Uganda: Why the Constitutional Court should rule on the right to health

michael_addaneyAuthor: Michael Addaney
Senior Research Assistant, University of Energy and Natural Resources, Ghana

A case currently before the Constitutional Court of Uganda is providing an interesting test for how far courts can go in protecting basic human rights. Human rights are rights inherent to all human beings. Every person is equally entitled to them without discrimination. They are interrelated, interdependent and indivisible.

Universal human rights are often guaranteed by law through treaties and various sources of international law which generally oblige governments to respect, protect and fulfill human rights and fundamental freedoms of individuals or groups.

Apart from international obligations, countries have various ways of entrenching human rights. Most contemporary constitutions entrench basic human rights. Such constitutions include the 1996 Constitution of South Africa and the 2010 Kenyan Constitution. Likewise, the 1995 Constitution of Uganda contains the Bill of Rights that guarantees fundamental freedoms and basic rights including the rights to health and to life.

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Biko and the right to happiness

saul_lealAuthor: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)

Stephen Bantu Biko occupies a singular place in South African history, precisely because of the manner in which his legacy affected South African constitutionalism.

Biko fought for equal treatment under the law, and proudly founded the Black Consciousness Movement in order to achieve this goal. Biko engaged in a fearless debate related to the victims of racism and colonialism which encompassed the degradation of self-esteem and the inflicted inferiority complex of black South Africans. Biko’s struggle against white authority in order to promote and defend democracy has left a legacy of ideas which would influence future South African generations, including the sentiment of “one man, one vote”.

In 1970, Steve Biko stated that “in order to achieve real action you must yourself be a living part of Africa and of her thought; you must be an element of that popular energy which is entirely called forth for freeing, the progress and the happiness of Africa”.[1] At the time, Biko was a doctoral student and political activist. He was arrested in August 1977. Biko was kept naked and manacled, and died twenty-five days later from brain damage.

Biko envisioned a more inclusive and deeper interpretation of democracy, as opposed to its purely material application. For him, “material want is bad enough, but coupled with spiritual poverty it kills. And this latter effect is probably the one that creates mountains of obstacles in the normal course of emancipation of the black people”.[2]

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Reacting to the growing attitude of African leaders in using politics as an engine to flout judicial authorities

Sheriff Kumba JobeAuthor: Sheriff Kumba Jobe
Currently pursuing a professional course (BL) at Gambia Law School

As a young person growing up in The Gambia, enjoying relatively peaceful personal development and knowing little or nothing about the Continent (i.e. Africa), I was optimistic of what the future holds for us. My optimism has somewhat changed after recently following some developments unfolding in the Continent. I became more skeptical when I listened to the African-born Chief Prosecutor of the International Criminal Court, Fatou Bensouda making exposition to the Darfur situation. She frustratingly advanced that:

“Innocent civilians continue to bear the brunt of insecurity and instability, in particular as a result of what appears to be an on-going government campaign to target them. The people alleged to be most responsible for these on-going atrocities are the same people against whom warrants of arrest have already been issued.”

These words made me more concerned that the political and legal atmosphere in Africa is becoming unsafe for human shelter. The friction between the two has become too chaotic and toxic for a peaceful and orderly coexistence. The breeze blowing to my observation is not only hostile to the citizens of the Continent but also to the legal frameworks and judicial institutions created for the implementation and protection of our rights.

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Misinterpreting justice in Venda

Abiy Alemu AshenafiAuthor: 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?

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Factors inhibiting the identification and investigation of human trafficking cases

monique_esmerAuthor: Monique Emser
Research Associate, Department of Criminal and Medical Law, University of the Free State, South Africa

World Day of Social Justice – Ending human trafficking and forced labour: 20 February 2015

Law enforcement efforts have failed to keep pace with the mutable phenomenon of human trafficking despite the fact that it is regarded as the fastest growing and second most profitable criminal enterprise after drug trafficking.

The biggest challenge facing law enforcement in human trafficking cases is finding victims and their traffickers in the first place, since human trafficking involves the movement and concealment of victims.

Victims of human trafficking often do not self-identify as such. There are numerous reasons for this. Some victims may have consciously engaged in illicit activities, such as undocumented migration into the Republic or engaging in sex work. In such cases, ‘victims are unlikely to report their victimisation to the police or seek help from service providers.’[1] Where trafficking occurs within diaspora communities, self-identification and reporting to the police are even lower.

Others are too traumatised by their experiences and remain in denial. Distrust of law enforcement, fear of retaliation by traffickers, a lack of understanding of basic rights, are further inhibiting factors in relation to victim cooperation and investigation.

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Chapter 9 institutions: for the sake of accountability and constitutional democracy

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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South Africa apartheid lawsuit – The end of the epopee?

Marek Jan WasinskiAuthor: Marek Jan Wasinski
Assistant Professor and Chair of Public International Law and International Relations – Faculty of Law and Administration, University of Lodz, Poland

On 21 August 2013, the 2nd United States (US) Circuit Court of Appeal reached a decision on a decade long putative class action suits brought on behalf of individuals harmed by the South African apartheid regime. The suits were originally initiated by two groups of plaintiffs, the Balintulo (or Khulumani plaintiffs) and the Ntsebeza plaintiffs against corporate defendants (namely: Daimler, Ford, and IBM). Plaintiffs asserted that the South African subsidiary companies of the defendants aided and abetted violations of customary international law committed by the (then) South African government. It was claimed inter alia that subsidiary companies had sold cars and computers to the South African government, thus facilitating race-based depredations and injustices, including rape, torture, and extrajudicial killings. A legal basis for the US court’s jurisdiction was the Alien Tort Statute (ATS), a famous part of the Judiciary Act of 1789, conferring federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”. The ATS remained dormant nearly for two centuries until it spectacularly entered the stage before 2nd US Circuit Court of Appeal in a Filartiga v Pena-Irala wherein Paraguay citizens were allowed to sue a former Paraguayan police officer allegedly involved in an extrajudicial killing of a Paraguayan dissident’s son in Paraguay. The decision in Filartiga led to a dramatic rise in international human rights litigation in US courts, involving not only suits against private individuals but also against corporate entities for aiding and abetting violations of the law of nations. There were instances of such litigations ending with profitable settlements. For example, in Abdullahi v Pfizer Inc., Pfizer has reportedly agreed to pay $75 million as compensation for illegal clinical trials in Nigeria. Similarly in Wiwa v Shell Oil Co., faced with claims of complicity in murder, torture, and other crimes related to oil production in the Niger Delta, the Shell provided $15.5 million as compensation to those affected.

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