I do not agree with what [Malema has] to say but I will defend to the death [his] right to say it – Voltaire
Posted: 19 September, 2012 Filed under: Kenneth Sithebe | Tags: Bill of Rights, freedom of movement, limitation clause, Malema, Marikana, right to assemble, rule of law 3 Comments
Author: Kenneth Sithebe
Student Assistant, Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria
The rule of law is the overarching concern as regards the events in Marikana- after other issues such as: the arrest and charge of the miners only to be released later (see article by Killander on AfricLaw), human dignity, the right to assemble and the right to life were raised. It was appalling to see a South African turned away from a lawful gathering under dubious legal grounds (Regulation of Gatherings Act 205 of 1993) and on the pretence that he ‘might’ incite striking miners to commit a criminal offence. Julius Malema was turned away by police at the Wonderkop stadium, Marikana after he tried to attend a gathering by the striking miners, and possibly to address them.
Nine Judicial Executions in The Gambia Undermine the Rule of Law
Posted: 30 August, 2012 Filed under: Andrew Novak | Tags: Amnesty International, constitution, coup, death penalty, death row, executions, rule of law, The Gambia, treason 6 Comments
Author: Andrew Novak
Adjunct Professor of African Law, American University Washington College of Law
Late at night on 23 August2012 the President of The Gambia, Yahya Jammeh, ordered the executions of nine death row inmates despite international condemnation and even division in his own cabinet. At least three of the death sentences were for the crime of treason; the remaining cases involved murder. Two of the nine were Senegalese nationals, and at least one had been on death row since before the current death penalty law entered into force. These cases are constitutionally troubling and may erode the rule of law in The Gambia, Sub-Saharan Africa’s smallest mainland country with a population of 1,3-million.
On constitutional values, Marikana and the demise of the SADC Tribunal
Posted: 23 August, 2012 Filed under: Magnus Killander | Tags: African Court on Human and Peoples’ Rights, criminal procedure, extreme inequalities, human rights, public violence, right to a fair trial, SADC, South African Constitution, unemployment 6 Comments
Author: Magnus Killander
Senior Lecturer & Head of Research, Centre for Human Rights, University of Pretoria
Section 1 of the Constitution sets out the founding values of the Republic of South Africa: dignity, equality, human rights, non-racialism, non-sexism, constitutional supremacy, rule of law, regular elections, accountability, responsiveness and openness.
The tragic shootings in Marikana, which took place on 16 August 2012, have led not only to much needed discussion on how equipped and prepared the police are to respond to violent protest, but also discussion about the underlying factors which led to these protests, and why they were so violent. Important questions must be asked about the shootings. Video footage of the incident suggests that it was not a clear cut case of self-defence. Accountability must prevail, both for workers responsible for violence and the police. Hopefully the Commission of Inquiry, established by President Jacob Zuma, will receive a broad mandate to investigate not only the shootings, but also a range of related issues related to what happened before and after.
Regulating the sentencing of young offenders convicted of serious crimes: Case law from South Africa and the United States of America
Posted: 26 July, 2012 Filed under: Zita Hansungule | Tags: Centre for Child Law, children, Constitutional Court, criminal law, judgment, parole, sentencing, South Africa, Supreme Court of the United States, young offenders Leave a comment
Author: Zita Hansungule
Assistant Project Co-ordinator, Centre for Child Law, University of Pretoria
Is it constitutional to sentence young offenders according to laws providing for mandatory or minimum sentences? This was the central question raised and answered in two important judgments from the highest courts in South Africa and the United States of America.
On 25 June 2012, the Supreme Court of the United States ruled that the sentencing of youths convicted of murder to mandatory life terms (without the possibility of parole) was in violation of the Eighth Amendment to the United States Constitution. The court had before it two cases involving men who had been convicted of murder and sentenced to life imprisonment without the possibility of parole when they were both 14 years old. In both cases the courts sentencing them did not have the discretion in law to impose different punishments, as State law directed they “die in prison”.
