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Without citing any empirical evidence, it is known that the quality of school facilities has an indirect effect on learning and ultimately on its output.  For instance, in a study carried out in India (1996), out of 59 schools in a region, only 49 had structures. Of these 49 schools, 25 had a toilet, 20 had electricity, 10 had a school library and four had a television set. In this study, the quality of the learning environment was strongly correlated with pupils’ achievement in Hindi and mathematics.

Further, a research study was conducted in Latin America that included 50 000 students in grades 3 and 4, it was found that learners whose schools lacked classroom materials and had inadequate libraries were significantly more likely to show lower test scores and higher grade repetition than those whose schools were well equipped (see the United Nations Children’s Fund’s paper ‘Defining Quality Education’). There are many other studies done even in Africa, for example in Botswana, Nigeria and Papua New Guinea, indicating similar outcomes.

There seem to be a correlation between good school infrastructures, other quality dimensions (inter alia the quality of content, psychological aspects, quality processes involved) and the achievement of higher grades by learners. In this opinion piece, I examine the state of education in the Eastern Cape, and the failure by the South Africa government to meet its constitutional and international obligations to provide basic education.

The state of education in South Africa, particularly in the Eastern Cape, is a blatant violation of the right to education, including a wide range of consequential rights, and thus inexcusable. In the previous year (2012), whilst addressing the nation, President Zuma declared that: “[The] national government instituted a Section 100 (1)(b) intervention in the Eastern Cape, to assist the department of education to improve the delivery of education. Problems include … a general poor culture of learning and teaching. The implementation of the intervention will continue and we are working well with the province in this regard. We call on all stakeholders to work with us to make this turnaround a success.”

Section 100(1)(b) of the Constitution provides:

“When a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation. Including –
a) issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations; and
b) assuming responsibility for the relevant obligation in that province to the extent necessary to:
i) maintain essential national standards or meet established minimum standards for the rendering of a service;”

Despite this ostensibly good gesture from the national government, the situation on the ground is otherwise.

There have been countless ineffectual promises made by the government: former President Thabo Mbeki said: “By the end of this year [2004], we shall ensure that there is no learner learning under a tree, [or in a] mud school …” In the year 2006, former MEC for education in the Eastern Cape Mkhangeli Matomela, said: “I am ­confident we will eradicate mud schools in the next two financial years.” In 2007, former education minister Naledi Pandor said: “Fifty percent of the mud schools will be rebuilt between 2007 and 2009.” In 2011, Basic Education Minister Angie Motshekga said: “By 2014, we will have eradicated all mud schools in the province.” (See Equal Education Law Centre)

Many schools in the Eastern Cape are experiencing one or more of the following difficulties every year: very few teachers; demoralised personnel; overcrowded classrooms; crumbling infrastructure; inadequate facilities and furniture; old or non-existent equipment and insufficient textbooks; no electricity; and no running water. It is difficult to fathom how a culture of learning can be implanted in a learner’s mind when classes are conducted in such horrible conditions. When the Mail & Guardian and the Legal Resources Centre visited schools in the Mount Frere, Libode and Zithulele districts, they found depressing conditions similar to the ones highlighted above (see Mail & Guardian). “I am overwhelmed at the enormous challenges so many schools still face and many are not even on the department’s radar,” said Cameron McConnachie, an attorney for the Centre, a non-governmental organisation fighting for the protection of human rights in South Africa.

As recognised in the Section 29 of the Constitution of the Republic of South Africa, education is both a human right and is a central to the realisation of other human rights. For instance, properly educated citizens can participate fully, with an understanding, in a democracy; education also serves as an empowering vehicle for women and previously marginalised groups, and consequently liberates them from the chains of poverty; education serves to safeguard children from exploitative and hazardous labour and sexual abuse (see General Comment No. 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)). Even though the ICESCR is not a binding instrument on South Africa, it is undoubtedly a useful source of guidance in socio-economic rights cases.

The South African Constitution certainly envisions some level of education but it is not so easy to determine its scope. In the case of higher education, the state is merely required to take “reasonable measures” to make it “progressively available and accessible”. As a contrast, the right to basic education appears to be absolute. Some scholars accept that under our Constitution, the basic education is a “strong positive right”, in other words, it can be enforced regardless of the budgetary constraints (see, M Chaskalson et al., Constitutional Law of South Africa 38-9 (5th ed. 1999) (discussing White Paper on Education in connection with constitutional right to education) and E. Berker The Right to Education under South African Constitution (2003)).

In the Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others 2011 7 BCLR 651 (CC) case, the Constitutional Court held that:

“It is important… to understand the nature of the right to ‘a basic education’ under section 29(1)(a). Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be ‘progressively realised’ within ‘available resources’ subject to ‘reasonable legislative measures’. The right to a basic education in section 29(1)(a) may be limited only in terms of a law of general application which is ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’. This right is therefore distinct from the right to ‘further education’ provided for in section 29(1)(b). The state is, in terms of that right, obliged, through reasonable measures, to make further education “progressively available and accessible (para 67).”

In addition, Section 28(2) of the Constitution unconditionally states that the child’s best interests are of paramount importance in every matter concerning the child. The same language is also used in Article 4 of the African Charter on the Rights and Welfare of the Child (ACERWC) and in Section 9 of the Children’s Act 38 of 2005.

There has been a number of enforcement claims against the state in relation to socio-economic and even education rights. For instance in Government of the Republic of South Africa and Others v Grootboom and Others 2000 11 BCLR 1169, petitioners sought to enforce their right to access to housing; in Minister of Health v Treatment Action Campaign 2002 5 SA 721 (CC), the issue was access to health care services; and in Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 SA 505 (CC), it was permanent resident seeking to enforce social security rights.

