Browsing by Author "Mujuzi, Jamil"

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    The African Court on Human and Peoples’ Right: A test of African notions of human rights and justice
    (University of the Western Cape, 2019) Aliu, Bello Ayodeji; Mujuzi, Jamil
    The African Court on Human and Peoples’ Right (the Court) is the most recent of the three regional Human Rights Bodies. Envisioned by the African Charter on Human and Peoples’ Right, its structures was not planned until the Organisation of African Unity (OAU) promulgated a protocol for its creation in 1998. The Court complements the protective mandate of the African Commission on Human and Peoples’ Rights (‘The Commission’) and the Court has the competence to take final and binding decisions on human rights violations. Unlike its European and inter-American versions where their courts are integral parts of the cardinal instrument of the system ab initio, the establishment of the African Court was merely an afterthought. At the initial, protection of rights rested solely with the Commission upon African justice system which emphasises reconciliation as it is non-confrontational method of settlements of. The Commission is a quasi-judicial body modelled after the United Nations Human Right Committee without binding powers and with only limited functions covering examination of State reports, communications alleging violations and interpreting the Charter at the request of a State, the OAU or any organisation recognised by the OAU. The thesis answers the question whether the adoption of the African Court means that the African model of enforcing human rights has failed or whether having the Court constitute a concession to the triumph of the western model of law enforcement. The imperative of the 30th Ordinary Session of the OAU in 1994 where the creation of an African Court of Human and Peoples’ Rights was viewed as the best way of protecting human rights across the region would be treated. The relevance of such an examination is highlighted by the fact that the African Charter did not make any provision for the establishment of a Court to enforce the rights guaranteed thereunder. If we are to assume that justice by reconciliation has failed and should be replaced by or complimented with justice by adjudication as the primary means of conflict resolution, what guarantees are there that the latter form of justice will not also fail? This thesis therefore will critically evaluate the African Court on Human and Peoples’ Rights and assessed its potential impact on the African human rights system. It will also probe the power of the Court and see whether a clear and mutually reinforcing division of labour between it and the African Commission can be developed to promote and protect human rights on the continent. This research brings to focus an area that requires attention if the African human rights regime is to be effective. It put to test the criticism against the African Charter and the Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights and also identified the present existing flaws in the African regional system. Furthermore, it ascertained whether or not, given the availability of other options, a regional Court is, in fact, the ideal mechanism for the protection of human rights in Africa.
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    A critical analysis of the process of appointing the national police commissioner of South Africa
    (University of the Western Cape, 2022) Gcayiya, Siphokazi; Mujuzi, Jamil
    The aim of this study is to critically dissect the current mechanism of appointing the NPC, and in return to propose a set of recommendations toward amendment of that mechanism. South Africa is recognized as a country with one of the highest crime rates in the world. Whilst scholars have attributed these prominent levels of crime to several contextual determinants, the country’s policing services have been singled out as being largely ineffective in curbing criminality. A key factor highlighted as a determinant of persistently poor performance of the SAPS, is a lack of effective senior leadership to assert managerial control. In particular, the role of national police commissioner (NPC), has been at the receiving end of significant criticism, as successive appointees to the position have been largely ineffectual in their leadership of the institution. As a contributing factor, the lack of an effective mechanism of recruitment and appointment has been cited as being a key reason why the SAPS has seen persistently poor performance from those individuals who have been selected for the role of NPC.
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    Investigator-prosecutor collaboration: A framework for improving Namibia’s criminal justice process
    (2021) Mushelenga, Peya; Mujuzi, Jamil
    Namibia, analysing models, principles and approaches of interagency cooperation to determine a suitable model for Namibia. The study was based on research questions examining the trends in the Namibian criminal justice system, in respect of cooperation between investigators and prosecutors and the relevance of coordination between investigators and prosecutors in the prosecution process. The study presents an overview of the practice in common and civil law legal systems. It recommends a hybrid of cooperation models for inter-agency agency-cooperation: a communicative cooperation model for less complex serious crimes; and a coordination model for more complex serious crimes and investigations ordered by the prosecution. The study’s findings are that prosecutors thoroughly read the dockets at every stage of the court procedure when the docket is received from investigators, but not during the investigation stage, except for crimes falling under the Prevention of Organised Crime Act, where prosecutors assist investigators from the initial stage of an investigation. However, for other serious crimes, including murder, it is not common for prosecutors to continuously assist investigators, but they provide advice through the investigation diary. Only in a few instances that they provide assistance. The study, thus, recommends that for a given category of serious crimes to be specified in legislation, regulation and policies, there should be interagency cooperation. Cooperation should adopt a hybrid of communicative cooperation model for investigations initiated by investigators, and coordination model for investigations ordered by the prosecution. Such cooperation should further be realised within the framework of separation of powers as prosecutors should only guide the process. Inter-agency cooperation should be adopted upholding the principles of neutrality, legality, complementarity, efficiency, objective truth and well-founded conclusions.
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    Prosecuting and Punishing Persons for Sending Messages of Obscene, Offensive, Threatening or Menacing Character under the Mauritian Information and Communication Technologies Act
    (Speculum Juris, 2020) Mujuzi, Jamil
    Jurisprudence from Mauritian courts shows that people have been convicted of offences under the Information and Communication Technologies Act. These offences have been mostly committed using mobile phones. The most common offences relate to making phone calls and sending text messages which are obscene, indecent, abusive, threatening, annoying, inconveniencing, menacing, false or misleading, or likely to cause distress or anxiety. Although in some cases people have been convicted of posting videos or audio on YouTube, Facebook, Viber and sending out emails. One of the challenges faced by courts is that many words in section 46 of the Act which creates offences are not defined and courts have to rely on dictionaries. It is argued that the constitutionality of section 46 could be challenged successfully. Another challenge is that the punishments provided for in the Act are not applicable to juristic persons. Recommendations to address those challenges are made here. The article also highlights how the police’s IT unit, the telephone companies, and the judiciary work together to ensure the availability of evidence needed to prosecute those who have allegedly committed an offence under the Act. It is argued that some of the offences under the Act are of strict liability nature and that Mauritian courts have no jurisdiction over offences under section 46 of the Act when committed abroad.
