UWCScholar :: Browsing by Author "Mujuzi, Jamil Ddamulira"

Browsing by Author "Mujuzi, Jamil Ddamulira"

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Addressing wrongful convictions or miscarriages of justice in the BRICS nations
(University of Tyumen, 2022) Mujuzi, Jamil Ddamulira
For many decades, international human rights law has recognised the danger of wrongful convictions and miscarriages of justice. It is against this background that measures have been taken to prevent or combat wrongful convictions. Thus, Article 14 of the International Covenant on Civil and Political Rights provides for the right to a fair trial as well as compensation in the case of a miscarriage of justice. The BRICS nations have implemented measures at the national level to prevent or combat wrongful convictions before and during trial as well as after conviction.
The admissibility in Namibia of evidence obtained through human rights violations
(Pretoria University Law Press, 2016) Mujuzi, Jamil Ddamulira
Unlike the case in other African countries, such as South Africa, Kenya and Zimbabwe, the Namibian Constitution does not require courts to exclude evidence obtained through human rights violations if the admission of that evidence would render the trial unfair or would be detrimental to the administration of justice. The only article in the Namibian Constitution dealing with the issue of evidence is article 12(1)(b), which provides that ‘[n]o persons shall be compelled to give testimony against themselves or their spouses, who shall include partners in a marriage by customary law, and no court shall admit in evidence against such persons’ testimony which has been obtained from such persons in violation of article 8(2)(b) Here of’. However, Namibian courts have invoked the criteria (set out in the Constitutions of South Africa, Kenya and Zimbabwe) in determining whether or not to admit evidence obtained through human rights violations. This article deals with the jurisprudence emanating from Namibian courts dealing with evidence obtained through human rights violations, and highlights the challenges that courts have grappled with in dealing with such evidence. The issues discussed are the relevant provisions relating to the admission of evidence obtained through violating human rights; the tests courts have developed to decide whether or not to admit evidence obtained through human rights violations; the right to remain silent at the time of arrest; the accused’s right not to incriminate himself at the trial; the right to consult a lawyer before making a statement; and evidence obtained through violating the rights to freedom from torture, cruel, inhuman or degrading treatment. It is recommended that Namibia may have to amend its Constitution to provide, inter alia, for criteria to be used in deciding whether or not to admit evidence obtained through human rights violations.
The admissibility of evidence obtained through human rights violations in Mauritius
(Juta Law Publishing, 2018) Mujuzi, Jamil Ddamulira
The Constitution of Mauritius, unlike those of South Africa, Zimbabwe and Kenya, does not guide courts on the issue of the admissibility of evidence obtained through human rights. Jurisprudence from Mauritius shows courts have grappled with the issue of establishing the criteria that have to be followed in determining whether or not to admit evidence obtained through human rights violations. Courts have limited their jurisprudence to a few rights: the right to freedom from torture; the right to remain silent; the right against self-incrimination; and the right to counsel. The jurisprudence is inconsistent on the issue of whether or not evidence obtained through human rights violations should be automatically excluded. In some cases courts have held that such evidence is automatically inadmissible whereas in others courts have held that such evidence may be admissible. It is recommended that the best approach would be to only exclude such evidence if its admission would render the trial unfair or would be detrimental to the administration of justice.
