Extraction and right to food in Mozambique: Empty promises to empty plates
Posted: 24 August, 2015 Filed under: Nastasia Thebaud-Bouillon | Tags: access to education, Cabo Delgado, coal, development, extraction, extractive industries, foreign multinational companies, graphite, infertile land, mining, Mozambique, rural communities, social impact, Tete, urban development 1 Comment
Author: Nastasia Thebaud-Bouillon
Student (LLM in Human Rights and Democratisation in Africa), Centre for Human Rights, Faculty of Law, University of Pretoria
Piece of land used to mean peace of mind in Mozambique. But the day extractive industries came in the North and started resettling communities, everything disappeared: piece of land alongside peace of mind. The cocktail was simple: a promise of new land, a better house and employment. The result was far from that; eviction without proper compensation, and relocation to empty bare lands with no opportunity to grow food for their subsistence. Not to mention that these resettlement lands were far from market opportunities.
Research conducted in Mozambique in April 2015 shows that mining has not brought the development and services communities expected in Tete and Cabo Delgado provinces in Northern and Central Mozambique. Extraction has often been conducted more to the detriment than to the benefits of host communities. This is mainly due to the lack of capacity of authorities in dealing with foreign multinational companies.
To achieve transformation, Kenyan law needs to shun a hierarchy of sources
Posted: 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 5 Comments
Author: Humphrey Sipalla
Freelance editor
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 Venda
Posted: 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 Africa
Posted: 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.
No woman should die while giving life: Maternal mortality – the unfinished business of the MDG era
Posted: 21 July, 2015 Filed under: Dunia Mekonnen Tegegn | Tags: abortion, access to education, Beijing Platform of Action, birth, CEDAW, childbearing, death, discrimination, family, family planning, fertility, health, marriage, maternal death, maternal health, maternal mortality, pregnancy, right to life, sexual and reproductive health rights, women's rights 2 Comments
Author: Dunia Mekonnen Tegegn
Human rights lawyer, Ethiopia
Maternal mortality is one of the shocking failures of development and a dreadful social injustice. According to recent UN official figures, 536,000 women die every year during pregnancy and birth. This is one death every minute. Out of the 536,000 maternal deaths, 99% are experienced by women in developing countries. The highest maternal mortality rates are in Africa; with a lifetime risk of 1 in 16. Maternal death is often the result of policy decisions that directly or indirectly discriminate against women. Maternal death is also often an indication of inequalities between men and women in their enjoyment of the right to the highest attainable standard of health. Below I illustrate how other rights are either implicated by or essential in combating maternal mortality.
The African Youth Charter and the role of regional institutions in an age of Africa rising
Posted: 6 July, 2015 Filed under: Romola Adeola | Tags: ACHPR, Africa, African Charter on Human, African Commission on Human and Peoples’ Rights, African Union Commission, African Youth Charter, enforcement mechanisms, human rights, Pan-African Parliament, regional, Youth Charter 3 Comments
Author: Romola Adeola
LLD candidate, Centre for Human Rights, University of Pretoria
The African Youth Charter (Youth Charter) was adopted by African heads of states and government in Banjul, the Gambia on the 2nd of July 2006. Upon the attainment of 15 ratifications as required in article 30(2), the Youth Charter entered into force on 8 August 2009.
As the first international treaty on youth development, the Youth Charter bears a significant place in the protection of the rights of young persons. Although its jurisdictional scope is Africa, the Youth Charter sets a standard for the international community in the development of norms for the protection of young persons. In its ‘Definitions’ section, the Youth Charter sets the age for ‘youth or young people’ within the ages of 15 and 35 years. As at 2014, 36 African Union (AU) states had ratified the Youth Charter while 42 AU states had signed.
The Youth Charter contains 31 provisions and places significant emphasis on human rights. While re-emphasising some of the rights contained in the African Charter on Human and Peoples’ Rights (ACHPR), the Youth Charter goes a step further in providing for the right to gainful employment (article 15); right to rest and leisure (article 22) and the right of youths with disabilities (article 24). Articles 10 and 14 of the Youth Charter offer expositions on the content of the right to development of youths in Africa. Importantly, the Youth Charter obligate state parties to ‘promote and ensure through teaching, education and publication’ (article 27) respect for the rights in the Youth Charter. State parties are further mandated ‘to see to it that these freedoms, rights and responsibilities as well as corresponding obligations and duties are understood’ (article 27). Although the Youth Charter obligate state parties to take ‘necessary steps’ in the realisation of the obligations contained in it (article 1(2)); the Youth Charter does not provide adequate enforcement mechanisms at the regional level.