Recently, Equal Education Law Centre filed a case at the Bisho High Court against the state for two learners of Moshesh Senior Secondary School (Palesa Manyokole and Two Others v District Director Maluti and 7 Others Bhisho High Court Case Number 603/12). It specifically claimed that the school suffers from lack of management and governance which negatively affects teaching and learning. There is also a dire shortage of teachers and problems such as lack of teacher discipline with teachers arriving at school late, leaving early and often being absent from classes. There is also a serious shortage of teaching and learning materials. The state identified Moshesh as an ‘underperforming school’ (in accordance with the Schools Act, 1996), but the district and provincial officials had failed to put measures put in place to ensure that effective teaching and learning occur and that the school turns around its performance.  It seems the parties entered into an agreement for settle the matter out of court.

In addition to its constitutional obligations, the South African government has voluntarily assumed international obligations through its ratification of the Convention on the Rights of the Child (CRC); the Africa Charter on the Rights and Welfare of the Child (entered into force in 1999), as a signatory to the ICESRC, and the Dakar Framework For Action. These actions indicate that the government has committed itself to provide quality education to its children.

General Comment No. 13 and General Comment No. 11 of the ICESRC provide a clear meaning of the right to basic education. Common features of the basic education right under ICESRC include availability, accessibility, acceptability and adaptability (para 6). Education should at all costs be made available to learners, this implies the provision of adequate proper schools and qualified teachers (para 6(a) of General Comment No. 13). So for example mud schools with no desks and chairs somewhere in Transkei district would not meet the required international standard. In addition, government must ensure access to education. This means that education which meets international benchmarks has to be available, be accessible and importantly be affordable to all (para 6(b) General Comment No. 13).

The element of “availability” as mentioned above requires the provision of essential resources in schools and the maintenance of school infrastructure. The state must provide safe drinking water, sanitation facilities, classrooms, desks and chairs to all schools. Among other core obligations bestowed on South African government include the provision of textbooks, blackboards, and stationary. The African Committee of Experts on the Rights and Welfare of Child (ACERWC), in the Nubian case found that Kenya has violated Article 11(3) of the African Children’s Charter which provides for the right to education, see AfricLaw and Institute for Human Rights and Development in Africa v The Government of Kenya. Member states are obliged to undertake all appropriate measures, with a view to achieving full realisation of this right. The Committee specifically pointed out on para 63 (reads with para 64): “Article 11(3)(a)  requires in particular the provision of free and compulsory basic education, which necessitate the provision of schools, qualified teachers, equipment and well recognised corollaries of the fulfilment of this right.” Despite these obligations, South African schools, chiefly in the Eastern Cape are in a shocking state. The right to basic education would definitely remain a pie in the sky for thousands of children if the state is not honouring its obligations.

In conclusion, considering its immense resources, the present state of education in South Africa is objectionable and should not be accepted. The real problem is not the availability of resources as such but a multitude of other problems such as corruption, lack of capacity, incompetence, uncaring leadership, a lack of commitment to serve with diligence and excellence, effective planning, ineffective system and poor accountability. These are some of the obstacles which halt progress in the Eastern Cape. Civil society organisations, non-governmental organisations together with community organisations and everyone concerned should persist in engaging the state until the right to education is fully realised. The state must monitor the work (or lack thereof) of those who are responsible for education in the Eastern Cape. Erring officials should be sacked summarily and face the full might of the law regardless of their political affiliations. President Zuma should start to walk the talk for the sake of the future of South Africa. A resolute political will from those wielding power is the key. As has been the case in the past socio-economic rights cases before the Constitutional Court, it is hoped judicial advocacy will continue with some degree of respect to the executive organ of the state.

About the Author:
Akho Ntanjana is a legal intern at the Institute for Human Rights and Development in Africa, in Banjul, The Gambia. He holds a Bachelors of Law (LLB) from the University of Fort Hare and an LLM in Human Rights and Democratisation in Africa, University of Pretoria. His research interests include human rights, constitutional law, and public policy and good governance.

Author:

On 11 May 2012 the Committee on World Food Security endorsed the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security to promote secure tenure rights and equitable access to land. These Guidelines offer a framework through which multinational investors may acquire and manage land without affecting the rights of local communities. However, this remains on paper while in practice the narrative is different.

In Uganda, land grabbing involves large scale land acquisitions by multinational and domestic investors either through buying or leasing large pieces of land. A study by the National Association of Professional Environments indicates that communities in the oil rich region of Bulisa in western Uganda, Kalangala Island in the Lake Victoria region, Mabira forest in the central region, and Luwunga forest reserve in Kiboga district have been affected or are yet to be affected by the land grabbing phenomenon.

On the international scene, the land grabbing phenomenon increased significantly following the 2007-2008 world food economic crisis, this in turn kicked off a global rush to secure land for agriculture. In Uganda, international financial institutions have been accused of funding projects that result in land grabbing and the violation of the local communities’ human rights. The United Nations (UN) International Fund for Agricultural Development; the World Bank; Oil Palm Uganda Limited; Willmar, a Singapore-based conglomerate specialising in palm oil; and BIDCO Uganda Limited, an oil processing company invested approximately $31.9 million dollars in acquiring approximately 10,000 hectares of land in Kalangala Island in the Lake Victoria region. This acquisition negatively affected the local communities particularly by exposing them to health risks due to agro inputs used in the plantations, food insecurity, erosion of biodiversity, and by violating of basic human rights (such as the right to safe and clean drinking water).

Land grabbing in Uganda is an emerging human rights challenge that will not only affect the local communities but also the business climate in the great lakes region. Multinational must realise that guaranteeing and respecting the local communities’ fundamental human rights is not only morally correct, but also a smart business decision to make. On 16 June 2011, the UN Human Rights Council adopted a resolution which endorsed a set of Guiding Principles on Business and Human Rights which outline how states and businesses should implement the UN’s “Protect, Respect and Remedy” Framework in order to better manage business and human rights challenges. This Framework provides a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity. However despite the effort by the UN to set up a working group on the implementation and dissemination of the guiding principles, there is concern on certain weakness of the principles.