The African Commission on Human and Peoples' Rights and the promotion and protection of refugees' rights
(Pretoria University Law Press (PULP), 2009) Mujuzi, Jamil Ddamulira
African countries have been host to and have produced refugees for decades. These refugees have fled their countries for various reasons, including political and religious reasons. Many African countries are party to the 1951 United Nations Convention Relating to the Status of Refugees and its additional Protocol of 1967. In 1969, the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, the major instrument that deals with the rights and duties of refugees in Africa, was adopted to address, as the name suggests, the specific aspects of refugee problems in Africa which were not addressed by the 1951 UN Refugee Convention. The African Commission on Human and Peoples' Rights has put in place various measures to promote and protect the rights of refugees in Africa. These measures include the organisation of seminars, seminar paper presentations by commissioners, the appointment of a Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons in Africa, and adopting resolutions on the rights of refugees. The African Commission has also allied itself with various international human rights and humanitarian law organisations to protect the rights of refugees in Africa. It has protected the rights of refugees through its visits to different countries and through its decisions on individual communications. This article observes, inter alia, that, although the African Commission has entertained various communications dealing with the rights of refugees in Africa, the arguments of the parties to those communications as well as the decisions of the Commission have largely focused on the African Charter on Human and Peoples' Rights and not on the 1969 OAU Convention on Refugees. The author recommends that, in matters relating to refugee' rights, the African Commission should always invoke the provisions of the 1969 OAU Refugee Convention in addition to the African Charter and, where need be, reference should be made to other refugee-related instruments.
The African court on human and peoples’ rights: a test of African notions of human rights and justice
(University of the Western Cape, 2019) Bello, Ayodeji Aliu; Mujuzi, Jamil Ddamulira; Durojaye, Ebenezer
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.
Bank secrecy: Implementing the relevant provisions of the United Nations Convention against corruption in South Africa
(University of the Western Cape, 2016) Mujuzi, Jamil Ddamulira
For many decades South African law has recognised a bank's duty to keep its client's information confidential. This is popularly known as bank secrecy. However, this duty is not absolute. National and international law provide for circumstances in which a bank may disclose information relating to a client. The UN Convention against Corruption, which South Africa ratified in 2004, has three Articles which deal directly with the issue of bank secrecy, namely, Articles 31(7), 40 and 46(8). The purpose of this essay is to discuss whether South Africa has measures in place to give effect to Articles 31(7), 40 and 46(8) of the UN Convention against Corruption.
The conditional early release of offenders transferred from the Special Court for Sierra Leone to serve their sentences in designated states: some observations and recommendations
(Juta Law, 2014) Mujuzi, Jamil Ddamulira
The Special Court for Sierra Leone (SCSL) (now the Residual Special Court for Sierra Leone) convicted various offenders of crimes, such as war crimes and crimes against humanity. These convicted offenders were sentenced to prison terms ranging from two to fifty years' imprisonment. The SCSL signed sentence-enforcement agreements with Sweden, Finland, Rwanda and the United Kingdom. On the basis of these enforcement agreements, those convicted by the SCSL were transferred to serve their sentences in Rwanda and the United Kingdom. Some of those convicted of contempt of court served their sentences in Sierra Leone. The enforcement of the sentences is governed by Articles 227 and 238 of the Statute of the SCSL, read with Rules 103 and 124 of the Rules of Procedure and Evidence which provide for the place of imprisonment of the offenders convicted by the SCSL and the issue of pardon respectively. The conditional early release (what is known as parole in some countries) of the offenders is governed by the Practice Direction on the Conditional Early Release of Persons Convicted by the Special Court for Sierra Leone. As at the end of 2014, only two offenders - Moinina Fofana and Eric Koi Senessie - had been granted conditional release by the President of the SCSL. The purpose of this article is to analyse the issues emerging from these two cases. Before I deal with those issues, it is important to draw a distinction between the transfer of offenders between countries and the transfer of offenders from international criminal tribunals, such as the SCSL, to sentence enforcement states.
Distribution of property at the termination of de facto unions (marriages by cohabitation/repute) in some African countries
(Oxford University Press, 2023) Mujuzi, Jamil Ddamulira
Many African countries have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 16(1) of CEDAW provides for, inter alia, the right to equality in a marriage. The drafting history of Article 16 of CEDAW shows that the delegates agreed that the whole provision was applicable to women whether or not they were married. In its General Recommendation No. 29 on Marriage and Family Relations, the CEDAW Committee provides interpretive guidance for states on Article 16 and, inter alia, highlights the economic hardships that women face at the termination of de facto unions or relationships (marriages by cohabitation) and urged state parties to protect the economic rights of women in such relationships. African countries have approached the issue of de facto relationships in different ways. These approaches have also determined the manner in which the economic rights of parties to these relationships are protected. In some countries such as Malawi and Tanzania, legislation recognizes such unions. In Kenya, although these unions are not recognized by legislation, they are recognized by courts. Courts have also recognized some economic rights of parties therein. In Seychelles, a ‘hybrid’ approach has been followed in terms of which these rights are protected in both legislation and case law. In Uganda, South Africa, Zambia, Ghana, Zimbabwe, Lesotho, Swaziland, and Rwanda, de facto unions are neither recognized in legislation nor in case law.
