Research Articles (Centre for Human Rights)

Permanent URI for this collectionhttp://hdl.handle.net/2263/1253

For inquiries regarding this collection or items in the collection, please contact Sonty Monakhisi
Tel.: +27 12 420 2268

View the Collection Policy

Browse

Now showing 1 - 20 of 309

Applying the intersection between defence of the inherent requirements of the job and the duty to provide reasonable accommodation for persons with disabilities in the workplace : Damons v City of Cape Town
(Routledge, 2024) Ngwena, Charles; charles.ngwena@up.ac.za
In Damons v City of Cape Town (2022), by a majority, the Constitutional Court held that the inherent requirements of the job defence in s 6(2)(b) of the Employment Equity Act is a complete defence to a charge of unfair discrimination in respect of an employee who has no capacity to perform the job in question due to a disability that cannot be rehabilitated or reasonably accommodated. By contrast, in a sole dissent, Pillay AJ held that s 6(2)(b) is not a complete defence where the employer ought to have created a new position to fit the capacities of the employee as a reasonable accommodation measure. This commentary explores the implications of the Damons case and appraises the divergent approaches of the Constitutional Court.
The first decision of the African Commission on maternal mortality : Community Law Centre and Others v Nigeria
(Pretoria University Law Press (PULP), 2024) Durojaye, Ebenezer; Murungi, Nkatha; ebenezer.durojaye@up.ac.za ; nkatha.murungi@up.ac.za
This contribution examines the first decision of the African Commission on Human and Peoples’ Rights under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol), specific to the issue of maternal mortality. The discussion examines the issues raised in this Communication, and the findings of the African Commission in relation to admissibility and merits. More importantly, it evaluates the reasoning of the African Commission in relation to the decision on the merits, especially the reasons for the Commission’s finding that the actions and non-action of the Nigerian government did not constitute a violation of any of the rights under the African Charter and the African Women’s Protocol. The authors contend that the Commission adopted a restrictive and retrogressive approach to the interpretation of the African Charter and the African Women’s Protocol. Furthermore, the authors note that the Commission missed an opportunity to contribute to jurisprudence on sexual and reproductive health, including maternal health guaranteed in the African Women’s Protocol. It concludes by reflecting on the implications of this decision for future litigation on sexual and reproductive health and rights on the continent, particularly for the work of civil society and other stakeholders advocating for sexual and reproductive health and rights and other rights under the African Women’s Protocol.
Special focus : implementation of decisions of the African Commission on Human and Peoples’ Rights
(Pretoria University Law Press, 2024-12-01) Viljoen, Frans; Adegalu, Foluso; Olaitan, Zainab
This Special Focus is devoted to the implementation of decisions of the African Commission on Human and Peoples’ Rights (African Commission), the longest-standing African supranational human rights body with continental coverage. The nine articles in this Special Focus were presented as papers at a conference on the theme ‘Implementation and domestic impact of the decisions of the African Commission on Human and Peoples’ Rights’, held from 13 to 15 September 2023, in Pretoria, South Africa. The conference, organised by the Centre for Human Rights, Faculty of Law, University of Pretoria (Centre), in collaboration with the African Commission, provided a scholarly platform for scholars, practitioners and other stakeholders to address the critical gap between the issuance of decisions by the African Commission and their effective implementation at the national level. The editors of the Special Focus at the time were the director of the Centre, the co-manager of the Centre’s Litigation and Implementation Unit, and a post-doctoral fellow in that unit.
Realising the right to development in Ghana through its parliament
(University of Pretoria, 2022) Agyemang, Clement
The right to development (RTD) remains a controversial subject at the international level due to disagreements over its nature as a collective and a people’s right. This notwithstanding, the RTD is recognised by the African human rights system as a collective right encompassing all fundamental rights and freedoms. Besides, the ratification of the African Charter on Human and Peoples’ Rights (ACHPR), which recognises the RTD coupled with the implicit recognition of the RTD in the 1992 Constitution of the Republic of Ghana, makes the RTD an entitlement for Ghanaians. However, its realisation by the state through the executive appears challenging, considering the level of development in Ghana. This article, therefore, explores an alternative focused on legislative measures. The article seeks to demonstrate the extent to which the RTD can be realised in Ghana through its Parliament. It argues that removing the constitutional constraints on Parliament will potentially make the institution contribute significantly towards the realisation of the RTD.