The UN Guiding Principles on Business and Human Rights fail to sufficiently address the right to an effective remedy and the need for states’ measures to prevent abuses committed by their companies overseas. For example, if a Swiss multinational nutritional snack food company, Nestle were to invest in palm oil production or wheat farming in Uganda, would the Swiss government take the necessary measures to prevent any abuses that may likely occur?  Therefore it is important that states adopt positions which are consistent with their human rights obligations.

Uganda is a signatory to a number of international human rights instruments and has even taken steps to ratify a number of these instruments. Uganda ratified the International Covenant on Civil and Political Rights (ICCPR) on 21 June 1995. Article 1.2 of the ICCPR provides that all peoples may pursue their economic, social and cultural goals, and manage and dispose of their own resources and recognises a right of a people not to be deprived of its means of subsistence. Uganda should realize that development does not operate in a vacuum, development must be complimented by human and land rights and the two ought to co-exist in order to have real sustainable development.

In a nutshell, human rights encompass and touches on every aspect of our lives and must be guaranteed and respected at all times. Multinationals interests and the interests of the Ugandan government should not infringe upon the rights of others, and should undertake due diligence before and during any business activity, to ensure such actions are consistent with its obligation to respect and protect human rights.

About the Author:
Samuel Matsiko is a human rights lawyer working with the International Justice Mission, a US based international non-governmental organization and previously worked as research assistant at Mwebesa, Kakooza & Co. Advocates LLP. He holds a Bachelor of laws degree with honours from the Uganda Christian University. He has an interest in international criminal justice, business human rights, and African human rights law.

Author: Bereket Kefyalew

The Ethiopian government often associates its developmental ideology with the East Asian model, while at the same time defining itself as a progressive democratic government. Paradoxically, the government defends itself from prodemocracy critics by arguing that food security comes first, then slowly comes democracy. Within this context, I analyse the right to food as a legal concept and how it can be used as a means to achieve food security in Ethiopia.

Ethiopia has ratified and adopted the main instruments establishing the right to food such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Covenant on the Rights of the Child; the Convention on the Elimination of All forms of Discrimination Against Women; and the African Charter on Peoples’ Rights. Ethiopia is also bound by international humanitarian law, having ratified the Geneva Convention of 1999 and the Additional Protocols thereto of 1977.

Article 43 of the Ethiopian Constitution declares that all Ethiopians have the right to development and citizens have the right to participate in national development and, in particular, to be consulted with respect to policies and projects affecting their community. Moreover , as per article 41 of the Constitution: “Every Ethiopian has the right to engage freely in economic activity and to pursue a livelihood of his choice anywhere within the national territory and the right to choose his or her means of livelihood, occupation and profession.” In addition, article 44 ensures that all persons who have been displaced or whose livelihoods have been adversely affected as a result of state programs have the right to get compensation from the state. The government has also managed to reduce infant and maternal mortality rates to some extent. Though Ethiopia has laid the legal foundations for the right to food, there is much to be done from explicit legal prescription to enforcement.

The government has been heard constantly saying “if we have money, we can buy food from the market”. This is an irrational and ignorant policy which is not informed by a basic understanding of the current Global Corporate Food regime. After the 2008 economic crisis, the market is no more a reliable source of food even for developed countries. Though we need food sovereignty oriented policies, the recent large scale land investments seem to reflect the contrary. For instance, investors are encouraged to export crops rather than providing to the local market in the midst of high inflation on food prices and mass eviction of people for those investments. It seems that the government approaches food insecurity as a problem caused by food shortage (traditional approach to food security), while that is not always the case. Hunger is experienced in a country where there is a surplus in food. There are also other factors, argues Amarty Sen, which lead to deprivation, such as lack of entitlement- production menses. Lack of access to productive resources for the poor remains the key problem in Ethiopia.

Looking at the political structure of the country, human right institutions are not developed and the government restricts democratic rights, let alone economic and social and cultural rights, that require strong commitment from the side of the government. The new civil society’s law restricts domestic civil societies and international rights based non-governmental organisations (NGOs) from advocacy activities.

There evidence, for example India and Brazil, suggesting that in countries where the right to food is well established, a decreasing trend of hunger in consequential. In 2001, NGOs in India started challenging the government’s policy on the right to food. These law suits resulted in a variety of rulings that addressed access to food. The courts ordered the government to inform the concerned population about its legal right to food. These orders have also had important practical effects. Indian courts were active in firmly establishing the right to food in the legal framework. Thus, India’s experience shows the contribution of democracy towards strengthening the right to food and thereby eradicating hunger.

The Ethiopian People’s Revolutionary Democratic Front’s (Ethiopia’s governing party) policy documents declare that it is a revolutionary developmental state. It seeks its legitimacy from its economic achievements rather than free and democratic elections. Hence it is highly unlikely that a democratic state evolve out of developmental state ideology. The government claims that development in general, and in particular food security, should come first before political rights, even though research and experience from other countries prove the inseparable link between rights and development.

Therefore, the development of the right to food should also be read together with the progressive nature of the democratic system. Ethiopia needs strong and independent courts and civil society activists working on the right to food. The weakness of the democratic and legal structures could make food security a myth.

About the Author:
Bereket Kefyalew is a recent Graduate with MSC in International Relations and Development from Aalborg University, Denmark. The author also holds a Bachelor Degree in Laws (LLB) from Mekelle University, Ethiopia. He has taught at the Hawassa University, Ethiopia and other colleges for nearly three years. Currently, Bereket Kefyalew is a freelancer based in Copenhagen, Denmark.

