Dullah Omar Institute for Constitutional Law, Governance and Human Rights
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The Dullah Omar Institute, formerly the Community Law Centre, at the University of the Western Cape (‘the Centre’), established in 1990, works to realise the democratic values and human rights enshrined in South Africa’s Constitution. It is founded on the belief that our constitutional order must promote good governance, socio-economic development and the protection of the rights of vulnerable and disadvantaged groups. Given the need for regional integration to encourage development in Africa, the Centre also seeks to advance human rights and democracy in this broader context. Based on high quality research, the Centre engages in policy development, advocacy and educational initiatives, focusing on areas critical to the realisation of human rights and democracy in South Africa and Africa in general (ESCR-Net).
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Item The 2010 Kenyan constitution and the hierarchical place of international law in the Kenyan domestic legal system: a comparative perspective(Pretoria University Law Press (PULP), 2013) Orago, Nicholas WasongaThe prominent use of international human rights law in a state’s domestic legal system depends on the hierarchical place occupied by international law in general, and international human rights law in particular, among the sources of law in that particular legal system. Two systems of receipt of international law in the domestic legal systems have been used by different states: monism, which looks to directly incorporate ratified international law treaties in a state’s domestic legal system; and dualism, which entails the transformation of international law into the domestic legal system through the domestication of ratified international law treaties by means of the enactment of parliamentary legislation. Kenya, as a Commonwealth country, has always primarily followed a dualist approach which requires that domesticating legislation be enacted by parliament for ratified international law treaties to have application in the domestic legal system. However, with the promulgation of the new Constitution in August 2010, international law has been given a more prominent role in the domestic legal system through the inclusion in the Constitution of a provision directly incorporating ratified treaty law into the Kenyan legal system as a legitimate source of law. This article is primarily focused on analysing the hierarchical place of international law, specifically international human rights treaty law, in the Kenyan domestic legal system in the context of the new constitutional dispensation. It recommends that in order for international human rights law to have a prominent place in the governance of the country, article 2(6) of the Constitution should be interpreted progressively so as to give international human rights law norms an infra-constitutional but a supra-legal status in the domestic legal system. In this way, international human rights law will act as a bulwark against recession to totalitarian rule, as well as safeguard the democratic and fundamental rights protection gains that were won in the struggle for constitutional change.Item Accountability and the right to food: A comparative study of India and South Africa(Food Security SA Working Paper Series, 2018) Durojaye, Ebenezer; Chilemba, Enoch MacDonnellIt remains a great source of concern that, as richly endowed as the world is, each day millions of people go to sleep hungry and almost 870 million people, particularly in developing countries, are chronically undernourished. Also, every year, 6 million children die, directly or indirectly, from the consequences of undernourishment and malnutrition – that is, 1 child every 5 seconds. The international community at various forums in the last twenty years or so have committed to ending undernourishment in the world. The right to adequate food is guaranteed in a number of international and regional human rights instruments. Despite these developments, many countries have not lived up to their obligations to realise this right. South Africa and India provide an interesting comparison. On one hand, South Africa has a progressive constitution that explicitly guarantees the right to food, while the Indian Constitution does not recognise the right to food as justiciable right. Yet the Indian courts have developed rich jurisprudence to hold the government accountable for failing to realise the right to food of the people. Indeed the courts have played key roles in ensuring the judicialisation of the right to adequate food in India in the wake of the fact that the Constitution does not expressly set out the right. This report shows that South Africa can learn from the Indian experience by using litigation as a tool for holding the government accountable to its obligation under international and national laws. Besides litigating the right to food to hold the government accountable, it is noted that chapter 9 institutions such as the South African Human Rights Commission (SAHRC), the Gender Equality Commission and the Public Protector all have important roles to play in holding the government accountable to the realisation of the right to food. This is because these institutions are constitutionally empowered to monitor and report on the measures and steps taken by the government towards the realisation of socioeconomic rights, including the right to food under the Constitution. The report concludes by noting that civil society groups in South Africa will need to be more active in monitoring steps and measures adopted by the government to realise the right to food. It also notes that, where necessary, litigation can be employed as a useful strategy to hold the government to account for its obligation to realise the right to food.Item Adding injury to insult: Intrusive laws on top of a weak system(Constitutional Court Review, 2016) Ntliziywana, PhindileLocal governments often encounter difficulties when state functions and powers are devolved to them. Capacity at local level often becomes the Achilles heel of devolution. This