'Consent’ and confusion casting doubt on the validity of a customary marriage : Mgenge v Mokoena & another [2023] JOL 58107 (GJ)
(University of Pretoria, 2023) Hager, Liesl
In Mgenge v Mokoena & another [2023] JOL58107 (GJ), the Gauteng High Court, Johannesburg, per Rome AJ, considered the validity of a customary marriage concluded between the bride (the first respondent)and the deceased groom with reference to the requirements outlined in section 3 of the Recognition of Customary Marriages Act 120 of 1998. The mother of the groom (the applicant) challenged the validity of the marriage certificate. The main issue under inspection is whether the applicant’s lack of participation in, consent to, or knowledge of the customary marriage is sufficient to rebut the prima facie proof of validity offered by the marriage certificate. In this contribution, I recount the Court’s systemic approach to determine if the applicant’s misunderstanding of the purpose or intention of the events that transpired and her absence in participating in the negotiations and entering into or celebration of the customary marriage invalidates the prima facie proof offered by the marriage certificate. I explore the Court’s approach to the requirements for a valid customary marriage, specifically the negotiation and celebration requirements, as well as the integration and physical handing over of the bride. I also briefly inspect the role of expert evidence and living customary law. This judgment demonstrates the dynamic and evolving nature of living customary law in South Africa and the approaches adopted by the judiciary when exploring customary law issues like the validity of a customary marriage.
Common ground : optimising the Malawi-Mozambique geostrategic stability
(Adonis & Abbey Publishers Ltd, 2024-12) Kuwali, Dan; kuwali.d@up.ac.za
This paper investigates how countries divided by colonial legacy and Cold War antagonism, specifically Malawi and Mozambique, can build mutual trust to enhance geostrategic stability, a critical component for their peace, security, and socioeconomic development. The aim of the paper is to develop a comprehensive framework that elevates trust between these two nations by identifying and addressing the underlying causes of their trust deficit. Utilising a qualitative methodology, the study engages in a systems diagnosis to analyse causal factors contributing to distrust, employing feedback loop analysis to discern pathways for rapprochement. The theoretical framework is grounded in concepts of ideational reconciliation and strategic empathy, positing that fostering an understanding of each other’s perspectives can alleviate tensions and promote mutual trust. Key recommendations include establishing regular diplomatic dialogues focused on conflict resolution, implementing joint development projects that benefit both States, and creating platforms for cultural exchange to foster people-to-people connections. By demonstrating that a détente aligns with both countries' best interests, this paper mitigates the perceived risks associated with implementing this strategy. The implications of this research extend to influencing solution-oriented statecraft in bilateral relations, while the typologies developed herein provide a guide for international partners to assess risks in aligning their strategic goals with support for alliance formation.
Access to healthcare services for transgender people in South Africa : assessing healthcare experiences and human rights
(Taylor and Francis, 2024) Zambezi, Denise; Viljoen, Frans; frans.viljoen@up.ac.za
BACKGROUND : The transgender population is one of the most marginalized and misunderstood population groups in South Africa. Despite a progressive and inclusive human rights-based legal framework, transgender people in South Africa are vulnerable to multiple human rights violations, including inequality and grave healthcare disparities. AIMS : This study aims to assess the healthcare disparities experienced by transgender persons in South Africa. In South Africa, transgender people are legally entitled to equality and the right to access healthcare services. The article examines sparsely explored discrepancies and recommends how a transgender person’s right to access healthcare can be strengthened through a comprehensive human rights approach. METHODS : The methodology involved semi-structured interviews with transgender respondents and healthcare experts. The sample comprised 43 transgender respondents aged between 23 and 45 residing in Gauteng, Mpumalanga, North West and the Western Cape and a multi-disciplinary group of nine healthcare professionals working in South African health institutions. The data was analyzed through relevant thematic analysis. RESULTS : The majority of transgender participants and healthcare experts reported that there are transgender-related inequalities in the healthcare system, including stigma and discrimination, exclusionary and culturally incompetent health services and limited availability of competent healthcare services. DISCUSSION : There is a need for South Africa to intensify its application of transgender human rights to bridge the gap between lived experiences and the law. Comprehensive and explicit transgender-inclusive laws must be developed. Diverse transgender people must participate in the law and policy-making process. Activism, advocacy, and strategic litigation should be used effectively by relevant parties to create awareness and impact change.
Decoding implementation of African Commission on Human and Peoples’ Rights decisions on communications in Botswana, Kenya and Ethiopia
(Pretoria University Law Press, 2024) Obwogi, Jonathan O.; Kremte, Henok A.
