Research Articles - Dullah Omar Institute
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Browsing by Author "Durojaye, Ebenezer"
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Item Addressing female genital cutting/mutilation (FGC/M) in The Gambia(Routledge, 2021) Durojaye, Ebenezer; Nabaneh, SatangThe purpose of this chapter is to examine the viability of the use of criminal sanction to address FGC/M in general. It then examines the nexus between FCG/M and human rights and discusses the reasons often adduced to support use of criminal law to address FGC/M. Furthermore, it focuses on the amendment to the Women’s Act in The Gambia, which prohibits FGC/M. The paper evaluates the utility of the approach adopted by the Gambian government vis-a-vis its obligation under the Protocol to the African Charter on the Rights of Women (African Women’s Protocol). The paper concludes by noting that while the prohibition of FGC/M through sanction is important, such an approach will fail to achieve its desired aim of reducing the incidence of this practice unless other complementary measures are adopted by states.Item The African Commission on Human and People's Rights and the woman question(Springer, 2016) Durojaye, Ebenezer; Oluduro, O.This paper proposes that in developing jurisprudence on women's rights, the African Commission will need to ask the woman question particularly the African woman question. The woman question requires a judicial or quasi-judicial body to always put woman at the centre of any decision with a view to addressing the historically disadvantaged position of women in society. Asking the African woman question means examining how the peculiar experiences of African women have been ignored by laws rooted in patriarchy across the region. Although the Commission has handled few cases directly dealing with women's rights, the paper suggests that the Commission can draw inspiration from decisions of other regional and international human rights bodies such as the European Court on Human Rights and the Committee on Elimination of All Forms of Discrimination against Women (CEDAW Committee) on how to ask the woman question. The paper recommends that in line with feminist reasoning there is a need for the African Commission to develop a consistent gender-sensitive approach in dealing with cases that may have implications for women. In essence the African Commission must ask the African woman question when dealing with cases on the enjoyment of women's fundamental rights.Item The approaches of the African Commission to the right to health under the African Charter(Faculty of Law, University of the Western Cape, 2013) Durojaye, EbenezerIn 2012 the African Commission on Human and Peoples' Rights celebrated its 25 years of existence. The Commission was established pursuant to the African Charter on Human and Peoples Rights, which came into force in 1986. Since its establishment the Commission has played significant roles in the advancement of human rights in the region. While it can be argued that the formative stage of the Commission was characterised by administrative inefficiency and lacklustre performance, the Commission would seem to have improved at the latter stage of its existence. Indeed, the Commission has handed down a number of important and landmark decisions relating to the socio-economic rights guaranteed in the Charter. The African Charter remains one of the few regional human rights instruments that guarantee both civil and political rights and socio-economic rights as enforceable rights. In addition, the African Charter remarkably contains provisions safeguarding people's rights, which is a rare feat when compared with other regional human rights instruments. The coming into force on 25 November 2005 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Women's Protocol) marks a momentous occasion in the annals of the promotion and protection of human rights in Africa. The African Women's Protocol contains a number of radical and progressive provisions relating to the rights of women, thereby providing an opportunity for the African Commission to redress human rights violations experienced by women.Item Between rhetoric and reality: the relevance of substantive equality approach to addressing gender inequality in Mozambique(GAP, 2017) Durojaye, EbenezerThe purpose of this article is to examine the socio-cultural challenges that continue to limit women’s enjoyment of their fundamental rights and freedoms in Mozambique. In this regard, this article focuses on three areas of gender inequality – denial of inheritance rights, sexual violence and early/child marriage-in the country. In addition, the article, using a substantive equality approach, critically examines whether the steps and measures taken by the government of Mozambique to address gender inequality are consistent with its obligations under international human rights law. For the purpose of this analysis, the article focuses on Mozambique’s obligations under the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) and the Protocol to the African Charter on the Rights of Women (African Women’s Protocol). The article concludes by making suggestions on how Mozambique can better safeguard the rights of women and improve their status.Item Constitution-Building in Africa(Community Law Centre, University of the Western Cape, 2015) de Visser, Jaap; Steytler, Nico; Powell, Derek; Durojaye, EbenezerThe process towards the adoption of a constitution is determined by the context in which the constitution is written. It navigates such issues as political engagement, keeping politically agreed timelines, ensuring the inclusion of a variety of constituencies and groups, the use of domestic and foreign technical expertise, and ensuring legitimacy and public