The right to health for refugees in South Africa: Concrete reality or wishful thinking?
Posted: 13 December, 2017 Filed under: Cristiano d'Orsi | Tags: 2003 National Health Act, African Charter of Human and Peoples’ Rights, CEDAW, domestic law, health services, healthcare services, ICERD, ICESCR, National Strategic Health Plan, OHCHR, political rights, refugee convention, refugees, right to health, right to health care, SAHRC, socio-economic rights, South Africa, Universal Declaration of Human Rights, xenophobia 1 Comment
Author: Cristiano d’Orsi
Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg
Scope of the study: How the ‘right to health’ is intended in this work
South Africa (SA) is one of the largest economies in Africa. Since December 2010 the country is a member of the informal association of five major emerging world economies (BRICS) and the only African country to be a member of the G20, the major international forum for economic cooperation and policymaking.
At the end of 2016, SA was reported to be hosting 91,043 refugees.
Although SA has ratified a good number of human rights legal instruments since the end of apartheid, in 1994, , the actual implementation of the rights enshrined in some of them still remain problematic. One such right is the right of refugees to have access to adequate healthcare in the country.
This situation occurs also because access healthcare services in SA, as with many other fundamental rights in the republic, has historically been biased in terms of a number of arbitrary grounds (p. 55).
South Africa’s intention to withdraw from the Rome Statute of the International Criminal Court: Time to seriously consider an African alternative?
Posted: 28 October, 2016 Filed under: Owiso Owiso | Tags: Africa, African Charter, African Charter of Human and Peoples’ Rights, African Court of Justice and Human Rights, African Union, AU, Election and Governance, frican Charter on Democracy, human rights, ICC, impunity, International Criminal Court, International Criminal law, justice, Kenya, Malabo Protocol, Omar Al-Bashir, Rome Statute, South Africa, Sudan, Uhuru Kenyatta, United Nations, United Nations Security Council, William Ruto 1 Comment
Author: Owiso Owiso
LLB – Nairobi, PGD Law – KSL
While the decision by South Africa to commence the formal process of withdrawing from the Rome Statute of the International Criminal Court is shocking, honest observers will admit it was not entirely unforeseen. African countries through the African Union (AU) have long voiced misgivings about the International Criminal Court (ICC) and it was just a matter of time before the usually slow-moving AU clock started ticking. The AU had earlier this year urged its members to consider withdrawing from the Rome Statute.[1] This was triggered by the refusal by the United Nations Security Council and the ICC to accede to the AU’s requests for suspension or termination of the cases against Sudan’s president Omar al-Bashir and his Kenyan counterpart Uhuru Kenyatta and his deputy William Ruto.
While South Africa’s decision should be condemned, nothing much is likely to come of such condemnation. Treaties are a product of state consent[2] and it follows that withdrawal is equally a unilateral act of the state.[3] Even if an argument could be advanced against such unilateralism, the process is still a political one which rests almost entirely with the political class, at least in imperfect democracies. South Africa’s move is likely to embolden other African countries to commence similar processes. South Africa is Africa’s biggest economy and the AU’s largest member contributor. It is also arguably one of Africa’s better-off imperfect democracies. For these reasons, it is often the case in continental affairs that other African countries hold on to their cards until South Africa plays after which they emerge from their cocoons and play theirs in more or less similar fashion. With the possible exception of ‘righteous’ Botswana and perhaps Mauritius that considers itself African only when the situation suits it, the possibility that other African countries will follow South Africa’s lead on the ICC cannot be ruled out. In light of such possibility, how then does Africa assure its citizens that the fight against impunity as is entrenched in its founding instrument[4] is still top of its agenda, if at all it ever was?
It’s official: The East African Court of Justice can now adjudicate human rights cases
Posted: 1 February, 2016 Filed under: Ally Possi | Tags: African Charter of Human and Peoples’ Rights, Appellate Division, EAC, EAC Member States, EACJ, East African Community, East African Court of Justice, First Instance Division, human rights jurisdiction, rule of law, Vienna Convention 4 Comments
Author: Ally Possi
Lecturer, Law School of Tanzania; Advocate of the High Court of Tanzania
The legitimacy of the East African Court of Justice (EACJ) to adjudicate human rights cases has been a debatable aspect ever since the Court’s inception. Articles 6(d) and 7(2) of the East African Community (EAC) Treaty mention human rights, which ordinarily the EACJ is mandated to interpret. However, article 27(2) of the Treaty implies to suspend what seems to be a legitimate human rights authority of the Court. Consequently, articles 6(d), 7(2) and 27(2) have made litigants, legal scholars and even EACJ judges to be at cross-roads with respect to EACJ’s human rights jurisdiction.
