Browsing by Author "Durojaye, Ebenezer"
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Item Access to Justice in Kenya in the Context of Sustainable Development Goals (SDG) 16.3 on the Rule of Law: Lessons for the upcoming 2020 Voluntary National Review Report(CEDRED Publications, 2020-08) Nanima, Robert Doya; Durojaye, EbenezerKenya was among the various countries that presented a Voluntary National Review Report in 2017. In the context of the Sustainable Development Goal 16.3, a close reading of the 2017 Report shows some strong and weak points. Kenya is preparing its second Voluntary National Review Report at the next High-Level Political Forum in 2020. This contribution argues that Kenya can take lessons from its 2017 Report to comprehensively engage issues that speak to Access to Justice under SDG 16.3. First, the contribution contextualizes Sustainable Development Goal 16.3 in Kenya’s context. Secondly, it evaluates and juxtaposes the requirements for the Voluntary National Review Report under the 2020 and the 2017 Guidelines. Thirdly, it evaluates the extent to which the 2017 Voluntary National Review Report ascribed to its guidelines and where the emphasis for the 2020 Report should be. The fifth step is a hint on the way forward; followed by a conclusion. The authors adopt a desktop approach that evaluates available literature, legislation, case law and similar sources. The findings show that until May 2020, the SDG 16.3 did not deal with access to civil justice. Literature has identified the need to engage both formal and informal courts to deal with various societal issues like entrenched inequalities, discrimination and the independence of the judiciary. This study finds that a point of departure from Kenya’s 2017 VNR Report requires that data should be desegregated according to the requirements of SDG 16.3, with a more nuanced approach that links the challenges to access to justice.Item Accountability and the right to food: A comparative study of India and South Africa(Food Security SA Working Paper Series, 2018) Durojaye, Ebenezer; Chilemba, Enoch MacDonnellIt remains a great source of concern that, as richly endowed as the world is, each day millions of people go to sleep hungry and almost 870 million people, particularly in developing countries, are chronically undernourished. Also, every year, 6 million children die, directly or indirectly, from the consequences of undernourishment and malnutrition – that is, 1 child every 5 seconds. The international community at various forums in the last twenty years or so have committed to ending undernourishment in the world. The right to adequate food is guaranteed in a number of international and regional human rights instruments. Despite these developments, many countries have not lived up to their obligations to realise this right. South Africa and India provide an interesting comparison. On one hand, South Africa has a progressive constitution that explicitly guarantees the right to food, while the Indian Constitution does not recognise the right to food as justiciable right. Yet the Indian courts have developed rich jurisprudence to hold the government accountable for failing to realise the right to food of the people. Indeed the courts have played key roles in ensuring the judicialisation of the right to adequate food in India in the wake of the fact that the Constitution does not expressly set out the right. This report shows that South Africa can learn from the Indian experience by using litigation as a tool for holding the government accountable to its obligation under international and national laws. Besides litigating the right to food to hold the government accountable, it is noted that chapter 9 institutions such as the South African Human Rights Commission (SAHRC), the Gender Equality Commission and the Public Protector all have important roles to play in holding the government accountable to the realisation of the right to food. This is because these institutions are constitutionally empowered to monitor and report on the measures and steps taken by the government towards the realisation of socioeconomic rights, including the right to food under the Constitution. The report concludes by noting that civil society groups in South Africa will need to be more active in monitoring steps and measures adopted by the government to realise the right to food. It also notes that, where necessary, litigation can be employed as a useful strategy to hold the government to account for its obligation to realise the right to food.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 Advancing sexual and reproductive health and rights of adolescents in Africa: The role of the courts(Springer, 2019) Durojaye, EbenezerAcross the world, adolescents encounter various challenges that may implicate the enjoyment of their sexual and reproductive health and rights. The situation of adolescents in Africa is aggravated by high poverty levels and a high disease burden in the region. Some of the challenges facing adolescents in Africa include high incidence of child marriage, unwanted pregnancy, unsafe abortion, and sexually transmitted infections, including HIV and maternal mortality. It is estimated that 1 in 3 girls is married before attaining 18 (UNFPA, Marrying too young: end child marriage. UN Population Fund, 2012), while an estimated 16 million adolescent girls aged 15–19 (most of them in poor regions, including Africa) give birth yearly. Also, about 31% of young women aged 20–24 in least developed countries gave birth before age 18 between 2000 and 2009 (UNICEF et al., Violence against Children in Tanzania: Findings from a National Survey 2009. UN Children’s Fund, US Centers for Disease Control and Prevention and Muhimbili University of Health and Allied Sciences, 2011). An in-depth study of four sub-Saharan African countries found that 60% or more of adolescent men and women did not know how to prevent pregnancy and one-third or more did not know of a source for contraceptives (Guttmacher Institute and IPPF, Facts on the sexual and reproductive health of adolescent women in the developing world. Allan Guttmacher Institute and International Planned Parenthood Federation, 2010). The majority of about 300,000 women and girls that die annually (800 deaths per day) due to complications arising from childbirth are from Africa (UNFPA 2011).