This article evaluates the implementation status of decisions by the African Commission on Human and Peoples’ Rights on individual communications involving Botswana, Ethiopia and Kenya. The analysis includes all publicly-available decisions on the merits against these countries as at the end of 2022. The primary objective is to determine whether these states have complied with the Commission’s decisions. The findings indicate that none of the three countries has fully complied with the decisions. Kenya has partially implemented two of the three decisions against it, while Botswana has only partially complied with one out of four decisions. Ethiopia has not complied with either of the two decisions against it. The article also reveals that the Commission’s monitoring of the implementation of its recommendations has been generally inadequate, except for the Endorois case against Kenya, where it undertook relatively commendable follow-up.
Legislating against adult women’s consent to female genital mutilation : a feminist analysis of state practice in light of the Joint General Comment on Female Genital Mutilation by the African Commission and the African Children’s Committee
(Pretoria University Law Press, 2024) Lasseko-Phooko, Matilda; matilda.lasseko-phooko@up.ac.za
This contribution is concerned with women who opt to undergo female genital mutilation in adulthood. While contentious, the idea that a woman can consent to FGM is condoned in certain African countries in law and in practice. There is an uneven treatment of consent in relevant FGM laws on the continent. States have an obligation to eradicate the practice of FGM, including ensuring that consenting to FGM is impermissible in law. This contribution scrutinises an equality argument in support of consent to FGM for adult women, investigates states’ legislative approaches to consent as adopted by select member states that are party to the African Women’s Protocol and whether their laws adopt a wholistic approach to eradicating FGM. These approaches are considered from a feminist perspective taking account of the historical place of feminist analysis in the formulation of FGM as a human rights issue under international law. It includes a consideration of state obligations in the African Women’s Protocol and the recent Joint General Comment on FGM adopted by the African Commission and the African Children’s Committee. It aims to recommend legislative standards that can be applied on the continent to increase the effectiveness of laws criminalising FGM in order to eradicate the practice.
The impact of country-specific resolutions of the African Commission on Human and Peoples’ Rights, 1994-2024
(Pretoria University Law Press, 2024) Biegon, Japheth
This article analyses the impact of the country-specific resolutions of the African Commission on Human and Peoples’ Rights using a theoretical framework constructed around the concept of ‘naming and shaming’. The Commission’s country-specific resolutions focus on the human rights situation in named countries. While the Commission has consistency adopted these resolutions since 1994, very little is known about their impact. The article attempts to fill this gap in the literature by presenting evidence of the extent to which country-specific resolutions issued by the Commission have been complied with. It analyses nine resolutions, selected because they contain specific recommendations that would allow for the possibility of analysing impact with some level of accuracy. An analysis of these resolutions, adopted in seven countries (Eritrea, Eswatini, Ethiopia, The Gambia, Kenya, Nigeria and Zimbabwe) reveals that immediate full compliance is rare. At best, the Commission’s country-specific resolutions have triggered discursive engagements that have resulted in tentative changes in human rights practices or situational compliance as a result of changes in government or political circumstances.
A contextual approach to strengthening state capacity to implement the decisions of the African Commission on Human and Peoples’ Rights
(Pretoria University Law Press, 2024) Mbanje, Tendai; Okoloise, Chairman; u18037705@tuks.co.za
The African Commission on Human and Peoples’ Rights plays a pivotal role in promoting and protecting human and peoples’ rights across the continent. Despite widespread ratification of the African Charter on Human and Peoples’ Rights and related treaties, state parties continue to face significant challenges in implementing the African Commission’s recommendations, largely due to governance and democracy deficits. These challenges are exacerbated by resource constraints, limited state capacity, poor inter-agency coordination and a lack of effective monitoring mechanisms. To address these issues, this article argues for a contextual approach to strengthening state capacity for implementing the African Commission’s decisions. Proposed strategies include fostering constructive engagement with states, building political will, and empowering national human rights institutions and civil society organisations to provide targeted support. Adopting an exploratory approach to the discourse, the article finds that only by deploying a tailored and context-specific approach can the African Commission work collaboratively with states to improve compliance with the African Charter, so as to foster a stronger human rights culture in Africa and enhance the legitimacy of the African Union’s human rights framework.