The recent decision in Democratic Party v. The Secretary General of the EAC, Appeal No. 1 of 2014 (Democratic Party case) will make the functioning of the EACJ rather interesting within the near future. In that case, the EACJ unequivocally held that it has ‘jurisdiction to interpret the Charter [African Charter on Human and Peoples’ Rights herein the African Charter] in the context of the [EAC] Treaty.’ This lining of the decision becomes more authoritative as it is from the Appellate Division section of the Court.
Of Tanzania’s cybercrimes law and the threat to freedom of expression and information
Posted: 25 May, 2015 Filed under: Daniel Marari | Tags: African Charter of Human and Peoples’ Rights, bloggers, criminal, Cybercrimes Bill, cyberlaw, democracy, democratic society, digital communication, electronic communications, European Court of Human Rights, European Union, freedom of expression, freedom of expression and information, human rights, human rights abuses, human rights defenders, information, international treaties, Jakaya Kikwete, journalists, privacy, right to privacy, Tanzania, Tanzanian Constitution, Universal Declaration for Human Rights 4 Comments
Author: Daniel Marari
LLM, International Human Rights Law, Lund University, Sweden
On May 8th, 2015 a press release revealed that the Tanzanian President, Jakaya Kikwete, has signed the controversial Cybercrimes Bill which seeks to criminalize acts related to computer systems and information and communication technologies and to provide for a system of investigation, collection and use of electronic evidence. The said law has serious implications for constitutional and international human rights, particularly freedom of expression and information online and the right to privacy. The most controversial provisions relate to criminalization of sharing of information, extensive police powers of search and seizure, surveillance without judicial authorization as well numerous vaguely defined offences.
It is important to note that that freedom of expression is one of the fundamental aspects of human life. As human beings, we need freedom to develop and share thoughts or ideas about things that happen and influence the way we live. Freedom of opinion, expression and information encourages free debate and plurality of ideas which is important for development of any society. More importantly, these rights are internationally recognised human rights. They are engrained in the Universal Declaration of Human Rights 1948 (art.19), the International Covenant on Civil and Political Rights, 1966 (art.19) and the African Charter on Human and Peoples Rights 1981 (art.9), all of which have been ratified by Tanzania.
Human rights and democratisation in Africa
Posted: 26 August, 2014 Filed under: Sheriff Kumba Jobe | Tags: Africa, African Charter of Human and Peoples’ Rights, African Union, AU, conflicts, democratisation, European Union, governance, human rights, Inter-American Organisation 1 Comment
Author: Sheriff Kumba Jobe
2014 Graduate, Faculty of Law, University of The Gambia
The globalisation of human rights and democratisation has gained significant momentum in the 21st Century. It has proved to be the linchpin of progressive and sustainable socio-economic and political development for other continental organisations such as European Union and Inter-American Organisation. It is unfortunate that the African Union (AU) has done little or nothing in the actualisation and application of these universal principles in its member states. There are plethora legal frameworks geared toward promoting and protecting human rights and democratisation in Africa. However, they have translated meaningless because their practical applications are neglected.
The establishment of the AU inter alia is anchored on the promotion and protection of human rights and democratisation in Africa. This is as a result of the inhuman and undemocratic experiences of the continent under the so-called colonial masters’ bad governance. In an attempt to correct the human rights catastrophes perpetrated by colonial institutions, the AU was created. Thus, the sole intent of the drafters of the Organisation’s legal framework and indeed the yearning and aspiration of the people of the continent was to create a continental institution to promote and protect human rights and democratisation which are essential for the development of Africa.
However, legally construing the AU Charter, it creates no legal binding obligation on state parties for promotion and protection of human rights and democratisation in Africa. Although, it requires member states to have due regard for human rights and democratisation as enshrined under international law; and also promulgated plethora continental laws aimed at mandating state parties to promote and protect these concepts.
A deadly blow for women’s rights in Lesotho
Posted: 19 June, 2014 Filed under: Bamisaye Olawaye Oyetola | Tags: ACHPR, African Charter of Human and Peoples’ Rights, Basotho, CEDAW, chieftainship, constitution, Convention on the Elimination of all forms of Discrimination against Women, customary law, democracy, human rights, ICECSR, inheritance, International Covenant on Economic, International Covenant on Economic Social and Cultural Rights, Kingdom of Lesotho, Lesotho, women's rights 30 Comments
Author: Bamisaye Olawaye Oyetola
LLM Candidate, Human Rights and Democratisation in Africa, Centre for Human Rights, University of Pretoria
This article is a result of field research in Lesotho conducted from 5-12 April 2014.
