Book and Book Chapters (Faculty of Law)
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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 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 children’s charter at 30: What implications for child and family law?(Intersentia, 2021) Sloth-Nielsen, JuliaThis chapter examines the progress made and the difficulties encountered in the implementation of the African Charter on the Rights and Welfare of the Child (hereinafter the Charter) in the areas of children's rights and family. This analysis will cover some of the major developments in the rights of the child and the family following the first 30 years of the Charter, including legislative reforms, the development of specialized institutions, domestic violence and other forms of violence, child marriage, international adoption and surrogacy, as well as corporal punishment inflicted by parents.Item Alleviating poverty through retirement reforms(Pretoria University Law Press (PULP), 2020) Malherbe, KittyOlder persons in South Africa may be described as a sizeable but vulnerable group requiring specific protection. One of the ways in which the country can provide for the socio-economic needs of its older population is through social security benefits. This chapter provides an overview of the current deficits in the provision of social security to older persons. The aims of this chapter are to explain why reforms of the current retirement income system are necessary and to illustrate how retirement reforms may be utilised to address poverty not only of older persons, but other members of their households as well. The argument is made that this goal can only be achieved if retirement reforms form part of comprehensive social security reforms that are based on the realisation of the right of access to social securityItem Aspects of Dutch colonial family law related to the Indonesian rajah of Tambora’s exile at the cape(Intersentia, 2020) Moosa, NajmaThe Muslims who arrived at the Cape during the first period of Dutch colonisation in the seventeenth century hailed from different geographical locations, were of different cultural and ethnic backgrounds and, more importantly, were of different social ranks ranging from slaves to royalty. This chapter focuses on the family of one such royal exile, the Rajah of Tambora, who had ruled over a small kingdom in Indonesia, and the invidious socio- economic position in which his innocent family was placed when he died at the Cape during a period of Dutch occupation of both countries. The Rajah arrived at the Cape at the end of the seventeenth century and quite unusually, spent two periods in exile there. During his second period of exile the Rajah, until he died, and his wife, after he died, were denied separate requests to return home. Their five children, four of whom chose to convert to Christianity and subsequently entered into marriages at the Cape with Christian spouses when it was uncommon to do so, were all born Muslim during or between his two periods of exile.Item Bank secrecy: Implementing the relevant provisions of the United Nations Convention against corruption in South Africa(University of the Western Cape, 2016) Mujuzi, Jamil DdamuliraFor 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.Item Barriers to access to contraceptives for adolescent girls in rural Zimbabwe as a human rights challenge(Routledge, 2021) Maziwisa, Michelle RufaroApproximately 214 million women in developing countries between ages 15 and 49 have an unmet need for contraception.1 In Zimbabwe, 12% of unmarried adolescent girls have an unmet need for contraception. Contraceptive use among adolescents is 46%, compared to the national average of 67%.2 The World Health Organization (WHO) reports that 810 women die daily (295,650 per year) due to preventable pregnancy-related and child birth related causes, and this risk is worse for girls aged 10–14.3 Persons aged 15–24 constitute 20% of Zimbabwe’s population. Moreover, 42% of women of reproductive age and 34% of maternal deaths in Zimbabwe are within this age-group, while HIV prevalence in ante-natal young women is 27%.4 However, young people are reluctant to obtain sexual and reproductive health (SRH) services due to systemic and legal barriers. If these barriers are not addressed, many rural adolescent girls will forfeit economic advancement and risk early pregnancies and child marriages, maternal mortality and morbidity, and sexually transmitted infections (STIs), including human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS).Item Chapter 18 Islamic Jurisprudence(Juta, 2004) Moosa, Najma; Goolam, Nazeem M.IWhat is the meaning of the word Jurisprudence? The etymology of the word 'jurisprudence' hails from two Latin words; first, 'ius' meaning 'law' and 'iuris' meaning 'of law' and secondly, 'prudens' meaning 'knowledge' or 'science' or 'philosophy'. 