Research Articles (Institute for International and Comparative Law in Africa)

Permanent URI for this collectionhttp://hdl.handle.net/2263/21473

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Symbolic popular participation in constitution-making and constitutionalism in francophone Africa
(Edinburgh University Press, 2024-11) Fombad, Charles Manga; Socher, Johannes; charles.fombad@up.ac.za
Increasingly, popular participation has come to be regarded globally as a best practice in constitution-making. This article examines the different forms of popular participation in the most recent constitution-making processes in francophone Africa and its possible impact on constitutionalism. As will be shown, the dominant forms continue to be symbolic. Moreover, we argue that while it cannot be said conclusively that a high level of popular participation in constitution-making automatically enhances the prospects for constitutionalism, there is evidence to suggest that the dominant symbolic form of popular participation has had a negative impact on the legitimacy, constitutional stability, and the entrenchment of the core elements of constitutionalism in francophone Africa.
Clarifying jus cogens, erga omnes and the place of third-party countermeasures in international law
(University of South Africa, 2024-04) Mateus, Simon
There is substantial support in literature of the idea that all norms of jus cogens are erga omnes, in that they produce obligations applicable towards all states. However, not all obligations erga omnes invariably flow from a jus cogens characterisation. Indeed, although this is the case, there is no simple criterion by which one can determine the extent of the overlap between jus cogens and erga omnes. This relationship is further complicated by questions relating to the kind of measures that states may be permitted to take in order to protect or ensure compliance with obligations erga omnes, bringing to light, the debates surrounding the concept and the place of third-party countermeasures regarding state responsibility. Against this backdrop, this article will assess the concept of obligations erga omnes, its relationship with jus cogens as well as the legal position and the place of third-party countermeasures in relation to the protection of obligations erga omnes and/or as a way of invoking state responsibility by reacting to breaches of international law obligations with erga omnes status.
Domestic and international law contradictions in Zimbabwe’s gender quota system
(Pretoria University Law Press, 2024) Lihiru, Victoria Melkisedeck
In 2013 Zimbabwe adopted a gender quota system for the National Assembly. However, the quota system is set at 30 per cent, contrary to international law obligations domesticated under section 17 of the 2013 Zimbabwean Constitution, which requires women to constitute at least half of all elected and nominated positions of power. While the Constitution further allows women to compete for first-past- the-post (FPTP) parliamentary seats, there are neither constitutional measures to ensure that women win FPTP seats, nor mechanisms to transition women from quota seats to FPTP seats. While the gender quota and FPTP constituency seats have increased the number of women in Parliament, they have decreased the number of women nominated and elected for FPTP seats. The quota parliamentarians are not voted by the electorate, lack a link to constituencies, and are not entitled to constituency funds. Each political party applies discretion in the nomination of women for quota seats, exposing them to exploitation and corruption. This negatively affects the quality of quota parliamentarians and, in turn, their transition to constituency seats. The article suggests that Zimbabwe extend the proportional representation electoral system and Zebra system applicable in the election of senators to the election of members of parliament. This will facilitate the alignment of Zimbabwe’s political representation gender equality commitments with its constitutional and international law obligations.
The 30% gender quota law in Sierra Leone : a game changer for women's access to parliament?
(Brill Academic Publishers, 2024-07) Lihiru, Victoria Melkisedeck
The June 2023 elections in Sierra Leone occurred against the backdrop of amendments to the Public Elections Act (pea), the enactment of the Gender Equality and Women’s Empowerment Act (gewe), and a switch from the First Past the Post (fptp) electoral system to the Proportional Representation (pr) electoral system. For the first time in Sierra Leone’s history, law reforms, among other things, introduced a 30% gender quota rule for parliamentary and councillorship seats. After the 2023 elections, women won 41 out of the 135 elected parliamentary seats, increasing the percentage of women parliamentarians from 12.32% in the 2018 elections to 30.37%. Despite the increase, there have been concerns about the overall effectiveness of the gender quota rule in facilitating women’s access to parliamentary seats. The gender quota rule is set below 50%, is not accompanied by the candidates’ ranking order, does not apply in the election of 14 paramount chiefs, and operates within poor data desegregation of the candidates. This article highlights the required reforms to address the identified legal challenges to facilitate women’s equal access to representation in Sierra Leone’s Parliament.