Author: Andrew Novak

On 16 March 2013, Zimbabwean voters overwhelmingly ratified a new constitution, which contains a right to life provision that dramatically scaled back the scope of the death penalty. The new constitution restricts the death penalty only to aggravated homicide and requires a judge to consider all mitigating factors in order to dispense a death sentence. The death penalty is a prohibited sentence for women and persons under the age 21 or over the age 70. The new constitution also establishes a constitutional right for prisoners to seek commutation or pardon from the executive. The death penalty was abolished for non-homicide offences, including treason, a notoriously politicised charge in recent years. Newspaper reports indicated that the Cabinet would review the cases of each of the current 72 death row inmates, even though a new hangman was hired in February 2013 after a twelve-year long search. The two women on death row would have their sentences automatically commuted.

Meanwhile, Zambian voters are expected to vote on a new constitution in June, which likewise includes a right to life provision per Article 28, although it lacks the analytical clarity of Zimbabwe’s new constitution. Like the Zimbabwean constitution, the Zambian one creates a constitutional right to seek commutation or pardon. The death penalty may not be imposed on a pregnant woman or a child, or where “extenuating circumstances” exist relating to the commission of a crime. The death penalty in Zambia retains popular support in constitutional consultations, but Zambia is considered de facto abolitionist, with three presidents in succession—Levy Mwanawasa, Rupiah Banda, and Michael Sata—who each personally opposed the death penalty and installed moratoria on executions. Highlighting these competing tensions, Zambia abstained in a December 2012 UN resolution calling for a worldwide moratorium.

The death penalty regimes in Zambia and Zimbabwe have long possessed an unusual quirk unique to the legal systems of Southern Africa. This unusual provision is the doctrine of extenuating circumstances, which turned the old British-style common law mandatory death penalty into a rebuttable presumption in favor of death. Under the doctrine, once convicted, the burden shifted to the defendant to show beyond a fair preponderance of the evidence that circumstances existed, at the time the crime was committed, that reduced his moral blameworthiness for the offence. Extenuating circumstances included youthfulness, intoxication, provocation, witchcraft, lack of intent to kill, and many others. The doctrine, which originated in apartheid South Africa in 1935 as a compromise to the high rates of clemency dispensed by the governor-general, passed into Southern Rhodesian (colonial Zimbabwean) law in 1949 and into Zambian law in 1990. The doctrine also survives in Botswana and Lesotho.

While the doctrine of extenuating circumstances permitted some judicial discretion and therefore avoided the absurd results of the mandatory death penalty elsewhere in common law Africa, the doctrine always lacked the analytical clarity and rationality of an American- or Indian-style discretionary death penalty regime, in which the prosecution must prove both guilt and sentence beyond a reasonable doubt based on the presence of aggravating factors. By shifting the burden to the defendant to show why he or she should not be executed, the doctrine stresses the weakest link in the system: indigent criminal defence counsel. It also threatens an accused person’s right to remain silent. The new Zimbabwean constitution abolishes the doctrine and creates a pure discretionary death penalty regime on the model of the United States or India, requiring the prosecutor to prove aggravating circumstances meriting the special punishment of death beyond a reasonable doubt. The Zambian one, to its misfortune, may constitutionalise the doctrine by exempting from the death penalty cases that possess “extenuating circumstances”, and therefore shifting the burden to the defendant to rebut a presumption in favour of death. While both Zambia and Zimbabwe are making strides toward total abolition of the death penalty—the irreversible trend not only in Africa but around the world—the new constitution of Zimbabwe undoubtedly takes a larger step toward that goal than the draft constitution of Zambia likely will.

About the Author
Andrew Novak has a Master of Science degree in African Politics from the London School of Oriental and African Studies and a Juris Doctor from Boston University School of Law.

There is no outright definition of what education means, however commentators such as Milter has defined it as, an act, process or experience that systematically promotes learning, knowledge and development. By the same token, writers such as Mialeret have defined education from a much narrower view than the above stated, to mean formal instruction of knowledge within recognised and well-structured system of institutions and programmes. This definition by Mialeret is also seen in the 1997 International Standard Classification of Education. Therefore, having known what education means, then the question that comes next is: what is the right to education?

General Comment No. 13 of the Committee on Economic Social and Cultural Right (CESR) defines education as both a human right itself and an indispensable means of realising other human rights. The committee goes further to state that as an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities. These economically and socially marginalised groups include children with disabilities in Kenya and all over the world. This essentially means that children with disabilities are well protected and are entitled to education and it is not a favour that any government would be doing to these groups.

The right to education is well provided for in a number of international treaties such as the 1948 Universal Declaration of Human Rights (UDHR) under Article 26 (though not having legal effect), 1966 International Covenant on Economic, Social and Cultural Right Article 13, United Nation Convention on the Rights of the Child Article 28, African Charter on Human and Peoples Right Article 18, African Charter on the Rights and Welfare of the Child Article 11 and Convention on Rights of People with Disabilities Article 24. All these instruments are applicable to Kenya for two main reasons:-

i.        Kenya is state party to all these instruments and

ii.        That vide Article 2(6) of the Constitution of Kenya 2010 which provides:-

‘Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’ (Emphasis mine)

Children with disabilities are a unique group of individuals who need care and are entitled to human rights which must be guaranteed by the state, as provided under UDHR. From the above provisions in various international human rights instruments, there is no provision which states that if one is disabled then one should not be entitled to education. In fact, under Article 54 of Constitution of Kenya, discrimination on the basis of disability is prohibited. Hence it can be concluded from the above that the right to education for (disabled) children is compulsory. The concept of compulsory education has at least two main elements. Firstly, it entails that parents or guardians and the state are not entitled to consider the decision of access of a child to education as optional. Hence, it is a mandatory requirement to ensure that all children access primary education. Secondly, it implies access to education without discrimination.

Then why is that the education for children with disabilities is not guaranteed in Kenya? There are several reasons to support the above question. These range from poverty, poor planning by the government of Kenya and the most important approaching disability from a ‘medical model’ rather than a ‘social model’. The medical model presupposes that children with disabilities are a problem and they need to be ‘fixed’. In this fixing, the model says that they need to be in excluded locations and systems. On the other hand, a social model supports the notion of inclusive education. A social model further dictate that children with disabilities are not a problem and it is the environment that is a problem. Hence in trying to solve the problem, the government should fix the environment rather than excluding children from mainstream education. The social model has been closely linked with the human rights model which looks at the individual as a human being with rights and not a problem to be ‘fixed’.

