African Human Rights Law

SUMMARY Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (1999 CFRN) guarantee the rights to dignity of the person, personal liberty and freedom of movement. These rights connote that no one shall be arbitrarily arrested; anyone arrested shall be brought before a court of competent jurisdiction within a reasonable time, otherwise such detention is unlawful; where a person is lawfully detained, it shall be under humane conditions. Despite these constitutional safeguards, people continue to be detained in detention centres beyond the permissible periods without an order of court and in inhumane conditions. Thus, unlawful detention is one of the challenges confronting the administration of the criminal justice sector in Nigeria. In 2015 the National Assembly, in a bid to address the challenges in the sector, particularly unlawful and inhumane detention, enacted the Administration of Criminal Justice Act (ACJA) which is generally perceived as revolution...

The author discusses two schools of African philosophy: the holistic and the contemporarist. The holistic school looks into the past and present to find solutions to Africa's contemporary problems, while the contemporarist school looks at a Western standard of philosophy and ideas of civil society, human rights and development. The contemporarist school does not incorporate the cultural past of African traditions into African philosophy. The emphasis put by the contemporarist school on science and technology and rights as the originators of development is questionable. The author supports the holistic school in which African proverbs form part of African philosophy. The author uses Akan proverbs to illustrate how these are part of an African philosophy of human rights. Modern African philosophy should be diverse in outlook, but have a common core in the traditions that African societies have in common. In using African philosophy in the African rights struggle, it must become a ...

Apart from preserving bloodlines, the male primogeniture rule of inheritance is aimed at providing material support to deceased persons' dependants. This 'inheritance-with-responsibilities' principle is being eroded by socio-economic changes, such as urbanisation, labour migration and the diffusion of extended families, thereby causing hardship to widows, girls and younger male children. So, to what extent has Nigeria reformed customary law inheritance rules in order to reconcile them with changing social conditions? Whereas South Africa has adopted judicial and legislative measures to reform customary laws of inheritance, the same cannot be said for Nigeria, despite recent Supreme Court decisions. Using the best interests of dependants' principle as a lens, the article offers to Nigeria lessons in customary law reform from South Africa. It argues that reform efforts and public debate in Nigeria do not adequately engage the changing social conditions that influence t...

The right to freedom of expression is guaranteed under international law and in the constitutions of most countries. The content of this right has developed and recently has come to be thought of as including the internet as a medium of communication, and the question is raised whether access to the internet is protected under the current set of normative principles. The right to freedom of expression is fully protected under the African Charter on Human and Peoples’ Rights, to which Ethiopia is a party. The Ethiopian government restricts freedom of expression on the internet and has adopted extraneous limiting measures. Most of these measures are incompatable with the African Charter. Restrictions to freedom of expression on the internet include internet shutdowns, hate speech and disinformation regulation, repressive laws, and internet censorship. These limitations may (in)directly muzzle freedom of expression in Ethiopia.

The writer argues that illegitimate limitations of the right fall short of the quadruple tests of limitation measures, both under the African Charter and the Ethiopian Constitution. As a result, these limitations violate individuals’ freedom of expression on the internet. Finally, the article suggests that the Ethiopian government should draw guidance from the African Commission’s 2019 Declaration on Freedom of Expression and Access to Information containing rules on limitation measures imposed on freedom of expression on the internet.

This paper considers the question of the criminal responsibility of child soldiers for atrocities committed in armed conflict. It highlights the innovation introduced in international criminal law by the Statute of the Special Court for Sierra Leone, which permits the prosecution of children aged 15 and above. In viewing child soldiers not only as perpetrators but also as victims of human rights abuses, it argues that the existing mechanisms of criminal sanction for human rights violations that focus on punishment of the perpetrator are inadequate and that elements of restitutive justice, which are already asserted to a limited extent in recent developments in international human rights law regarding juvenile justice, should be included in the criminal prosecution process. Such an approach would satisfy the minimum requirements of justice while ensuring that child soldiers, who are often themselves the victims of human rights abuses, are appropriately sentenced.

This article analyses the impact that recent and current developments on the African continent have had, and continue to have, on the promotion and protection of human rights. Such developments include the establishment of an African Court on Human and Peoples' Rights, the formation of the African Union to replace the Organization of African Unity, democratic change in Africa and the advent of a new constitutionalism that embraces the concept of a bill of rights. An understanding of recent and current trends in the promotion and protection of human rights in Africa has to take into account the historical and international context within which the African system operates. Several challenges still inhibit the promotion and protection of human rights in Africa, including various ongoing regional and internal conflicts, the prevalence of poverty, ignorance and diseases, the predominance of political and social disharmony and the continued existence of unacceptable cultural and custo...