Assistance to constitutional courts in fragile contexts : the case of Mali, 2017–2022
(Nomos Verlagsgesellschaft, 2023) Socher, Johannes
The year 2021 witnessed a global “coup pandemic”, with the highest number of successful overthrows of government in the past twenty years. Many of them – in Chad, Guinea, Mali, Sudan – occurred in Sub-Saharan Africa, a region historically prone to coups d’état. In the case of Mali, it was already the second coup in less than a year and the third within ten years following military takeovers in 2012 and 2020. This volatile political environment, combined with insecurity in central Mali and the border areas with Burkina Faso and Niger, has made Mali a highly fragile context for external interventions aimed at promoting the rule of law. According to the most recent available data by the World Justice Project (WJP), Mali’s rule of law situation ranked 114th across 140 countries globally and 22nd across 34 countries in Sub-Saharan Africa. Particularly, although trust in state institutions was relatively high compared with peer countries in the region, trust in Malian courts scored lowest among government institutions in a 2020 WJP country survey.
Fostering a constructive intra-African legal dialogue in post-colonial Africa
(Cambridge University Press, 2022-02) Fombad, Charles Manga; charles.fombad@up.ac.za
The contention of this article is that there is a need to debunk the myth that the diversity of Africa's inherited legal systems means that the continent has little to contribute to the global legal dialogue. For Africa to make an effective contribution to global legal dialogue, there is a need for serious intra-African legal dialogue. The article focuses on sub-Saharan countries and provides an overview of the numerous legal traditions that were imposed on them at independence. It then looks at the global legal dialogue within which the global south is marginalized. Thereafter, the article discusses the ways in which an intra-African trans-systemic dialogue can be promoted. The main argument of the article is that such a dialogue is likely to provide the critical understanding necessary to pave the way for closer collaboration between African countries in their efforts to develop legal values, principles and institutions that are better suited to addressing the continent's complex and multifaceted problems.
A global lethal force monitor : comparative opportunities and challenges
(Sage, 2023-02) Rappert, Brian; Adang, Otto; De Paepe, Jasper; Dymond, Abi; Easton, Marleen; Probert, Thomas
Comparison across jurisdictions is one way of assessing the appropriateness of lethal force resulting from the actions of law enforcement agencies. This article sets out a vision for a global use of force monitor that can enable meaningful comparisons between law enforcement agencies. It examines some of the opportunities and challenges associated with developing such a monitor in relation to (i) the legal frameworks in place governing use of lethal force; (ii) how official state agencies record and respond to deaths; and (iii) the contexts for the use of lethal force.
Democracy and fake news in Africa
(Sweet and Maxwell, 2022-06) Fombad, Charles Manga; charles.fombad@up.ac.za
It had been assumed that the advances in digital information technology and its increasing availability to ordinary Africans would facilitate broader public participation in decision-making and provide ordinary citizens with an opportunity to hold their leaders accountable. However, the increasing abuse and misuse of the internet and social media through fake news now threatens to reinforce the emerging decline towards authoritarianism on the continent. This paper examines some of the risks posed by the diverse manifestations of fake news and the attempts made by African governments to counter this. Its major contention is that unless urgent measures are taken at the national, regional and international level, the threats posed by fake news to the limited democratic gains made on the continent since the revival of constitutional governance in the 1990s may see the continent return to the dark authoritarian era of repressive and undemocratic rule.
Ethiopia
(Pretoria University Law Press, 2021) Wakene, Dagnachew B.; Yoon, Priscilla; Mengistu, Tsion
No abstract available.