is the case in South Africa. The South African national government has undertaken a variety of capacity-building initiatives to address the capacity problems faced in the South African system of local government. A flurry of legal instruments containing capacity-building measures have been passed and more are in the offing. This paper is inspired by the argument raised by Steytler and De Visser about the national government’s attempt to legislate systemic problems faced by municipalities out of existence.Item Addressing female genital cutting/mutilation (FGC/M) in The Gambia(Routledge, 2021) Durojaye, Ebenezer; Nabaneh, SatangThe purpose of this chapter is to examine the viability of the use of criminal sanction to address FGC/M in general. It then examines the nexus between FCG/M and human rights and discusses the reasons often adduced to support use of criminal law to address FGC/M. Furthermore, it focuses on the amendment to the Women’s Act in The Gambia, which prohibits FGC/M. The paper evaluates the utility of the approach adopted by the Gambian government vis-a-vis its obligation under the Protocol to the African Charter on the Rights of Women (African Women’s Protocol). The paper concludes by noting that while the prohibition of FGC/M through sanction is important, such an approach will fail to achieve its desired aim of reducing the incidence of this practice unless other complementary measures are adopted by states.Item Addressing Human Rights concerns raised by mandatory HIV testing of pregnant women through the Protocol to the African Charter on the Rights of Women(Journal of African Law, 2008) Ebenezer, DurojayeThis article considers the importance of preventing mother to child transmission of HIV in Africa. It argues, however, that any approach to achieving this aim must be consistent with respect for human rights. In particular, it argues that mandatory HIV testing of pregnant women violates their rights to autonomy, health and reproductive care, and non-discrimination, all guaranteed in the Protocol to the African Charter on the Rights of Women and other international and regional human rights instruments. It concludes by arguing that respect for women's human rights should form the fulcrum for any call for mandatory or routine HIV testing of pregnant women in Africa.Item Advancing the Right to Adequate Housing of Desperately Poor People: City of Johannesburg v. Rand Properties(Human Rights Brief, 2006) Chenwi, LilianInadequate housing, the growth and overcrowding of informal settlements, and the occupation of private land and abandoned buildings are prevalent in South Africa. The result is that many of the country’s most vulnerable — women, children, the elderly, and those living with disabilities — are evicted and left homeless. In the inner city of Johannesburg, thousands of desperately poor people are forced to illegally occupy unsafe buildings (so-called “bad buildings”) because they cannot afford accommodation on the private residential housing market nor access the urban social housing units.Item The African children’s charter @ 30: A distinction without a difference?(Brill, 2020) Mezmur, Benyam DawitI would like to start with three recent concerning developments on children’s rights in Africa that the media has highlighted. First, in Somalia the draft Sexual Offences Bill that allowed child marriage has ruffled feathers (UN News, 11 August 2020). In Cameroon, a video of soldiers executing two mothers and their children that went viral in 2018 almost came to a full circle when a military court conducted behind closed doors convicted four soldiers to a mere ten years’ imprisonment (Human Rights Watch, 23 September 2020). In Nigeria too, the sentencing of a 13-year old boy for 10 years, ‘in a Sharia court in Kano State in Northwest Nigeria after he was accused of using foul language toward Allah in an argument with a friend’ (CNN, 16 September 2020) has drawn condemnation from organisations such as unicefItem The African Commission on Human and People's Rights and the woman question(Springer, 2016) Durojaye, Ebenezer; Oluduro, O.This paper proposes that in developing jurisprudence on women's rights, the African Commission will need to ask the woman question particularly the African woman question. The woman question requires a judicial or quasi-judicial body to always put woman at the centre of any decision with a view to addressing the historically disadvantaged position of women in society. Asking the African woman question means examining how the peculiar experiences of African women have been ignored by laws rooted in patriarchy across the region. Although the Commission has handled few cases directly dealing with women's rights, the paper suggests that the Commission can draw inspiration from decisions of other regional and international human rights bodies such as the European Court on Human Rights and the Committee on Elimination of All Forms of Discrimination against Women (CEDAW Committee) on how to ask the woman question. The paper recommends that in line with feminist reasoning there is a need for the African Commission to develop a consistent gender-sensitive approach in dealing with cases that may have implications for women. In essence the African Commission must ask the African woman question when dealing with cases on the enjoyment of women's fundamental rights.Item The African Commission on Human and Peoples’ Rights and the promotion and protection of sexual and reproductive rights(African Human Rights Law Journal, 2011) Victoria, Balogun; Ebenezer, DurojayeThe article examines the activities of the African Commission with regard to the advancement of sexual and reproductive health and rights in Africa. The article reviews the importance of applying human rights to sexual and reproductive health issues. It further discusses the promotional and protective mandates of the African Commission with a view to ascertaining whether the Commission has given attention to addressing the sexual and reproductive health challenges facing the region. In this regard, the paper focuses on two important issues - maternal mortality and same-sex relationships. Based on careful