African Commission Research Articles

“Like photographs of ghosts”: representing post-apartheid South Africa in Ivan Vladislavić’s Double Negative

The South African Truth and Reconciliation Commission (TRC) heard its first testimony in April of 1996. Two years later, in 1998, the first volume of the report of the commission was published. While it aims to be a document representing closure in terms of the history of apartheid, the TRC report is rife with gaps and omissions across the long history of apartheid. Approaching this history and its legacy in literary prose, Ivan Vladislavić’s Double Negative (2010) serves as a counter-history to the TRC’s narrative of closure. Extending formal strategies from his earlier works, including composite literary form and performative modes of writing, Vladislavić employs photography and ghosts within his text to unsettle official history and to offer a melancholic approach to the past of apartheid and its ongoing effects in post-apartheid South Africa.

The Role Played by the South African Human Rights Commission's Economic and Social Rights Reports in Good Governance in South Africa

The preamble of the Constitution of South Africa, 1996 (the Constitution) contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person. One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights.
 
 Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable. Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable.
 
 The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble. In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports. The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to, inter alia, the constitutional mandate of the South African Human Rights Commission, the reporting procedure and the evaluation of reports.

Dilemma of Muslim women regarding divorce in South Africa

On a daily basis people enquire about the dissolution of Islamic marriages, in terms of South African law In South Africa. There exist no legal grounds for obtaining a divorce in a South African court, for persons married in terms of the Islamic law only. The reason for this is due to the fact that Muslim marriages are currently not recognised as valid marriages in terms of South African law. The courts have stated that the non-recognition of Islamic marriages is based on the fact that such marriages are potentially polygamous.
 In South Africa, marriages may be dissolved by the death of one of the spouses or by divorce. In terms of the Divorce Act, a decree of divorce will be granted by a court of law. 
 Islam grants the husband the right of divorce and also grants the wife the right to request and apply to dissolve the marriage through what is known as Khula, the woman also has the right to a delegated divorce. If the husband dissolves the marriage by divorcing his wife, he cannot retrieve any of the gifts he has given her. Islam further makes provision for the "reasonable maintenance" of divorced women. 
 The non-recognition of Islamic marriages has the effect that a person married in terms of Shari'ah only, has no right to approach a court of law for a decree of divorce and, unless a husband divorces his wife in terms of the Shari'ah, the wife is trapped in a marriage, even if the marriage has broken down irretrievably. Thus a custom in South Africa has developed, whereby Muslim husbands refuse to divorce their wives in terms of Islamic law, so as to punish the wife. The wife in turn cannot make use of the South African 
 judiciary to obtain a divorce, because of the non-recognition of her marriage. This is a burden, which is in direct conflict with Islamic law. 
 In 2000 a Bill was drafted by the South African Law Commission. This act will recognise Islamic family law within a constitutional framework. This article deals with the dilemma that a Muslim woman is faced with in South Africa with regards to divorce.

Recent Developments Regarding South African Common and Customary Law of Succession

This article will concentrate on the development in the common law of succession and administration of estates versus the customary law of succession and inheritance as well as the winding up of estates pursuant to constitutional tendencies, case law, and statutory reform over the last ten years. The principles of customary law of succession and inheritance have become a contentious issue since the commencement of the Constitution and Bill of Rights which provide for a human rights dispensation in South Africa. As a pluralistic legal system was retained, the inevitable conflict between the principles of customary law of succession and the Constitution soon came to the fore. Although the South African Law Reform Commission reported on this issue and submitted their recommendations to the Minister of Justice and Constitutional Development, the report was never formally published. Aspects of intestate succession and the administration of estates of deceased blacks were challenged in court on constitutional grounds. This eventually lead to a number of principles of customary law being declared unconstitutional, and consequently invalid, by the Courts who had no choice but to provide relief until such time as the legislature enacted a lasting solution. As far as the intestate succession is concerned, the Intestate Succession Act 81 of 1987 was extended to all persons in South Africa, including those adhering to a system of customary law. No distinction will, for purposes of succession, be made in future between legitimate and illegitimate children, between a first born son and other siblings or between men and women. Notwithstanding several court judgments in this regard, the Intestate Succession Act has not been amended by the Legislature as yet. As far as the historical discrepancy in the winding up and administration of estates is concerned, all estates, including intestate estates of black persons that have to devolve under customary law, in the future will be administered by the Master. Magistrates no longer will be responsible for supervising and administering customary estates.

