Browsing by Author "Mwambene, Lea"

Now showing 1 - 20 of 27
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    An assessment of the legal framework on the protection of girls from child marriages in Malawi
    (University of the Western Cape, 2015) Mawodza, Obdiah; Mwambene, Lea
    The aim of this study is to assess Malawi's legal framework on the protection of girls against child marriages linked to HCPs. The research is guided by the following objectives: 1. To highlight the international and regional legal framework in addressing traditional HCPs that can lead to child marriages; 2. To discuss different traditional practices that lead to child marriages in Malawi; 3. To analyse Malawi's legal framework and its compliance with international and regional standards for the protection of girls against child marriages; 4. To make suggestions for the available legal framework, if necessary, on how best to address the problem of child marriages in Malawi.
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    Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act
    (Centre for Family Law and Practice, London Metropolitan University, 2011) Mwambene, Lea; Sloth-Nielsen, Julia
    In this article, we evaluate the implications of the Children’s Act 38 of 2005 for ukuthwala. Ukuthwala is a practice whereby, as a preliminary procedure to a customary marriage, a young man forcibly takes a girl to his home. In recent times, the practice has taken on other dimensions, including very young girls being married to older men and charges of abduction being laid. Questions arise relating to the impact of constitutional principles upon this customary law and practice. It is suggested that instead of adopting an a priori prohibitionist stance towards customs that seem to violate human rights norms, benign accommodation of aspects that promote the positive aspects of culture be sought. This approach leads to a conclusion that South African law should recognise those forms of ukuthwala where the requirement of the consent of the ‘bride’ is met. The implications of the prohibition on social and cultural practices detrimental to child well-being in the Children’s Act 38 of 2005 are framed in this context.
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    Building an evolving method and materials for teaching legal writing in large classes
    (Springer, 2014) Clarence, Sherran; Mwambene, Lea; Albertus, Latiefa
    In South Africa and in other parts of the world, many professions are bemoaning the poor ability of many graduates to communicate their skills and knowledge effectively once they enter the workplace. Increasingly, pressure is placed on higher education to do more in terms of equipping future professionals with the necessary critical reading, research, thinking and writing skills the workplace demands. However, in South Africa especially, the demand for access to higher education is resulting in increased admissions, and in many lecturers standing in front of larger classes filled with students from a wide range of home and educational backgrounds with ‘variable’ commands of English as a medium of instruction and communication (Greenbaum and Mbali 2002). This makes the task of equipping these students with disciplinary knowledge and skills challenge. In responding to this challenge, the Law Faculty at the University of the Western Cape (UWC), in collaboration with a writing specialist, initiated a project aimed at transforming the way in which legal writing was taught at first year level. The overall aim was to start training students, from first year, to adapt their thinking and writing to the kinds of knowledge and practice required by academic study as well as the legal profession. The project was successful in achieving its modest aims, but certain challenges remain. This paper reflects critically on the development and evolution of the model for teaching legal writing in large classes. It argues that teaching legal writing in large classes requires creative and sustainable approaches so that students can become active and critical writers, readers and thinkers over time in this, or any, field.
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    Children's rights standards and child marriage in Malawi
    (University of Florida, Centre for African Studies, 2017) Mwambene, Lea; Mwaodza, Obdiah
    Child marriages occur when one of the parties is below the age of eighteen. In Malawi, research has shown that most child marriages are a result of cultural practices. To comply with various international and regional instruments, Malawi has enacted different pieces of legislation that can be useful in addressing child marriage. The article, therefore, examines these different pieces of legislation and assesses Malawi's compliance with international standards in addressing child marriages. The authors highlight two imperative issues. First, these laws show evidence of using international children's rights standards as a tool in addressing child marriages. Secondly, they prescribe conflicting approaches that one can interpret as to encouraging child marriages linked to cultural practices. As a result, the article suggests possible recommendations on how Malawi can comply with international standards in addressing child marriages. These include amendment of laws, and more importantly, enactment of a specific law, for example, the Prohibition of Child Marriages Act, which, if enacted, should target all laws and cultural practices that lead to child marriages in Malawi.
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    Corrective rape of black African lesbians in South Africa: the realisation or oversight of a constitutional mandate?