analyses of the promotional and protective mandates of the Commission, it is argued that some efforts have been made towards advancing reproductive health and rights in Africa. However, much more effort is needed with regard to sexual health and rights, especially with regard to issues such as same-sex relationships, sex work and violence against women. In conclusion, some suggestions are provided on the role of the African Commission in advancing sexual and reproductive health and rights in the region.Item African Commission reaffirms protection of socio-economic rights in the African Charter(ESR Review : Economic and Social Rights in South Africa, 2010) Chenwi, LilianIn July 2010, the ruling of the African Commission on Human and Peoples' Rights (African Commission) in relation to communications 279/03 and 296/05 was made public, the decision having been adopted in May 2009. The communications were submitted by the Sudan Human Rights Organisation (SHRO) and the Centre on Housing Rights and Evictions (COHRE), respectively, against the Sudan government. However, because the applicants in the SHRO case did not appear before the African Commission on the merits, the Commission considered and decided only the COHRE case on the merits.Item The African Commission’s Guidelines on Pre-trial Detention: Implications for Angola and Mozambique(Community Law Centre, University of the Western Cape, 2014) Lorizzo, TinaOn 8 May 2014, in Luanda (Angola), the African Commission on Human and Peoples’ Rights (ACHPR) adopted the Guidelines on the Use and Conditions of Arrest, Police Custody and Pre-trial Detention in Africa (hereafter the Guidelines). The Guidelines represent an important milestone in addressing three of the most vulnerable phases of the criminal justice process faced in African countries: arrest, police custody and pretrial detention. The Guidelines add to the body of regional soft law (e.g. the Robben Island Guidelines) and seek to guide states on the rights of arrested and detained persons. In this regard African states face significant implementation challenges.Item The African Women's Protocol and sexual rights(The International Journal of Human Rights, 2014-11) Ebenezer, Durojaye; Lucyline Nkatha, Murungi‘Sexual rights’ are defined to include the rights of all persons free of coercion, violence and discrimination to the highest attainable standards of sexual health, including access to sexual and reproductive health care services. The entry point for the notion of sexual rights in the international community was the World Conference on Human Rights in Vienna. The conference affirmed for the first time that acts of violence against women impair and nullify the enjoyment of their rights and freedoms. Subsequent global and regional forums have since contributed to the understanding of ‘sexual rights’ as human rights issues. Article 14 of the African Women’s Protocol builds upon these gains and enhances the sexual rights discourse in several ways; the article pioneered the inclusion of ‘sexual rights’ in a human rights instrument, and recognises the link between women’s sexuality, their dignity, and other rights. A purposive and holistic interpretation of the article is crucial to the advancement of the sexual rights of girls and women in Africa.Item Alternative sentencing in South Africa: an update(Institute for Security Studies, 2005) Lukas, MuntinghWith South Africa’s ever growing prison population, the hope is often expressed that non-custodial sentencing options or ‘alternative sentencing’ will relieve the overcrowding and its associated ills. The current situation in our prisons is, however, not the result of a lack of creative alternative sentencing options – indeed, these have been on the statute books for decades. Instead, prison overcrowding is caused by the slow administration of justice, resulting in a large awaiting trial population. Another factor is the propensity of South African courts to hand down long prison and prison-based sentences. The introduction in 1997 of legislation prescribing minimum mandatory sentences has also led to an increase in the sentenced prison population. On average 62% of convicted offenders receive a sentence that is in some way connected to imprisonment or direct imprisonment.Item ANC proposals on local government(Community Law Centre, University of the Western Cape, 2012) de Visser, Jaap; Chigwata, TinasheIn the run up to the ANC Policy Conference in Mangaung, the party's Legislature and Governance Working Group has produced a policy discussion document that pays considerable attention to provincial and local government.Item The application of socio-economic rights to private law(Journal of South African Law, 2008) Sandra, LiebenbergThe constitution is explicitly committed to redressing and transforming socio-economic exclusion and marginalisation. This is manifest, amongst other constitutional provisions, in the entrenchment of a comprehensive range of socio-economic rights read together with the provisions relating to substantive equality, land reform and environmental rights.3 Moreover, the constitution contains a number of express provisions signalling that the rights and values in the bill of rights are intended to apply to private relations and to influence the development of the common law and customary law. Sections 8(1)-(3) and 39(2) are the primary provisions governing the application of the bill of rights to private parties.Item The appointment and dismissal of the NDPP: Instability since 1998(Dullah Omar Institute, 2018) Africa Criminal Justice ReformThe position of National Director of Public Prosecutions (NDPP) has emerged since 1998 as one of the most unstable positions in government. This can to a large degree t be ascribed to how appointments and dismissals are made. Instability at the top of the NPA and several acting NDPPs gives credence to claims of political interference. Not one NDPP has served the full term of ten years. Since 1998, when the National Prosecuting Authority (NPA) came into being, there have been five permanently appointed NDPP’s and three acting NDPPs. The longest serving NDPP was Bulelani Ngcuka who was in the position