African Commission on Human and Peoples’ Rights v. Libya

On June 3, 2016, the African Court on Human and People's Rights (the Court) rendered its first default judgment, in a case brought by the African Commission on Human and Peoples’ Rights (the Commission) against Libya for alleged violations of the African Charter on Human and Peoples’ Rights (the Charter). The Commission had alleged that the Libyan government had violated its obligations under the Charter to protect one of its citizens, Saif al-Islam Kadhafi, from incommunicado detention and to provide him access to counsel. When Libya failed to respond to the Commission's complaint and to the Court's order of provisional measures, the Court proceeded to the merits and found Libya in violation of several articles of the Charter. Its decision reflected both a measured approach to the issuance of default judgments and an emphasis on the need for states to comply with their human rights obligations even in situations of exceptional political and security instability.

An Embarrassment of Riches or a Profusion of Confusion An Evaluation of the Continued Existence of the Civil Union Act of 2006 in the Light of Prospective Domestic Partnerships Legislation in South Africa

As it stands, South African family law currently holds that the Marriage Act 25 of 1961 applies exclusively to the solemnisation of heterosexual civil marriages while same-sex couples have no choice but to formalise their relationships in terms of the Civil Union Act 17 of 2006. In addition, the legal position is complicated by the fact that the latter Act not only allows both heterosexual and homosexual couples to conclude a civil union, but also provides that a civil union may take the form of either a marriage or a civil partnership, both of which enjoy the same legal recognition as, and give rise to the same legal consequences, as a civil marriage under the Marriage Act. In January 2008, a draft Domestic Partnerships Bill saw the light of day, the potential enactment of which casts significant doubt as to whether the prevailing framework should be retained. With this potential development in mind, this paper considers the desirability of maintaining the "separate but equal" status quo by: (a) comparing the South African Law Reform Commission's pre-Civil Union Act proposals with the approach eventually adopted by the legislature; (b) comparing and contrasting the post-Civil Union Act position in South Africa with that of an established and well-ordered jurisdiction such as the Netherlands and, in the light hereof, considering the cases for and against repealing the Civil Union Act; and (c) by considering the desirability and practicality of the civil partnership's potential co-existence with the Domestic Partnerships Bill (as modified in accordance with a recent study). A proposal is made that could provide a less complex and better streamlined family law dispensation in South Africa.

The African Commission on Human and Peoples’ Rights and its promotion and protection of the right to freedom from discrimination

The African Commission on Human and Peoples’ Rights, the African Commission, was established by the African Charter on Human and Peoples’ Rights, the African Charter, with the mandate to promote and protect human and peoples’ rights in Africa. The right to freedom from discrimination is one of the rights provided for in the African Charter. In this article, the author examines the individual communications, state party reports, concluding observations of the African Commission on state party reports and the resolutions passed by the African Commission to highlight the ways in which the African Commission has promoted and protected the right to freedom from discrimination.

Examining High Rates of Preventable Maternal Mortality in Kenya: Could Provisional Measures be an Effective Tool to Guarantee Safe Pregnancy?