Diversion in the South African criminal justice system: emerging jurisprudence
(Juta Law, 2015) Mujuzi, Jamil Ddamulira
On 1 April 2010 the South African Child Justice Act (CJA or the Act) commenced. The long title of the Act states, inter alia, that the purpose of the Act is 'to establish a criminal justice system for children, who are in conflict with the law and are accused of committing offences, in accordance with the values underpinning the Constitution and the international obligations of the Republic'. The Act provides, inter alia, that a child who has committed any offence may be diverted from the criminal justice system. Case law has started emerging from South African courts dealing with some of the sections of the Act. The purpose of this article is to highlight how courts have interpreted or applied some of the sections of the Act.
Domestic courts and the promotion and protection of the right to freedom from torture in Southern African development community countries
(University of Fort Hare, 2013) Mujuzi, Jamil Ddamulira
The right to freedom from torture is protected not only in the constitutions of all SADC countries but also in some of the regional and international human rights instruments that have been signed, ratified or acceded to by these countries. This article has discussed the measures taken by courts in different SADC countries to protect the right to freedom from torture. The author has focused on the following issues and made recommendations where appropriate: the definition of torture, the difference between torture on the one hand and cruel, inhuman and degrading treatment on the other hand, the status of the right to freedom from torture in the eyes of the courts, the factors that courts consider as creating a conducive environment for torture, the issue of deporting or extraditing a person to a country where he or she could be subjected to torture, proving allegations of torture, some forms of punishment that have been declared as torture, and the admissibility of evidence obtained through torture.
Evidence obtained through violating the right to freedom from torture and other cruel, inhuman or degrading treatment in South Africa
(Pretoria University Law Press (PULP), 2015) Mujuzi, Jamil Ddamulira
Although South African courts have expressly held that any evidence obtained through torture is always inadmissible, the author is unaware of a decision from a South African court to the effect that evidence obtained through cruel, inhuman and degrading treatment is, like evidence obtained through torture, inadmissible in all circumstances. In this article, the author first deals with the issue of evidence obtained through torture and thereafter relies on the practice of international and regional human rights bodies, such as the Committee against Torture, the Human Rights Committee, the UN Special Rapporteur on Torture, the UN Special Rapporteur on the Independence of Judges and Lawyers, the European Court of Human Rights and the African Commission on Human and Peoples' Rights, and some of the sections of the South African Constitution, to argue that South Africa has an international obligation to exclude any evidence obtained through cruel, inhuman and degrading treatment. In support of this argument, the author relies on the jurisprudence of the South African Supreme Court of Appeal on the nature of the right to freedom from torture and argues that the same approach could be applied to the right to freedom from cruel, inhuman and degrading treatment.
From archaic to modern law: Uganda's Refugees Act 2006 and her international obligations
(The Human Rights and Peace Center (HURIPEC), 2008) Mujuzi, Jamil Ddamulira
Uganda enacted its first law to deal with refugees in 1955, which was repealed in 1960 by the Control of Alien Refugees Act. While the 1960 law was still in force, Uganda ratified international and regional human rights instruments. In 1995 a new Constitution with a comprehensive Bill of Rights was promulgated. These developments made the 1960 Act incompatible with Uganda’s international, regional and national human rights obligations. As a result, in May 2006 Uganda passed the Refugees Act which integrates its international and regional obligations into the refugee legal regime. This article critically reviews the 2006 Refugees Act and Uganda’s refugee obligations in light of its international human rights obligations. The article argues that the 2006 Refugees Act substantially reflects Uganda’s international and regional obligations under the relevant refugee and human rights instruments, but finds that some questions, such as the definitions of ‘spouse’ and ‘public order’ remain unanswered.
