Role of the police in access to justice for sexual and gender-based violence perpetrated against diverse women in Zimbabwe

Role of the police in access to justice for sexual and gender-based violence perpetrated against diverse women in Zimbabwe

by | Apr 30, 2022 | SLR, SLR V33 I1

Role of the police in access to justice for sexual and gender-based violence perpetrated against diverse women in Zimbabwe

Authors: Munatsi Shoko, Kerry Vermaak and Annika Rudman

ISSN: 1996-2193
Affiliations: PhD Candidate, MA Population Studies (UKZN), Lecturer, Nehanda Centre for Gender and Culture Studies, Great Zimbabwe University, Masvingo; PhD Public Health, Lecturer, Population Studies Unit, University of KwaZulu-Natal; LLB (Lund), LLM (Lund) PhD (Gothenburg), Professor of International Law, Department of Public Law, University of Stellenbosch
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 123 – 138
https://doi.org/10.47348/SLR/2022/i1a6

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Shoko, M, Vermaak, K and Rudman, A
Role of the police in access to justice for sexual and gender-based violence perpetrated against diverse women in Zimbabwe
Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 123 – 138
https://doi.org/10.47348/SLR/2022/i1a6

Abstract

Bound by the 2013 Constitution of Zimbabwe (“Zimbabwean Constitution”),  as informed by regional human rights law, Zimbabwean police should facilitate  access to justice for everyone. This article interrogates the lived realities of  diverse women in terms of how the police in Zimbabwe respond when they  report cases of sexual and gender-based violence (“SGBV”). Using qualitative  data this article also interrogates institutional practices questioning the  alignment of laws and actions to the Zimbabwean Constitution. The findings  show that the reluctance of the police to efficiently and appropriately  engage with SGBV cases reported by diverse women is encouraged by the  homophobic context in which these take place. The ability of the police to  provide justice to diverse women who experience SGBV can be strengthened  by repealing the laws that criminalise same-sex relations and sodomy and by  implementing regional human rights law as interpreted through Resolution  275 of the African Commission on Human and People’s Rights. 

Role of the police in access to justice for sexual and gender-based violence perpetrated against diverse women in Zimbabwe

Evening out the divide between rights and culture: a case for mobilising positive culture in state responses to gender-based violence in Kenya

by | Apr 30, 2022 | SLR, SLR V33 I1

Evening out the divide between rights and culture: a case for mobilising positive culture in state responses to gender-based violence in Kenya

Author: Faith Kabata

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Lecturer, Kenyatta University School of Law
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 139 – 160
https://doi.org/10.47348/SLR/2022/i1a7

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Kabata, F
Evening out the divide between rights and culture: a case for mobilising positive culture in state responses to gender-based violence in Kenya
Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 139 – 160
https://doi.org/10.47348/SLR/2022/i1a7

Abstract

The main focus of the article is on the inadequacy of state responses in  eliminating gender-based violence in its structural and direct expressions.  The article departs from the premise that gender, sexuality, and identity are  cultural constructs and argues that culture and social constructs are dynamic  and changing, hence state responses to eliminate gender-based violence must  engage the positive and egalitarian aspects of African culture for social  legitimacy. While acknowledging that constitutional and legal frameworks  lay a normative foundational basis for protection against gender-based  violence, the effectiveness of these frameworks must be measured through  implementation. It is in the implementation of the constitutional and legal  norms that cultural contestations emerge, for instance, in the context of  structural forms of gender-based violence such as female genital mutilation  and marital rape. The main question that the article seeks to answer is  how states can bridge the gap between norms and implementation which  arises out of cultural contestations. Focusing on Kenya as a case study,  the article examines state responses to structural forms of gender-based  violence, specifically, female genital mutilation and marital rape. The Kenyan  constitutional framework recognises culture as the foundation of the nation  and the right to culture in the Bill of Rights, and on equal footing embraces  egalitarian principles which place dignity, freedom, and equality at the core of  societal relations. Applying doctrinal research methodology, we analyse case  law on female genital mutilation and legislative initiatives in the prohibition  of marital rape to identify and distil the judicial and legislative approaches  on the interplay between the prohibition of gender-based violence norms and  culture. Based on this, the article suggests proposals on how the progressive  aspects of African culture that resonate with the egalitarian constitutional  structure can be engaged in state responses to gender-based violence. 

South Africa’s Engagement with International Human Rights Law

by | Jan 19, 2022 | SLR, SLR V32 I3

South Africa’s Engagement with International Human Rights Law

Author: Judge Navi Pillay

ISSN: 1996-2193
Affiliations: Former United Nations High Commissioner for Human Rights
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 365 – 385
https://doi.org/10.47348/SLR/2021/i3a1

Abstract

The commitment to human rights is the cornerstone of the Constitution of the Republic of South Africa, 1996. However, South Africa’s human rights record in the international community often stands in stark contrast to its constitutional commitment to human rights. In both international and regional contexts, South Africa has demonstrated an inconsistent approach to foreign policy that is often guided more by political considerations than by a principled commitment to advancing human rights. This lecture provides an overview of South Africa’s engagement with international human rights law in the constitutional era and evaluates its human rights record in the international arena in a diverse range of fields. These fields include South Africa’s record of human rights protection in peace and security operations on the African continent; its record as a member of the UN Security Council and Human Rights Council; the assessment of its performance by UN human rights treaty bodies; and its record in respect of the Covid-19 pandemic, international criminal justice, the death penalty, and the arms trade. The lecture draws on Judge Pillay’s extensive experience in international law, including as President of the International Criminal Tribunal for Rwanda, Judge at the International Criminal Court in The Hague and former UN High Commissioner for Human Rights.