To what extent is global and regional jurisprudence on the right to health for persons with disabilities reflected in Kenyan courts?
(Pretoria University Law Press, 2021) Juma, Paul Ochieng; Orao, Beryl
The integration of international jurisprudence into the interpretation of the right to health of persons with disabilities by domestic courts is an important way of enhancing protection of the right at the national level. However, it is not always that decisions of international human rights bodies will find their way into domestic courts. This article maps the extent of engagement of Kenyan courts with international and regional jurisprudence on the right to health of persons with disabilities. It analyses the approach taken by Kenyan courts to determine whether it aligns with the principles espoused in the cases decided at the international and regional level. The article singles out two communications or cases that were decided by the Committee on the Rights of Persons with Disabilities and one case that was decided by the African Commission on Human and Peoples’ Rights and assesses the extent to which Kenyan courts have given effect to its obligations under the Convention on the Rights of Persons with Disabilities. The paper concludes that global and regional jurisprudence on the right to health for persons with disabilities is rarely used by Kenyan courts to interpret persons with disabilities’ rights. The paper recommends that Kenyan courts should entertain and apply a broad range of international and regional jurisprudence when interpreting the normative content of the right to health of persons with disabilities and corresponding state obligations.
Targeting of children in non-international armed conflicts
(Oxford University Press, 2021-03) Birhane, Fikire Tinsae
Albeit the prohibition of recruitment and use in hostilities of children is an established norm of international law, recognized under both international humanitarian law and international human rights law, the problem still remains. The main actors responsible for this reality are non-state armed groups (NSAGs), which kept recruiting and involving children in various tasks, including direct participation in hostilities (DPH). This in turn generates a dilemma regarding targetability of such children: whether to extend the special protection afforded to them by international law from being recruited and/or used in hostilities for targeting purposes as well. Additionally, the difficulty to determine targeting rules in the context of non-international armed conflicts (NIACs), which led to controversies as to targetability of even adult members of NSAGs while they do not take a direct part in hostilities, exacerbates the dilemma. This piece, accepting persuasiveness of the proposal in the ICRC Interpretive Guidance that those members of armed groups who have continuous combat function (CCF) are targetable, in addition to civilians taking a direct part in hostilities, questions whether children with such function/role are targetable in the same manner as adults of the same position. It is argued here that though children can be targeted during their DPH or when they have CCF, there is support in the law that the notions of DPH and CCF should be applied to them differently than adults. The piece also analyzes if the same means and methods used to target adults could be lawful when employed against children.
Protecting the right to life during assemblies : legal and jurisprudential developments in the African human rights system
(Pretoria University Law Press (PULP), 2021) Orao, Beryl
The right of peaceful assembly has been recognised as a critical component of democracy. In Africa it played a significant role in the liberation of states from colonial oppression, and continues to be used to express dissent. The actual exercise of this right, however, faces significant challenges. Too often, police officers use excessive or indiscriminate force during assemblies, leading to violations not only of the right of peaceful assembly but also, in some cases, of the right to life. Alive to the reality of the threat to life and limb posed by the unlawful use of force by the police during assemblies, over the past decades the African human rights system has developed standards for the use of force during assemblies. This article analyses the legal and jurisprudential developments around the protection of the right to life during assemblies and enquires as to whether they are consistent with international standards and whether they are adequate. It finds that despite progressive legal development on the protection of the right to life in law enforcement, in general, there is limited jurisprudence on the specific protection of the right to life in the context of the policing of assemblies. Consequently, the standards expressed in various instruments and resolutions are yet to be adequately interpreted and reinforced.
