African Commission Research Articles

No Time for Justice? Obstetric Violence, Damages Claims and Prescription Periods in South African Law

Obstetric violence is currently not acknowledged as a form of gender-based violence in South African law. In this article I deal with the various issues associated with this failure to correctly categorise obstetric violence. One of the issues relates to access to legal recourse for survivors through delictual claims (torts). Delictual claims are wrongful acts or limitations of rights that can lead to legal liability in the form of monetary compensation. The current framing of obstetric violence as medical malpractice limits women's time to launch a case to only three years after the violation. To show how this issue of prescription (a legal principle where an outstanding debt can be extinguished after a prescribed time period) plays out, I focus on the 2020 report by the South African Commission for Gender Equality (CGE) on the forced or coerced sterilisation of women living with HIV at state healthcare facilities. I also examine the current case of the Centre for Applied Legal Studies (CALS), a university-based human rights law clinic, which represents over 40 women who have experienced different forms of obstetric violence at state-run facilities. In both of these examples, I explain how justice through legal recourse is denied to these victims or survivors through the mischaracterisation of obstetric violence as medical malpractice in current South African law. To show that the three-year ‘limit’ or prescription period to institute a legal claim is unjustifiable, I explore three reasons why women may not choose to or be able to proceed with a legal claim within that time period. The first of these relates to the ‘personal’ barrier women face around acknowledging they have experienced obstetric violence and bringing a claim against the state. The second, the ‘political’ barrier, includes the general and prevalent systemic gender discrimination experienced by women in South Africa and the specific barriers women face around access to dignified treatment in the country's public healthcare system. Finally, an ‘economic’ barrier is the general inaccessibility of legal representation for economically disadvantaged people in the country. Proceeding from the above, I then argue that by acknowledging obstetric violence as a form of gender-based violence and aligning it with legislation around prescription periods for other forms of gender-based violence (such as sexual offences), the burdens related to access to justice (at least in delict) can be lightened for survivors.

Large-scale agro-industries and host community land restitution demands: understanding the land-use conflicts between the CDC and Fako elites in the south west region, Cameroon

Large-scale land acquisition has been frequent in most parts of Africa. This frequently led to extensive dispossession among other pitfalls of violation of indigenous land ownership rights. A significant proportion of Fako division’s fertile slopes and plains were expropriated by the Germans for implantation and development of plantations. Ownership rights of indigenous community lands were transferred without the legal consent of the rightful native authorities. Against the backdrop of this colonial intrusion and consequential violations of local customary tenure rights, the growing need for justice and restoration of dignity has been a shared value among a preponderant proportion of the local Bakweri ethnic group. This culminated to a restitution decision of CDC leased lands to the Bakweri by the African Commission on Human and People’s Rights. Nonetheless, the proportion of restituted lands has not been significant and satisfactory enough to conciliate the expropriated host communities of the extensive CDC leaseholds. As such, landownership contestations and its consequential socio-political tensions still persist in Fako. This paper is centered on yet a more frequently expressed contestation: encroachment into and occupancy of CDC leaseholds by natives of Fako as a whole and Ndongo of Tiko sub-division in particular. Prior extensive documentary review was done which pointed to the locality of Ndongo as a suitable case of interest. Contrary to the general land grabbing tendencies of agro-businesses, community members here are accused of unauthorized intrusion into and tenancy of lands with legal ownership rights belonging to the CDC. The study was ethnographic comprising of individual in-depth interviews and observations.

The African Guiding Principles on the Rights of Migrants, Refugees and Asylum Seekers (Afr. Comm'n H.P.R.)

In its 75th ordinary session, the African Commission on Human and Peoples’ Rights (ACHPR, or Commission), the human rights organ of the African Union, with a mandate to promote and protect human and peoples’ rights and interpret the African Charter on Human and Peoples’ Rights, unanimously adopted the African Guiding Principles on the Human Rights of Migrants, Refugees and Asylum Seekers (Guiding Principles). They were publicly launched by the Commission at its 77th ordinary session on October 21, 2023. The drafting was led by the Commission's Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons, and Migrants in Africa. The thirty-eight Guiding Principles are based largely on African regional treaty law, case law, standards, and resolutions of the Commission and also draw from complementary international law. In addition, the Guiding Principles draw from the experience of other world regions, including adoption by the Inter-American Commission on Human Rights (the human rights organ of the Organization for American States) of the 2019 Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons, and Victims of Human Trafficking.