    (University of the Western Cape, 2012) Wheal, Maudri; Mwambene, Lea
    In South Africa corrective rape is committed by African men as a form of social control to cure women of their homosexuality. The problem with corrective rape is that the victims of this crime are mainly black African lesbians, particularly those in townships who are seen to challenge patriarchal gender norms. Therefore discrimination on the basis of gender, race, sex and sexual orientation is called into play. Section 9 of the Constitution provides that the state may not unfairly discriminate directly or indirectly against anyone on one or more specified ground which include gender, race, sex and as well as sexual orientation. Further, no person may unfairly discriminate against anyone on one or more of the same specified grounds. Thus, the black African lesbians affected by corrective rape are protected by the equality provisions of the Constitution upon which discrimination is prohibited. In addition, the impact of discrimination on lesbians is thus rendered more serious and their vulnerability increased by the fact that the victims are black women. In the context of black African lesbians, it is believed that these women are a threat to the manhood as well as cultural beliefs of the perpetrators. Perpetrators, therefore, can justify their actions on the constitutional right to culture. This position obviously reopens the debate on the conflicts between African culture and tradition with human rights within the context of corrective rape which ultimately continues to militate against the adequate protection of women’s rights. Against this background, this research will focus on how South Africa is balancing its constitutional mandate in relation to the black African lesbians affected by corrective rape. It will be argued that for victims of corrective rape to be adequately protected it is necessary to define corrective as a hate crime and not merely the crime of rape. In addition, it will also be argued that because there is an inherent conflict between the right to culture of the perpetrators and the constitutionally protected rights of the victims of corrective rape, courts, in enforcing the rights of these victims should also address this conflict. The importance in recognising this conflict lies in the fact that one needs to take into account that both the perpetrators and the victims are protected by the Bill of Rights and that one cannot disregard the importance of either of their rights.
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    Corrective rape of black African lesbians in South Africa: the realisation or oversight of a constitutional mandate?
    (University of the Western Cape, 2012) Wheal, Maudri; Mwambene, Lea
    In South Africa corrective rape is committed by African men as a form of social control to cure women of their homosexuality. The problem with corrective rape is that the victims of this crime are mainly black African lesbians, particularly those in townships who are seen to challenge patriarchal gender norms. Therefore discrimination on the basis of gender, race, sex and sexual orientation is called into play. Section 9 of the Constitution provides that the state may not unfairly discriminate directly or indirectly against anyone on one or more specified ground which include gender, race, sex and as well as sexual orientation. Further, no person may unfairly discriminate against anyone on one or more of the same specified grounds. Thus, the black African lesbians affected by corrective rape are protected by the equality provisions of the Constitution upon which discrimination is prohibited. In addition, the impact of discrimination on lesbians is thus rendered more serious and their vulnerability increased by the fact that the victims are black women. In the context of black African lesbians, it is believed that these women are a threat to the manhood as well as cultural beliefs of the perpetrators. Perpetrators, therefore, can justify their actions on the constitutional right to culture. This position obviously reopens the debate on the conflicts between African culture and tradition with human rights within the context of corrective rape which ultimately continues to militate against the adequate protection of women’s rights. Against this background, this research will focus on how South Africa is balancing its constitutional mandate in relation to the black African lesbians affected by corrective rape. It will be argued that for victims of corrective rape to be adequately protected it is necessary to define corrective as a hate crime and not merely the crime of rape. In addition, it will also be argued that because there is an inherent conflict between the right to culture of the perpetrators and the constitutionally protected rights of the victims of corrective rape, courts, in enforcing the rights of these victims should also address this conflict. The importance in recognising this conflict lies in the fact that one needs to take into account that both the perpetrators and the victims are protected by the Bill of Rights and that one cannot disregard the importance of either of their rights.
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    A critical analysis of bilateral (dual) marriages in Zambia
    (University of the Western Cape, 2023) Siyubo, Kashewe M; Mwambene, Lea
    In the Zambian context, marriage is one concept that has more than one definition This is because marriage can be legally contracted under two laws namely African customary law and statutory law. The former is potentially polygamous4 while the latter is monogamous. In terms of validity, a marriage that fulfills the dictates of either law becomes a valid marriage. In practice, however, those that contract their marriage under statute also fulfill the dictates of African customary law. The resultant effect is that such marriages are contracted under both laws thereby creating a ‘dual-legal’ marriage. In this research a dual marriage will conveniently be termed ‘bilateral marriage’ for ease of reference.