Some reflections on the current Africa’s project on the establishment of African Court of Justice and Human Right (ACJHR)
Posted: 29 June, 2015 Filed under: Tefera Degu Addis | Tags: ACJHR, Africa, African Court of Justice and Human Rights, African Union, AU Summit, challenges, crimes against humanity, customary international law, genocide, ICC, International Criminal Court, International Criminal law, International Tribunal, jurisdiction, opportunites, Protocol, Rome Statute, United Nations, war crimes 2 Comments
Author: Tefera Degu Addis
LLM candidate, International Human Rights and Humanitarian Law, University of Essex School of Law, UK
It has been more than thirteen years since the ICC was established and started its operation on most serious crimes of international concern, namely genocide, crime against humanity, crimes of war and aggression. The court is established by virtue of the Rome Statute as a permanent international criminal tribunal independent from other UN bodies. To date, all cases that have been investigated by ICC are from Africa. African countries generally have cooperated in the early stages of the establishment of ICC.
Nowadays, however, it seems that the relationship between the ICC and Africa is turning into a growing trend of contention. It has been a point of discussion in the academia and in the international politics as to whether the court is indeed exclusively targeting Africa regardless of their contribution and cooperation in the creation and advancement of ICC. The AU and various leaders in Africa have expressed their dissatisfaction in different occasions that the court is “neo-colonialist policy” or “post-colonial court.” As a result, the AU in 2008 adopted a protocol on the establishment of African Court of Justice and Human Rights (ACJHR). The protocol is being circulated and so far 11 countries have signed the document. Last year at the AU Summit, the current president of Kenya urged for the immediate establishment of the court.
Notwithstanding the current uncertainty about the fate of the Draft Protocol and thereby the establishment of the ACJHR, it is worthwhile to examine some of the challenges and opportunities that the court might face and the future of international criminal justice in Africa.
The SADC Tribunal: Concerted efforts for waves of change we want to see
Posted: 19 June, 2015 Filed under: Patricia Mwanyisa | Tags: 2014 Protocol, access to justice, AEC, African Charter, Campbell Case, civil society, COMESA, ECCAS, ECOWAS, IGAD, justice, lawyers, legal mechanisms, ratification, RECs, SADC, SADC Heads of States, SADC Tribunal, Southern African Development Community, Zimbabwe 5 Comments
Author: Patricia Mwanyisa
Human Rights, Justice and Rule of Law Programme Officer, Open Society Initiative for Southern Africa (OSISA)
Victoria Falls in Zimbabwe is known for its spectacular and majestic water falls. In August last year it was not just water that was falling at Victoria Falls but the SADC Tribunal as we know it fell spectacularly as leaders from the Southern African Development Community approved a new protocol to reconstitute the SADC Tribunal. The new tribunal has a limited mandate. By adopting a new protocol, the leaders effectively buried the SADC Tribunal which used to operate under the 2000 protocol. They decided to ignore recommendations from their own legal advisors and attorney generals and created a new Tribunal whose mandate is limited only to the adjudication of inter-state disputes. Simply put, under the 2014 Protocol, citizens are deprived of their right to refer a dispute between themselves and their government to the SADC Tribunal. Without a tribunal, justice and redress will remain elusive for people of the region.
It is important to remember that central to the demise of the tribunal is the case of Mike Campbell and Others v Zimbabwe (Campbell Case) in which the Tribunal found in favor of Zimbabwean white farmers whose land had been compulsorily acquired and without compensation by the Zimbabwean government. In retaliation Zimbabwe strategically attacked the jurisdiction and operation of the tribunal, mobilized support for its suspension and ultimately, its eventual disbandment. By succumbing to the demands of Zimbabwe, SADC Heads of state have ultimately eliminated the access of individuals and groups to the Tribunal at the behest of one State [Zimbabwe] and consequently depriving the entire region of the benefits of such an important institution. Discussions and decisions on the utility of the Tribunal should rather surpass the opinion of one State’s argument based on just one case and personal short term gains. Even so, Zimbabweans themselves and particularly politicians and elected MPs who represent the people of that country must objectively review the wisdom in taking such a stance – more so at a time when Zimbabwe chairs the SADC bloc. They must never forget that they too are ordinary individuals who also depend on fair, transparent and accessible judicial mechanisms which they may need at some point in their lives regardless of their political affiliations. That is, at any given time the tide turns, politicians whether in opposition or in power are susceptible to becoming victims of State sanctioned attacks on the dignity of individuals, including political violence.
