Browsing by Author "Chinnian, Karin"

Now showing 1 - 7 of 7
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    Evaluating the effectiveness of the South African criminal justice system to prosecute homophobic rape
    (University of the Western Cape, 2024) Malgas, Kirby; Chinnian, Karin
    In a heteronormative society, homophobic rape is said to be a “cure” for violating traditional gender representations, which is being anything other than heterosexual. Sexual orientation or gender identification is related to one’s identity. Therefore when someone is harmed because of their identity, such a harm should be deemed as a human rights violation. The Constitution of the Republic of South Africa provides its citizens with protection from discrimination on the basis of gender and sexual orientation, as explicitly mentioned in section 9(3) and (4) of the Bill of Rights. Section 9(4) in particular emphasises that national legislation is obligated to prevent or prohibit unfair discrimination. Homophobic rape is a discriminatory act as it focuses on victims of a particular characteristics or identity, this type of conduct can be recognised as a hate crime. Hate crimes are not specifically recognised within South African legislation. Is this omission aligned with the aims and values of our constitution? This will be the core issue that will be addressed within this thesis. A further study on the interpretation of other relevant legislation will be completed to determine whether it can be used to prosecute hate crime such as homophobic rape, or whether the law is in need of amendment and development to do so justifiably.
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    Gender construction in sexual offences cases: A case for fully reviving the Sexual Offences Courts
    (Juta, 2020) Chinnian, Karin; Petersen, Aamina
    Gender inequality, male hegemony and the power dynamics at the core of patriarchal society enable the high rate of sexual offences and the low conviction rate of sexual offenders when incidents are reported. The criminal justice system does not provide a safe space for the sexual offence victim/survivor to relate her experience of sexual violence. Sexual Offences Courts provided a victim-centred approach to the criminal justice system. The closure of these courts has been detrimental to the campaign for social justice and the constitutional rights of complainants. Feminist scholarship is employed as a lens through which to analyse and expose the deficiencies in the current framework used to secure convictions in sexual offences cases. Wishik’s development and expansion of the ‘woman question’ is used to refine this method, subquestions are formulated to provide a systematic process for interrogating the status quo, and for finding remedies to redress the problems identified. The closure of Sexual Offences Courts may be seen as a form of discrimination against women. It is therefore recommended that these specialised courts are reintroduced as a matter of urgency as the state needs to meet its constitutional obligations.
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    The impact of harmful customary practices in Africa: case of female genital mutilation in Somalia as a violation of human rights
    (University of the Western Cape, 2012) Mireille, Tankama Lwamba; Chinnian, Karin; Amollo, Rebecca
    This thesis sets out to examine the practice of Female Genital Mutilation/Cutting (FGM/C) in Somalia and its impact on women. The political instability in Somalia provides an opportunity for the increase of all forms of violations of human rights. The prevalence of FGM/C in Somalia has been declared as the highest in the World, but the Somali Government has not taken any steps to address the problem. This study was motivated by the dire situation of women in Somalia. Women suffer from gender inequality in the sense that societal practices – and norms dictate that women’s sexuality be controlled with a view to suppressing their sexual desires. In this way; their rights are violated. Infibulation and sunna performed on women come with immediate and late complications including death, infection, sexual dysfunction, and exposure to HIV infection. Somalia is one of the African countries where women’s rights are almost non-existent. As Dirie notes: ‘if genital mutilation were a problem affecting men, the matter would long be settled.’ International human rights instruments help this study to investigate whether customary practices such as FGM/C are harmful to Somali women and children and whether they constitute violence against women. This practice prevents women from enjoying fundamental rights as recognized by international human rights standards. It is universally known that FGM/C constitutes a violation against women and girls’ rights because they are forced to embrace the practice. Consequently, several rights are violated such as the right to equality, the rights to freedom from all forms of torture and cruel, inhumane and degrading treatment, the right to freedom from harmful customary practices, the rights of the child, and the right to health. The persistent practice of FGM/C is mainly a result of the absence of specific legislation proscribing it as well as the political instability that creates an environment conductive to the wanton violation of the rights of citizens. A recent Somali provisional constitution has recognised FGM/C as a violation of children’s rights but the law is not enforced.Infibulation and sunna are part of Somali culture. That is why attempts to eradicate the practice create a dilemma for the authorities. This has invariably placed Universalists and cultural relativists on a collision course. Ensuing government inaction has resulted in numerous reservations being made to stall the adoption of certain instruments of human rights law such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). This is because cultural relativists do not consider FGM/C as a violation, but as an expression and fulfilment of Somalis’ culture as provided for in the Universal Declaration of Human Rights (UDHR) of 1948. As argued by Packer, human dignity and life represent universal values for everyone; even if FGM/C is a part of culture, certain limitations must be implemented to preserve people’s fundamental rights. This thesis agrees with the stance that FGM/C violates women’s health. This is due to the absence of proper legislation in Somalia, inadequate literacy and the collapse of the political system. Recommendations include the proposal that legal strategies to eradicate FGM/C must be accompanied by broad policies and grassroots programmes such as educational activities to explain to people the risks of this practice and how communities can remedy it without affecting their cultural tenets.
