To achieve transformation, Kenyan law needs to shun a hierarchy of sourcesPosted: 17 August, 2015 Filed under: Humphrey Sipalla | Tags: constitutional law, dualism, echanistic jurisprudence, hierarchy of sources, ICCPR, ICJ, international law, ius cogens, Kenya, law enforcement, law reform, monism, transformation, transformative constitutionalism, Uhuru Park, use of force, Wangari Maathai 3 Comments
Author: Humphrey Sipalla
It is opined by some in Kenya that the regime of former President Moi hardly broke constitutional law. For the most part, it rather, applying provisos and rigid compartmentalised thinking, bended and stretched it absurdly. There may be some truth to this. Previously on this platform, I opined that Kenyan society is prone to absolutes, in that instance, equating legitimate use of force with its disproportionate immoral use in “law enforcement”. It would seem that the legal fraternity too suffers its own peculiar version of this Kenyan tendency to be rigid.
At a conference on transformative constitutionalism, Prof. Ambreena Manji noted that for Kenya to realise the aims of its visionary transformative constitution, we needed a certain conversion of the soul, not just the mind, of the Kenyan jurist. At this same conference, the Chief Justice of Kenya, Dr Willy Mutunga lamented the old judiciary’s reliance of “mechanistic jurisprudence”. Such judicial policy led to the dismissal of the late Wangari Maathai’s (later Nobel Peace Prize Laureate) 1989 case against government plans to build a 60 storey building on Nairobi’s Uhuru Park as she did not show what injury would befall her were the environment to be spoilt. In 1989 too, the High Court held that the Bill of Rights could not be enforced as the Chief Justice had not issued enforcement rules as obligated by the Constitution. In 1993, again, presidential candidate, Kenneth Matiba’s election petition ground to a halt as he was unable to serve the sitting president with suit papers personally.
Misinterpreting justice in VendaPosted: 13 August, 2015 Filed under: Abiy Alemu Ashenafi | Tags: African languages, Afrikaans, constitution, English, Gauteng, indigenous langugaes, interpreters, language, language barrier, linguistic human rights, official languages, sign language, South Africa, Thohoyandou, Tsivenda, Tsonga, Venda, Xitsonga 1 Comment
Author: Abiy Alemu Ashenafi
Student (LLM in Human Rights and Democratisation in Africa), Centre for Human Rights, Faculty of Law, University of Pretoria
As the High Court in Johannesburg grapples with the question of whether some schools in Gauteng must teach in two languages, in Venda it is the courts themselves which have a language problem.
Too often, individuals who appear before the courts in Venda are denied full access to justice because of the language they speak – or don’t speak. Cities like Thohoyandou and others across Venda attract people from across this diverse country, and not all are fluent in Tsivenda or Xitsonga. While the police in Venda are most often able to articulate the rights of the arrested person in that person’s vernacular, the next step of the judicial process – the courts – might as well be in Greek.
In actuality, the courts in Venda and throughout South Africa use English (and sometimes Afrikaans). All other languages must be translated, and the interpreters employed by the courts must not only translate the words, but also the ideas and concepts behind them, serving as something of a ‘culture broker’.
Needless to say, the meanings of words and phrases are fluid between languages – sometimes within languages. What if the true meaning of words or legal concepts is lost in translation?
It can happen. In Venda, qualified interpreters are often unavailable, meaning the court sometimes utilises interpreters who are not professionals, and who are not made to take an oath. Researchers have recently identified several cases where inadequate translations between English and other South African languages have proved to be an impediment to – if not a miscarriage of – justice. Would you want your loved one’s life or liberty to be at the mercy of a bad translation?
The response of the Africa Union to critical human security threats in AfricaPosted: 7 August, 2015 Filed under: Michael Addaney | Tags: Africa, African Standby Force, African Union, al Shabaab, AU Constitutive Act, Boko Haram, conflicts, economic growth, genocide, human security, international terrorism, leadership, peace and security, Peace and Security Council, poverty, promotion of peace, PSC Protocol, stability, sustainable deve, United Nations Security Council, war Leave a comment
Author: Michael Addaney
Student (MPhil Human Rights and Democratisation in Africa), Centre for Human Rights, Faculty of Law, University of Pretoria
Africa, the second most populous continent with the fastest growing population on the globe faces complex and integrated human security threats. From a broader perspective, human security is far more than the absence of violent conflict. It encompasses respect for human rights, good governance, access to education and health care and ensuring that each individual has opportunities and choices to fulfill his or her potential. In Africa, addressing these issues requires alleviating poverty, promoting economic growth, freedom from fear and access to a healthy natural environment as well as and preventing conflict. Characteristically, Africa is associated with war, poverty, genocide, diseases and grievous abuses of human rights, prolonged armed conflicts and rising terrorist activities. Conventionally, the African Union has adopted several instruments to deal with these peace and security threats. This article focuses on increased armed conflicts and terrorist activities on the continent.