The Court of Appeal of Lesotho (apex court) gave a decision that will make the hearts of all human rights defenders bleed. The decision is a setback to the fight for equality and for the recognition of women’s rights as human rights.
The case in question is that of SENATE GABASHEANE MASUPHA V. THE SENIOR RESIDENT MAGISTRATE FOR SUBORDINATE COURT OF BEREA & OTHERS. (SENATE’S CASE). The judgment was delivered on 17 April 2014.
The facts of the case in brief are; the appellant is the first daughter and only legal child of the deceased chief in Lesotho. Upon her father’s death, the mother assumed the chieftainship position of the deceased. And not too long, the mother passed on and the appellant sought to inherit the chieftainship of her father which devolved to her late mother, she was denied her right. Her half-brother from another woman who her father had not legally married will be entitled to the said title, based on the fact that women are not allowed to succeed their father with regards to chieftainship matters under the customary law of the Basotho people.
The appellant angered by this discriminatory practice, challenged it at the constitutional court but did not succeed; she appealed the decision at the apex court to enforce her right to chieftainship but also had no success.
Drawing lessons from the protection of taxpayers’ rights in Europe
Posted: 13 November, 2013 Filed under: Eric Ntini Kasoko | Tags: Africa, African Charter of Human and Peoples’ Rights, citizens, Court of Justice, Economic Community of West African, Europe, European Court of Justice, European Court on Human Rights, fundamental rights and freedoms, human rights, international human rights law, investments, law, right to property, rule of law, tax, tax legislation, taxpayers, The National Co-ordinating Group of Departmental Representatives of the Cocoa-Coffee Sector v Côte d’Ivoire Leave a comment
Author: Eric Ntini Kasoko
PhD candidate, University of Liege (Belgium)
“You can have a Lord, you can have a King, but the man to fear is the tax collector”- Sumerian proverb.
Today, fearing the tax man does not seem to hold true when it comes to the protection of taxpayers’ rights in most European countries. Indeed, for several decades now, taxpayers’ rights in Europe have been benefiting from internationalisation of human rights process. Under the impulse of case law from the European Court on Human Rights (ECHR) and the European Court of Justice (ECJ), human rights have become a fundamental part of taxation. While Africa is running the marathon of attracting and boosting private investments, it may be vital to stimulate the interaction of these two areas of law as a means to strengthen the rule of law on the continent.
In Africa, tax is primarily regarded as a civic duty. Article 29 (6) of the African Charter of Human and Peoples’ Rights (hereinafter referred to as “the Charter”) states that “the individual shall also have the duty (…) to pay taxes imposed by law in the interest of the society”. It follows in particular that the state has the right to levy taxes on its citizens, whether individual or corporate. In contrast, citizens are entitled to enjoy property rights in respect of Article 14 of the Charter or any other pertinent instrument relating to international human rights law. Since the state and its citizens have opposing interests, a balance is obviously required between the individual’s right to property and the state’s right of establishing taxes. In others words, in case of a dispute regarding taxation, the judge should be able to censure any excessively high tax burden on citizens.
AfricLaw 
The right to life in Africa: General Comment No. 3 on the African Charter on Human and Peoples’ Rights
Posted: 10 February, 2016 | Author: AfricLaw | Filed under: Paul Ogendi | Tags: 57th Ordinary Session, abolition, Africa, African, African Charter, African Charter of Human and Peoples’ Rights, African Commission, African Commission on Human and Peoples’ Rights, albinos, customary international law, death penalty, dignified life, General Comment, IHL, international human rights law, non-discriminatio, poverty, protection of the right to life, Resolution 263, Resolution 275, right to life, sexual minoroties, use of force | 3 CommentsResearcher, Working Group on death penalty and extrajudicial summary or arbitrary killings in Africa, African Commission on Human and Peoples’ Rights
During its 57th Ordinary Session held from 4 to 18 November 2015 in Banjul, The Gambia, the African Commission on Human and Peoples’ Rights (the Commission) adopted General Comment No. 3 on the African Charter on Human and Peoples’ Rights (General Comment No. 3) focusing on the right to life.
The document is timely because the protection of the right to life is currently under threat globally. Africa is no exception.
The Commission in 2012 expanded the work of one of its working groups focusing on the right to life to include not just death penalty but also extrajudicial, summary and arbitrary killings in Africa.
Some of the salient features of the new General Comment are discussed below.
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