’s mandate, including the directive to, upon request, conduct country visits and provide technical assistance and advice on issues pertaining to the mandate. Given the hindrances to the effective implementation of transitional justice measures in Kenya, the article calls on the Special Rapporteur to issue a request to visit Kenya, in response to gross violations of human rights committed there.
Female genital mutilation as a human rights issue: Examining the effectiveness of the law against female genital mutilation in Tanzania
In many African states, female genital mutilation (FGM) is a deeply-entrenched cultural practice. Tanzania is no exception. FGM persists despite the fact that the country has ratified a number of international and regional human rights instruments that protect women against the practice of FGM. The mere fact that the practice continues despite Tanzania’s obligation under international and regional human rights treaties raises the question whether Tanzania has put in place adequate constitutional and legislative measures to protect women against FGM. It is this question that this article seeks to address. Against the backdrop of the emerging consensus that posits FGM as a human rights violation, the article examines the effectiveness of the constitutional and legal framework of Tanzania in protecting women against FGM.
In several states across the globe, the relationship between the state and its cultural, religious, ethnic, and tribal components is still an issue of fierce constitutional and political debate, both at formal and informal levels. A nation’s inability to properly deal with this sensitive question, through adherence to certain constitutional principles, makes it susceptible to instability and insecurity, and probably dichotomy and fragmentation. This article argues that the general recognition of diversity in a specific state is not, by itself, enough to guarantee peace and stability for that state. An impartial state which treats its diverse components equally is a conditio sine qua non for the stability and peace of heterogeneous societies. The idea that modern states are not nation states reflects the need to draw a clear line of distinction between identities and the state as an institution which should occupy itself with the interest of all its components, rather than the interests of one or some of its components only, and promote the peaceful co-existence of its diverse groups and elements, on the one hand, and lay down the rules that are essential to its advancement, on the other. The post-colonial history of Sudan unequivocally demonstrates that the country’s successive national governments have failed to do so. If the post-9 July 2011 Sudan is to avoid wars, conflicts and further fragmentation, then it is necessary for the state to treat Sudan’s different ethnic and religious groups equally and to reflect such equal treatment in its policies.
The 2010 Kenyan Constitution and the hierarchical place of international law in the Kenyan domestic legal system: A comparative perspective
The prominent use of international human rights law in a state’s domestic legal system depends on the hierarchical place occupied by international law in general, and international human rights law in particular, among the sources of law in that particular legal system. Two systems of receipt of international law in the domestic legal systems have been used by different states: monism, which looks to directly incorporate ratified international law treaties in a state’s domestic legal system; and dualism, which entails the transformation of international law into the domestic legal system through the domestication of ratified international law treaties by means of the enactment of parliamentary legislation. Kenya, as a Commonwealth country, has always primarily followed a dualist approach which requires that domesticating legislation be enacted by parliament for ratified international law treaties to have application in the domestic legal system. However, with the promulgation of the new Constitution in August 2010, international law has been given a more prominent role in the domestic legal system through the inclusion in the Constitution of a provision directly incorporating ratified treaty law into the Kenyan legal system as a legitimate source of law. This article is primarily focused on analysing the hierarchical place of international law, specifically international human rights treaty law, in the Kenyan domestic legal system in the context of the new constitutional dispensation. It recommends that in order for international human rights law to have a prominent place in the governance of the country, article 2(6) of the Constitution should be interpreted progressively so as to give international human rights law norms an infra-constitutional but a supra-legal status in the domestic legal system. In this way, international human rights law will act as a bulwark against recession to totalitarian rule, as well as safeguard the democratic and fundamental rights protection gains that were won in the struggle for constitutional change.
The application of traditional justice mechanisms to the atrocities committed by child soldiers in Uganda: A practical restorative justice approach
Some communities affected by the conflict in Uganda have selectively adopted traditional cleansing rituals to reintegrate former child soldiers. Furthermore, there appears to be support amongst communities for the holistic adoption of traditional justice mechanisms for the atrocities committed by child soldiers. However, these processes need to be modified prior to their adoption in order to address various practicality dilemmas such as the nature and extent of atrocities committed, the proportionality of punishments to the crimes committed, and the identification of parties. This article therefore proposes that such modifications should primarily be drawn from practical restorative approaches embodied within the criminal justice system, and relevant examples from selected countries. This could enhance the application of traditional justice mechanisms to the crimes committed by child soldiers. The article is timely considering that Uganda is currently developing a comprehensive national policy on transitional justice, which will entail a policy on traditional justice mechanisms.
So sweet, so sour: A commentary on the Nigerian High Court’s decision in Georgina Ahamefule v Imperial Hospital & Another relating to the rights of persons living with HIV
The purpose of this article is to assess the decision of the Nigerian High Court in the Ahamefule case. While the case would seem to be a victory for people living with HIV in the country, it left some important questions unanswered. First, the article gives the facts of the case and the Court’s decision. It then questions the reasoning of the Court in this case. The article argues that the decision merely gives people living with HIV false hope in realising their rights. It argues further that, apart from the fact that the decision lacks in-depth analysis, it also misses a great opportunity to address an important issue relating to the right to non-discrimination of people living with HIV. The article concludes by arguing that the supposed ‘sweet victory’ in the Ahamefule case has left ‘a sour taste’ in our mouths, since it does not in the true sense advance the rights of people living with HIV in the country.
The clinical legal education movement in Nigeria owes its formal origins to an exchange visit sponsored by the British Council to understudy clinical legal education in South Africa. Professor Ernest Ojukwu, then deputy director-general of the Nigerian Law School, led a team of academics on that exchange visit. The seed sowed on that trip grew and took on a life of its own by June 2003 when an expanded team of academics attended the first All-Africa Clinical Legal Education Colloquium in Durban, South Africa. On their return, Professor Ojukwu and his colleagues co-founded the Network of University Legal Aid Institutions (NULAI Nigeria), modelled after the Association of University Legal Aid Institutions (AULAI).
Since its registration in October 2003, NULAI Nigeria has led the clinical movement in Nigeria and, over the last three years, in West Africa. It has supported the establishment of new clinics, trained faculties, facilitated exchange visits, organised client-counselling competitions and provided peer learning for other law clinics and law clinic associations around the world.