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    A critical analysis of the demobilisation, disarmament, reintegration and rehabilitation in relation to child soldiers in the Democratic Republic of Congo
    (University of the Western Cape, 2017) Mumba, Mathias Kamfwa; Mwambene, Lea; Assim, Usang Maria
    In many countries around the world, approximately 230 million children are living in countries affected by armed conflict. 15 million of them were caught up, in various parts of Africa, in violent conflicts. Some of the African countries where children are involved in armed conflicts include: Central African Republic (CAR), Democratic Republic of Congo (DRC), Mali, Somalia and South Sudan. In CAR, for example, thirty four children (girls and boys) were abducted by armed groups, some as young as 3 years of age.
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    A critical analysis of the demobilisation, disarmament, reintegration and rehabilitation in relation to child soldiers in the Democratic Republic of Congo
    (University of the Western Cape, 2017) Mumba, Mathias Kamfwa; Mwambene, Lea; Assim, Usang Maria
    In many countries around the world, approximately 230 million children are living in countries affected by armed conflict. 15 million of them were caught up, in various parts of Africa, in violent conflicts. Some of the African countries where children are involved in armed conflicts include: Central African Republic (CAR), Democratic Republic of Congo (DRC), Mali, Somalia and South Sudan. In CAR, for example, thirty four children (girls and boys) were abducted by armed groups, some as young as 3 years of age.
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    A critical analysis of Zimbabwe’s legal response to traditional cultural practices and gender- based violence.
    (University of the Western Cape, 2014) Nkomo, Sindiso Nozitha; Mwambene, Lea
    The aim of the study was to assess Zimbabwe‘s legal response to gender-based violence that can be to traditional cultural practices. First, most traditional cultural practices in Zimbabwe are discriminatory towards women and girls; the study has therefore shown the link between gender-based violence and traditional cultural practices. Second, it has been shown that the recognition of the right to culture by international and regional instruments is subject to non-violation of human rights. Third, the min-thesis has also established that in complying with its international obligations on the protection of women from gender-based violence linked to traditional cultural practices, Zimbabwe has enacted a plethora of legislation. More importantly, the study has also proven that despite these legal initiatives, gender-based violence linked to traditional cultural practices still continues. This mini-thesis has, among other factors, highlighted the following as shortfalls in legislations passed to address this problem: poor enforcement of these laws; Zimbabwe‘s hybrid legal system where customary law operates in conjunction with civil laws; weak wording of some pieces of legislation, such as legislation that deals with marriage rights for women married under customary law; and that most women, especially those in rural areas are not fully equipped with the knowledge of the different pieces of legislation that have been put in place to protect them from such violence.
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    Engendering access to justice for development in SubSaharan Africa: a study of policy, programming and implementation
    (University of the Western Cape, 2021) Mwambene, Lea; Dubin, Adam; Lawson, David
    Building on the book "Gender, poverty and access to justice: policy implementation in Sub-Saharan Africa" (Lawson, Dubin and Mwambene (eds) (2020), this special volume of essays is the result of the Conference in Cape Town (October 2019), whose main objective was to investigate the intersection of gendered access to justice, poverty and disempowerment across Sub-Saharan Africa (SSA), and provide field-based research and discussions on what does and does not work to improve justice for women and girls in the region. Authors' contributions are designed to be practice and action oriented, drawing on lessons and experiences from programmes and policies that work, and show real potential for their sustainable scalability. In this regard, the essays in this volume reflect a broad spectrum of multi-disciplinary contributions, including from policy makers and development practitioners, as well as representatives from local and international civil society organizations, the private sector, academe and the general public. These contributions are structured around the following five key areas: Integrating Justice Programming into the Sustainable Developmental Goals (SDGs); Informal Institutions, Rights and Laws in Sub- Saharan Africa; Women, Children and Access to Justice for Sustainable Development; Policies and Practices for Engendering Justice and Empowerment for Poverty Reduction; and Gender, and Poverty and Justice Policies in SSA: Lessons from the Field? The central objective of all the contributions, however, is to profile recent developments and experiences in furthering gendered access to justice in the SSA context, and to distil from them future trends for SSA's access to justice, and the specific role stakeholders can play therein.