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    The impact of harmful customary practices in Africa: case of female genital mutilation in Somalia as a violation of human rights
    (University of the Western Cape, 2012) Mireille, Tankama Lwamba; Chinnian, Karin; Amollo, Rebecca
    This thesis sets out to examine the practice of Female Genital Mutilation/Cutting (FGM/C) in Somalia and its impact on women. The political instability in Somalia provides an opportunity for the increase of all forms of violations of human rights. The prevalence of FGM/C in Somalia has been declared as the highest in the World, but the Somali Government has not taken any steps to address the problem. This study was motivated by the dire situation of women in Somalia. Women suffer from gender inequality in the sense that societal practices – and norms dictate that women’s sexuality be controlled with a view to suppressing their sexual desires. In this way; their rights are violated. Infibulation and sunna performed on women come with immediate and late complications including death, infection, sexual dysfunction, and exposure to HIV infection. Somalia is one of the African countries where women’s rights are almost non-existent. As Dirie notes: ‘if genital mutilation were a problem affecting men, the matter would long be settled.’ International human rights instruments help this study to investigate whether customary practices such as FGM/C are harmful to Somali women and children and whether they constitute violence against women. This practice prevents women from enjoying fundamental rights as recognized by international human rights standards. It is universally known that FGM/C constitutes a violation against women and girls’ rights because they are forced to embrace the practice. Consequently, several rights are violated such as the right to equality, the rights to freedom from all forms of torture and cruel, inhumane and degrading treatment, the right to freedom from harmful customary practices, the rights of the child, and the right to health. The persistent practice of FGM/C is mainly a result of the absence of specific legislation proscribing it as well as the political instability that creates an environment conductive to the wanton violation of the rights of citizens. A recent Somali provisional constitution has recognised FGM/C as a violation of children’s rights but the law is not enforced.Infibulation and sunna are part of Somali culture. That is why attempts to eradicate the practice create a dilemma for the authorities. This has invariably placed Universalists and cultural relativists on a collision course. Ensuing government inaction has resulted in numerous reservations being made to stall the adoption of certain instruments of human rights law such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). This is because cultural relativists do not consider FGM/C as a violation, but as an expression and fulfilment of Somalis’ culture as provided for in the Universal Declaration of Human Rights (UDHR) of 1948. As argued by Packer, human dignity and life represent universal values for everyone; even if FGM/C is a part of culture, certain limitations must be implemented to preserve people’s fundamental rights. This thesis agrees with the stance that FGM/C violates women’s health. This is due to the absence of proper legislation in Somalia, inadequate literacy and the collapse of the political system. Recommendations include the proposal that legal strategies to eradicate FGM/C must be accompanied by broad policies and grassroots programmes such as educational activities to explain to people the risks of this practice and how communities can remedy it without affecting their cultural tenets.
