Homosexuality v. homophobia, which is criminal?
Posted: 21 January, 2013 Filed under: Joelle Dountio | Tags: Africa, African traditions, civil rights, corrective rape, female genital mutilation, HIV/Aids, homophobia, homosexuality, human rights, International Bill of Rights, international human rights, political rights, privacy, religion, right to freedom of association, Rwanda, traditional cultural beliefs 7 Comments
Author: Joelle Dountio
PhD candidate, Faculty of Law, University of Pretoria
Religion, traditional cultural beliefs and law are all used by humans to fuel hatred, stigma, and discrimination towards homosexuals. The rights to equality, non-discrimination and freedom from torture, cruel, inhuman and degrading treatment as upheld by the International Bill of Rights and other human rights instruments are, for the most part, all recognised in the constitutions and other national laws of most African countries. However, 36 of the 54 African countries have punitive laws on homosexuality. Meanwhile, homosexuality is a sexual orientation and a prohibited ground for discrimination under international human rights law (Toonen v. Australia).
Historically, religion has been used to justify some of the worst atrocities committed against human beings. Some of these atrocities include: slavery, the holocaust, apartheid, racism and terrorism. Today, the Bible is used to justify homophobia based on the famous kingdoms of Sodom and Gomorrah. The question I ask is, does the Bible really mean that we should kill these people as is happening today? And even if it does mean this, what about other practices for which the Bible says people should be killed? This Bible says married women who have sexual relations outside their marriage should be killed. The Bible says we should sell all we have and give the money to the poor. The Bible says we should not make carved images of anything in heaven. Why do Christians not apply these? Apparently man chooses to follow only those sections of the Bible which suit him and enable him to meet his selfish goal irrespective of the consequences to others. Is this not hypocrisy?
Note to AfricLaw users and visitors
Posted: 6 December, 2012 Filed under: AfricLaw 1 CommentAs you know, this year (2012) marked the launch of the AfricLaw blog by the Centre for Human Rights and the Institute for International and Comparative Law in Africa, University of Pretoria.
AfricLaw would like to thank you for your support in its first year of operation, for regularly visiting and commenting on posts on this blog. Equally, AfricLaw would like to thank all contributors for trusting AfricLaw to publish their invaluable contribution to discussions on the rule and role of law in Africa, mainly as regards human rights.
It remains AfricLaw’s mission to provide a platform for discussion around issues on the rule and role of law in Africa and to further strengthen African capacity in the field of law, through informed and engaged discussion.
We trust you will continue to support AfricLaw in the future and that you will also share ideas from the blog with colleagues and friends.
We furthermore hope that you extend an invitation for further contributions to students, academics, researchers, international and national civil servants, legislators and politicians, legal practitioners and judges you may know.
AfricLaw wishes you a peaceful year-end holiday and we hope to ‘see’ you next year when posting will resume (note that contributions are still welcome throughout the holidays).
– AfricLaw Editorial Team
Does the new Women Empowerment and Gender Equality Bill fill the gaps?
Posted: 20 November, 2012 Filed under: Maya Perez Aronsson | Tags: bisexual, Committee on Elimination of Discrimination Against Women (CEDAW), corrective rape, disability, gay, gender-based violence, intersexed, lesbian, LGBTI, sexual orientation, transgender, United Nations 1 Comment
Author: Maya Perez Aronsson
Intern, Centre for Human Rights, Faculty of Law, University of Pretoria
South Africa has some of the most progressive legislation on gender equality in the world yet there is a lack of de facto equality in this country. A new Bill has been put forth to further promote women empowerment and gender equality – will this be the solution?
In September 2012 the Department of Women, Children and People with Disabilities presented the Women Empowerment and Gender Equality Bill (the Equality Bill). The purpose of the new Bill is to establish a legislative framework for the empowerment of women and to provide an obligation to adopt and implement gender mainstreaming. The Bill includes detailed provisions regarding these issues such as encouraging the recognition of the economic value of the roles of women in various sectors of life, and the achievement of at least 50 % representation and participation of women in decision-making structures in all entities.
Human rights are inherent to all, criminals or not – even in Kenya
Posted: 8 November, 2012 Filed under: Humphrey Sipalla | Tags: constitution, crime, human rights, Kenya, Marikana, police, separatist, use of force, violence 2 Comments
Author: Humphrey Sipalla
Publications and Communications Officer at the Institute for Human Rights and Development in Africa (IHRDA)
The whole world watched with horror the events in Marikana, South Africa and even worse, the manner in which the police defended their actions ultimately including the arrest and charging of some of the striking mine workers.
South Africa is not alone in these twisted perceptions of the morality of state monopoly of violence. Kenya is witnessing the re-awakening of a state-centric oxymoronic violent morality. In the last few weeks, after a High Court decision declared illegal the proscription of the Mombasa Republican Council (MRC), this separatist movement, misguidedly revived and threatened to disrupt national school leaving exams among other separatist acts. A police crackdown ensued, culminating on 15 October 2012 with the arrest of 38 persons at the house of the MRC Chairman, Omar Mwamnuadzi. Two people were killed, a gun and 15 rounds of ammunition recovered together with several petrol bombs, including one that was hurled at the officers conducting the raid.
A true glimmer of hope or a mere mirage? Term and age limits in the ‘new’ Ethiopia
Posted: 15 October, 2012 Filed under: Adem Kassie Abebe | Tags: constitution, constitutional amendments, Ethiopia, governance, leadership, rule of law, Terms and age limits 1 Comment
Author: Adem Kassie Abebe
Doctoral candidate, Centre for Human Rights, Faculty of Law, University of Pretoria
After spending more than 21 years at the helm of Ethiopian politics, Meles Zenawi died of an unannounced sickness in August 2012. The absolute dominance of the ruling party, the Ethiopian People’s Revolutionary Democratic Front (EPRDF), facilitated the smooth transition of power to the former Deputy Prime Minister, Halemariam Desalegn. Following the confirmation of Hailemariam as the new Prime Minister, the EPRDF announced that it has imposed, as part of its succession policy, two five-year term limits on all ministerial positions, including the position of the Prime Minster.The Party has also set a maximum age limit on the same positions. Henceforth, a Minister cannot be more than 65 years of age.
The Illusion of the Ugandan Constitution
Posted: 27 September, 2012 Filed under: Busingye Kabumba | Tags: constitution, constitutional law, democracy, Museveni, National Resistance Movement, rule of law, Uganda 25 Comments
Author: Busingye Kabumba
Lecturer-in-Law, Human Rights and Peace Centre (HURIPEC), Faculty of Law, Makerere University; Consulting Partner with M/S Development Law Associates
For the past few years, it has been my privilege to teach Constitutional Law at Makerere, the nation’s oldest University. As it is a first year course, I am one of the first teachers who meet with the young impressionable minds that are similarly privileged to gain admission to the law programme. In the course of class discussions, it quickly becomes obvious that even these fresh minds are cynical about the state of constitutionalism in our country, an impression that is only made stronger when we begin to delve into the text and the promise of the 1995 constitution and to compare this not only with our Constitutional history but with the present reality of how the country is being governed. I try as much as possible in these discussions to refrain from infusing my own views into these debates, my intention being to demonstrate the method of constitutional argument and to encourage critical thinking and reflection rather than suggest that there is a ‘right’ answer – which indeed, many times, there is not. This is often frustrating for the students whose constant refrain is: ‘But what is your view?’
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”.
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