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    The essence vindicated? Courts and customary marriages in South Africa
    (Pretoria University Law Press, 2017) Mwambene, Lea
    This article describes different approaches in which courts have determined the validity of customary marriages under the Recognition of Customary Marriages Act in order to address the historical injustices of vulnerable parties in a customary marriage. These approaches are drawn from selected cases decided after the Act came into effect and consist of two scenarios, namely, ‘judicial notice’ and ‘proof’ of customary law. These approaches produce considerably distinct results. On the one hand, where courts adopt the approach of ‘judicial notice’ and apply official customary law, the inevitable result has been the invalidation of marriages. On the other hand, if the approach has emphasised the recognition of the essence of customary law, courts have validated these marriages and protected vulnerable parties. These results may support (at least partly) the theory by various scholars that the Constitution envisaged that courts will be applying living customary law in order to fulfil their constitutional obligations.
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    Feminist approach to Ukuzila custom under the new South African constitutional dispensation
    (University of the Western Cape, 2021) Ngubane, Sibusiso Mmeli; Mwambene, Lea
    This study sought to investigate how the ukuzila practice violates women’s constitutional rights, and how can ukuzila custom be aligned with the constitutional values of gender equality. A qualitative research approach was employed to collect in-depth data through a desktop method. Various legal materials such as legislation, case laws, legal journals, internet sources and books have been utilised and referenced to answer the postulated research questions. Using the liberal feminism theory, the findings of the study reveal that ukuzila violates inter alia the right to equality, right to human dignity, freedom of movement, freedom of religion, belief, and opinion.
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    Form over function? the practical application of the recognition of Customary Marriages Act 1998 in South Africa
    (Juta Law, 2013) Mwambene, Lea; Kruuse, Helen
    The Recognition of Customary Marriages Act 120 of 1998 is a major legislative measure for the development of customary marriages in line with the constitutional principle of equality, specifically for women. The article explores the interactions between this ideal in the Act with empirical observations and the latest judicial decisions concerning its application. It considers various examples of the lack of protection of women in relationships of a customary nature, and it concludes that both the state and courts favour a formal or definitional approach to customary marriage. In considering alternative approaches that could adequately protect vulnerable parties, two conclusions emerge: First, the article recommends a wholesale revision of the South African family law approach from a focus on form to dependency. Second (and as a short-term measure), the article advocates for the putative marriage doctrine to be applied in the customary marriage context to protect many women who are denied access to 'customary marriage' as a form, and as a result, all of the benefits that flow from such marriage.
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    Gender, poverty and access to justice policy implementation in Sub-Saharan Africa
    (Rotledge, 2021) Lawson, David; Mwambene, Lea; Dubin, Adam
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    The interface between customary laws of succession in the traditional justice system and the formal justice system in
    (UWC, 2020) Mutema, Angela N.; Mwambene, Lea
    Traditional justice systems (TJS), which apply African customary law (ACL), play a significant role in the regulation of various cultural, social, and economic spheres of individual lives in society. It is estimated that 90% of African countries use TJS in dispute resolution. Succession matters form one of the areas in which TJS are applied. In Kenya, it is estimated that the majority of succession matters are addressed through TJS given that only 36% of cases are taken to the formal justice system (FJS) for determination. This indicates the presence of legal pluralism where formal law co-exists with African customary law. However, the application of customary succession laws and their enforcement by the FJS encounter impediments which curtail the integration of ACL within the FJS. Therefore, the purpose of this study is to determine the interface between African customary laws of succession in the TJS and the FJS. In order to achieve this objective the study applies the Historical School of Jurisprudence as its theoretical framework and applies document analysis as the research methodology. The major findings of the study indicated that though progressive recognition, application and enforcement of ACL in Kenya has been realised, there are several impediments to the integration and enforcement of customary succession decisions within the FJS. These include non-complimentary legal provisions, lack of in-depth knowledge on ACL by the FJS, and more importantly, lack of a policy guideline on the integration of ACL within the FJS. Based on these findings, this study finds it necessary to develop a guideline that will enhance the integration and enforcement of customary succession decisions by the FJS.