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    The right to remain married : positioning homosexual-transsexual marriages under the South African Marriage Act 25 of 1961
    (University of the Western Cape., 2015) Matthyse, Glenton Carlo; Chinnian, Karin
    For many, the human rights which South Africa has been able to secure for LGBTI (lesbian, gay, bisexual, transgender and intersex) people has been very progressive. However, with the conflation of sexual orientation and gender identity, the assumption of access to human rights for all within the LGBTI and society at large, has led to transsexual people not being able to claim their rights and assert their existence as human beings effectively within our constitutional democracy. Currently, there is a vacuum in South Africa's law of marriage based on its inability to accommodate spouses who married as a 'heterosexual' couple but where the one spouse subsequently undergoes gender affirmation, conforming the relationship to what is perceived as 'homosexual'. On account of this, the Department of Home Affairs are subjecting these couples to compulsory or forced divorces by refusing to have the transsexual spouse recognised within his or her affirmed gender on the marriage certificate. This means that the transsexual spouse either remains married under the Marriage Act and is subject to being recognised as his or her birth-sex, or submits to a compulsory or forced divorce in order to be recognised as his or her affirmed sex on a marriage certificate issued under the Civil Union Act upon them 'remarrying'. This thesis addresses the inequalities and inequities brought about by the Marriage Act. It investigates the history of marriages within South Africa that were prohibited based on characteristics such as race which people have no control over. It looks at how the State, through its departments, has imposed itself on the social relationships people formed subject to its legal terms and conditions. This thesis questions whether the State through its action is acting in a way that is administratively just. It argues that the successfulness of a divorce decree is dependent on at least one party voluntary applying for it. This presupposes the idea that whenever couples who are validly married are forced or compelled to divorce one another that this, in fact, cannot be seen as one of the valid ways in which to obtain a divorce decree legally. Before venturing into the legal aspect concerning this research topic, a theoretical framework will be advanced to position these couples in a greater social context. Subsequently, in order to establish the legal position of these couples, this thesis will draw on the current South African human rights discourse that has been developed by and for the LGBTI community, especially as it relates to the law of marriage. It will also establish the international and foreign human rights discourses that assert or, at least, seek to assert LGBTI human rights broadly. Ultimately, a constitutional analysis will be conducted to establish the position of these couples under the Marriage Act.
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    Statelessness as a failure of international law: a critical analysis of the effects of statelessness on gender rights
    (University of the Western Cape, 2019) Petersen, Aamina; Chinnian, Karin
    Statelessness is a global human rights problem affecting a vast number of individuals, families and communities worldwide. The concept of statelessness comes to existence as a conflict that was created by international law. Article 15 of the Universal Declaration of Human Rights provides that everyone has the right to a nationality. Article 1 of the International Covenant on Civil and Political Rights provides the right to state sovereignty. The latter article thus allows states to enact laws conferring nationality as it deems fit, even if such laws offend the former article. In addition, this phenomenon affects men and women differently, something which international law fails to take proper cognisance of. This causes the failure of properly being able to regulate the issue of statelessness. Furthermore, the failure at law stumps the growth of women by be destabilising and disempowering it. While Article 9 of Convention on the Elimination of All Forms of Discrimination Against Women provides that there should be no discrimination between men and women with regard to the acquisition or conferral of nationality. However, there are 27 countries who maintain gender-based discriminatory nationality laws. One of the main reasons for generational statelessness is gender –based discriminatory nationality laws. The problem of statelessness will continue to persist if nothing is done to reform the laws of those countries who maintain the gender-based discriminatory nationality laws. This thesis will examine the legal gaps at international law in addressing the issue of statelessness. It will also look at States that continue to implement nationality laws and practices which are gender discriminatory. This thesis will argue that Article 9 is used as a basis of accountability for violator States who fail to protect women who have been subjected to human rights violations as a result of statelessness. It will also provide recommendations that will aid in acquiring effective change that could ultimately lead to the eradication of statelessness.
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    The University of the Western Cape protecting women from intimate partner violence in South Africa: Evaluating whether the state fulfilled its legal obligations during the Covid-19 lockdown
    (University of the Western Cape, 2022) Gamiet, Maajidah; Chinnian, Karin
    The COVID-19 lockdown regulations in South Africa were put in place to protect its citizens from the spread of the virus, however certain restrictions consequently endangered women. Comparing gender-based violence statistics from 2019 and 2020, this thesis considers whether the protection of women from intimate partner violence and intimate partner femicide in South Africa was a priority in the design of control measures against the spread of COVID-19. It makes use of an interpretation of the international law standard of due diligence that places a duty on the state to protect individuals from violations committed by non-state actors to ensure that human rights provisions (specifically women’s rights) are executed in accordance with the principles of equality and non-discrimination.