for 6 years, followed by Mokothedi Mpshe in an acting capacity at nearly three years and Vusi Pikoli for just more than two and half years.Item An appraisal of international law mechanisms for litigating socio-economic rights, with a particular focus on the optional protocol to the international covenant on economic, social and cultural rights and the African Commission and Court(Stellenbosch Law Review, 2011) Chenwi, LilianLitigation of socio-economic rights at international level is a viable option where access to justice at the national level is unattainable. International law mechanisms for litigating these rights are therefore useful for marginalised groups and people living in poverty. This is also based on the important role of these mechanisms in ensuring that States meet the obligations they have committed to in human rights treaties, and provide effective remedies in cases of violations. This article assesses, taking into consideration some broad principles, the international law mechanisms for litigating socio-economic rights at the UN and African regional levels, particularly the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights ("OP-ICESCR") and the African Court on Human and Peoples' Rights and the African Commission on Human and Peoples' Rights complaints mechanisms. The article illustrates that while these mechanisms have the potential to advance the rights of the poor and marginalised, and in some case have been successful in doing so, they are not without drawbacks that impact on their effectiveness.Item The approaches of the African Commission to the right to health under the African Charter(Faculty of Law, University of the Western Cape, 2013) Durojaye, EbenezerIn 2012 the African Commission on Human and Peoples' Rights celebrated its 25 years of existence. The Commission was established pursuant to the African Charter on Human and Peoples Rights, which came into force in 1986. Since its establishment the Commission has played significant roles in the advancement of human rights in the region. While it can be argued that the formative stage of the Commission was characterised by administrative inefficiency and lacklustre performance, the Commission would seem to have improved at the latter stage of its existence. Indeed, the Commission has handed down a number of important and landmark decisions relating to the socio-economic rights guaranteed in the Charter. The African Charter remains one of the few regional human rights instruments that guarantee both civil and political rights and socio-economic rights as enforceable rights. In addition, the African Charter remarkably contains provisions safeguarding people's rights, which is a rare feat when compared with other regional human rights instruments. The coming into force on 25 November 2005 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Women's Protocol) marks a momentous occasion in the annals of the promotion and protection of human rights in Africa. The African Women's Protocol contains a number of radical and progressive provisions relating to the rights of women, thereby providing an opportunity for the African Commission to redress human rights violations experienced by women.Item Appropriate, just and equitable relief' in socio-economic rights litigation : the tension between corrective and distributive forms of justice(South African Law Journal, 2008) Mbazira, ChristopherThis article makes the point that one cannot understand fully the nature of the remedies granted by the Constitutional Court in socio-economic rights litigation unless their theoretical basis as defined by the notions of corrective and distributive forms of justice is appreciated. The author uses the notion of distributive justice to argue that the social and economic context dictates that even seemingly individual socio-economic rights are to be enforced as collective rights in order to achieve a fair distribution of resources. What the Constitutional Court has therefore done is to focus its remedies beyond the individual litigant and to grant remedies that advance constitutional rights so as to extend collective / group benefits. Though vindication and compensation of the victim have been acknowledged as fundamental objectives of constitutional litigation, they do not represent the only objectives that are to be achieved. The interest that society has in the protection of the rights embodied in the Constitution, and the protection of the values of an open and democratic society based on equality, freedom and human dignity, too, are precepts that the Court has sought to advance.Item Are the rights of children paramount in prison legislation?(Juta Law, 2013) Muntingh, Lukas; Ballard, ClareThe principle, the rights of the child shall be of paramount importance in all decisions affecting the child, is established firmly in international law and, accordingly, reflected in the Constitution. Constitutional jurisprudence acknowledges the notion that children are physically and psychologically more vulnerable than adults and thus require treatment that is different from adults when they come into conflict with the law. It is this differentiation that lies at the heart of the Child Justice Act 75 of 2008, the legislation that sets out the criminal procedure specific to the needs of children, as well as the principle that children’s exposure to the criminal justice system should be limited wherever possible. The Correctional Services Act 111 of 1998 predates the Child Justice Act by approximately ten years – a period when legislators were perhaps less attuned to the needs of children in conflict with the law. When examined against the requirements of s 28(2) of the Constitution, there are, unfortunately, a number of shortcomings in the Correctional Services Act in relation to sentence administration and remand detention. These are discussed according to the following themes: (1) remand detention of children and how this is regulated by the Correctional Services Act and the Child Justice Act; (2) sentence administration with specific reference to the parole regime; (3) conditions of detention with reference to the privilege system and access to services.