The African Court: Need for a system-based approach to jurisprudential affirmation

Author: Sègnonna Horace Adjolohoun
Visiting Professor of international human rights law and comparative African constitutional law, Central European University;
Extraordinary Lecturer, Centre for Human Rights, University of Pretoria
Principal Legal Officer, African Court on Human and Peoples’ Rights

This article is a summarised version of a much longer commentary which shall be published subsequently.
The views expressed below are exclusively those of the author and not of the African Court.

THE IMPERATIVE OF SYSTEM-BASED LAW MAKING

When the African Court became operational in 2006, the expectation was that it will affirm the then widely criticised African Commission on Human and Peoples’ Rights rather than merely “judicialise” the system. The Court therefore bears the historical duty to adopt a system strengthening approach to judicial law-making. As it makes law over the years, it becomes paramount to vet the Court’s pronouncements against that raison d’être. I attempt to do so with respect to its recent decisions.

ADVISORY MATTERS

Substantively, the requests related to a varied range of matters that are both current and novel, ranging from the meaning and scope of the role of the African Union policy organs to ‘consider’ the Activity Report of the African Human Rights Commission to the modalities of litigating the crime of unconstitutional change of government. Unfortunately, the Court did not assert jurisdiction to pronounce itself on the merit of those issues.

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Conscientious Objection: African reflections on Colombian abortion decision T-388/09, by Charles G. Ngwena

reprohealthlaw blog

Congratulations to Charles Ngwena of the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa, whose 2014 article in the Journal of African Law is now available online.

Charles G. Ngwena. “Conscientious Objection to Abortion and Accommodating

Women’s Reproductive Health Rights: Reflections on a Decision of the Constitutional Court of Colombia from an African Regional Human Rights Perspective.Journal of African Law, 58 (2014): 183-209  Article now online.

Abstract and Overview:  If applied in isolation from the fundamental rights of women seeking abortion services, the right to conscientious objection can render any given rights to abortion illusory, including the rights to health, life, equality and dignity that are attendant to abortion. A transformative understanding of human rights requires that the right to conscientious objection to abortion be construed in a manner that is subject to the correlative duties which are imposed on the conscientious objector, as…

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Recalibrating Nigeria’s Whistleblowing Policy: An urgent plea for a comprehensive whistleblower protection legislation

Author: Olabisi D Akinkugbe
PhD candidate at the University of Ottawa, Canada

This short essay draws attention to the current gap in regulatory framework for the protection of whistleblowers in Nigeria and its potential to derail any meaningful sustained and long-term success of the country’s nascent whistleblower program. The other socio-political factors that would contribute to the effectiveness of the program in Nigeria are discussed in a forthcoming article by the author.

Whistleblowing refers to the public interest disclosure of information by members of an organization or government employees about illegal and immoral practices by other employees or other persons who deal with the organization, such as contractors, in the case of public governance. Employees are often the first to recognize malpractice, fraud, dishonest and illegal activity, or other wrongdoing with potential impact on the public interest. As a public governance integrity enhancing mechanism, it is primarily linked to encouraging and enhancing the public disclosure of wrongdoing in order to improve accountability and transparency.

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The unclear relation between Angola and its Muslim citizens and migrants: Is Angola discriminating against them?

Author: Cristiano d’Orsi
Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg

 Angola is a country where the traditional Islamic relation between Muhajirun (‘immigrants’) and Ansar (‘helpers’: locals)[1] seems not to find a fertile ground. Islam in Angola represents a minority religion, with an estimate number of proselytes amounting to approximately 1%[2] of the entire population.[3] These are mostly Sunnis who arrived in Angola from West Africa,[4] Somalia[5] and from families of Lebanese descent[6] following the end of the Angolan Civil War in 2002.

Historically, as many of these immigrants entered Angola illegally, which created the misperception of associating Islam with illegal immigration and crime (almost predominantly counterfeiting of money and money laundering), although barely any evidence of this has been proved.[7] This was affirmed by the UN Special Rapporteur on Freedom of Religion or Belief on her visit to the country in 2007.[8]

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South Africa: Expulsion of pregnant students violated constitutional rights

reprohealthlaw blog

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), an LL.D. candidate at the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for summarizing this decision with Y. Kakhobwe in Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, published by Pretoria University Law Press (PULP) in 2017.  228-pages online     Flyer with Table of Contents.     New online edition with links to decisions and analyses.

Head of Department, Department of Education, Free State Province v. Welkom High School & anotherHead of Department, Department of Education, Free State Province v. Harmony High School & another (CCT 103/12) [2013] ZACC 25, 2013 (9) BCLR 989(CC); 2014 (2) SA 228 (CC) (10 July 2013)   Constitutional Court of South Africa Decision online.    Case summary by G. Kangaude and Y. Kakhobwe.

Two South African high…

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Kidnappings in Nigeria as a class act: Implications for the criminal justice system

Author: Dr Akinola Akintayo
Lecturer and researcher in the Department of Public Law, Faculty of Law, University of Lagos, Nigeria

Nigeria is a country steeped in inequality. Reports indicate that a minimum of 86 of the 140 or so million Nigerians live in extreme poverty. The country’s richest individuals are also said to earn 8,000 times each day what their poor counterparts spends on basic necessaries in a year. To further underscore the severe level of inequality, studies also indicate that the combined wealth of the top five richest Nigerians can end extreme poverty in the country. That is how bad the income and wealth gap in Nigeria is.

However, this kind of inequality underpinned by exploitative and oppressive capitalist mode of production tends to weaken what some scholars have referred to as the ‘social instinct’ and breeds discontent, opposition and conflicts between society’s classes. In this kind of clime, the less privileged and deprived members of the society may well feel entitled, either within or without the law, to demand what they considered their own fair share of the commonwealth from the more opulent part of the society. The main purpose of this short piece is to interrogate emerging evidence which suggests that recent dimensions of kidnappings in Nigeria is a class act where the deprived class may be demanding what they perceived as their fair share from the more opulent class and examine the omens that this bids for the criminal justice system.

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Kenya: High Court halts HIV+ data collection, upholding dignity & privacy

reprohealthlaw blog

Many thanks to Professor Ebenezer Durojaye of the Dullah Omar Institute for Constitutional Law, Governance and Human Rights at the University of the Western Cape, for abstracting this significant judgment for REPROHEALTHLAW subscribers.  Prof. Durojaye can be reached at  ebenezerdurojaye19 at gmail.com

Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] eKLR Petition 250 of 2015. (High Court at Nairobi)  Decision online.

This case centres on a directive issued by Kenyan President Kenyatta requesting that the names of school-going HIV positive children, their guardians and HIV-positive pregnant women and their addresses be compiled for the purpose of assisting the government to respond and provide appropriate service and support to the children living with HIV/AIDS. The said information should include the number of children infected with HIV, number of guardians or caregivers infected with HIV, number…

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