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    The protection of an accused's right to freedom from torture
    (University of the Western Cape, 2014) Matthews, Mamello; Mujuzi, Jamil
    The question to be addressed in this study is whether the government of South Africa is doing enough to protect the rights of the accused from torture. This study will seek to analyse South Africa’s constitution and its requirements to protect individual human rights, as well as South Africa’s current legislative framework including the Prevention and Combating of Torture of Persons Act.
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    The protection of the right to freedom from torture and extradition in South Africa
    (University of Western Cape, 2013) Njambatwa, Siyasanga; Mujuzi, Jamil
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    The rule in Hollington v Hewthorn in the light of section 17 Of The Civil Proceedings Evidence Act 25 of 1965 in South Africa
    (University of the Western Cape, 2018) Gaqa, Thando; Mujuzi, Jamil
    South Africa, among others, has adopted, and is bound by, the so-called 'rule in Hollington‘ that originated in England in 1943 in Hollington v Hewthorn (hereinafter the 'Hollington case‘). The issue, among others, that the English Appeal Court had to determine in this case was whether a judgement of a criminal court could be used in subsequent civil proceedings to prove the liability of either of the litigants. The Court reached the conclusion that a judgement of a criminal court is just an irrelevant and inadmissible opinion in later civil proceedings. The court adopted the view that had a criminal conviction been admissible evidence in civil proceedings, it would lead to a situation where the defendant would end up challenging the propriety of those convictions. In the light of that, the courts would be faced with a duty to retry the criminal case in the midst of the civil proceedings. Section 17 of the Civil Proceedings Evidence Act (CPEA) provides that a conviction or an acquittal can be proved by the production of a document dully certified by the relevant court that acquitted or convicted the person in question. Furthermore, section 18 of the Supreme Court Act (SuCA) now section 34 of the Superior Courts Act (SupCA) provides that whenever a judgement, among other things, of a court needs to be proved or referred to in any manner a duly certified copy thereof will serve as prima facie evidence thereof. These sections militate against the rule in Hollington in that they allow, or at least should be interpreted in a manner that accords with the allowance of, the admissibility of conviction evidence in later civil law suits.
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    Safeguarding the right to freedom from arbitrary detention in Cameroon
    (University of the Western Cape, 2021) Weregwe, Christopher Mba; Mujuzi, Jamil
    Arbitrary detention is a human rights violation. Its complete eradication is a major concern to the international community. The International Covenant on Civil and Political Rights (ICCPR) is the main treaty that protects and promotes civil and political rights. It outlaws arbitrary detention and obliges states parties to take effective legislative, judicial, administrative, and any other measures necessary to prevent the practice within their jurisdictions. Cameroon ratified the ICCPR in 1984, as well as other international treaties that prohibit arbitrary detention. According to Article 45 of the Cameroon Constitution, duly ratified international treaties and conventions enter into force following their publication in the official gazette, and they supersede domestic laws.
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    The Right to Health Care of Terminally Ill Inmates in South Africa
    (University of the Western Cape, 2018) Albertus, Chesne Joy; Mujuzi, Jamil
    In South Africa, prison authorities are not primarily concerned with the health of the prison population. This is evidenced by inter alia: the vast number of complaints regarding health care received by the Judicial Inspectorate of Correctional Centres; natural deaths in prisons reported annually; litigation regarding health care and treatment in prisons; and the notoriously poor conditions of detention which inevitably have a negative impact on prisoners' health. There is as a result a noticeable difference between state provided health care to the public and health care in prisons. This thesis is therefore aimed at unpacking what the right to health means in respect of terminally ill prisoners. This question has been overshadowed by issues regarding medical parole in South Africa and intermittently by calls for palliative care in prisons. Whilst these issues are relevant to their plight, there is a need to articulate the scope of the right to health of terminally ill prisoners. This is imperative as not all prisoners who are terminally ill are eligible for medical parole and there are instances where the granting of such parole may be impractical. An analysis of the right to health in relation to terminally ill prisoners will provide legal certainty as to the legal entitlements regarding health care for one of the most vulnerable groups in society. They will know what they may legally claim and what they cannot insist upon in terms of the law.
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    The trial of civilians before courts martial in Uganda: Analysing the jurisprudence of Ugandan courts in the light of the drafting history of articles 129(1)(d) and 120(a) of the constitution
    (Academy of Science of South Africa, 2022) Mujuzi, Jamil
    Unlike in the constitutions of other African countries such as Botswana and Lesotho, where the relationship between the High Court and courts martial is stipulated, the Ugandan Constitution 1995 (the Constitution) does not deal with this relationship. The Constitution is also silent on the question of whether courts martial have jurisdiction over civilians. The Uganda Peoples' Defence Forces Act (the UPDF Act) creates different types of courts martial with varying jurisdictions (section 197). The Act also provides (section 119) for the circumstance in which the General Court Martial has jurisdiction over civilians and appeals against the decisions of the General Court Martial lie to the Court Martial Appeal Court, which is the final appellate court except in cases where the offender is sentenced to death or life imprisonment.