We must include and empower people with disabilities
Posted: 8 December, 2015 Filed under: William Aseka | Tags: 3 December 2015, Basic Education Act of 2014, constitution, Constitution of Kenya, Convention on the Rights of Persons with Disabilities, CRPD, disability, disability rights, discrimination, education, emplyment, gender, inlcusion, International Day of Persons with Disabilities, Kenya, Kenya National Survey for Persons with Disabilities, political participation, social participation, social particpation, transportation, United Nations 2 Comments
Author: William Aseka
Disability Rights Program Advisor, Kenya Human Rights Commission
Today one billion people around the world are living with disabilities. According to Kenya National Survey for Persons with Disabilities more than three million people in Kenya are living with disabilities. Many persons with disabilities have good jobs and proper education. However, far too many persons with disabilities in Kenya face barriers to inclusion in many key aspects of society. As a result, people with disabilities do not enjoy access to society on an equal basis with others, which includes areas of transportation, employment, and education as well as social and political participation. The right to participate in public life is essential to create stable democracies, active citizenship and reduce inequalities in society.
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?
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 Comments
Author: 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.
Tanzania’s proposed new constitution and the fate of social and economic rights
Posted: 3 February, 2015 Filed under: Daniel Marari | Tags: ACHPR, African Commission on Human and Peoples’ Rights, CESCR, Commission on Economic, constitution, ESR, exclusion, ICESCR, illiteracy, inequality, International Covenant on Economic, justiciability, poverty, Social and Cultural Rights, social and economic rights, Tanzania 3 Comments
Author: Daniel Marari
LLM, International Human Rights Law, Lund University, Sweden
The United Republic of Tanzania is currently in the process of enacting a new constitution. In the text of the final draft of the proposed constitution (http://sheria.go.tz/index.php?option=com_docman&task=cat_view&gid=44&Itemid=68) currently being deliberated by the constituent assembly, are interesting proposals to include important social and economic rights (ESR) as justiciable rights. But the specific content of rights and scope of obligations to be incorporated therein is a matter that is likely to be controversial. Indeed, judicial adjudication of ESR is a matter that is often still disputed or even entirely rejected in many national legal systems. Like many other domestic jurisdictions, Tanzania adopts the idealized distinction of human rights and the popular perception remains that, for lack of constitutional recognition, ESR are simply objectives and principles of state policy as opposed to legally enforceable rights. Nonetheless, socio-economic rights occupy a central place in the well-being of the human person and the international community has accordingly recognised a positive international legal framework imposing varied obligations to advance these rights.
Freedom of expression under attack in Swaziland
Posted: 7 October, 2014 Filed under: Kudzani Ndlovu | Tags: Bheki Makhubu, constitution, control of the media, dissent, freedom of expression, human rights, journalism, journalist, Swaziland, Thulani Maseko 2 Comments
Author: Kudzani Ndlovu
Intern, Katiba Institute, Nairobi, Kenya; MPhil candidate, Centre for Human Rights, University of Pretoria
The recent arrest and imprisonment of The Nation magazine editor, Bheki Makhubu and Thulani Maseko, a human rights lawyer and the magazine’s columnist for contempt of court, while shocking the world, has exposed the government’s malevolent desire to suppress freedom of expression and crash dissent.
The two, who were arrested after publishing articles questioning the detention without trial of a government vehicle inspector, have subsequently been sentenced to an effective two years in prison.
Swaziland’s Constitution of 2005 clearly provides for freedom of expression in section 24. It stipulates that every person has a right of freedom of expression and opinion. Harassment, torture, incarceration of journalists or any other attempts to suppress free speech is a violation of this constitutionally guaranteed right.
The incarceration of the two is not an isolated incident but rather a highlight of the repressive regime’s longstanding intention to suppress freedom of expression. To understand Swaziland’s lack of freedom of expression it is important to look into the country’s media landscape. The government has maintained a tight grip on the media so as to control the information being disseminated while the few ‘independent’ media outlets have been constantly attacked leading to unprecedented levels of self-censorship.
The right to education: Children with disabilities in The Gambia
Posted: 2 October, 2014 Filed under: Sheriff Kumba Jobe | Tags: children, Children with disabilities, constitution, Convention on Rights of People with Disabilities, CRPD, disabilities, education, government, inclusive education, The Gambia 1 Comment
Author: Sheriff Kumba Jobe
Graduate, Faculty of Law, University of The Gambia
Section 30 of the 1997 Constitution of the Republic of The Gambia states, “All persons shall have the right to equal educational opportunities and facilities and with a view to achieving the full realization of that right- (a) basic education shall be free, compulsory and available to all; (b) secondary education, including technical and vocational education, shall be made generally available and accessible to all by every appropriate means, and in particular, by the progressive introduction of free education.”