'Jurisprudence' therefore means 'knowledge of the law' or 'philosophy of the law'. In the Western world, 'jurisprudence' has been variously described. Julius Stone, for example, describes 'jurisprudence' as a 'chaos of approaches to a chaos of topics, chaotically delimited.' While Dias writes that books that bear the title 'jurisprudence' vary widely in subject matter and treatment because the 'nature of the subject is such that no distinction of its scope and content can be clearly determined.Item Chapter 6: Culture and religion(Juta, 2007) Moosa, Najma; Mbatha, Likhapa; Bonthuys, ElsjeThis chapter deals with the relationship between gender equality and rights to practice culture and religion. In South Africa this relationship is of crucial importance to women who live according to the rules and principles of customary law and Muslim Personal Law (MPL). Both these groups of women have experienced two sets of problems as a result of the historic non-recognition of their marriages by the civil law. On the one hand, they were unable to access the remedies and enforcement of mechanisms provided by the civil law because their marriages were not recognised, while on the other hand, civil law structures could also not be used effectively to enforce the remedies afforded by MPL and customary law. They were therefore effectively denied legal remedies in the civil law. Because married women are usually economically dependent on husbands, non-recognition protected husbands against financial claims by wives, thus exacerbating existing economic inequalities.Item Children’s rights and parental authority: African perspectives(Routledge, 2021) Sloth-Nielsen, JuliaTraditionally, children in African societies were raised communally, with extended family members playing a vital role in child rearing and care. Social reality is playing a formative role in relation to family law and policy, including in respect of children’s rights. Most African children still grow up under conditions of extreme poverty, which is exacerbated by urbanization, conflict, adverse climatic conditions and economic disparity which leaves large numbers of people unemployed or underemployed. Characteristic of the African human rights conception is a unique provision for the responsibilities of the child. Children’s rights feature prominently in African constitutions, and commonly include protection for the family, education rights and rights relating to special protection.Item City regions in pursuit of SDG 11: Institutionalising multilevel cooperation in Gauteng, South Africa(Routledge, 2019) De Visser, Jaap; De Visser, Jacobus WilhelmMetropolitan areas are becoming more and more important in shaping the future of the planet. In 2017 there were 34 megacities worldwide, i.e. cities with a population of over 10 million. It is expected that this number will grow to 41 by 2030 (United Cities and LocaJ Governments (UCLG) 2017a, p. 44). There arc many more smaller urban conglomerations that can be defined as metropolitan areas, using criteria such as continuous growth, levels of density and perhaps most importantly, functional interdependence (UCLG 2017a, p. 44). Metropolitan areas are growing fast and face tremendous challenges. In both developed and developing countries, they experience sprawl, social fragmentation, economic challenges and environmental threats. In developing countries this is compounded by the reality that 880 million people worldwide live in slums, most of them within metropolitan areas (UCLG 2017a, p. 46). The growth of metropolitan areas presents tremendous opportunities for an increase of the well being of the city dwellers within them, but the reality is that many of the challenges fly in the face of the aspirations of Goal 11 of the Sustainable Development Goals (SDGs).Item Constitutionalism and electoral authoritarianism in Ethiopia: From EPRDF to EPP(Oxford University, 2020) Zemelak, AyeleEthiopia has had little experience of democratic political systems. For centuries it was a monarchy, ruled by successive emperors who traced their political authority to divine sources as opposed to the people.1 Although Emperor Haile Selassie promulgated Ethiopia’s first constitution in 1931, which was revised in 1955, it was meant more to constitutionalize his autocratic rule rather than entrench a democratic system. Indeed, the constitution established a bicameral parliament with a chamber of deputies (the lower house) and a senate (the upper house).2 The house of deputies was composed of elected representatives; however, the elections were held on non-partisan basis, since forming a political organization was not then allowed. Moreover, only those owning property in the relevant electoral districts could run as candidates in the elections to the chamber of deputies.3 The Emperor retained the prerogative to select members of the senate.4Item Controlling public health emergencies in federal systems(Routledge, 2021) Ayele, Zemelak Ayitenew; Fessha, Yonatan TesfayeIt was merely a day after the World Health Organization (WHO) declared the coronavirus disease (Covid-19) a global pandemic that Ethiopia recorded its first case of infection. On 12 March 2020, a week after entering the country from Burkina Faso, a 48-year-old Japanese national presented himself at a public health centre in the capital city, Addis Ababa, and was diagnosed as having Covid-19. The number of cases in Ethiopia’s estimated population of 110 million climbed steadily in the following months, and by the end of October some 96,000 people were infected in what is one of the most populous countries in Africa.Item Dissolution of a muslim marriage by divorce(Juta, 2014) Moosa, NajmaAlthough Muslims first arrived in South Africa more than 350 years ago and two decades have passed since the advent of democracy, their religious marriages are currently not formally recognized in terms of the (common) law. Muslim marriages are, however, in the process of being recognized through proposed legislation in the form of a 2010 ‘code’ of Muslim personal law Islam, through its