South Sudan, uti possidetis rule and the future of statehood in Africa

Author: Dr Babatunde Fagbayibo
Senior Lecturer in the Department of Public, Constitutional and International law at the University of South Africa

The emergence of South Sudan has once again brought sharp focus on inherited colonial boundaries and the quest for redrawing them.The process that led to the independence of South Sudan,including the immense challenges it is currently facing in building a new state, has raised questions on whether new states will emerge and the viability of such entities. As an expedient politico-legal move, the Organisation of African Unity (OAU) in 1964 adopted the principle of uti possidetis (Latin for “as you possess, so you may possess”). Primarily aimed at maintaining the sanctity of colonial boundaries, the adoption of this principle was underlined by two interrelated motives. The first was to prevent violent conflicts between African nations over disputed territories and the second was to stem the tide of secessionist movements within national boundaries. The independence of Eritrea in 1993, South Sudan in 2011 and a number of dormant and active secessionist movements across the continent strongly indicate the problematic nature of colonial boundaries and the structure of statehood in post-colonial Africa. Since the 1960s, there have been secessionist movements in places like Nigeria (Biafra), Congo (Katanga), Angola (Cabinda), Senegal (Casmance), Mali (Azawad), Somalia (Somaliland), Ethiopia (Ogaden, Eriterea and Oromo), Sudan (South Sudan), Zambia (Barotse), Tanzania (Zanzibar), and Coromos (Anjouan) – see www.sscnet.uncla.edu/polisci/wgape/papers/4_Engelbert.doc.

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Using human rights to combat unsafe abortion: What needs to be done?

Charles NgwenyaAuthor: Charles Ngwena
Professor of  Law, University of the Free State, South Africa

The latest global and regional estimates of the incidence of unsafe abortion and associated mortality bring no comfort to the African region. What is disconcerting about the estimates is not only that unsafe abortion continues to account for 13 per cent of maternal mortality, but also that, from a regional perspective, Africa’s share of unsafe abortion-related maternal mortality remains quite disproportionate. Africa stands out as the region least positioned to meet the Millennium Development Goal to reduce maternal mortality by three-quarters by 2015.

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Will Nubian children have to go to the African Court?

Ayalew Getachew Assefa

Author: Ayalew Getachew Assefa
Lecturer in Law, Makelle University, Ethiopia

Reflections on the Decision of the African Committee of Experts on the Rights and Welfare of the Child concerning the violation of the rights of Nubian children in Kenya

The African Committee of Experts on the Rights and Welfare of the Child (the Committee) has recently made a decision on the communication concerning the violation of the rights of Nubian children in Kenya. (Communication 002/2009 Institute for Human Rights and Development in Africa and Open Society Justice Initiative on behalf of children of Nubian descent in Kenya v Kenya). This body’s first ever decision tells much about the avowed intent of the Committee to address the challenges of the Nubian children as it goes a great length despite the continuous disregard of cooperation from the government of Kenya. In its well-articulated decision, the Committee finds the Government of Kenya in violation of the right to non-discrimination, nationality, health and health services, protection against statelessness and education of Nubian Children living in Kenya. Addressing a wide range of issues, the Committee even goes beyond what was requested by the applicant and interpreted Article 31 of the African Charter on the Rights and Welfare of the Child (African Children’s Charter) in the light of the issues raised (para 66).

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An intra-african dialogue in the new era of constitutionalism

Author: Prof Charles Fombad
Professor, Centre for Human Rights; Head, Unit on Comparative African Constitutional Law at the Institute for International and Comparative Law in Africa

For perhaps too long, the conventional wisdom has been that the best can come only from abroad; meaning Europe and America. From the perspective of constitutional law, the South African Constitution did more than just provide a clean break with the past. It provided a modern constitution which successfully borrowed and adapted many of the best principles from some of the major modern European constitutional models to fit with the realities of the country. Whilst not perfect, and there shall never be a perfect constitution, it shows how Africans can creatively find solutions to their problems.But it is perhaps the South African Constitutional Court, through the voluminous amount of jurisprudence that it has produced since 1995,that has attracted the most attention from constitutional experts all over the world and given rise to the feeling that the centre of modern constitutionalism might well be moving to Africa. For a continent that has been obsessed with blindly copying from the former colonial powers, there are many reasons to start looking at itself.Even the 1990s constitutional reforms in other African countries were still influenced by the inherited colonial constitutional models.

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30 years of the African Charter on Human and Peoples’ Rights: Challenges, progress and prospects for Portuguese speaking African countries

Author: Emerson U Lopes
Legal Consultant, SAL & Caldeira Advogados, Mozambique

During its 30 years of existence, the African Charter on Human and Peoples’ Rights and its enforcement mechanism, the African Commission on Human and Peoples’ Rights, have not been used much by citizens of Portuguese speaking African Countries (Angola, Cape Verde, Guinea-Bissau, Mozambique and Sao Tomé e Príncipe, hereafter referred to as PALOP).

What is the reason behind the lack of participation by PALOP citizens in the African human rights system? Could this mean that PALOP States have a better human rights record than other State Parties?

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Reform needed in the laws of demonstrations in Africa

Author: Prof Christof Heyns
Professor of Human Rights Law; Co-director, Institute for International and Comparative Law in Africa at the University of Pretoria; United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions

Many lives have recently been lost in Africa, as in other parts of the world, when demonstrations have turned fatally violent. This has been clearly seen inthe countries of the so-called Arab Spring, but numerous Sub-Saharan countries – Nigeria, Ivory Coast, Senegal, Malawi and South Africa come to mind – have also experienced violent and indeed deadly marches.

These demonstrations reveal the need to bring the legal and policy regimes that govern such expressions of popular opinion into line with human rights standards.

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The role of regionalism in the restructuring of the United Nations

Author: Prof Anél Ferreira-Snyman
Professor, Department of Jurisprudence at the University of South Africa

One of the most pressing current international issues is the restructuring of the United Nations (UN). The changing international realities since its inception in 1945 have had a significant impact on the functioning and structure of the UN and reform of the international institution is therefore increasingly proposed and debated.

Included in these changing realities is the (renewed) process of regional integration in various parts of the world. States transfer certain aspects of their national sovereignty to regional organisations, as they realise that there are certain issues of common concern that they cannot address independently.

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