Editorial

We are pleased to present the seventh volume of the Kabarak LawJournal of Law and Ethics (KJLE), which focuses on the Kenyan ChildrenAct of 2022.In the lead up to this publication, Kabarak University in collaborationwith Save the Children (Kenya and Madagascar) successfully organiseda hybrid half-day conference to commemorate the Day of the AfricanChild on 16 June 2023. The conference brought together child lawscholars and practitioners to reflect on the theme ‘The rights of the childin the digital environment’. Professor Robert Nanima, Expert Memberof the African Committee of Experts on the Rights and Welfare of theChild (ACERWC), and Justice Heston Nyaga, Judge of High Court ofKenya, were among the chief guests. We are proud to publish ProfessorNanima’s keynote address in this volume.

Keynote address by Hon Professor Robert Doya Nanima

The Right Honourable Judge of the High Court of Kenya,Honourable Judges of the First Model African Committee of Expertson the Rights and Welfare of the Child (First Model Committee),representatives from the state(s), civil society organisations, academia,students, participants, ladies and gentlemen. Good afternoon.I thank you for extending the invitation to me. I bring you warmregards from the African Committee of Experts on the Rights andWelfare of the Child (ACERWC). The Chairperson and the Bureau areaway in Zambia celebrating the Day of the African Child. I thank youall for adding value to this First Model Moot Competition premised onthe auspices of the ACERWC. It shows that you believe in the work ofthe ACERWC and that you have taken a dissemination strategy thatinforms both the students in the competition and the participants heretoday.

Deploying the African Union’s Legal Mechanisms for the Effective Protection of Internally Displaced Women from Sexual Violence

The problem of internal displacement is a regional challenge and cannot be left in the hands of only one country. A critical question that this paper will attempt to answer is: Does the adoption of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa hold the key to the protection and assistance of conflict-induced female IDPs in Nigeria? An attempt is made to provide answers to whether human rights treaties, in fact, make any impact on the lives of people. The conclusion shall examine how African regional human rights treaties and the African Commission’s special mechanisms could be harnessed to provide the basis for systematic and coordinated action in the protection of female conflict-induced IDPs in Nigeria from sexual violence.

Legal Implications of Judicial Independence on Implementation of Provisions of the African Commission on Human and Peoples’ Rights in Nigeria

In this study, a legal examination of judiciary role in the implementation of human right protection decisions emanating from the African Commission on Human and Peoples’ Rights- African Commission (AC) - in Nigeria, was examined. It employs series of intricate factors including the African Charter on Human and Peoples’ Rights (ACHPR), the AC and Independence of the Judiciary. The research, which has its roots in historical contexts, highlights the challenges and legal difficulties that the Commission faces in carrying out its decisions. It examines the legal framework dictating the implementation process, drawing parallels between important decisions of the AC and the developmental journey of the Nigerian judicial system. The study looks at the main implementation issues and offers complex viewpoints on the difficulties encountered in accomplishing the goals of the Charter. It acknowledges that the African Commission on Human Rights (ACHPR) has the responsibility to promote and defend human rights throughout the continent of Africa; but, it finds that the ability and desire of national governments and institutions, particularly the judiciary, to carry out its functions determines effectiveness of the decisions. Even though the judiciary holds a position in ensuring implementation, there is setback due to inability to freely act as an independent body. The article gives special attention to the constitutional non-justiciability of socio-economic rights, which amongst others, is a major complication in ensuring adherence. The study recommends strategies to strengthen the network for ensuring compliance with the Commission’s decisions.

Human Rights in Africa and Challenges of the African Commission on Human and Peoples’ Rights (ACHPR)

In this paper we surmise that the African Commission on Human and Peoples’ Rights (ACHPR) has since creation done a lot to promote human rights in Africa but has faced challenges which have impeded its success. Several human rights have been violated in African countries but efforts have also been made to improve on the situation. The persistence of human rights violations and non-implementation calls for an improvement in the future so that the African Union and national governments would gain the approval and support of Africans from all works of life. We have relied on a content analysis of available literature to be able to appreciate first, the state of human and peoples’ rights in Africa, role of the ACHPR, challenges and reform to better the situation in the future.