Investigating the extraterritorial application of the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights
(Pretoria University Law Press, 2021) Mateus, Simon
The territorial scope of the application of human rights treaties has been a core discussion when dealing with the enforcement of human rights obligations imposed by human rights treaties on State Parties. In particular, this is because the conduct of a State may affect the human rights of people situated outside the State’s territorial borders. Accordingly, to afford protection to the affected States, most international human rights instruments contain the so-called jurisdictional clause which aims to identify the range of people to whom States owe their human rights obligations under a treaty. However, the term “jurisdiction” has not achieved an undoubted definition as yet and remains a continued area of contention. The subject matter of this article is the extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). It concerns therefore, the applicability of these human rights treaties to the conduct of a State which affects the rights of people outside its territorial borders and results in the lack of the full enjoyment of the human rights recognised in the Covenants, and which would be qualified as a violation of human rights treaty had it been undertaken on the State Party’s own territory. Although most of the literature on this topic relates specifically to armed conflict and military occupation, the author applies the tests established for the determination of the exterritoriality of the treaties in circumstances inclusive of and beyond armed conflict and military occupation.
An overview of the state of electoral democracy in Africa
(Brill Academic Publishers, 2022) Fombad, Charles Manga; charles.fombad@up.ac.za
Most recent accounts paint a bleak and gloomy picture of the state of global democracy. This is particularly so in Africa where the optimism of a democratic revival in the 1990s is rapidly giving way to narratives of doom and gloom. Using survey data compiled by well-established regional and global international organisations, this paper assesses the state of electoral democracy in Africa, reviews the challenges that have been encountered, and considers the prospects for the future. The trend in the evolution of electoral democracy on the continent in the last three decades points to an authoritarian mobilisation and resurgence. Although elections have become the norm, these elections are increasingly being used to disguise all forms of undemocratic governance. The major lesson to be drawn from the study is that there is no African country where democracy and constitutionalism can be thought of as firmly consolidated and secure. The number of countries which are declining due to failed or flawed electoral processes, or which show signs of stagnation, far exceed those that have improved to one degree or another. Current developments are not random ad hoc efforts to undermine the credibility of elections and democracy but rather, rational and well-calculated responses by ruling African elites who seek to perpetuate their rule. What this points to is the need to rethink strategies for promoting genuinely competitive elections, democracy, and constitutionalism.
The status of nuclear deterrence under international law in light of the Treaty on the Prohibition of Nuclear Weapons
(T.M.C. Asser Press, 2020) Casey-Maslen, Stuart; stuart.maslen@up.ac.za
Nuclear deterrence is not illegal under international law but is being delegitimised, in part as a result of the adoption of the United Nations Treaty on the Prohibition of Nuclear Weapons. The Treaty prohibits not only possession, control over, threat of use, and use of nuclear weapons or other nuclear explosive devices; it also precludes a state party from encouraging and assisting anyone to engage in such prohibited activities. Moreover, artificial intelligence, offensive cyber operations, and enhanced non-nuclear weapons with strategic impact are combining to render nuclear deterrents ineffective while greatly increasing the risks of unintended or accidental use. Conflict in February 2019 between two nuclear-armed states, India and Pakistan, has shown the dangers and frailties of nuclear deterrence. Nonetheless, nuclear-armed states are engaging in major nuclear weapon modernisation programmes, resulting in a new nuclear arms race. This new race is characterised by the development and deployment of hypersonic missiles containing multiple independently targetable warheads as well as by variable-yield nuclear weapons. Nuclear disarmament, which was negotiated by statesmen at the height of the Cold War, is urgently needed.
Editorial introduction to special focus : assessing the implications of COVID-19 pandemic regulations for human rights and the rule of law in eastern and southern Africa
(Pretoria University Law Press (PULP), 2020) Fombad, Charles Manga; charles.fombad@up.ac.za
No abstract available.