The Protection of the Environmental Rights and Interests of Children: A South African Perspective

by | Jan 19, 2022 | SLR, SLR V32 I3

The Protection of the Environmental Rights and Interests of Children: A South African Perspective

Author: Rongedzayi Fambasayi

ISSN: 1996-2193
Affiliations: LLB Hons, PGDip Child Sensitive Social Policies, LLM, Doctoral Researcher, South African Research Chair in Cities, Law and Environmental Sustainability, Faculty of Law, North-West University
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 386 – 409
https://doi.org/10.47348/SLR/2021/i3a2

Abstract

It is becoming increasingly apparent that children are disproportionately vulnerable to environmental harm, taking into account their physical, physiological and developmental characteristics. Environmental degradation threatens children’s enjoyment of fundamental rights and freedoms, such as the right to a clean and healthy environment, the right to life, the right to health, the right to the highest attainable standard of living, and the right to dignity. This article evaluates the extent to which the South African legal framework protects the environment-related rights and interests of children. In order to achieve this objective, the article outlines the body of international and African regional human rights law and the environmental law and policy that protects and promotes the environment-related rights and interests of children. The contribution also discusses the mechanisms for redress at the international, regional and national levels in the event of environmental harm to the rights and interests of children. The body of international and African regional law sets the expectations and normative benchmarks to measure the compliance of the national (South African) legal and policy framework.

Allowing Competent Children in South Africa to refuse Medical Treatment: Lessons from England

by | Jan 19, 2022 | SLR, SLR V32 I3

Allowing Competent Children in South Africa to refuse Medical Treatment: Lessons from England

Author: Hanneretha Kruger

ISSN: 1996-2193
Affiliations: B lur LLB (UFS) LLD (Unisa), Professor of Private Law, University of South Africa
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 410 – 434
https://doi.org/10.47348/SLR/2021/i3a3

Abstract

This article considers the question whether the right of children to consent to medical treatment includes the right to refuse medical treatment, as is the case with adult patients. If this question is answered in the affirmative, a second question arises, namely whether the protection of this right of children is as strong as the protection provided to their adult counterparts. More particularly, do children have the right to refuse medical treatment if that refusal is considered to be unreasonable or irrational by the child’s parents or doctors? If this question is answered in the negative, a third question is whether the differential approach to consent by child and adult patients is justified. In the first part of the article, the position in English law is explored. In the second part of the article, the South African legislative framework, particularly the Children’s Act 38 of 2005 and the National Health Act 61 of 2003, is considered. This is done against the background of international and regional human rights instruments and the Constitution of the Republic of South Africa, 1996. The lessons learned from the developments in English law are used to suggest a way forward in South African law.

Religion, Culture and the Constitutionality of the “Avoidance of Doctrinal Entanglement” Principle

by | Jan 19, 2022 | SLR, SLR V32 I3

Religion, Culture and the Constitutionality of the “Avoidance of Doctrinal Entanglement” Principle

Author: S de Freitas

ISSN: 1996-2193
Affiliations: B Proc LLB LLM LLD, Professor of Public Law, University of the Free State, Adjunct Professor of Law, School of Law, University of Notre Dame Australia (Sydney)
Source: Stellenbosch Law Review, Volume 32 Issue 3, 2021, p. 435 – 454
https://doi.org/10.47348/SLR/2021/i3a4

Abstract

The South African judiciary supports the protection of the autonomy of religious associations. The “avoidance of doctrinal entanglement” principle accompanies this protection, which means that the judiciary is markedly hesitant to entangle itself in the essential doctrine held by the members of a religious association. The application of this principle has recently been criticised for purportedly resulting in religious practices being adjudicated separately and in some way shielded from constitutional scrutiny, while all cultural practices are expected to be imbued with a constitutional ethos. In response, it is argued that the “avoidance of doctrinal entanglement” principle is nothing more nor less than the commitment of the Constitution of the Republic of South Africa, 1996 (the “Constitution”) to the protection of fundamental beliefs (whether religious or non-religious) and its concomitant ideals towards the advancement of diversity. The said principle should therefore not be understood as presupposing that the right to freedom of religion be prioritised above that of the right to freedom of culture. The Constitution, as is the case with the right to freedom of religion, expects the judiciary to protect freedom of cultural practices where such practices are reasonable and in accordance with the public order. To argue that the “avoidance of doctrinal entanglement” principle should be ousted will bode unfavourably not only for the protection of the right to freedom of religious associations but also for the protection of cultural practices and consequently for the advancement of diversity.