How should the most evil of law breakers be punished: The death penalty vs life imprisonment in Uganda, 1993 – 2009
(The Human Rights and Peace Center (HURIPEC), 2011) Mujuzi, Jamil Ddamulira
Article 22(1) of 1995 Constitution of Uganda protects the right to life and provides that it can only be taken away in the ‘execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.’ The death penalty is imposed for some crimes such as murder, treason and terrorism. During the constitution making process between 1989 and 1994 and when the constitution was being amended in 2005, there were arguments that the death penalty should be abolished and replaced with life imprisonment which means imprisonment until death. These attempts were unsuccessful. The constitutionality of the death penalty was unsuccessfully challenged in both the Constitutional Court and the Supreme Court. However, both courts appear to hold the view that if the death penalty is to be abolished, it should be substituted with life imprisonment. This article highlights the attempts and the arguments that have been made to abolish the death penalty in Uganda. The author argues, inter alia, that should the death penalty be abolished and substituted with life imprisonment, offenders sentenced to life imprisonment should not be detained until death as life imprisonment without the possibility of release has been found to be cruel and inhuman in some African countries such as South Africa and Namibia. Because the death penalty is no longer mandatory in Uganda and it is likely to be replaced by life imprisonment, the author discusses the objectives of punishment that courts in Uganda have always emphasized in sentencing offenders to life imprisonment.
Implementing Article 45 of the UN Convention against Corruption in Africa: prospects and challenges
(Nomos Verlagsgesellschaft mbH, 2013) Mujuzi, Jamil Ddamulira
Article 45 of the United Nations Convention against Corruption empowers states parties to enter into bilateral or multilateral agreements or arrangements on the transfer of offenders convicted of offences in one country to serve their sentences in another country. Many African countries have ratified the Convention against Corruption . This article discusses the prospects for the implementation of Article 45 and the challenges likely to be encountered in its implementation. The author deals with the following issues: a brief comparison between the African Union Convention on Preventing and Combating Corruption and the UN Convention against Corrup tion; the available options for African countries to implement Article 45; the role of the courts in the transfer of offenders; the consent of the offender to the transfer; the issue of human rights in the context of the transfer; the sentences that could be imposed and whether there should be continued enforcement or conversion thereof in the case of a transfer, the people subject to the transfer and the costs of the transfer.
International human rights law and foreign case law in interpreting constitutional rights: The Supreme Court of Uganda and the death penalty question.
(Pretoria University Law Press (PULP), 2009) Mujuzi, Jamil Ddamulira
On 21 January 2009, the Supreme Court of Uganda handed down a judgment in which it held that the death penalty was constitutional, that a mandatory death sentence was unconstitutional, that hanging as a mode of execution was not cruel and inhuman, and that the death row phenomenon is cruel and inhuman and therefore unconstitutional. Although the Constitution of Uganda does not empower or require the Court to refer to international law or foreign case law in interpreting the Constitution, the Court relied heavily on international human rights treaties and jurisprudence in arriving at its decision. This article has three purposes: one, to show how the Ugandan Court used international law and foreign case law in its judgment; two, to analyse the Court's orders; and third to recommend that the Constitution of Uganda be amended to empower or require courts to refer to international law and foreign case law in interpreting the country's Constitution.
The Islamic Law of Marriage and Inheritance in Kenya
(Cambridge University, 2021) Mujuzi, Jamil Ddamulira
Article 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi’s Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.