The Nuclear Energy Agency under the Organization for Economic Cooperation and Development: Legal status, research projects, international cooperation

The article deals with the legal status, scientific and international activities of the Nuclear Energy Agency under the Organization for Economic Cooperation and Development (OECD NEA). The outcome of the struggle between Great Britain and France in 1957 was the emergence in the European space of two international organizations dealing with the problems of the peaceful use of atomic energy — Euratom and the OECD NEA. The legal status, structure, procedure for joining the OECD NEA were adopted in its Statute of 1957, which is valid with amendments and additions in the 1995 edition. The OECD NEA does not have international legal personality and treaty standing; these functions can only be exercised with the consent of the OECD Secretariat. The OECD NEA is engaged in the exchange of information, the compilation of best practices, the promotion of scientific and technical projects and research activities, and the development of nuclear law. Under the auspices of the organization, 58 international research projects are being carried out. The OECD NEA cooperates with the IAEA, the European Commission of the EU, and EURATOM, ASEANTOM, African Commission on Nuclear Energy (AFCONE), Inter-American Nuclear Energy Commission. Russia became a full member of the OECD NEA in 2013 and participated in a number of research projects. Based on the Decision of the OECD Secretariat, which was motivated by the special military operation of the Russian Federation on the territory of Ukraine, the DPR and the LPR, Russian membership in all bodies in the organization was officially suspended on May 11, 2022. The politicized refusal of the OECD NEA from the scientific potential of Russia, on the one hand, “impoverished” the Agency, and on the other hand, did not add to it international prestige.

The Similarity of the Roles of the African Committee of Experts on the Rights of the Child and the UN Committee on the Rights of the Child: Parallel, Simultaneous and Non-Exclusive Application

The Similarity of the Roles of the African Committee of Experts on the Rights of the Child and the UN Committee on the Rights of the Child: Parallel, Simultaneous and Non-Exclusive Application

Human Rights Litigation in Africa Under Attack

Human rights values, to which international organisations adhere, serve not only as the working premise for achieving their goals but also constitute an inherent part of their legal framework and judicial decisions. Established by States that claim to share a fundamental set of values from the outset and are committed to reflecting these values throughout their activities, the African Union is no exception. The organisation articulated its fundamental principles and values in its founding Treaties, which include, among others, ‘respect for democratic principles, human rights, the rule of law, and good governance.’ Over time, various preventive, monitoring, and enforcement mechanisms have been developed to realise these human rights objectives in the continent. This progress includes the establishment of the African Commission in 1987 and the creation of the African Court in 1998, as well as the expansion of human rights jurisdiction of sub-regional courts over time. This article delves into the resistance faced by the judicial mechanisms used to enforce human rights in Africa. As demonstrated, in all cases under discussion, a State subject to an adverse ruling of the court responded by questioning its legitimacy and authority, advocating for institutional reforms to weaken the fledgling human rights system on the continent. The article highlights the similarities and differences between all cases, illustrating that the impact of political reaction in the case of the continental African Court and the SADC Tribunal has been much more severe than the ECOWAS and the EACJ court. It is argued that the institutional design of the courts, the scale of the community, relative State power, the subject matter of the judgment, the requirement to obtain consensus to revise the founding treaty of the courts, and the engagement of civil societies played crucial roles in determining the type and outcome of backlash in the cases under discussion.

Intersexuality: What Parents, Guardians and Communities Should Know and Do to Care and Protect Infants and Children Born with Intersex Variations’ Rights in Tanzania

Tanzania lags behind in the course of ending stigma and discrimination against persons born with intersex variations. To date, the Tanzania Government has not enacted any law outlawing cosmetic surgeries, stigma and discrimination against persons born with intersex variations as per demands and calls from, among others, The First African Intersex Meeting, 2017 and The African Commission on Human and Peoples’ Rights, 2023. Undoubtedly, this legal/policy silence is not at all unprejudiced. It facilitates harmful practices to take place unnoticed and uncontrolled. Primary and specialized healthcare providers, parents, traditional and religious leaders, therefore, continue performing harmful normalization surgeries and treatment, tradition-led mutilations and killings of infants and children born with intersex variations. In this context, I use scanty evidence available in the country and experience from other parts of the globe to highlight on what parents, guardians and communities should know and do to care and protect infants and children born with intersex variations’ human and citizenship rights in Tanzania. I recommend parents, guardians and community members to better understand who infants and children born with intersex variations are and their (health) needs. Intersex variations are not disorders requiring immediate or emergency (medical) interventions. ‘Normalization’ surgeries should wait until the children are mature enough to make informed consent to alter their physical appearances. Whenever possible, parents and guardians should seek, share support and correct intersex information from parents/guardians with similar experiences and adult persons born with intersex variations, media, internet and intersex-led groups and organizations and institutions within and outside Tanzania. Importantly, parents, guardians, persons born with intersex variations, intersex movements, activists and persons born with intersex variations-led organizations should ........