Sexual violence against children: Are girls in Mozambique little angels or sex objects?
Posted: 15 June, 2015 Filed under: Michael Addaney | Tags: African Charter on Human and Peoples' Rights, African Charter on the Rights and Welfare of the Child, Child Assault Units, child marriages, child protsitution, child sexual abuse, Children and Social Affairs, Children’s Act of 2008, Children’s Court, constitution, Convention on Elimination of all forms of Discrimination against Women, Convention on the Rights of the Child, CRC, cruel treatment, family, health, international human rights obligations, Juvenile Justice Act of 2008, Ministry of Gender, Mozambique, post-trauma counselling, rights and welfare of children., sexual violence, UNICEF, victims, violent 2 CommentsAuthor: Michael Addaney
Student (MPhil Human Rights and Democratisation in Africa), Centre for Human Rights, Faculty of Law, University of Pretoria
Global statistics indicate that child sexual abuse is increasing with an estimated 150 million girls and 73 million boys under the age of 18 having experienced forced sexual intercourse or other forms of sexual abuse. According to the East, Central and Southern Africa Health Commission, one out of three girls in Sub-Saharan African experiences some form of sexual violence before the age of 18. In Mozambique alone, 33% of children between 12 and 15 years have been victims of sexual violence, one of the highest rates in the world.
Also, the United Nations Children’s Fund (UNICEF) observes that child prostitution is a growing concern in Mozambique. The Mozambican Ministry of Gender, Children and Social Affairs links the increased sexual violence with the country’s failure in the realisation of the child’s right to education with an estimated 36% of girls aged between 13 and 18 years married instead of being in school.
This situation is also attributed to the Mozambican civil war which weakened institutions particularly those protecting the rights and welfare of children. Despite major sector-specific strategic frameworks to combat sexual violence against children, these are often done with little consultation and coordination. This has had a deleterious effect on the enforcement of children’s rights through the existing legal and institutional arrangements.
Meanwhile, Mozambique is a state party to the Convention on the Rights of the Child (CRC), African Charter on the Rights and Welfare of the Child (ACRWC), African Charter on Human and Peoples’ Rights (African Charter), Convention on Elimination of all forms of Discrimination against Women (CEDAW) and all the relevant international human rights instruments. The domestic framework for addressing sexual violence against children includes the Children’s Act of 2008 and Juvenile Justice Act of 2008 which translate the CRC and the ACRWC into national child rights legislation.
Rising against the silencing of the SADC Tribunal: Tanzania
Posted: 5 June, 2015 Filed under: Gertrude Mafoa Quan | Tags: democracy, dispute settlement, good governance, human rights, human rights violations, inter-State disputes, President Jakaya Kikwet, Protocol on the SADC Tribunal, rule of law, Rulings of the Tribunal, SADC, SADC Treaty, SADC Tribunal, South African community, Tanzania, watchdog Leave a comment
Author: Gertrude Mafoa Quan
Candidate Attorney; LLM (Multidisciplinary Human Rights) student at the Centre for Human Rights, University of Pretoria
‘We have created a monster that will devour us all’.
These were the words of Tanzanian President Jakaya Kikwete regarding the SADC Tribunal. This is at best an expression that is the epitome of the fear of SADC leaders of an existing and functioning Tribunal.
Like in many other regions, the SADC tribunal served as the mechanism through which the region’s dispute could be settled. One of the goals of the treaty was to establish a tribunal (which it did) and that the “[t]ribunal shall be constituted to ensure the adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it” ( SADC Treaty, 1992, Article 16.1). Perhaps one of its most striking promises was in Article 4(c) which bluntly states that ‘ SADC and its Member States shall act in accordance with the principles of human rights, democracy, and the rule of law’. The implication is that all member States could indeed be held accountable should any of the said principles in Article 4(c) be violated. According to the Protocol on the SADC Tribunal, subject to the exhaustion of local remedies, all companies and individuals may approach the Tribunal to seek remedy if and when a member State has infringed on their rights (Article 15).
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