ISSN: 2521-2613
Affiliations: Doctoral Candidate, Faculty of Law, University of Cape Town
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 173 – 179
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ISSN: 2521-2613
Affiliations: Lecturer at Lead City University, Nigeria
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 139 – 172
The history of human rights protection in Africa before the adoption of the African Charter on Human and Peoples’ Rights (also referred to as the African or Banjul Charter) was not a palatable one. The African states have been described by some scholars as egregious human rights violators and the ability to create an effective human rights system was doubted. The regional African human rights system is based on the African Charter, which was adopted in 1981. In June 1998, the now African Union (AU) established the African Court on Human and Peoples’ Rights. The court was intended to complement the mandate of the African Commission on Human and Peoples’ Rights, established in 1987, which was seen as being ineffective. The African Court of Justice, which never functioned under the auspices of the AU, and the African Court on Human and Peoples’ Rights were merged by virtue of the Protocol to the Statute of the African Court of Justice and Human Rights in June 2008 to form a single court, the African Court of Justice and Human Rights (ACJHR). The usefulness of this new court is marred by procedural difficulties as individuals cannot directly institute cases before the court. However, under the Economic Community of West African States (ECOWAS) regional arrangement, it is scintillating to discover that the ECOWAS Community Court of Justice (ECCJ), which is a sub-regional trade judicial organ, appears to take the lead, even ahead of the African continental Human Rights Court, by granting direct access to individuals, which enables them to institute cases before the court. In addition, cases are admitted to the court even without exhaustion of domestic remedies, and decisions are delivered in a speedy manner and have final binding effects on the Member States, the institutions of the community, individuals and corporate bodies. In the context of this development, this article examines the processes through which ECOWAS as a sub-regional organisation was established, the way in which the court evolved, the jurisprudence of the court, decided cases, and factors that make the court seem to be an attractive option for human rights litigation.
ISSN: 2521-2613
Affiliations: Part-time lecturer, Stellenbosch University and Ema2sa Scholar, Freie Universität Berlin
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 119 – 138
This article critically examines the role and responsibility of the judiciary in the realisation and concretisation of health rights in Nigeria. The gulf between the formal recognition of the right to health in international instruments — such as the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and People’s Rights — and the Nigerian Constitution, and the enforceability thereof, will shape the thrust of the discourse. It is argued that the judiciary in Nigeria is not engaging meaningfully with the true substantive content of health rights, and adequate notice and guidance is not taken from the provisions of international human rights instruments — like the ICESCR and the ACHPR. This is regrettable as courts can be valuable arenas and catalysts for the realisation and enforcement of health rights in the concrete contexts of specific cases.
ISSN: 2521-2613
Affiliations: None
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 94 – 118
Domestic violence has been recognised as a violation of human rights under international law. It is a form of discrimination against women and a violation of their substantive rights including the right to life, the right to liberty and security of the person, the right to be free from torture and the right to health. However, at the national level, it is sanctioned by customs and traditions and perceived as a private issue that does not warrant external intervention. The false impression that domestic violence is purely a private or personal issue is in part due to the failure of most countries to effectively address the quandary of violence against women. Consequently, the national legal infrastructure, designed to distinguish between public and private law, does not assist domestically abused women. The failure of the national legal framework to address domestic violence has invited the application of international law as an option for victims of domestic abuse. The inadequacy has further fuelled international, regional, national and local campaigns, orchestrated by feminists, to promote the use of international law standards and principles to guide the protection of women from domestic violence at the domestic level. This article investigates the efficacy or otherwise of employing standards and principles of international law at the national level as an effective response mechanism of addressing domestic violence. The article argues that although international law provides domestic violence victims with an opportunity to have their issues addressed on a higher pedestal, its effective application is still a mirage in Kenya.
ISSN: 2521-2613
Affiliations: None
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 68 – 93
The reasonableness test, developed by South Africa’s Constitutional Court in the adjudication of socio-economic rights to health care, housing, and water supply under the 1996 South African Constitution, represents a paradigm shift towards improved accountability in public governance. But the court has also struggled to justify its rejection of the minimum core concept of the United Nations Committee on Economic, Social and Cultural Rights. The court would rather hide behind a purported inability of access to information to interpret the core contents of the socio-economic rights. There is need for an improvement in the effectiveness of socio-economic rights litigation, especially by eliciting comprehensive evidence that reflects what the minimum core of a particular right should be. Focus should also be on providing sufficient proof that the Government has resources which it can deploy to meet the urgent socio-economic needs, and show that a current policy or programme of the Government is unreasonable in the light of available resources. Such strategic litigation, coupled with the willingness of the court to give effective remedies will go a long way in the promotion of socio-economic rights in South Africa.
ISSN: 2521-2613
Affiliations: Independent Researcher on Economic, Social and Cultural Rights and an Advocate of the High Court of Kenya
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 30 – 67
Kenya has laboured under the challenges of poverty, inequality and political as well as socio-economic marginalisation, with the result that the country has struggled to achieve sustainable development. These challenges contributed to the struggle for a new political as well as socio-economic emancipation, a struggle which culminated in the promulgation of a new Constitution on 27 August 2010. The new Constitution contains several mechanisms aimed at the transformation of Kenya’s political as well as socio-economic situation both in the public and private sphere with the objective of enhancing equality, human dignity, social justice and the respect for human rights and fundamental freedoms. This article undertakes an analysis of the 2010 Kenyan Constitution using the parameters of transformative constitutionalism, developed in relation to the 1996 South African Constitution, to determine whether the 2010 Kenyan Constitution can effectively be termed a transformative constitution. The article concludes that the 2010 Constitution has all the necessary features of a transformative constitution and can effectively be used by the courts and other sectors of society so as to achieve political as well as egalitarian socio-economic transformation in Kenya.