The right to adequate housing under African regional human rights law : exploring the extent of protection accorded to refugees
(Pretoria University Law Press, 2024) Ashenafi, Abiy; Abiy.ashenafi@up.ac.za
A considerable portion of disadvantaged people in Africa live in inadequate housing and are particularly prone to homelessness, forced evictions and other housing challenges. These people include refugees in vulnerable situations, who face multiple challenges linked to their refugee status and other factors such as gender, disability, status as a child and poverty. African regional human rights law provides a robust protection for the right to adequate housing. However, for those who live in homelessness and precarious housing conditions, the regional legal protection is only useful if it is given effect at the domestic level. The clarification of the nature of the right to adequate housing and the corresponding obligations of states through the work of the three African regional human rights bodies, scholars and other actors is a worthwhile endeavour that can potentially contribute to the realisation of this right. So far, important contributions have been made in this regard, but further clarification of applicable norms is necessary. Situated in two areas of the African human rights system, namely the regional human rights law and refugee law regimes, this article builds on the rather limited literature in these areas and sheds new light on relevant provisions of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, the African Charter on Human and Peoples’ Rights and its Protocols on the Rights of Women in Africa and the Rights of Persons with Disabilities in Africa, and the African Charter on the Rights and Welfare of the Child. It articulates the group-specific dimensions of the right to adequate housing and argues that the corresponding obligations imposed on states, including the immediate obligation to fulfil (or ‘provide’) adequate housing, must not be overlooked in the interpretation of this right.
A critical appraisal of the national institutional mechanisms for the prevention of torture in Nigeria
(Pretoria University Law Press, 2024) Ayo-Ojo, Bayode Sunday
According to the Optional Protocol to the Convention against Torture (OPCAT), national preventive mechanisms (NPMs) are required to conduct regular visits to detention centres and provide recommendations to authorities for preventing torture. Following its ratification of OPCAT, Nigeria established its NPM, known as the National Committee Against Torture (NCAT), in 2009 and enacted the Anti-Torture Act of 2017, which prohibits the use of torture in Nigeria without any exceptions. To comply with OPCAT requirements and create an effective NPM, Nigeria dissolved the 2009 NCAT and inaugurated a new NCAT in 2022. In 2024, the National Human Rights Commission (NHRC) was designated as the NPM, with a specialised department tasked with preventing torture. This raises an important question: If the previous two NCATs as an NPM could not comply with OPCAT requirements, how could we be sure that the NHRC, with its specialised department, will effectively prevent torture as prescribed by OPCAT? To address this question, this article investigates the previous NCATs’ compliance with OPCAT requirements. It then analyses the NHRC as the newly designated NPM and interrogates its ability to meet OPCAT standards. The article concludes that several factors, such as the lack of adequate legal documentation establishing the 2009 and 2022 NCATs, insufficient resources, lack of functional independence, and limited funding, played a role in non-compliance. However, the NHRC already has an established structure and the capability to investigate human rights violations, albeit not with a preventive focus. Therefore, while the designation of the NHRC as the NPM through the 2024 order, along with its specialised department, meets specific standards, the clarity regarding the structure, funding, and unannounced visitation of this specialised department remains uncertain.
Coercive competition : geostrategic rivalry in Africa
(Unisa Press, 2024-12) Kuwali, Dan; u12374106@up.ac.za
The geostrategic rivalry between the West and the East is taking centre stage in global affairs, with Africa becoming an alluring battleground. Averting overt conflict, global powers are using economic, political and military statecraft to pursue strategic and security interests on the African continent. The strategic competition between global powers in Africa has significant diplomatic, military and ideological dimensions, with technological and economic dimensions dominating. Unless Africa intercedes to secure a détente among the global powers, the rivalry of these powers will be detrimental to the continent. This article examines how Africa can mitigate the negative effects of coercive competition on the continent, and how the continent may benefit from its increased allure to global powers. The central thesis is that African governments should develop a coherent strategy for dealing with global powers so as not to exacerbate their geostrategic rivalry. Instead, African governments should launch calibrated cooperation on matters of mutual interest for the common good.
The contribution of Uganda's Constitutional Court Petition No 16 Judgment to the right of access to quality emergency obstetric care under international law
(Cambridge University Press, 2025) Maravall-Buckwalter, Isabel; Dubin, Adam David; Durojaye, Ebenezer
On 19 August 2020, the Constitutional Court of Uganda handed down a landmark judgment on maternal health rights in Uganda. This judgment held that the State of Uganda was responsible for violating the right to health, non-discrimination, life and inhuman and degrading treatment of women under international law and Ugandan constitutional law for its failure by omission to provide basic emergency obstetric care in public facilities. This article examines the contribution of the Constitutional Petition No 16 judgment to the strengthening of women's reproductive health rights. By rejecting the “lack of resources” defence when complying with minimum core obligations under progressive realization in the provision of emergency obstetric services, the court makes an important contribution to the limited but growing body of jurisprudence holding governments accountable for a failure to ensure the protection of women's sexual and reproductive rights at both domestic and international levels.