AbstractThis article analyses the barriers that expectant mothers face in accessing appropriate, quality medical services in Kenya, and investigates the potential for the regional African human rights adjudicator to use provisional measures (PMs) to protect expectant mothers. The article aims to explore whether PMs adopted by the African Commission on Human and Peoples’ Rights could be an appropriate legal tool to secure protection for expectant mothers who are dealing with obstacles in obtaining the medical services that they need. In that regard, this contribution suggests that the situation of certain expectant mothers in Kenya meets the two necessary conditions to grant PMs under the African Human Rights system: that the situation is urgent and the measures are necessary to prevent irreparable damage. It suggests that, following the tendency of other international human rights bodies, the Commission has the potential to play a relevant role in the context of maternal mortality.

Demographic and Social Factors Influencing Public Opinion on Prostitution: An Exploratory Study in Kwazulu-Natal Province, South Africa

This paper examines countervailing South African public opinion on the subject of prostitution in South Africa, and identifies the factors which might influence these attitudes. It also investigates the complex relationship between public opinion and the law. Whilst engaging in prostitution constitutes a criminal offence under the Sexual Offences Act 23 of 1957, it is generally ignored by the police, which results in a quasi-legalised reality on the ground. In recent years there has been growing demand for the decriminalisation of prostitution, and as a result the issue is currently under consideration by the South African Law Reform Commission. The Commission released a Discussion Paper on Adult ProSstitution in May 2009, and is expected to make recommendations to parliament for legal reform in this area. An exploratory survey of 512 South Africans revealed interesting correlations between opinion on prostitution and both demographic characteristics (including gender, age, race and education level) and so-called "social" characteristics (including religiosity, belief in the importance of gender equality, the acceptance of rape myths, and a belief that prostitutes have no other options). The survey reveals two key findings in respect of the attitudes of South Africans to prostitution. Firstly, an overwhelming majority of South Africans - from all walks of life - remain strongly morally opposed to prostitution, and would not support legal reforms aimed at decriminalising or legalising prostitution. Secondly, our data confirm that these views are strongly influenced by certain demographic and 'social' variables. In particular, race, gender, religiosity, cohabitation status, and socio-economic status were found to bereligiosity, cohabitation status, and socio-economic status were found to be statistically significantly related to opinions on prostitution, while other variables - particularly the belief in the importance of gender equality and the level of education - had no statistically significant relationship with tolerance of prostitution. Given that the proposed legal reforms, which will shortly be tabled before parliament, will [1]necessitate the consideration of public opinion, it is imperative that studies such as the one presented in this paper be conducted to gauge the likely response which such proposed reforms might face.

Mental disability and the right to personal liberty in Africa

ABSTRACTThe African Commission on Human and Peoples’ Rights is leading an initiative to draft a disability protocol. This is particularly important for persons with mental disability as the draft protocol makes specific provisions guaranteeing their right to personal liberty, a right currently unavailable to them under article 6 of the African Charter on Human and Peoples’ Rights as interpreted by the African Commission in Purohit & Moore v The Gambia. This article analyses the changes introduced by the draft protocol and examines to what extent they provide realistic prospects for the enjoyment of that right by persons with mental disability.

The Commission as a Party before the Court – Reflections on the Complementarity Arrangement

The African Commission on Human and Peoples' Rights has worked as the continent's watchdog, under the ACHPR, for almost 30 years. Much has changed since the time of its inception. More institutions, set to ensure the implementation of the ACHPR, have been added. As the African Court on Human and Peoples' Rights became operational, a two-tiered human rights system was created.This article explores the inter-relationship between the ACHPR, the Protocol Establishing the African Court on Human and Peoples’ Rights and the Procedural Rules of these two institutions within the specific context of the African Commission's mandate to refer communications to the African Court. The aim is to offer a purposeful interpretation of the Procedural Rules governing referrals, guided by the understanding of the principle of complementarity in the preparatory works. The author argues that an appropriate interpretation of complementarity, within the context of referrals, becomes vital in alleviating one of the long-term plagues of the African, protective, human rights system, namely the lack of resources and human capital. It is suggested that the African Commission and the African Court can only be effective if they take proper cognisance of the principle of complementarity, in referring and receiving communications.