Fumbling Justice: ICC Sentences former Congolese Warlord, Thomas Lubanga Dyilo to 14 years and criticizes Ocampo’s handling of the case
Posted: 20 July, 2012 Filed under: Rebecca Browning | Tags: Anneke van Woudenberg, Charles Taylor, child soldiers, civil war, Democratic Republic of Congo (DRC), International Criminal Court, Ituri Region, The Hague, Thomas Lubanga Dyilo Leave a comment
Author: Rebecca Browning
LLM candidate, University of Amsterdam
The International Criminal Court in The Hague, the Netherlands issued its first sentence since its inception in 2002, sentencing Thomas Lubanga Dyilo (see sentencing judgment), former president of the Union Patriotes Congolais (UPC) to a 14 years jail term on child soldier charges. The sentence is in sharp contrast to the 50-year sentence handed down to Charles Taylor for his involvement in sponsoring the civil war in Sierra Leone in May this year, and reactions were varied, with some calling it too lenient and others praising the measured and coherent sentence and its reasoning.
Lubanga was found guilty on 14 March 2012 of conscripting, enlisting and using children under the age of 15 years to participate actively in hostilities in the Ituri Region of the Democratic Republic of Congo (DRC) between 1 September 2002 and 13 August 2003.He was arrested and transferred to The Hague in 16 March 2006 for his involvement in a long-running civil war for political and military control in the Ituri region in the eastern DRC after being referred to the ICC by DRC President Kabila. Mr Lubanga will receive credit for time served in detention, and will effectively serve an 8-year sentence unless the sentence is overturned by an appeals chamber.
Should the African Union be accountable and answerable to the African Court on Human and Peoples’ Rights?
Posted: 11 July, 2012 Filed under: Roopanand Amar Mahadew | Tags: accountability, African Charter on Human and Peoples' Rights, African Court on Human and Peoples’ Rights, African Union, transparency 1 Comment
Author: Roopanand Amar Mahadew
Doctoral candidate, Department of Political Science, University of Delhi
The African Court on Human and Peoples’ Rights (the Court) has recently delivered a judgment in the case of Femi Falana v The African Union. The judgment is rather controversial on various levels. Firstly, the Court decided to interpret Articles 5(3) and 34(6) which, read jointly, imply that individuals or Non-Governmental Organisations (NGOs) can have access to the Court only if the state from which they are has deposited the declaration accepting the jurisdiction of the Court in accordance with Article 34(6). This was certainly not the issue in the Falana case. What had to be determined was whether the African Union (AU), which is not a state party to the African Charter on Human and Peoples’ Rights or the Protocol establishing the African Court (the Protocol), could be sued and such an interrogation required the interpretation of Articles 3, 30 and 34 (1&4) of the Protocol. Secondly, the Court, at the very onset, failed to consider whether or not it has jurisdiction ratione personae and decided to proceed to judicial consideration of the applications which is procedurally flawed.
Restrictions on the operation of civil society organizations in Africa violate freedom of association
Posted: 11 June, 2012 Filed under: Esete B Faris | Tags: African Charter on Democracy, civil society, CSOs, Egypt, elections, Eritrea, Ethiopia, freedom of association, funding, governance, human rights monitoring, intimidation, limitations, registration, Zimbabwe 4 Comments
Author: Esete B Faris
LLM (Human Rights & Democratisation in Africa) student, Centre for Human Rights, University of Pretoria
The role of civil society cannot be underestimated in Africa. Despite the fact that several governments are suppressive, there is widespread circulation of information on human rights abuses and successes. This is attributable to the immense role that civil society plays. Without a civil society in Africa, the world would not hastily recognise the shortcomings of African leaders’ regimes.
It is undeniable that an independent and effective civil society contributes to the protection and promotion of democracy and human rights in a country. The role of Civil Society Organisations (CSOs) is to serve as a watchdog at the domestic level and international level. This implies that the right to freedom of association is essential for CSOs to operate effectively and efficiently.