The concept of inclusive education, which should be the primary way in which the Kenyan government should approach education for children with disabilities, presupposes that their education should be in mainstream schools where they and other children learn together. The approach focuses on the school environment and its barriers. It perceives the impediments in mainstream education and school environment as challenges faced by children with disabilities. It aims at identifying and eradicating such hindrances to enable all children, including children with disabilities, to attain education. Therefore, the inclusive education approach seeks to ‘fix’ the school system to accommodate the learning of children with disabilities.

International human rights norms on the right to education presuppose that the Kenyan government is obliged to make education available, accessible, acceptable and adaptable for all children. These obligations are threefold;-

i.        The obligation to respect the right to education which would, for example, require Kenya to refrain from adopting any measures that would hinder or prevent persons with disabilities from accessing education;

ii.        The obligation to protect which would, for example, require Kenya to ensure that no other actor interferes with the access of education by persons with disabilities; and

iii.        The obligation to fulfil which would, for example, require Kenya to fulfil or provide for the realisation of the right to education for children with disabilities.

It is hence prudent to note, Kenyan policy makers have since time in memorial been excluding children with disabilities from mainstream curricula despite there being a number of legislations that provide otherwise. Children with disabilities who are not in the mainstream usually feel that they are discriminated and that they feel less important. In fact a report by the World Bank states that governments should invest more towards education for children with disabilities as educating this group will make the difference in terms of the person being independent. Therefore, exclusion, which is very rampant in the Kenyan system, should be discarded and inclusive education, where children are allowed to participate, should be the way forward.

About the Author:
William Aseka Oluchina has a Bachelors of Law degree from Catholic University of Eastern Africa (CUEA). He works as a Program Assistant at Governance Consulting in charge of Human Rights Advocacy for Children with Disabilities and working as a Research Assistant at Musyoki Mogaka & Company Advocates. His research interest: human rights law in Kenya.

Author: Adejoké Babington-Ashaye

March 2013 marks ten years of one of the most innovative initiatives established under the auspices of the New Partnership for Africa’s Development (NEPAD). Created in 2003, the main objective of the African Peer Review Mechanism (APRM) is to foster the adoption of standard practices for political stability, sustainable development and economic integration through experience sharing between member states. As a voluntary process open to all members of the African Union, the steps of the APRM process include a country self-assessment, a review mission by the APRM Panel of Eminent Persons, a review of the ensuing Panel report by APRM Member States, and a finalized programme of action (NPoA) – the blueprint for development agreed upon by all stakeholders.  These NPoAs are critical to identifying development challenges, and laying the foundation for legal and policy changes.

As of January 2013, the APRM boasts a membership of 35 States, with Tunisia and Chad as the newest members. Yet, the APRM has been plagued by financial and logistical challenges, stalled peer reviews and an occasionally negative public perception. In this piece, I highlight how a holistic approach to critiquing the APRM sheds light on some of the positive contributions the mechanism has made to development in Africa, and also illuminates the path for the next ten years.

One of the goals of the APRM is to set benchmarks for good governance and we can see a move in this direction in the concrete deliverables of some of the NPoAs. For instance, following its participation in the APRM process, Kenya operationalized the Micro-Finance Act, and implemented a 14% increase in credit available to the private sector between 2005/6 and 2006/7. In Ghana, the progress reports on implementation of the programme of action document an increase in primary and secondary school enrolment following the identification of low enrollment as a stumbling block to Ghana’s development.

The APRM process has also made a noteworthy contribution to the realisation of the rights of people to participate meaningfully in their self-development – a right enshrined in the African Charter for Popular Participation in Development (1990). The implementation of the APRM process in Algeria in 2007 for example was considered by many a technical success in a country where traditionally dialogue between government and its constituents and members of civil society is rare. By “mainstreaming” governance through the APRM process, citizens were equipped with the opportunity to have a voice in identifying governance projects which are prioritized for peer review and assistance.

Finally, the process has opened state management to scrutiny. Historically, accountability on the continent has been directed towards donor countries and agencies. In the early days of NEPAD and the APRM, African States were still focused on solidifying external relationships, utilising the laudable goals of the APRM as demonstration of their commitment to democratic principles and good governance. This justifiably brought on criticism that the APRM was a disguised externally-driven agenda, and not the result of a home-grown initiative. But there is now a shift in the right direction. A major achievement of the APRM is that the process has diagnosed and highlighted systemic and structural issues that affect most African states in their governance systems and pose barriers to sustainable economic growth and development. Generally the APRM country review process has revealed four major systemic issues: 1) management of religious, or ethnic diversity; 2) land and resource governance; 3) corruption and 4) elections and electoral management. A fifth which could be added to this shortlist is mismanagement of human capital and resources. Africa has the youngest population in the world with about 200 million people between the ages of 15 and 24. Unfortunately this has translated into a high incidence of youth unemployment which in the long run poses a significant challenge to development, and political stability.

In counting the successes of the APRM, one cannot lose sight of the shortcomings. Lack of political will continues to be a stumbling block, affecting the financial and human resources necessary for the Mechanism to fulfill its mandate. Similarly, the APRM process has been criticised in that some countries’ NPoAs are mere carbon copies of pre-existing development initiatives. Finally, the APRM process has also been criticised for the failure of some reports, such as the 2011 Mali Report and the 2006 Kenya Country Report to give sufficient attention to early warning signs of the crisis in Mali and the 2007-2008 post-election violence in Kenya.

The Next Ten Years: Which Way Forward?

