International human rights advocacy and the abolition of irreducible life imprisonment in Zimbabwe
Posted: 13 September, 2016 Filed under: Andrew Novak | Tags: Constitutional Court of Zimbabwe, Death Penalty Project, domestic law, European Court of Human Rights, foreign jurisprudence, global jurisprudenc, human rights, international death penalty litigation, international human rights norms, Judicial Committee of the Privy Council in London, Justice Bharat Patel, law reform, life without parole, Makoni v. Commissioner of Prisons, parole, Prisons Act, rehabilitative criminal sentences, South African Constitutional Court, Supreme Court of Namibia, Tendai Biti, transnational human rights, transnational human rights advocates, Veritas Zimbabwe, Zimbabwe Leave a comment
Author: Andrew Novak
Adjunct Professor of Criminology, Law, and Society at George Mason University
On July 13, 2016, the Constitutional Court of Zimbabwe (ConCourt) found that life imprisonment without the possibility of parole was unconstitutional as it violated the rights to equal protection and human dignity and the prohibition on cruel and degrading punishment. The decision, Makoni v. Commissioner of Prisons, is undoubtedly a victory for human rights, due to the dismal state of prison conditions in Zimbabwe and the emotional and psychological harm caused by indeterminate sentences. In its decision, the ConCourt cited a wide range of jurisprudence from foreign and international courts, including the European Court of Human Rights, South African Constitutional Court, Supreme Court of Namibia, and the Judicial Committee of the Privy Council in London to discern a global trend toward rehabilitative criminal sentences. Many of these foreign and international legal sources were brought to the ConCourt’s attention by transnational human rights lawyers themselves in their Heads of Argument, underscoring the important role that advocates play in the diffusion of international human rights norms.
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 3 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.
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