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 An analysis of the contribution of the African human rights system to the understanding of the right to health(African Human Rights Law Journal, 2021) Durojaye, EbenezerThe right to health is one of the important rights guaranteed in international and regional human rights instruments. Over the years the content and nature of this right have evolved through the works of scholars and clarifications provided by human rights treaty bodies. Focusing on the work of the African Commission on Human and Peoples’ Rights, this article assesses the contributions of the African human rights system towards the advancement of the right to health. It outlines some of the major achievements in terms of normative framework as exemplified by the provisions of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the African Youth Charter and the Protocol to the African Charter on the Rights of Older Persons. In addition, it highlights the clarifications provided by the African Commission charged with interpreting the African Charter on Human and Peoples’ Rights and the African Women’s Protocol. These include the adoption of resolutions, General Comments, guidelines and important decisions which provide a nuanced understanding of the right to health in the African context. The article identifies challenges militating against the full enjoyment of the right to health, including sexual and reproductive health in the region, such as the slow ratification of important human rights instruments, the lack of political will for lawItem 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 The Boko Haram insurgency and the child's right to education in Nigeria(University of the Western Cape, 2016) Isokpan, Aisosa Jennifer; Durojaye, Ebenezer; Mirugi-Mukundi, GladysArmed conflict impacts negatively on the child's right to education as the targeted attacks on schools, school children, teachers and school facilities can cause a drop in school enrolment and attendance as well as longer term effects on the standard of education provided. This study assesses the impact of armed conflict on the child's right to basic education in the context of the Boko Haram insurgency in Nigeria. Also, considering that the child's right to education protected in international and regional human rights instruments is not suspended during armed conflict, the study also assesses how well the Nigerian government in line with its international and regional human rights obligations has responded to the educational needs of children affected by the Boko Haram insurgency.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 Contribution of the health Ombud to accountability: The life Esidimeni tragedy in South Africa(Health and Human Rights Journal, 2018) Durojaye, Ebenezer; Agaba, Daphine KabagambeBetween October 2015 and June 2016, 1,711 people were relocated from mental health facilities operated by long-term provider Life Esidimeni in the South African province of Gauteng to alternative facilities managed by multiple nongovernmental organizations (NGOs). The result of the change in providers, and the manner in which the transfers were managed, became a tragedy that culminated in the death of 144 mental health care patients and the exposure of 1,418 others to torture, trauma, and poor health outcomes. The state was unable to ascertain the whereabouts of a further 44 patients. The tragedy began in October 2015, when the then member of the Executive Council for health in the populous Gauteng province, which includes Johannesburg and Pretoria, announced the termination of a 40-year contract between the Department of Health and Life Esidimeni for the provision of mental health services. The NGO facilities to which the patients were transferred were ill prepared and ill equipped for the influx of patients. The tragedy drew further public attention in September 2016, when, responding to a question raised in Parliament, the member of the Executive Council for health said that about 36 former residents of Life Esidimeni had died under mysterious circumstances following their transfers. South Africa’s minister of health then requested that the newly established Office of the Health Ombud investigate the circumstances surrounding the deaths of mentally ill patients and advise on the way forward.