As we navigate the next ten years of the APRM, it is evident that political will at both continental and national level is crucial for the APRM to achieve its goal as a process for development. It is through political will that the financial and logistical challenges which impair the process at various levels can be overcome. That said, it is also clear that one of the real challenges to the APRM’s success is an insufficient focus on implementation and on-going monitoring. Much attention is placed on the process of the country self-review, the country report and its presentation at the continental level; however, even though progress reports are required, the structure is lacking at the continental level for proper monitoring and evaluation. It is important to shift the focus away from a mechanical implementation of the APRM stages. The peer review should be considered the beginning – a precursor to the important step of implementation and monitoring.

Additionally, the APRM process should be more aligned with issues which have been highlighted at regional and continental levels as challenges to Africa’s development. These issues include investment in healthcare, climate change, youth unemployment and development of the informal sector. Given the important role the informal sector plays in most African economies, and the fact that Africa has the youngest population in the world, it is essential that the APRM NPoAs and strategies coincide to focus on removing the obstacles and challenges faced by the young, the poor, and the voiceless.

How can this be done? The first and important step is ensuring the NPoAs contain concrete recommendations and strategies rather than vague aspirational statements which are difficult to measure. Taking healthcare as an illustration, the right to the best attainable state of physical and mental health is enshrined in Article 16 of the African Charter on Human and Peoples’ Rights. From an implementation perspective, actualising such a right requires health sector reform, and investments in healthcare through public-private partnerships.  In its 2007 – 2015 Health Strategy, the NEPAD Agency put forward several strategies at national, regional and continental level which would work collectively to implement the right to healthcare. These strategies include facilitation by the African Union of a common position on migration of health professionals and a steady increase at national level of the budget allocation for health to at least 15% (a target set by Heads of State in the 2001 Abuja Declaration on HIV/AIDS, Tuberculosis and other Infectious diseases).

According to a World Health Organisation Fact file published in 2011, only 2 African countries, Rwanda and South Africa, have achieved the Abuja Declaration target of “at least 15%”. Achieving this goal should be a priority. Yet, none of the publicly available APRM country reports completed between 2007 and 2012 include the recommendations contained in NEPAD’s Health Strategy, particularly the recommendation to increase the budget allocation for healthcare. Algeria’s country report was published in 2007, and the APR Panel observed that reduction of the rate of mother and infant mortality was a priority. Despite this, the action plans recommended were vague. For instance, it is noted that Algeria would “increase the social welfare budget” – what to, was not stated. In addition, the then programme of action was to “bolster the national programme for handling premature births”. How this would be bolstered was again not stated. Lesotho’s country report was completed and published in 2010. Despite noting that access to health posed a great challenge to Lesotho’s development and that Lesotho faced a serious shortfall in qualified medical staff, there were no concrete steps recommended for Lesotho to adopt.

9 March 2013 has been proposed by the African Union as “APRM Day” – a day to raise public awareness of the Mechanism and its achievements. In doing so let us not forget that as a dynamic model for Africa’s development, the APRM can achieve much more at a continental, regional and national level than it is currently doing. If the successes of the past ten years are multiplied and the lessons from the mistakes are learned, the APRM would not only be viewed as a legitimate process for Africa’s development, it could also lay the framework for a peer review mechanism which could be adopted in other regions of the world.

About the Author:
Prior to joining the World Bank Adejoké Babington-Ashaye was an Associate Legal Officer at the International Court of Justice (ICJ) and an investigator in the Office of the Prosecutor of the International Criminal Court (ICC).  She holds a LLM in Public International Law from the London School of Economics and is a qualified Attorney in the State of New York.  She is Co-Chair of the American Bar Association Section of International Law Africa Committee.

Author: Ashwanee Budoo

The right to health is protected by various international and regional instruments such as the Universal Declaration of Human Rights (article 25), the International Covenant on Economic Social and Cultural Rights (ICESCR) (article 12) and the African Charter on Human and Peoples’ Rights (article 16) and being a party to these instruments, Mauritius has the obligation to ensure that its citizens’ right to health is protected. One aspect of the right to health is the right to access essential medicines. Essential medicines have been defined by the World Health Organisation as those which satisfy the health care needs of a majority of the population. In view of fulfilling this right Mauritius, a welfare state, provides for free essential medicines in government hospitals, area health centres and community health centres.

Mauritius has been a member of the World Trade Organisation (WTO) since 1995. The agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the WTO can affect the accessibility to medicines through patent rights according to section 28 of the TRIPS. To ensure that the TRIPS agreement is not wrongly interpreted in the context of access to medicines, the Declaration on TRIPS Agreement and Public Health (Doha Declaration) was adopted in November 2001. To be in line with the flexibilities provided for by the Doha Declaration, section 23 (1) (a) of the Patents Act 25 of 2002 of Mauritius provides as follows:

Where the competent authority

(a)     is satisfied that the public interest including, national security, nutrition, health or the development of other vital sectors of the national economy so requires

it may, upon a request being made, authorise, even without the agreement of the owner of the patent, authorise a Government agency or a third person to exploit the patented invention.

This provision ensures that the government can use generic medicines in case a patent holder sets high prices for branded medicines.

Although the state has been compliant with the Doha Declaration, one major drawback is that the legal and institutional frameworks do not provide for the protection of economic, social and cultural rights. The Constitution of Mauritius, the supreme law of the land, has no provisions for the protection of the right to health. This concern has also been expressed by the Committee on Economic, Social and Cultural Rights (CESCR) in its concluding observations during the consideration of reports submitted. It is also important to highlight that the ICESCR’s provisions have not been incorporated in the national laws and cannot therefore be invoked before the national courts. Furthermore, the National Human Rights Commission has no specific mandate to deal with economic, social and cultural rights and there is no National Medicines Policy document.

Provision of free essential medicines in public hospitals does not ensure that those medicines are accessible to everyone. For example, children living with disabilities or children living with HIV/AIDS cannot travel to the public hospitals to collect medicines and there is no such policy whereby essential medicines should be made available to persons who are in need of them.