The New Development Bank in Africa : mid-term evaluation and lessons learned
(Wiley, 2024-05) Bradlow, Daniel David; Masamba, Magalie L.; danny.bradlow@up.ac.za
The New Development Bank (NDB) launched its first project in Africa on April 13, 2016, and on August 17, 2017, the Bank opened its Africa Regional Centre (ARC) in Johannesburg, South Africa. This article assesses the NDB's presence in Africa. It addresses the following questions: what role is the NDB playing in Africa? What is the ARC and why was its created? How well have the NDB and the ARC been performing? Have they delivered on their intended purpose? If the NDB or the ARC have not performed as well as hoped, or expected, what has stood in their way? We assess the NDB and the ARC within the context of the general experience of some of the projects that the NDB has been financing in Africa and determine whether there are lessons that can help the NDB as it expands further into the continent. The main policy recommendation is that the ARC be strengthened in ways that enhance the NDB's transparency and make it a truly new type of multilateral development bank.
Laying the foundations for a child-focused cities analytical framework : reflections from an international, interdisciplinary collaboration
(Cogitatio Press, 2024-09-12) Cairns, Lynne O.; Fambasayi, Rongedzayi; Katsidzira, Rejoice Shamiso; Milic, Predrag; Cilliers, Jua; Barros, Paula
Children, a unique yet marginalized social group, hold immense potential for driving meaningful social and environmental change, both in their current lives and as future stewards of the planet. However, their significant contributions often depend on the mechanisms and opportunities adults create to facilitate their participation and inclusion. This places local governance at a crucial juncture, mediating children’s involvement in shaping their urban environments. This research was initiated by the Swedish International Centre for Local Democracy in 2022, gathering international scholars and practitioners to critically assess the “child‐friendly city” concept. Through an interdisciplinary approach, the study sought to advance the notion from simply being “friendly” to a deeper commitment to amplifying children’s voices within social, physical, and relational spheres. The methodology transitioned from initial academic discussions to the creation of a comprehensive analytical tool, the “Child‐Focused Cities Analytical Framework.” This framework aims to tackle the complex challenges of child participation, aligning with the Sustainable Development Goals (SDGs) in both local and global settings. This article unveils new insights at the intersection of children’s rights, the SDGs, and local governance, laying the groundwork for a model that prioritizes and enhances children’s perspectives, thereby catalyzing social and environmental progress.
Securing health and wellbeing for children with albinism
(Elsevier, 2024-10) Msipa, Dianah; Massah, Bonface T.; Van Hout, Marie Claire; dianah.msipa@up.ac.za
Albinism is broadly considered a rare disease and is estimated to affect between one in 17 000 and one in 20 000 people worldwide.
Protecting digital rights through soft law : ensuring the implementation of the revised Declaration of principles on freedom of expression and access to information in Africa
(Juta Law, 2024) Ilori, Oluwatomiwa Timothy
This article examines the use of soft law for digital rights protection in African countries. Focusing particularly on the Declaration of Principles on Freedom of Expression and Access to Information in Africa, 2019 (revised Declaration) adopted by the African Commission on Human and Peoples’ Rights, it highlights some of the digital rights challenges in African countries that necessitated normative guidance for African states. Some of these challenges include increased internet shutdowns; unlawful interception of communication; social media bans; expensive internet access; attacks on media freedom; inadequate protection of personal data; and problematic laws on online harms. The article then examines the need for soft international human rights law to address these challenges, the provisions of the revised Declaration as soft law and how these provisions address digital rights challenges in African countries. It concludes that the revised Declaration is a unique soft international human rights law instrument and that it should not be treated as ornamental. It recommends that the African Commission should formulate an implementation plan that mainstreams the legislative, administrative, judicial and other measures provided for in the revised Declaration into African national contexts.
Legislation strengthening maternal and perinatal death surveillance and response systems
(Wiley, 2024-09) Ngwena, Charles; Kismodi, Eszter; Palestra, Francesca; Stahlhofer, Marcus; Mohan, Kalyani; charles.ngwena@up.ac.za
Historically, countries have primarily relied on policy rather than legislation to implement Maternal and Perinatal Death Surveillance and Response systems (MPDSR). However, evidence shows significant disparities in how MPDSR is implemented among different countries. In this article, we argue for the importance of establishing MPDSR systems mandated by law and aligned with the country's constitutional provisions, regional and international human rights obligations, and public health commitments. We highlight how a “no blame” approach can be regulated to provide a balance between confidentiality of the system and access to justice and remedies.

Browse

Recent Submissions