The struggle for prisoners’ voting rights: Analysing the constitutional right to dignity and sovereignty in Kenya
Posted: 18 November, 2024 Filed under: Uday Makokha Keya | Tags: Bill of Rights, democracy, dignity, electoral justice system, equity, fundamental freedoms, general elections, human rights, IEBC, Independent Electoral and Boundaries Commission, Kenya, principles of governance, prisoner`s right to vote, right to dignity, right to vote, Sovereignty, voting rights Leave a comment
Author: Uday Makokha Keya
Third-year law student, Kabarak University
The values on sovereignty of the people, asserted in the constitution of Kenya, imposes on the state the duty to protect, promote and fulfil citizen`s right to elect their representatives as a way of exercising their sovereignty. This right should therefore be achieved through guaranteeing citizens the right to register as voters and, consequently, to elect their leaders. The constitution provides that, every person has a right without unreasonable restriction to be registered as a voter.[1] Therefore, any limitation to the right to vote, has to be necessary,[2] and in accordance to the law.[3] The case of Kituo Cha Sharia V IEBC & 2 Others, affirmed prisoner`s right to vote and elect their representatives linking their right to vote to their dignity, and the exercise of their sovereignty.[4] To guarantee the right to vote to prisoners, they should have equally been provided with the right to register as voters and, to consequently vote in every election cycles.
Protecting African spirituality from stigmatisation: Reflections on the ongoing enquiry by the judicial conduct tribunal into Judge Nomonde Mngqibisa-Thusi’s conduct
Posted: 23 May, 2024 Filed under: Kodisang Bokaba, Konanani Happy Raligilia, Mametlwe Sebei | Tags: African jurisprudence, African spirituality, alleged misconduct, Bill of Rights, culture, Gogo Aubrey Matshiqi, indigenous African people, Judicial Conduct Tribunal, judicial responsibilities, Nomonde Mngqibisa-Thusi, physical isolation, right to religion, Universal Declaration of Human Rights 2 Comments |
Author: Konanani Raligilia Senior Lecturer, Department of Jurisprudence, UNISA |
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Author: Kodisang Bokaba Senior Lecturer, Department of Jurisprudence, UNISA |
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Author: Mametlwe Sebei Contract Lecturer, UNISA |
The question of African spirituality came into the spotlight at the Judicial Conduct Tribunal (Tribunal) into Judge Nomonde Mngqibisa-Thusi’s alleged misconduct for her failure to hand down over 20 judgments due to, among other factors, African spirituality. The Tribunal was held in-camera primarily because Judge Mngqibisa-Thusi was battling with health and personal issues. One of her witnesses was traditional healer, Gogo Aubrey Matshiqi, who testified that the “question of African spirituality must be put on the judicial agenda.” Indeed, African spirituality should not be viewed in isolation from the Constitution. The same Constitution makes provision for the right to religion, belief, and opinion in section 15(1) and to the enjoyment of everyone’s culture, practise their religion and use their language under section 31(1)(a) of the Bill of Rights respectively.
The place of liberal feminism in the struggle for gender equality in Kenya.
Posted: 8 July, 2022 Filed under: Davis Thuranira | Tags: affirmative actions, Bill of Rights, equal participation, feminism, gender discrimination, gender equality, gender inequality, Gender Representation in the National Assembly and the Senate, gender rule, good governance, human rights, Kenya, legal framework, liberal feminism, non-discrimination, patriarchy, Rono v Rono, toxic masculinity, transformative jurisprudence Leave a comment
Author: Davis Thuranira
Student, Kenyatta University, Kenya
Major Premise
The framers of the constitution[1] provided adequate mechanisms to counter gender discrimination and foster equality among all sexes and gender in the country. As a matter of fact, several legal provisions incline to an ideology of equality that seeks to overhaul the existing societal structure which anchors discrimination and unequal treatment of women.