Moreover, there are some instances where there is discrimination while providing for essential medicines. One such example is the opioid substitution therapy which includes age barriers for the provision of methadone to drug users.

The right to health can be inferred from the right to life as had been in countries such as Costa Rica and India. An analysis of Mauritian case laws depicts that the Supreme Court has not had the opportunity to tackle an issue concerning the right to health which required the interpretation of the Constitution. The concept of implicit rights has, till date, been unknown to the Mauritian judiciary and as such there is no guarantee that the Supreme Court will positively interpret the right to life to include the right to health.

The inclusion the right to health in the Constitution will render the right justifiable and the population will have a better basis to bring cases to court in the event of them being deprived from the right to access essential medicines. The cases of Patricia Ochieng, in Kenya and that of Treatment Action Campaign in South Africa demonstrated how a justiciable right to health can protect the right to access essential medicines.

Conclusion and recommendation

The government should therefore give effect to the recommendation of the CESCR and bring about a constitutional amendment which will include economic, social and cultural rights in the Constitution thus making the right to health justiciable.

After including the right to health in the Constitution, the government should adopt a new legislation to protect the right to health of all the citizens. This new legislation should compile the national health policy and the plan of actions. This new legislation should clearly set access to medicines as a component of the right to health. To avoid any foreseeable problem, the use of generic medicines should be included in the act and there should be a clear demarcation between generic drugs and counterfeiting so that it does not limit the access to medicines of Mauritians.

In the shorter term, it is also being proposed that members of civil society attend workshops on access to medicines and the right to health. These persons can disseminate the information they have gained during the workshops to sensitise people about the importance of the inclusion of the right to health in the Constitution. They can then engage the government in debates concerning the amendment of the Constitution to include the right to health as a fundamental right.

About the Author:
Ashwanee Budoo is a full-time candidate for the Law Practitioners Vocational Course in Mauritius. She completed her LLM (in Human Rights and Democratisation in Africa) with the Centre for Human Rights, University of Pretoria in 2012. She is also a part-time lecturer at the University of Mauritius.

One of the most critical ways that individuals can influence governmental decision-making is through voting. Voting is a formal expression of preference for a candidate for office or for a proposed resolution of an issue. Voting generally takes place in the context of a large-scale national or regional election, however, local and small-scale community elections can be just as critical to individual participation in government.

The Universal Declaration of Human Rights, adopted unanimously by the United Nations General Assembly in 1948, recognizes the integral role that transparent and open elections play in ensuring the fundamental right to participatory government. The Universal Declaration of Human Rights clearly stipulates under Article 21:

Everyone has the right to take part in the government of his/her country, directly or through freely chosen representatives. Everyone has the right of equal access to public service in his country. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent free voting procedures. (Emphasis mine)

In fact just five years after the end of the reign of the apartheid government of South Africa, the country’s constitutional court addressed one of the most profound issues facing the new democracy. The case involved a challenge to the denial of voting rights for citizens incarcerated in South African prisons and raised the fundamental issue of the meaning of democracy, one that was particularly poignant in a society in which such questions had been restricted from public debate. In his written decision for the Constitutional Court of South Africa, Justice Albie Sachs declared, “Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favor of enfranchisement rather than disenfranchisement.”

I recently read a ruling by Justice Isaac Lenaola, which categorically stated that prisoners do not have a right to vote in Kenya. This was after several attempts by Kituo cha Sheria, a non-governmental organisation, which had sued the Independent Electoral and Boundaries Commission (IEBC) for failure to have the different prisons in Kenya gazetted so that they could be polling stations. The IEBC did not give any substantial reasons as to why it was not able to register prisoners in Kenya and therefore the question that arises is: are prisoners not citizens of Kenya?

Article 38 of the Constitution provides:

1. Every citizen is free to make political choices, which includes the right—
   1. to form, or participate in forming, a political party;
   2. to participate in the activities of, or recruit members for, a political party; or
   3. to campaign for a political party or cause.
2. Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—
   1. any elective public body or office established under this Constitution; or
   2. any office  of any political party of which the citizen is a member.
3. Every adult citizen has the right, without unreasonable restrictions—
   1. to be registered as a voter;
   2. to vote by secret ballot in any election or referendum; and
   3. to be a candidate for public office, or office within a political party of which  the citizen is  a member and, if elected, to hold office. (Emphasis mine)

The reading of the above provisions of the supreme law of the country, clearly shows that there is no way that the drafters of the constitution envisaged that prisoners would be locked out from participating in choosing a government of their choice.

The disenfranchisement of prisoners generally is premised on assumptions about people in prison that portray them as qualitatively distinct from citizens in the outside world. From this perspective flows a view that disenfranchisement is a reasonable penalty to be imposed upon this class of people. Given the momentum for reform and the changing political environment on felony disenfranchisement, I should explore why this movement has not generally evolved to advocating for voting rights for persons in prison. Political considerations play into this, of course, but perhaps the more fundamental problem is the prevailing sentiment that somehow “prison is different”, and therefore, people in prison deserve to lose the right to vote. In this framing, prisoners are distinct from offenders who are not in prison, and further, disenfranchisement is seen as a reasonable aspect of the punishment that has been imposed on them. But does this rationale hold up to scrutiny?

In a broad sense, it seems clear that the imagery commonly ascribed to prisoners cannot help but stigmatise this group of people and lend a certain air of mystery to them. As many have noted, the walls of the prison are erected not only to keep prisoners locked in, but also to keep the outside world locked out. Few journalists venture into this massively funded public operation, and legislators largely take a “hands off” approach unless there is an eruption of violence. As a result, the image of the prisoner is one that is communicated largely through mass media marketing and Hollywood stories. Hannibal Lecter may be at the extreme edge of this portrayal, but cable TV series such as Prison Break and other depictions similarly communicate a picture of angry men (and sometimes women) capable of sudden and seemingly irrational acts of violence.