It is an undeniable fact that children in Africa face many challenges in their sexual health and development trajectories. One of the challenges that children face is ideological, that is, the social construction of childhood sexuality and the effects of that construction on law and policy and on what information and services children may access regarding sex and sexuality. Adults tend to represent children as sexually innocent and incompetent, and their actions toward children focus on preserving this sexual innocence and averting sexual risks.

In an article previously published in this Journal, Anthony Oyowe critically engages with my attempt to demonstrate how the human rights characteristic of South Africa's Constitution can be grounded on a certain interpretation of Afro-communitarian values that are often associated with talk of ubuntu. Drawing on recurrent themes of human dignity and communal relationships in the sub-Saharan tradition, I have advanced a moral-philosophical principle that I argue entails and plausibly explains a wide array of individual rights to civil liberties, political power, criminal procedures and economic resources. Oyowe's most important criticism of my theory is in effect that it is caught in a dilemma: Either the principle I articulate can account for human rights, in which case it does not count as communitarian, or it does count as the latter, but cannot account for the former. In this article, I reply to Oyowe, contending that he misinterprets key facets of my theory to the point ...

Eritrea is a multi-ethnic, multi-lingual and multi-religion country. The country does not have an official state religion. However, since the country's independence in 1991, the relationship between state and religion has been a troubled one. At least four religions are officially recognised by the state: Islam, of the Sunni rite; the Eritrean Orthodox Tewahdo Church, part of the worldwide Coptic Orthodox Church of the eastern rite; the Eritrean Catholic Church, part of the worldwide Roman Catholic movement; and the Eritrean Evangelical Church, part of the Lutheran World Federation. There are also a number of religious beliefs which are not formally recognised by the state. Members of these religious groups practise their belief clandestinely at the risk of insurmountable levels of persecution: If caught practising their religion in whatever form, they are treated harshly. The persecution of these groups takes place mainly in the form of coerced repudiation of one's religion...

SUMMARY One of the reasons why women seek abortion in Nigeria is to get rid of unwanted pregnancies resulting from rape. However, due to the prohibition of the procedure, in such circumstances many women resort to secret and mostly unsafe abortions. These abortions contribute to the soaring rates of maternal deaths and morbidity in the country. It is against this background that this article examines the Nigerian laws on abortion and elicits peoples' attitudes to the call for liberalisation thereof, with a focus on pregnancies resulting from rape. The study employs both the doctrinal and the non-doctrinal methods of research. The doctrinal method comprises a contents analysis of literature and the law. The non-doctrinal method consists of field research to obtain information via interviews, which is imperative because of the dearth of primary data to work on. The field research involves representative participants that are selected using a purposive sampling technique. Findings ...

Access to justice is a fundamental right that ought to be universal, but a lack of effective access to justice is frequently identified as a major barrier to realising human rights. This relates especially to women. Nigerian women are not sufficiently protected by the legal system. Women in Africa, generally, and in Nigeria, in particular, face numerous barriers that hinder their access to legal services and assistance from legal institutions that are set up to redress wrongs. Under the Constitution of the Federal Republic of Nigeria 1999, it is the duty of government to ensure that all citizens have access to justice. Legal aid clinics have in the last decade developed alongside other governmental legal services. The article discusses the evolution of legal clinics in educational institutions and by non-governmental organisations in Nigeria and focuses in particular on how access to justice through the intervention of the Women's Law Clinic, University of Ibadan, has impacted o...

This article examines in detail the work of the Cameroonian National Elections Observatory (NEO) during the 1990s, at a time when democratic transition through multiparty elections took place around Africa. It is contended that regardless of such initiatives, many countries now show signs of returning to de facto one-party systems. Indicative of this regression has been the way elections have been managed and manipulated by the ruling party. It is suggested that the integrity of the election management process is a crucial factor in the facilitation of functional democratic elections. Considering that election management bodies (EMBs) are considered vital for ensuring a level playing field between all political actors to guarantee free and fair elections, it is emphasised that EMBs must be independent and accountable, with sufficient resources to sustain their effective operations. The article concludes that even though some of the EMBs set up in African countries have been successf...

This article focuses on the establishment of the Panel of the Wise in the African Union peace and security architecture. It examines the basis, design and role of the Panel, and explores the possibilities that can be employed by the Panel in promoting the internalisation of peace and security in Africa. The writer makes recommendations in respect of the membership, norms and mandate scope of the Panel, and expresses confidence that, if properly designed and operationalised, the Panel will make a difference in the peace and security architecture of the African Union.

SUMMARY Access to water is a constitutionally-protected right in South Africa and an energetic flow of laws, policies and programmes have been initiated to address historical inequalities in the supply of water since the dawn of democracy. Yet despite this, millions of people living in South Africa still have inadequate access to water. Access to water is a particular challenge for people living on farms. By providing an analysis of the case of Mshengu & Others v uMsunduzi Local Municipality & Others, decided by the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg, this article seeks to make two key contributions. First, it highlights the challenges experienced by farm dwellers in realising their right to water and locates these challenges within a legal framework which places obligations on both municipalities and private land owners to provide access to water on farms. In particular, the mechanism of water services intermediaries envisaged in the Water Services...