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 Exploring the link between poverty and human rights in Africa(Pretoria University Law Press, 2020) Durojaye, Ebenezer; Mirugi- Mukundi, GladysPoverty remains one of the greatest challenges facing humanity in this century. Despite the fact that the world is blessed with natural and human resources, a significant number of people, particularly in developing countries, still live in abject poverty. Recent developments show that efforts at combating poverty across the globe are yielding positive results as there seems to be a significant decrease in the number of people living in extreme poverty in poor regions. The picture is not all rosy, however, as there remains a great cause for concern as the world’s poorest people still live in developing countries. An estimated 736 million people worldwide – the majority in South Asia and Africa – live in extreme poverty.1 Indeed, half of these people live in five countries, namely, India, Nigeria, the Democratic Republic of the Congo (DRC), Ethiopia and Bangladesh.2 Almost 1,4 billion people are living in extreme poverty.3 The poverty situation in many developing countries, particularly Africa, is exacerbated by famine, conflict, the lack of access to basic services such as health care, water, sanitation and electricity, unemployment and corruption. While the majority of persons living in extreme poverty are found in developing countries, some of them also live in developed countries.Item From Muhammed and others to De Beer and others: striking the balance between public health measures and human rights during Covid-19 era in South Africa(2020) Durojaye, Ebenezer; Nanima, Robert DoyaThe world first got to know of coronavirus (Covid 19) in December 2019, when it rampaged the Chinese city of Wuhan causing many deaths. On 30 January 2020, the World Health Organisation (WHO) declared the outbreak of COVID-19 to be a Public Health Emergency of International Concern. About two months later, on 11 March 2020 the WHO recognised it as a pandemic. As at 15 May 2020, over 4 million people had been infected, with over 300,000 deaths.1 The first reported case of Covid-19 in South Africa was made known on 5 March 2020, since then the pandemic has risen drastically with about 14,000 infected, 257 deaths and over 6000 recoveries as at 15 May 2020.2 Thereafter, the government has adopted several measures to contain the pandemic. This has enabled it to have an integrated and coordinated disaster management mechanism that focuses on preventing and reducing the outbreak of the pandemic.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 impact of armed conflict on child education in the Democratic Republic of Congo(University of the Western Cape, 2020) Malekat, Joconde Marjorie; Durojaye, EbenezerThis study investigates the the impact of armed conflict on child education in the Democratic Republic of Congo. Naturally, armed conflict affects negatively on people‟s life. In particular, armed conflict affects the education of children as military groups attack schools, schools children and teachers. Ultimately, armed conflicts also affect the quality of education children receive during hostilities. In light of this, the study assesses how the Congolese government, in line with international and regional human rights obligations, responds to the educational needs of children affected by armed conflict.Item The implementation of the socio-economic rights provisions of the African Charter on Human and Peoples’ Rights at the national level : a case study of Democratic Republic of Congo (DRC)(University of the Western Cape, 2014) Kasongo, Tshimpaka; Durojaye, EbenezerThis mini-thesis examines the issue of the implementation of the socio-economic rights provisions of the African Charter on Human and Peoples‘ Rights (ACHPR) at the national level, in a case study of Democratic Republic of Congo (DRC). These rights which comprise the right to property, the right to work, the right to health, the right to education and the protection of the family and cultural rights in Articles 14 to 18 of the ACHPR are provided for and guaranteed in the DRC Constitution of 18 February 2006 in Articles 34 to 48 and, accordingly, are legally enforceable under the Constitution. This study was motivated by the fact that despite the enforceability of these rights under the DRC Constitution, the real situation in the DRC remains worrying in that the economic, social and cultural rights (ESCR) of the ACHPR are violated from day to day by the government. The majority of Congolese live in poverty, disease and ignorance; they lack jobs, food and other basic necessities, such as, water and electricity, in spite of DRC‘s abundant natural resources (such as, oil and gas); minerals (such as cobalt, vanadium, manganese, phosphate, and bauxite); iron ore; and precious tropical rain forests. This situation is due to certain reasons, including: bad governance; mismanagement of public finances by political authorities at the expense of the majority; lack or weakness of the institutions or organs of implementation; and the ignorance of the Congolese people about their socio-economic rights even if they are massively violated by their government. Consequently, the marginalisation of socio-economic rights which results in their non-protection and non-realisation in DRC leads to a low expectation of the State and Government by the people, corruption, exclusion, racism, xenophobia, inequality, diseases, poverty, a feeling of betrayal of the people, a crisis of state and governmental legitimacy, popular insurrections and civil war in the country. To prevent the above consequences requires the DRC State to comply with Article 1 of the ACHPR which declares that the Member States of the Organization of African Unity that are parties to the ACHPR shall recognise the rights, duties and freedoms enshrined in it and shall undertake to adopt legislative or other measures to give effect to them. In addition, as the ACHPR complements human rights protection at the domestic level where the rights protected in the Charter should be realised, it is important for DRC to ensure that the ESCR of the ACHPR protected in its Constitution are given full legal effect under domestic law, such that the Charter‘s rights are made justiciable.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.