So I begin with a public mindset regarding prisoners that is largely based on overwrought stereotypes and therefore unlikely to be inclined to be supportive of anything perceived as “prisoners’ rights”, But in addition to this framing of the issue, there is also the problematic nature of how prison sentences are viewed as qualitatively distinct from other sanctions, a view that does not hold up to serious scrutiny. While it is true that the vast majority of persons convicted of serious violent crimes are sentenced to prison, in many cases of felony sentencing it is a close call between receiving a prison sentence or being placed on probation with conditions of supervision.

As of 2009 Kenya had well over 50 000 prisoners most of whom are eligible to be registered as voters. When the IEBC began the voter registration exercise, its main target was to register 18 million Kenyans. But by the end of the exercise on 19 December 2012, they had barely reached 15 million despite the heavy campaign for people to out and be registered. My argument here is that prisoners would have added significantly to the number that the IEBC was looking. However, no- one helped Kituo cha Sheria in fighting for the prisoners to be registered as voters in accordance with the constitution of Kenya. As law professor Debra Parkes argues, “[t]he reality that prisoners may have an impact on the outcome of elections is an argument in favor of allowing them to vote rather than against it.” All in all my view is that prisoners are allowed to participate in choosing their government as they are also affected by it, and the ruling by Justice Isaac Lenaola was a blow against those fighting for prisoners rights.

About the Author:
William Aseka Oluchina has a Bachelors of Law degree from Catholic University of Eastern Africa (CUEA). He works as a Program Assistant at Governance Consulting in charge of Human Rights Advocacy for Children with Disabilities and working as a Research Assistant at Musyoki Mogaka & Company Advocates. His research interest: human rights law in Kenya.

Author: Joelle Dountio

Religion, traditional cultural beliefs and law are all used by humans to fuel hatred, stigma, and discrimination towards homosexuals. The rights to equality, non-discrimination and freedom from torture, cruel, inhuman and degrading treatment as upheld by the International Bill of Rights and other human rights instruments are, for the most part, all recognised in the constitutions and other national laws of most African countries.  However, 36 of the 54 African countries have punitive laws on homosexuality. Meanwhile, homosexuality is a sexual orientation and a prohibited ground for discrimination under international human rights law (Toonen v. Australia).

Historically, religion has been used to justify some of the worst atrocities committed against human beings. Some of these atrocities include: slavery, the holocaust, apartheid, racism and terrorism. Today, the Bible is used to justify homophobia based on the famous kingdoms of Sodom and Gomorrah. The question I ask is, does the Bible really mean that we should kill these people as is happening today? And even if it does mean this, what about other practices for which the Bible says people should be killed? This Bible says married women who have sexual relations outside their marriage should be killed. The Bible says we should sell all we have and give the money to the poor. The Bible says we should not make carved images of anything in heaven. Why do Christians not apply these? Apparently man chooses to follow only those sections of the Bible which suit him and enable him to meet his selfish goal irrespective of the consequences to others. Is this not hypocrisy?

Africans consider tradition highly, even when the practices involved are cruel and inhumane. Consider female genital mutilation, twin murder, albino and child murder for witchcraft, and forced early marriage for girls. All of these practices either are, or used to be, condoned by African traditions. However, due to widespread human rights advocacy, some of these practices have been, or are being, abolished. The fact that these beliefs and practices constitute violations of fundamental freedoms and human rights should make Africans reconsider whether some of these beliefs are worthy of practicing today, particularly when they are used to fuel hatred against their fellow human beings.

Law, religion and traditional beliefs, as the main drivers of homophobia, have more far-reaching negative consequences on society than homosexuality itself, particularly in the context of the fight against HIV/AIDS. Law, religion and tradition are used to fuel homophobia, and serve as justification for violations of homosexuals’ rights in different forms.  Homosexuals are arrested by the police, subjected to inhuman cruel and degrading treatment such as forced anal tests for purposes of obtaining evidence. In some cases parades and workshops on the rights of homosexuals are invaded by police and homophobes, in violation of their civil and political rights like the right to freedom of association.

As a result, a general atmosphere of insecurity for homosexuals prevails, causing them to shun health-care services even when they need them. Considering that the HIV prevalence rate in men who have sex with men (MSMs) is always higher than in heterosexuals, and that more than half of MSMs also have female partners, this is dangerous for the general fight against HIV/AIDS. Homophobia also leads to the murder of homosexuals and auto-stigmatisation among homosexuals themselves, sometimes resulting in suicide. Homophobia fuels so-called ‘corrective rapes’, sometimes organised by family members of persons suspected of homosexuality and which sometimes lead to HIV transmission. Moreover, the punitive laws against homosexuality tend to target the less privileged of society. Several homosexual sex workers report that their services are sometimes sought by highly placed state officials and ministers in their countries. These ministers never appear in court on charges of homosexuality. In addition in some countries, some of these laws spare lesbians as the laws speak specifically to sodomy. This points to the fact that these laws sometimes have no real basis, and/or were tailored to meet particular personal objectives.

As President Paul Kagame of Rwanda said when a bill to criminalise homosexuality was introduced in the Rwandan parliament, homosexuality does not cause hunger, poverty or any other problem faced by Africans. The point here is not to encourage people to engage in homosexuality, but for people to understand that people should not be punished for their sexual orientation. Even if homosexuality is a choice, as some say, no one has the right to violate the right to privacy of others. Sexual practices of consenting adults in the confines of their bedroom should not attract sanctions. Strangely enough, health-care service providers today report that several married women report being sodomised by their husbands.

African countries must therefore decriminalise homosexuality, sensitise members of society on homosexuality and integrate homosexuals in national plans of action on the fight against HIV/AIDS.

About the Author:
Joelle Dountio holds a Masters Degree in International Trade Law from University of the Western Cape. Her research interests include Intellectual property rights and human rights, particularly the right to health and access to medicines, paying particular attention to HIV/AIDS, tropical disease and most at risk populations like sexual minorities and indigenous communities.

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