Female genital mutilation in South Africa
Posted: 7 June, 2012 Filed under: Barbara Kitui | Tags: childbirth, female genital mutilation, fgm, girls, harmful traditional practices, initiation, legislation, muthuso, postnatal care, South Africa, WHO, women, World Health Organisation 82 Comments
Author: Barbara Kitui
LLM (Human Rights & Democartisation in Africa) student, Centre for Human Rights, University of Pretoria
Female genital mutilation (FGM) is one of the cultural practises embedded amongst the Venda community of north-east of South Africa. Eight weeks or less after childbirth, Venda women undergo a traditional ceremony called muthuso. Muthuso is a process of cutting the vaginal flesh of the mother by a traditional healer. The flesh is mixed with black powder and oil and applied on the child’s head to prevent goni. Goni has been described as a swelling on the back of a child’s head. The Venda people believe that goni can only be cured using the vaginal flesh of the child’s mother. Women who experienced FGM stated that they bleed excessively after the ceremony. Moreover, the women stated that there is no postnatal care in Venda. Consequently, the women use traditional medicine and sometimes this leads to death because of substandard treatment.
AU Assembly should consider human rights implications before adopting the Amending Merged African Court Protocol
Posted: 23 May, 2012 Filed under: Frans Viljoen | Tags: African Court of Justice, African Court of Justice and Human Rights, African Court on Human and Peoples’ Rights, African regional human rights system, criminal responsibility, Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Economic Community of West African States (ECOWAS), erode existing avenues for human rights redress, incompatible mandates, reduction of focus on and resources available, state responsibility 7 Comments
Author: Frans Viljoen
Director, Centre for Human Rights, University of Pretoria; Professor of Human Rights Law
A radical change to the ever-altering African regional judicial landscape is looming large. Meeting in Addis Ababa in mid May 2012, the African Union (AU) ‘Government Experts and Ministers of Justice/Attorneys General on Legal Matters’ adopted the AU – Final Court Protocol – As adopted by the Ministers 17 May (Amending Merged Court Protocol, Exp/Min/IV/Rev.7, 15 May 2012). This draft will in all likelihood serve before the meeting of the AU Heads of State and Government (AU Assembly), to be held in July, in Malawi. If adopted by the AU Assembly, the Protocol will confer upon the to-be-established African Court of Justice and Human Rights the jurisdiction to convict and sentence individuals for international crimes. This paper aims to highlight some concerns, particularly from a human rights angle, about the Amending Merged Court Protocol, in its current form, and argues that the complex implications arising from the suggested amendments require more deliberation and broad inclusive discussion.
The African Union Commission on International Law and the Proposed African Institute of International Law: Where do we go from here?
Posted: 21 May, 2012 Filed under: Olabisi Delebayo Akinkugbe | Tags: African Union, African Union Commission on International Law, Literature on international law, Proposed African Institute of International Law, Studying international law, Teaching international law 5 Comments
Author: Olabisi Delebayo Akinkugbe
PhD candidate at the University of Ottawa, Canada
The author critically reflects on the African Union Commission on International Law (AUCIL) statute of 2009 particularly in relation to its mandate to advance the teaching and development of international law in Africa; examines its relationship with proposed African Union Institute of International Law (AIIL) in Arusha, Tanzania; and calls for an amendment of the AUCIL Statute in order to enhance the achievement of its goals and clarification of some vague areas.
Historically, the discourse in relation to the role of Africa in the development of international law, especially as a contributor or shaper, can be argued was popularised by the works of the late Taslim Olawale Elias who has been criticised in turn by some scholars for his glorification of Africa. The view that Africa contributes and shapes the development of international law arguably inspires the provisions of Article 6(1) of the AUCIL Statute (Codification of International Law) which mandates the AUCIL to codify such aspects of the rules of international law where “there has been extensive State practice, precedent and doctrine in the African continent.” Following suggestions by African international law scholars such as Muna Ndulo for curriculum revisions to include directed teaching on various subjects in relation to Africa and international law, it is encouraging to see that the African Union (AU) has taken a practical step in broaching the question of partnership in the teaching and studying of international law as it concerns the AU with universities and international institutes in Africa under the auspices of the AUCIL. It is hoped that the current effort which has witnessed a worrisome delay in taking off after three years of the adoption of the AUCIL establishing statute is more than a mere rhetoric.
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