primary sources, the Qur’an and Sunna, does not prohibit divorce, but strongly discourages and disapproves of it. Where divorce is inevitable, the Qur’an repeatedly encourages spouses to depart from the marriage in a dignified and decent manner, and exhorts honorable, equitable and kind treatment of divorced women. Two key objectives of the 2010 Muslim Marriages Bill5 are therefore to regulate the termination of Muslim marriages and the consequences flowing from such termination according to these broad guidelines. However, although it contains a dedicated definition clause which categorically defines Islamic law as including the primary (immutable) and secondary (less immutable) sources, the Bill does not spell out the (classical) Islamic law (Shari’a) in this regard.Item The effects of reporting on the realisation of children’s rights in Central Africa(Pretoria University Law Press, 2020) Usang, Maria AssimState reporting is an integral part of the obligations to respect, protect, promote and fulfil children’s rights as set out in global and African human rights instruments, that is, the United Nations Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (African Children’s Charter). States parties to these instruments are under an obligation to report on the measures they have taken towards realising the rights contained in them. This entails reporting on progress made and challenges encountered while trying to realise children’s rights to the United Nations Committee on the Rights of the Child (UN Children’s Committee) and the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee), respectivelyItem Enterprise responsibility for sexual harassment in the workplace: comparing Dutch and South African law(Kluwer Law International, 2008) Du Toit, DarcyIntroduction: Sexual harassment in the workplace is generally deplored, destructive of working relationships and unlawful. Despite this it is widespread and possibly on the increase. In Spain, according to a 2006 survey, 7,9% of women workers had been harassed by managers and colleagues during the previous 12 months. In the Netherlands the number of employees who had suffered sexual harassment by fellow-employees in the previous 12 months doubled from 2,5% in 2000 to 5,3% in 2003. Why, despite all measures to discourage it, does it remain so disturbingly prevalent?Item Equity(Oxford University Press, 2021) Scholtz, WernerThis chapter critically analyses the notion of equity in international environmental law. It begins by discussing the meaning of equity in international law and briefly reflecting on familiar examples of the manifestation of equity in international environmental law treaties. The prominence of intergenerational and intra-generational equity in international environmental law warrants a subsequent critical analysis of the content, legal status, and relationship between these forms of equity. This discussion indicates that although the two components of equity may prima facie be in conflict, they constitute important complementary aspects of sustainable development. The chapter then calls for the progressive development of aspects of intra-generational and intergenerational equity that may have profound consequences for international environmental law.Item Ethiopia: Legal response to Covid-19(Oxford University Press, 2021) Ayele, Zemelak A; Fessha, Yonatan T; Dessalegn, BezaThe Constitution of the Federal Democratic Republic of Ethiopia (FDRE),1 which was promulgated in 1995, is the supreme law of the country which, among other things, defines the Ethiopian state and government structures.2 It organized Ethiopia, a formerly unitary state, into a federation.3 The Ethiopian federation is composed of a federal government and 10 states, and one constitutionally recognised self-governing city (Addis Ababa).4 The states are Afar, Amhara, Benishangul-Gumuz, Gambella, Harari, Oromia, Southern Nations, Nationalities and Peoples (SNNP), Somali, Tigray, and Sidama. Dire Dawa, another selfgoverning federal city, does not have constitutional recognition. Ethiopia is a parliamentary system under which the Prime Minister is appointed by the lower house of parliament.The federal system is one that aims to accommodate the ethnic diversity of the Ethiopian people. The subnational units of the federation, save for the two federal cities, are structured along ethnic lines.6 Addis Ababa and Dire Dawa, the two largest and multi-ethnic cities, are under the jurisdiction of the federal government. Local government, not constitutionally recognised as a level of government, is within the exclusive competencies of the states.Item A European compass for transporting personal data on the new silk road(Oxford University Press, 2020) Kummeling, Henk; Van Deursen, StijnIn the new era of Open Science, the European Union strongly promotes that all sorts of data should be able to roam freely within the academic world (LERU 2018). A free flow of data enables researchers to not only check and verify each other’s work—and thereby to enhance the quality of their work—but also to set up (international) collaborations in which multiple institutions and research communities can benefit from the same data sets. Moreover, data are a key asset in setting up successful research collaborations: not only are they the fuel and catalyst of innovative research, but the sharing of data is also a sign of mutual confidence and respect (Buttarelli 2016).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.