awareness. This book examines examples of constitution-making processes around the continent and how they attempt(ed) to accommodate the many interests at play. As such, the chapters offer a range of different constitution-making narratives. In Zimbabwe, the Global Political Agreement (GPA) provided for a parliamentary select committee, co-chaired by the three main political parties, to lead the drafting of a constitutional text. The process included public hearings and a referendum. In the case of Malawi, all of its five constitutional review projects were initiated by the presidential appointment of a constitutional review commission or technical drafting committee. The drafting of the country’s 1966 Constitution took place primarily under the auspices of the ruling Malawi Congress Party; the 1995 constitutional review process was led by a National Consultative Council and consisted of various consultative processes. While this review was markedly more inclusive, it still lacked legitimacy. The making of Kenya’s 2010 Constitution was, by all accounts, impressive in its inclusivity. With the horrors of the 2007/2008 post-election violence engraved in collective memory, and the experience of the impressive consultation, led by the Ghai Commission, still fresh in mind, Kenya’s Constitution was drafted on the basis of extensive consultation.Item ‘Equally unequal or unequally equal’: Adopting a substantive equality approach to gender discrimination in Nigeria(SAGE Publications, 2017) Durojaye, Ebenezer; Owoeye, YinkaThe purpose of this article is to critically assess the approach of Nigerian courts to interpreting section 42 of the Constitution. This article argues that Nigerian courts are yet to develop a substantive equality approach to interpreting section 42 of the Constitution. Rather, the courts have tended to adopt the formal equality approach to interpreting the section. Analysing some decisions of the Court of Appeal and the Supreme Court, the article argues that in order to safeguard women’s rights and address gender inequality in the country, Nigerian courts should lean towards substantive equality approach to the interpretation of section 42 of the Constitution. This is not only consistent with Nigeria’s obligations under international law but also crucial to addressing historical imbalances between men and women in the country.Item A gendered analysis of Section 48(2)(d) of the Zimbabwean Constitution of 2013(Oxford University Press, 2017) Durojaye, EbenezerThe purpose of this article is to critically review the provision of section 48 (2) (d) of the Zimbabwean Constitution from a gendered perspective. Section 48 (2) (d) of the Constitution would seem to have abolished death penalty for women but retained the same for men. Given Zimbabwe’s commitment to gender equality and respect for human dignity, this article argues that the disparity in the treatment of women and men under this section is not only inconsistent with the notion of gender equality and substantive equality, but also fails to comply with the rules of justifying the adoption of remedial measures. It is recommended that a better approach by the Constitution would be to abolish death penalty in its totality for both men and women.Item Human rights and access to healthcare services for indigenous peoples in Africa(Taylor & Francis, 2017) Durojaye, EbenezerIn September 2015, the United Nations adopted the sustainable development goals (SDGs) to address among others poverty and inequality within and among countries of the world. In particular, the SDGs aim at ameliorating the position of disadvantaged and vulnerable groups in societies. One of the over-arching goals of the SDGs is to ensure that no one is left behind in the realisation of their access to health care. African governments are obligated under international and regional human rights law to ensure access to healthcare services for everyone, including indigenous populations, on a non-discriminatory basis. This requires the governments to adopt appropriate measures that will remove barriers to healthcare services for disadvantaged and marginalised groups such as indigenous peoples.Item The human rights implications of virginity testing in South Africa(SAGE Publications, 2016) Durojaye, EbenezerThis article examines the historical context of virginity testing in Southern Africa with a focus on South Africa. It then examines the arguments often adduced in justifying the introduction of this practice. The two major arguments to support the reintroduction of virginity testing, namely, that it helps in reducing the spread of HIV and in preserving societal moral values are critically examined. Thereafter, the article discusses how the ever contentious debate between universalists and relativists applies to virginity testing. The last part of the article then considers the human rights implications of virginity testing.Item The implication of oil pollution for the enjoyment of sexual and reproductive rights of women in Niger Delta area of Nigeria(Taylor & Francis, 2013) Oluduro, Olubayo; Durojaye, EbenezerOil is a major source of income for Nigeria and it is the mainstay of the country’s economy. Nigeria’s intensive oil sector accounts for nearly 40% of its gross domestic product, but declined steadily to an average of 14.71% of the country’s total export between 2006 and 20111; and contributed about 80% of budgetary revenues that all tiers of government heavily depend on.2 Oil spills and gas flaring are some of the effects of the unregulated exploratory activities of the oil multinational companies that have contributed immensely to the physical and mental illness of the local inhabitants of the Niger Delta region and violated most of their rights as guaranteed under international and regional human rights