Sexual Orientation and the Criminalisation of Private Consensual Sexual Acts Between Adults of the Same Gender

Abstract As of September 2023, consensual same-sex sexual acts between adults (for both men and women) in private were criminalised in a total of 67 United Nations (UN) member States. Most of these States were in Africa, a continent of more than 1.4 billion people, where more than 30 out of Africa Union’s 55 States criminalised consensual same-sex sexual acts between adults in private. The justification advanced in favour of criminalisation is that non-heterosexual sexual acts do not conform to the moral, cultural or religious views of a section of society. In some States, consensual same-sex sexual acts between adults in private were punishable by a maximum penalty of death or long prison sentences. The African Charter on Human and Peoples’ Rights (the Charter) and several protocols adopted under the Charter do not prohibit explicitly discrimination based on real or perceived sexual orientation, gender identity and sexual characteristics. Thus, sexual orientation has remained on the margins of the African regional human rights system and has also remained largely outside the consideration of the African Commission (and the African Court) on Human and Peoples’ Rights, the limited jurisprudence is mainly between negative and retrogressive. This article examines the criminalisation of private, consensual same-sex relations, sexual or affective, between adult persons of the same gender or sex in Africa with particular reference to Uganda’s Anti-Homosexuality Act 2023 and its impact on human rights including respect for life, privacy, human dignity, integrity, liberty and security of the person, equality and non-discrimination, health, as well as freedom of association, expression and peaceful assembly.

Monitoring second-order compliance in the African human rights system

This article examines the mechanisms and instruments employed by the three main regional African human rights bodies – the African Commission and African Court on Human and Peoples’ Rights and the African Children’s Rights Committee – to monitor compliance with their decisions and judgments. Based on the assumption that second-order compliance monitoring contributes to greater effectiveness of human rights institutions and increased compliance with their pronouncements, we discuss the monitoring tools used by the institutions themselves as well as the roles of political monitoring and monitoring by civil society. Based on a stock-taking exercise we find that all three African human rights bodies still have much room for improving both the quantity and the quality of their monitoring instruments and processes. Acknowledging that the three bodies may to some extent be legally and politically constrained with respect to the use of some of these, and recognising that the AU’s political organs mostly abstain from exercising the second-order compliance monitoring functions assigned to them, the article argues that civil society plays a critical role in contributing to such monitoring, a role that should be expanded upon and researched further.

Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v Nigeria: two decades on – questioning the continued implementation gap

Nearly two decades after the landmark decision in Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v Nigeria, in which the African Commission on Human and Peoples’ Rights found that Nigeria had breached its obligations to protect, promote, and fulfil the rights of the Ogoni people in the country’s Niger Delta region, it is relevant to enquire how the decision has been implemented and whether it has significantly improved the situation of the Ogoni people. After the announcement of the Commission’s decision and the return to democratic rule in Nigeria, the general expectation was that Nigeria would without further delay implement the Commission’s recommendations. However, 20 years after the decision the Ogoni people are still demanding for their basic rights to be respected. This article, which mainly looks at the Commission’s decision from the perspective of the victims and through a socio-legal perspective, exposes this implementation gap. By doing so, it also points to the ineffectiveness of the monitoring mechanism of compliance with the Commission’s recommendations.

Holding corporations liable for human rights abuses committed in Africa: the need for strengthening domestic remedies

It has been two decades since the African Commission on Human and Peoples’ Rights (Commission) rendered its landmark decision in SERAC and CESR v Nigeria. In this landmark judgment, and later in IHRDA and Others v DRC, the Commission explicitly affirmed states’ obligation to investigate, prosecute and redress corporate human right abuses as part of the obligation ‘to adopt legislative or other measures’ under article 1 of the African Charter on Human and Peoples Rights (AfricanCharter). Similarly, states’ obligation to ensure a remedy for corporate human rights abuses is also one of the issues clarified under the ‘Third Pillar’ of the UN Guiding Principles on Business and Human Rights. However, as this obligation is not adequately translated into practice at the national level, corporate human rights abuses committed in Africa continue to be met with impunity and lack of access to effective remedy. Over the last several years, African victims who are denied justice in their domestic jurisdictions have increasingly been turning to home states of corporations to seek remedies. Victims’ access to home state remedies has, however, been significantly restricted in recent years due to various legal barriers, particularly jurisdictional challenges. The article therefore aims to highlight the increasing restriction on African victims’ access to home state remedies and show the need for strengthening domestic remedies in Africa

Decriminalising vagrancy offences in Africa beyond the African Court’s Advisory Opinion: quo vadis?