Kenya Kenyan Kadhis’ courts and their application of the Islamic law of divorce and distribution of property at the dissolution of marriage
(Cambridge University Press, 2021) Mujuzi, Jamil Ddamulira
Kenya does not have a State religion. Muslims are estimated to constitute than 10% of the Kenyan population. The ‘Kenyan Islamic practice … is predominantly Sunni with a Shafi intellectual tradition.’ However, there are many other Muslim sects in Kenya. Although Kenya follows a common law legal system, the Constitution and other laws such as the Marriage Act and the Matrimonial Property Act provide that Muslim marriages, divorces and matters relating to inheritance shall be governed by Islamic law. In order to ensure that Islamic law is given effect, the Kenyan Parliament passed the Kadhis’ Courts Act, which establishes Kadhis’ Courts in different parts of Kenya. Section 5 of the Kadhis’ Courts Act, based on Article 170(5) of the Constitution, provides for the jurisdiction of the Kadhis’ Courts:
Legal pluralism and the right to family life and the transfer of offenders who are nationals of African countries, within Africa to Africa
(Routledge Taylor Francis Group, 2013) Mujuzi, Jamil Ddamulira
Globalisation has been accompanied by, inter alia, the movement of people from their countries of nationality or citizenship to other countries in search of better opportunities. Some of these people have been convicted of offences and sentenced to imprisonment in countries of which they are non-nationals. Because of the increase in the number of foreign nationals in prisons of different countries, initiatives have been taken at international, regional and national levels to transfer these offenders to their countries of nationality (administering countries) to serve sentences imposed by courts in a foreign country (sentencing countries). The effect is that the imposition of the sentence is governed by the laws of the sentencing country and the administration of the sentence is governed by the laws of the administering country. Therefore, the offender is governed by laws of different countries. Apart from the laws of the sentencing and the administering states, there are cases where these offenders are also governed by international law and in particular international human rights law. Although the rights of foreign offenders are increasingly receiving attention in the transfer discourse, one right that appears not to have been emphasised in Africa and other parts of the world is the right to family life and how seriously it should be taken by those responsible for transferring offenders before they make a decision. The purpose of this article is to argue that the right to family life should be taken seriously in deciding whether or not an offender should be transferred if the transferred offender is to be rehabilitated and ultimately reintegrated into society.
Life Imprisonment in International Criminal Tribunals and Selected African Jurisdictions - Mauritius, South Africa and Uganda.
(University of the Western Cape, 2009) Mujuzi, Jamil Ddamulira; Fernandez, Lovell; Faculty of Law
The study has three major aims: To give a detailed discussion of the question of punishment and the three major theories or objectives of punishment – retribution, deterrence and rehabilitation, from a philosophical point of view; To discuss the law and jurisprudence relating to life imprisonment in the international criminal tribunals of Nuremberg, Tokyo, the Former Yugoslavia, Rwanda, International Criminal Court and the Special Court for Sierra Leone (SCSL). The emphasis will be on the theories of punishment these tribunals have stressed in sentencing offenders to life imprisonment; To discuss the history and major legal developments relating to life imprisonment in three African countries, viz, Mauritius, South Africa and Uganda. The study will also discuss: the offences that carry life imprisonment; the courts with jurisdiction to impose life imprisonment; legal representation for accused facing life imprisonment on conviction; the theories of punishment that courts have emphasised in sentencing offenders to life imprisonment; and the law and mechanisms governing the release of offenders sentenced to life imprisonment in the above three countries.
Life imprisonment in South Africa: yesterday, today, and tomorrow
(Juta Law, 2009) Mujuzi, Jamil Ddamulira
Life imprisonment has been part of South Africa's penal regime for decades. This article analyses how this form of punishment has changed in meaning in since 1906. The author looks at life imprisonment during the death penalty period ; life imprisonment in the aftermath of the abolition of the death penalty ; life imprisonment under the Criminal Law Amendment Act, when it could only be imposed by the High Courts ; and life imprisonment during the Criminal Law Amendment Act, when the regional courts were also empowered to impose this sentence. The author discusses the laws and circumstances which prevailed in the above four periods. With life imprisonment now being the severest sentence that can be imposed in South Africa, the author highlights the challenges associated with it and calls upon the government, courts and civil society to think seriously about how this form of punishment should be administered so as to avoid confusing inmates and exposing the government to litigation.

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