This article examines the question of the exhaustion of focal (or domestic) remedies under article 5 6(5) of the African Charter on Human and Peoples' Rights. Analysing the jurisprudence of the African Commission on Human and Peoples' Rights, the contribution examines issues involving the availability and effectiveness of local remedies. Attention is given to issues such as exceptions to the requirement to use local recourse in the event of massive violations, the absence of local remedies and 'ouster clauses'.

Traditionally, women's rights have always been of low priority in Africa. Women have been subordinated under the auspices of deep-rooted African customs and cultural practices, compromising their fundamental rights. Accordingly, member states of the African Union developed the African Women's Protocol, with article 5 to guide states towards the elimination of harmful practices against women. This article assesses the implementation of article 5 of the Women's Protocol in Zimbabwe, in relation to legal, constitutional and policy reforms instituted after ratification of the Protocol in 2008. Although the assessment noted a positive domestic influence of the Protocol in Zimbabwe, the country still has a long way to go in the process of eliminating harmful practices. For the effective implementation of article 5, the article recommends the rapid alignment of marriage and customary laws to the Constitution and the African Women's Protocol. The article also vouches for eff...

This article charts the development of a child law jurisprudence that is emerging in Eastern and Southern Africa. The article records how judgments are beginning to make reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, and even to less prominent instruments such as the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption (1993) and the Hague Convention on Civil Aspects of International Child Abduction. Attention is paid to certain textual differences between the UN Convention and the African Children's Charter, and the extent to which these discrepancies have played a role in the development of a child law jurisprudence that might be described as uniquely African. The article considers judgments in the region that have expressly dealt with the 'best interests' principle. Examples from Botswana, South Africa and Kenya are described. The seco...

The adoption of the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child strengthened the protection of the rights of children. Although Kenya has ratified both instruments and enacted the Childrens Act all instruments prohibiting practices that are prejudicial to the rights of children circumcision of the boy-child for purely cultural reasons still takes place in the country sometimes with severe consequences such as deaths. This article demonstrates that the circumcision of non-consenting boys under the age of 18 violates their basic human rights particularly the right not to be discriminated against the right to health the right to privacy and bodily integrity and the right not to be subjected to cruel and inhuman treatment. The article concludes that the human rights implications stemming from male circumcision necessitate positive action against this practice by the government. (authors)

The article examines the right to inclusive education in Nigeria. It asserts that the essence of the right to education is that it should be provided to all and without discrimination. It posits that, under Nigerian law, children with disabilities suffer many prejudices, including seclusion and discrimination in terms of education. It argues that such practices amount to a violation of the Nigerian commitments and obligations under international law to provide education for all and without discrimination. The article calls on the Nigerian government to put in place adequate laws and policies advancing the right of children with disabilities within its territory.

Comparable to the South African legal system, the Swazi legal system has the characteristics of a dual legal system. Though the common law of Swaziland is Roman-Dutch law, Swazi customary law has a firm hold in the Swazi legal system. With a population in the region of 1.2 million, made up of different religious denominations, religion in Swaziland is an important matter. Although Christianity is the majority religion in Swaziland, there has generally been freedom of religion from an early stage. This was recently confirmed in the Constitution of the Kingdom of Swaziland Act 1 of 2005, which came into operation on February 8, 2006. The focus of this presentation is on the fairly new constitutional provisions dealing with freedom of religion in Swaziland. The first part of this contribution consists of a general discussion dealing with the commonalities of and interaction between the South African and Swazi legal systems, as well as certain key elements in the making of the Swazi Con...

Sexual violence during armed conflict is prohibited by international humanitarian law. International tribunals have held that sexual violence can constitute torture, crimes against humanity and genocide. The Protocol on the Rights of Women deals quite extensively with the protection of women in armed conflicts. However, there are no clear guidelines for states on how to implement these obligations.

Recent years have seen increased human rights litigation in Southern Africa in the areas of HIV and AIDS. Unfortunately, there has been virtually no litigation around the many human rights issues involving HIV and AIDS in Zambia. This has resulted in a virtual absence of relevant domestic jurisprudence around issues involving human rights and HIV and AIDS. The contribution comments on the first-ever successfully-litigated case in this area in Zambia. The case of Kangaipe v Attorney-General necessitates commentary because for the first time a Zambian court added its voice to the chorus of recent obiter dicta from several jurisdictions in the African region which declared that HIV testing without consent is a violation of human rights as set out in international human rights treaties and other normative instruments. The article argues that the Kangaipe case has contributed to the expanding frontiers of human rights litigation in Zambia, particularly as far as HIV and AIDS are concerne...