Comparative overview of the constitutional framework for controlling the exercise of emergency powers in Africa
(Pretoria University Law Press, 2020) Fombad, Charles Manga; Abdulrauf, Lukman Adebisi; charles.fombad@up.ac.za
The need to act swiftly in times of emergency gives governments a reason to exercise emergency powers. This is a legally valid and accepted practice in modern democracies. Post-independence African constitutions contained provisions that sought to regulate states of emergency, placing the emphasis on who could make such declarations and what measures could be taken, but paid scant attention to the safeguards that were needed to ensure that the enormous powers that governments were allowed to accrue and exercise in dealing with emergencies were not abused. As a result, these broad powers were regularly used to abuse fundamental human rights and suppress opponents of the government. In the post-1990 wave of constitutional reforms in Africa, some attempts were made to introduce safeguards against the misuse of emergency powers. This article undertakes a comparative assessment of the extent to which these reforms have reduced the risk that the exercise of emergency powers poses to human rights and progress towards constitutionalism and respect for the rule of law, especially in times of global pandemics such as COVID-19. Indeed, the COVID-19 pandemic has exposed the weaknesses of the constitutional reforms designed to check against the abuse of emergency powers. In most African countries, governments in dealing with the virus decided to act within the legislative framework, which subjects them to few checks rather than rely on the constitutional frameworks which in most cases provide for more elaborate checks. It is clear from the experiences of the past few months that most African constitutions never anticipated an emergency of such magnitude. The article concludes by arguing that one of the major lessons of the COVID-19 pandemic is that there is a need to review the constitutional and regulatory framework for the exercise of emergency powers to better prepare for future pandemics.
A comparative overview of recent trends in judicial appointments : selected cases from Africa
(Routledge, 2021) Fombad, Charles Manga; charles.fombad@up.ac.za
One of Africa’s major challenges in the last three decades has been the need to restore confidence in the judiciary. During the long years of dictatorial rule, judges were stripped of their independence and appointed or dismissed at the whim of presidents; the public consequently had scant trust in the judiciary. This paper provides a comparative overview of developments in Africa in the last three decades. It seeks to determine to what extent appointment processes promote critical judicial values such as independence, impartiality, transparency, inclusivity and efficiency. Have appointment systems restored public confidence in the judiciary? What are the emerging challenges? It is argued that although some countries have made progress in the quality of judicial appointments, in others serious challenges remain. Nevertheless, the proclivity of the executive to exploit its role in judicial appointments in Africa and thereby undermine the quality of justice remains as strong as ever.
Editorial introduction to special focus : the rule of law in sub-Saharan Africa : reflections on promises, progress, pitfalls and prospects
(Pretoria University Law Press, 2018) Fombad, Charles Manga; Kibet, Eric
Serious efforts to entrench the rule of law in Africa came with the socalled third wave of democratisation in the 1990s. This democratic revival raised hopes of a new era of governance guided by the basic principles of constitutionalism, democracy, good governance, respect for human rights and respect for the rule of law. Promising signs of some progress have been overtaken by a steady decline, particularly in the last two decades.
An overview of the crisis of the rule of law in Africa
(Pretoria University Law Press, 2018) Fombad, Charles Manga; charles.fombad@up.ac.za
After the wave of democratic and constitutional reforms in the 1990s, the rule of law appeared to have enjoyed a revival in Africa. Apparently there were strong constitutional commitments by African countries for respect for the rule of law, backed by the signature and ratification of international and regional treaties imposing this obligation. However, the last two decades have seen a steady weakening of this commitment. It is argued that developing an appropriate strategy for dealing with the persistent, systemic and systematic threats to the rule of law in Africa requires an understanding of the nature and extent of the crisis. The critical question is whether the proper tools are available at national and continental level to monitor and deal with these threats. After exploring the meaning and scope of the concept of the rule of law, this article, guided by a number of regional and international indicators, assesses the extent of Africa’s rule of law problems. It then examines the various options for facilitating systematic monitoring of the enforcement of rule of law standards. Based on the approach adopted by the Council of Europe and the European Union, it is argued that the African Union and regional economic communities must develop a well thought-out strategy within the existing normative frameworks to address the present problems of systemic threats to and persistent breaches of the rule of law.

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