Equality, non-discrimination, inclusiveness and protection of the marginalized are among the key principles featured under Article 10[2]. The provision universally applies to all persons and demands compliance by the state, including its organs, while exercising its constitutional mandate. The state is required to invoke its authority by giving effect to the two-third gender rule. Additionally, these principles and others that support gender equality are emphasized in the constitution since such are the basis for any democratic society that the constitution envisions. The applicability of these principles is mandatory, and the courts have on several occasions emphasized that the principles are not aspirational as argued by critics but realistic, practicable and binding on everyone. In the case of Rono v Rono[3], the Court of Appeal authoritatively asserted that the Constitution shields women from customary succession laws that bar women from inheriting property. The Court held that both male and female children are treated equally before the law and that discriminatory rules are invalid and unconstitutional to the extent that it treats women as inferiors to men. Read the rest of this entry »
Contextualising and Advocating for Sexual Minority Rights within Kenya’s Transformative Constitution
Posted: 27 May, 2022 Filed under: Laureen Mukami Nyamu | Tags: Bill of Rights, dignity, discrimination, equal protection, Gay and Lesbians Human Rights Council, human rights, Kenya, sexual minorities, sexual minority rights, torture, violence 4 Comments
Author: Laureen Mukami Nyamu
Student, Kabarak University School of Law in Nakuru, Kenya
Human rights are inherent to all human beings regardless of race, ethnicity, nationality, religion or other status [1] moreover they are universal but the universality of human rights is not enjoyed by sexual minorities due to discrimination. This discrimination stems from religious, socio- cultural, institutional and discriminatory laws and policies. These factors hamper the full enjoyment of human rights by sexual minorities.
The Constitution of Kenya 2010 is transformative in the realm of human rights by recognising the bill of rights as an integral part of Kenya’s democracy, social, economic and cultural policies and by having an elaborate Bill of Rights that remedies the subversion of human rights which was a characteristic of the repealed constitution. [2] This article will contextualise and show advocacy of sexual minority rights within the constitutional framework and provide a way forward as regards sexual minority rights. Read the rest of this entry »
Has the COVID-19 pandemic exposed the fragility of South Africa’s constitutional democracy?
Posted: 23 July, 2020 Filed under: Paul Mudau | Tags: apartheid-era, Bill of Rights, Collins Khoza, constitutional democracy, coronavirus, COVID-19, COVID-19 pandemic, Cyril Ramaphosa, democracy, Disaster Management Act, extraordinary legal measures, Gary Pienaar, isolation measures, lockdown, lockdown regulations, National Disaster Management Centre, nationwide lockdown, pandemic, PCCC, South Africa, state of emergency, Table of Non-Derogable Rights 3 Comments
Author: Paul Mudau
PhD Candidate and Researcher, School of Law, University of the Witwatersrand
On 15 March 2020, and while owing to medical and scientific advice and with the aim of controlling and managing the invasion and the spread of the invisible enemy, the Coronavirus (COVID-19) pandemic, the President of South Africa Cyril Ramaphosa introduced extraordinary legal measures, placed the country under a nationwide lockdown and sealed its international borders. The lockdown took effect from 27 March 2020. The President simultaneously declared a national state of disaster in terms of section 27 of the Disaster Management Act (52 of 2002). Apart from the 1996 Constitution, the Disaster Management Act is applicable during lockdown together with other relevant statutes such as the Criminal Procedure Act 51 of 1977 and Prevention of Combating and Torture of Persons Act 13 of 2013. This, was followed by a series of announcements and impositions of numerous lockdown Regulations and Directives that require hygienic practices, physical and social distancing, quarantine, and isolation measures.
The right to peaceful assembly and the COVID-19 pandemic: a threatened right; an ironic connection
Posted: 21 May, 2020 Filed under: Foluso Adegalu | Tags: Absolute prohibition, African Charter on Human and Peoples' Rights, African Constitutions, article 11, Bill of Rights, COVID-19, government, international law, national security, Non-prohibition, pandemic, Partial prohibition, peaceful assembly, physical distancing, physical gathering of persons, public safety, social distancing, The right to peaceful assembly 2 Comments
Author: Foluso Adegalu
Centre for Human Rights, University of Pretoria
The right to peaceful assembly enables individuals to express themselves collectively and to participate in shaping their societies and can be of particular importance to marginalised and disenfranchised members of society. The right to peaceful assembly entails a legitimate use of the public space. Although the exercise of the right to peaceful assembly is normally understood to pertain to the physical gathering of persons, comparable human rights protections also apply to acts of collective expression through digital means, for example online gatherings.
The right to peaceful assembly is guaranteed under both international and national laws. The right to peaceful assembly is guaranteed under article 11 of the African Charter on Human and Peoples’ Rights, which provides that:
every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.
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.
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