It is without doubt that the Gambia has been working toward this constitutional provision and has registered a significant gain in the area of education. The enabling environment has been created to make this fundamental right realistic by acceding and ratifying enormous international conventions such as the African Charter on Human and People Rights, African Charter on the Rights and Welfare of the Child, International Covenant on Economic, Social and Cultural Rights, Convention on Elimination of All forms of Discriminations Against Women, United Nations Convention on the Rights of Child to name just a few; and there are also domestic legal frameworks in addition to the Constitution such as the Children Act 2005 and Women Act 2010 all geared toward promoting right to education among others.
Notwithstanding of the government of The Gambia active role in promotion of children’s rights to education which is translated into the promulgation of the above named laws and building adequate schools in all the four corners of the country. There is yet a huge gap or disparity that needs to be addressed. Children with disabilities in The Gambia are confronted with challenges such as discrimination and marginalisation both in formal and informal institutions. It is therefore urgent to draw the attention of the government into the plight of these children as they equally have right to education as enshrined in the supreme law of the land and the Convention on Rights of Persons with Disabilities.
In the absence of democratic principles, tyranny reigns
Posted: 23 September, 2014 Filed under: Thato Motaung | Tags: autocracy, constitution, democracy, Eritrea, freedom, International Day of Democracy, national service, rule of law, tyranny 3 Comments
Author: Thato Motaung
Researcher, Centre for Human Rights, Faculty of Law, University of Pretoria
International Day of Democracy: 15 September 2014
“You may choose to look the other way but you can never say again that you did not know.” – William Wilberforce
When the world celebrated the International Day of Democracy (15 September 2014), I reminded myself of some of the key tenets of democracy, namely: free and fair elections, the rule of law, the upholding of fundamental rights and freedoms — to name but a few. The mention of the rule of law in particular raised red flags in my mind as I pondered where to place Eritrea when choosing between definitions of democracy and autocracy.
The rule of law and the respect for human rights stand as prerequisites to realising democratic statehood. The laws which govern a state are enshrined in a constitution; a constitution sets the parameters for lines that cannot be crossed; the principles by which a state should conduct itself. Where then does one begin to place or reference these barriers in a country with no constitution? Who has legitimacy in decision-making? What legal standards are used? The lines continue to blur…
Sentencing ‘at the president’s pleasure’ and what it means to persons with mental disabilities in Kenya
Posted: 17 September, 2014 Filed under: Felicia Mburu | Tags: constitution, Convention on the Rights of Persons with Disabilities, CPC, Criminal Procedure Code, CRPD, Kenya, Kenya National Human Rights Commission, mental disabilities 6 Comments
Author: Felicia Mburu
Advocate of the High Court of Kenya
On 8 May 2013, the High Court of Kenya in Case Number 14 of 2010 passes a sentence on the accused who had pleaded guilty on a murder charge. Nawya Mawjoya, a person with mental disability, was sentenced to detention ‘at the president’s pleasure’ under section 167(1) of the Criminal Procedure Code (CPC) instead of being given a probationary sentence. The Court relied on the probation officer’s recommendation that he be institutionalised as the family believes he was bewitched and will be subjected to rituals. Such cases are common in Kenya for two reasons: lack of awareness by the criminal justice system on mental disability and cultural perception associated with mental disabilities. Thus the criminal justice system operates as a conduit to institutionalise persons with mental disabilities.
Kenya is a signatory of the Convention on the Rights of Persons with Disabilities (CRPD). Article 14 (1) (b) of the CRPD provides for the rights of persons with disabilities not to be deprived of their liberty on the basis of their disability. Article 19 further provides that persons with disability have a right to live in the community on an equal basis with others. Article 50 of the Constitution of Kenya provides for the right to a fair trial for all persons. Article 29 further supports the rights of person not to be arbitrarily denied their freedom without just cause. Article 54 of the Constitution states the rights of persons with disabilities to be treated with dignity and respect.
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.
Chapter 9 institutions: for the sake of accountability and constitutional democracy
Posted: 31 March, 2014 Filed under: Kenneth Sithebe | Tags: accountability, Chapter 9 institutions, constitution, constitutional democracy, corruption, democracy, good governance, human rights, investigate, Nkandla, President Zuma, Public Protector, rule of law, South Africa Leave a comment
Author: Kenneth Sithebe
Candidate Attorney, Centre for Child Law, Faculty of Law, University of Pretoria
When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice beneath new generations. – Solzhenitsyn
It is in the wake of the Public Protector’s findings regarding an upgrade to the President Zuma’s private residence in Nkandla that, the importance and our tolerance for Chapter 9 institutions comes to the fore. Having presented her findings to the public, the Public Protector was hailed by some as a heroin to a South Africa that is ridden with corruption, whilst some questioned her credibility and the integrity of her office. It is submitted that these debates are ordinary in a vibrate democracy like South Africa’s and should be welcome. However, what should not be welcome are unsubstantiated remarks aimed at undermining the office of the Public Protector, or any of the other Chapter 9 institutions, namely, the South African Human Rights Commission; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; Commission for Gender Equality; the Auditor General; and Electoral Commission. These institutions, as provided for in section 181 of the Constitution, form a cornerstone to the sustenance of democracy and are important for the full realisation of other democratic principles such as accountability, respect for the rule of law and human rights.
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