instruments and the Constitution of the Federal Republic of Nigeria 1999 (as amended) 1999. In view of the growing threats to human health and the environment (posed by human activities), the international community has agreed to a number of treaties to respond to the health and human rights challenges posed by environmental degradation. Although Nigeria is a party to most of these instruments,3 it has done little or nothing to regulate the conduct of the oil companies that negatively impact on the health of the Niger Delta people. While the impact of oil extraction affects both men and women, the article focuses on its implications for women’s reproductive well-being. This is because women are a disadvantaged and marginalised group and have continued to experience discriminatory practices in many parts of the country, including the Niger Delta area. The article discusses the health challenges associated with oil exploitation in the Niger Delta, paying attention to the position of women. It then proffers suggestions on measures and steps that could be taken by the Nigerian government and other stakeholders in ensuring the adequate protection of the health rights of local inhabitants.Item Involuntary sterilisation as a form of violence against women in Africa(SAGE Publications, 2017) Durojaye, EbenezerThis article examines the meaning and nature of sterilisation. It equally discusses the historical context of involuntary sterilisation and its likely human rights implications. More importantly, it discusses the decision of the Namibian Supreme Court in Government of Namibia v LM and argues that the court fails to consider involuntary sterilisation as a form of human rights violation, particularly violence against women. The article contends that given the attendant mental, physical and emotional trauma a woman may suffer upon undergoing forced sterilisation, this would amount to an act of violence against women as recognised under international human rights law.Item Legal and human rights dilemma relating to sexuality education in Africa(Inderscience, 2016) Durojaye, EbenezerThis article examines the benefits of sexuality education in schools in Africa and then considers the legal and human rights issues relating to the objection to its introduction. In doing this, the article discusses some cases that have shed light on the conflict between the exercise of the right to religion and other rights, particularly the right of young people to sexuality education. It concludes by noting that while parents do have the duty and responsibility to provide direction to their wards and children, including instruction on exercise of religion, such powers must be consistent with human rights norms and standards. More importantly, the exercise of the right to religion must be tempered with other rights, especially where harm will result to the public in strict adherence to this right.Item The special rapporteur on the rights of women in Africa (SRRWA) 2007-2015(IFE Centre for Psychological Studies (ICPS), 2018) Durojaye, EbenezerThe purpose of this article is to examine the progress recorded so far by this mechanism focusing on the period from 2007-2015. It focuses on the relevance and importance of the office of the SRRWA as a special mechanism of the African Commission. Since the SRRWA is a Commissioner of the African Commission, focus will be placed on some remarkable achievements made by the Commission relating to women’s rights during the stated period. Where necessary, the role of the Special Rapporteur will be highlighted and suggestions for the way forward provided.Item States' obligations in relation to access to medicines: revisiting Kenyan High Court decision in P.A.O and others v Attorney-General and another(Faculty of Law, University of the Western Cape, 2013) Durojaye, Ebenezer; Mirugi-Mukundi, GladysRecently a Kenyan High Court in P.A.O and others v Attorney General and another (hereinafter P.A.O) handed down a judgment in relation to sections 2, 32, and 34 of the Anti-Counterfeit Act vis-à-vis Kenya's obligations under international human rights law and the Constitution. For many Africans, access to medicines has remained a great challenge not least because of high prices mainly due to patent on these medicines. Although recent developments across Africa had shown that modest progress has been made in realizing access to medicines for people living with HIV, a great percentage of those in need of these medicines are not receiving them. One of the major obstacles to access to medicines in Africa is patent rights enjoyed by pharmaceutical companies on essential medicines such as anti-retroviral drugs.Item ‘Woman, but not human’: widowhood practices and human rights violations in Nigeria(Oxford University Press, 2013) Durojaye, EbenezerThis article examines the implications of widowhood practices for the enjoyment of women’s fundamental rights and freedoms in Nigeria. The article discusses the effects of socio-cultural and legal structures of Nigeria for gender equality. It argues that the plural legal system in the country, which encourages the application of statutory law side by side with customary law, can potentially undermine women’s fundamental rights. The article then discusses specific human rights of women, particularly the rights to dignity and non-discrimination that are threatened by widowhood practices. In conclusion, it is argued that since Nigeria has ratified international and regional human rights instruments such as the Convention on Elimination of All forms of Discrimination against Women (CEDAW) and the Protocol to the African Charter on the Rights of Women (African Women’s Protocol), it is obligated to take appropriate steps and measures to eradicate harmful cultural practices that may violate women’s rights.