The African Court on Human and Peoples’ Rights (African Court) advisory opinion in Pan African Lawyers Union on the compatibility of vagrancy laws with the African Charter on Human and Peoples’ Rights and other human rights instruments in Africa (PALU opinion) 1/2018 recommends that states amend or repeal vagrancy offences that criminalise the life-sustaining activities of many persons targeted by these laws. The Court’s main opinion is that states’ national laws and by-lawscontaining vagrancy offences are vague, overly broad and ambiguous, conferring broad discretion on the police for their enforcement and targets people in terms of their status, not their conduct. These laws violate articles 2, 3, 5, 6, 7, 12 and 18 of the African Charter on Human and Peoples’ Rights; articles 3 and 17 of the African Charter on the Rights and Welfare of theChild; and article 24 of the Protocol to the African Charter on the Rights of Women in Africa. The main opinion insufficiently addresses the colonial root of vagrancy. A separate concurring opinion elaborates on the margin of appreciation and good faith principle that allow states to formulate contextspecific answers to amend and repeal vagrancy offences. This article identifies the impact of the COVID-19 pandemic on petty offences enforcement and draws lessons from litigation such as Gwanda v The State and interventions from national human rights institutions such as the South African Human Rights Commission; as well as guidance from the African Commission on Human and Peoples’ Rights Principles on Decriminalisation of Petty Offences in Africa (2017). It is argued that specific institutional and non-material interventions are needed to bring the systemic change required, in tandem with the banning of vagrancy offences, for cities that promote inclusion and sustainable development for all.

Framing a human rights approach to communication surveillance laws through the African human rights system in Nigeria, South Africa and Uganda

Today, in any society where crime is possible, communication surveillance is a necessary evil. This is because technologies now offer faster means of preventing crime while they are also capable of undermining the right to privacy. However, protecting privacy should not be mutually exclusive of ensuring public safety. This article argues that while communication surveillance may be permissible under narrow and limited circumstances, the laws made to regulate it in Nigeria, South Africa andUganda do not comply with international human rights standards. In demonstrating this, this article analyses the major laws in these countries alongside the various international human rights principles that must be complied with in framing a rights-respecting law on communication surveillance. The major contribution of this article is that communicationsurveillance laws can be designed in compliance with international human rights standards in the countries under focus. These include Nigeria, South Africa and Uganda carrying out specific legal reforms targeted at problematic laws on communication surveillance in order to bring them in line with international human rights standards. This can also be supportedby developing a more robust set of comprehensive guidelines through the African Commission and Human and Peoples’ Rights and ensuring that Nigeria, South Africa and Uganda embark on critical and strategic training for stakeholders involved in the enforcement and implementation of communication surveillance laws in these countries.

Addressing statelessness in Kenya through a confluence of litigation, transitional justice, and community activism: reflecting on the cases of the Nubian, Makonde and Shona communities

This article outlines the challenge of statelessness in Kenya and proceeds to focus on two seminal cases filed by the Nubian community against the Kenyan state: one before the African Commission on Human and Peoples’ Rights and the other at the African Committee of Experts on the Rights and Welfare of the Child. Attention then turns to Kenya’s transitionaljustice agenda and its interaction with the plight of stateless persons in Kenya. Through the experiences of the Nubian, Makonde and Shona communities, the article also explores the role of community-led activism infurthering the cause of ending statelessness in Kenya. It concludes with key lessons to be learned from utilising litigation, transitional justice and community-led activism as part of the struggle for the rights of stateless persons in Kenya. It relies on desk-review and research of the Nubian cases, Kenya’s truth commission report and other official inquires, civil society reports, the 2010 Constitution and related laws.

Resolution of the African Commission on Human and Peoples’ Rights on the Protection of Sacred Natural Sites and Territories: a critical overview

Sacred natural sites and territories are naturally occurring areas of land or water that are held to have spiritual significance by certain communities. They form part of a broader set of cultural values or traditionalways of life for given societies or communities. With the ever-mounting pressure for economic development, industrial activities, infrastructure development and demographic changes, sacred places are on the brink ofpermanent destruction. Yet these are focal points for cultural identity and diversity as well as strong biodiversity conservation. Africa as a region, through the African Commission on Human and Peoples’ Rights, adopted Resolution 372 of 2017 to preserve and protect Sacred Natural Sites and territories (SNST). The Resolution provides for protection to be achievedthrough entrenching customary governance systems into laws to protect SNST. This article analyses the resolution and how African countries can fit such customary governance systems into current legal regimes that are remnants of a colonial epoch. The article relies on case studies of how SNST have been recognised in certain African jurisdictions such as Benin andEthiopia. It also relies on case studies of countries such as Uganda and Kenya where the author participated in promulgation of laws to protect these sites.It is the author’s argument that the Resolution is a means of achieving African cultural renaissance by advocating for recognition of African cultural rights and the revival of culture-based conservation mechanisms