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    A legal analysis of legislation and policies on the right to basic education in the Eastern Cape, South Africa
    (University of the Western Cape, 2020) Ndayi, Zoliswa Beauty; Mwambene, Lea
    The right to a basic education is recognised as an essential right in international and regional law, with numerous instruments regulating it.1 There are soft laws, in the form of General Comment documents, which provide guidelines to interpreting this right.2 Among these instruments, for example, the International Covenant on Social, Economic and Cultural Rights (hereafter referred to as ‘the ICESCR’) and the African Charter on Human and People’s Rights (hereafter referred to as ‘the ACHPR’) implore member states to ensure that every child within their jurisdiction is able to gain access to education.3 The ICESCR acknowledges that basic education as a socio-economic right is realisable overtime, its full realisation dependent on the availability of state resources.
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    A legal analysis of legislation and policies on the right to basic education in the Eastern Cape, South Africa.
    (University of the Western Cape, 2020) Ndayi, Zoliswa B.; Mwambene, Lea
    The right to a basic education is recognised as an essential right in international and regional law, with numerous instruments regulating it.1 There are soft laws, in the form of General Comment documents, which provide guidelines to interpreting this right.2 Among these instruments, for example, the International Covenant on Social, Economic and Cultural Rights (hereafter referred to as ‘the ICESCR’) and the African Charter on Human and People’s Rights (hereafter referred to as ‘the ACHPR’) implore member states to ensure that every child within their jurisdiction is able to gain access to education.3 The ICESCR acknowledges that basic education as a socio-economic right is realisable overtime, its full realisation dependent on the availability of state resources.4 Furthermore, the state is required to ensure that ‘scientific and technical knowledge’ is made accessible, thus incorporating modern teaching and learning methods.5 In addition, the state is called to ensure that the quality of their education is acceptable and of a similar standard in all of their public schools.6 Moreover, the Convention on the Rights of the Child (hereafter referred to as the ‘CRC) and the African Charter on the Rights and Welfare of the Child (hereafter referred to as the ‘ACRWC’) require the state to take measures that will encourage learners to attend school regularly and thus reduce the dropout rates.7 These instruments lay down normative standards, giving guidance on the content of the right to basic education, i.e. defining what availability, accessibility, acceptability, and the adaptability (4As) means within the broader context of the right to basic education. The right to a basic education, in theory is immediately realisable; however in practice, it can be argued that it is being treated like other socio-economic rights, subjected to the principle of progressive realisation.8 This right, unlike other socio-economic rights in South Africa, is sui generis, it has no internal qualifiers, meaning that it can only be limited in terms of a law of general application that is reasonable and justifiable in an open and democratic society founded on human dignity, freedom and equality.9As a party to most of the above instruments, the post-apartheid government of South Africa through its Constitution10, has entrenched the right to basic education under section 29(1)(a). Through this constitutional recognition, numerous legislation and policy documents have been enacted, which directly deal with the implementation of this right.11 Accordingly, the following selected legal instruments have been essential tools used to assist the relevant stakeholders with defining and implementing the right to a basic education , not just at the national level but also provincially.12 These instruments are the South African Schools Act,13 National Education Policy Act14 and the Employment of Educators Act,15 which are the main statutes on basic education. In addition, the Eastern Cape Schools Education Act,16 Promotion of Equality and Prevention of Unfair Discrimination Act,17 Children's Act,18 Criminal Law (Sexual Offences and Related Matters) Amendment Act,19 Criminal Procedure Act and the Refugees Act,20 which shall be discussed in detail in chapter 4 of the study When assessing the availability, accessibility, and the acceptability of basic education resources in the Eastern Cape (hereafter referred to as ‘the EC’), the province appears to be lagging when compared to some of the other provinces. For instance, the National Education Infrastructure Management System Report (hereafter referred to as ‘NEIMSR’) stated that out of the 5393 schools audited from the EC, 1945 of these schools had pits and 37 had no sanitation facilities21. In addition, 92.99% of the 5393 schools in the province do not have libraries and 4.21 % of the schools recorded have adequately resourced libraries.22 This is to be contrasted to 63.24% schools that have libraries in Gauteng.23 In addition, the illiteracy rate in the province is estimated at 10, 4% when compared to other provinces, which is against the background that the province has experienced a decline in learner enrolment over the last few years.