Section 27 of the Insolvency Act 24 of 1936 as a Violation of the Equality Clause of the Constitution of South Africa: A Critical Analysis

The Constitution of the Republic of South Africa, 1996, is regarded as one of the most progressive constitutions in the world. As the supreme law in South Africa, it applies to all law and conduct. All South African laws must be consistent with the Constitution. Where there is an alleged violation of constitutional provisions, that law or conduct must be evaluated to establish whether or not it is consistent with the values of an open and democratic society based on fundamental human rights such as human dignity and the right to equality.
 The Insolvency Act and section 27 in particular which is the focus of this paper must be consistent with the Constitution. Section 27(1) provides:
 "No immediate benefit under a duly registered antenuptial contract given in good faith by a man to his wife or any child to be born of the marriage shall be set aside as a disposition without value, unless that man's estate was sequestrated within two years of the registration of that antenuptial contract."
 This section protects benefits arising from an antenuptial contract and given by a man to his wife or to a child born of their marriage, from being set aside as dispositions without value during sequestration proceedings. The same protection is not afforded however, to benefits given by the wife under an antenuptial contract. This also excludes benefits given by those in a same sex marriage, and limits the benefits available to children born of that form of marriage.
 As the right to equality in section 9 of the Constitution seeks to provide equal benefits before the law to persons in the same or similar positions by prohibiting unfair discrimination, the limitations in section 27 render it vulnerable to constitutional review.
 As the Insolvency Act has not been amended as a whole to accommodate the equality provisions in the Constitution, in its current form, section 27 seems to violate section 9(3) of the Constitution on the grounds of sexual orientation, marital status and birth.
 However, certain proposals have been made in the report by the South African Law Reform Commission on the Review of the Law of Insolvency to develop section 27 to comply with the Constitution. Further developments have been proposed by the Department of Justice and Constitutional Developments in its presentations to the Labour Market Chamber in 2003 and 2006.
 This paper examines section 27 of the Insolvency Act as it currently reads, within the context of the right to equality in section 9 of the Constitution. Current developments in respect of section 27 will be considered to illustrate progress made in reforming the section and whether the reform measures proposed will protect all those affected by the discrimination arising from section 27.
 The discussion opens with a consideration of the current dispensation and the question whether section 27 violates section 9(3) of the Constitution. Current developments will then be discussed in the light of the current proposals.
 

Common Problems Affecting Supranational Attempts in Africa: An Analytical Overview

Ever since the colonial era, attempts have been made throughout the various regions of Africa at building supranational units chiefly for administrative and legal convenience. Examples of such attempts include the Federation of Rhodesia and Nyasaland, the East African High Commission and the federations in former French West and Equatorial Africa, all of which were attempts at forging a supranational nation state. These experiments laid the foundation for further supranational initiatives in post-colonial Africa. In this respect, every region in Africa has either experimented with or is currently experimenting with the idea of supranational regional organisations. This article aims at investigating selected attempts at supranationalism on the continent, the successes and failures of such experiments, and the lessons to be learnt from them. As Africa embarks on the journey of solidifying its unity through the establishment of leviathan continental institutions, efforts should be geared towards building on the experiences of past and present experiments at the sub-regional level. Such experiments offer instructive lessons as they are rooted in similar historical and social contexts.

Die Moontlike Regshervorming van die Integrasiereël in die Suid-Afrikaanse Kontraktereg deur middel van die Leerstuk van Rektifikasie

As far back as the early twentieth century the Appellate Division in Cassiem v Standard Bank of SA Ltd, held that:
 “We are bound by the English rules of evidence and the question has therefore to be decided according to English law, the rule being that parol evidence is not allowed to alter, vary, or contradict a written instrument.”
 The integration rule has always been an integral part of the South African law of contract where the admissibility of the presentation of extrinsic evidence of previous or collateral agreements was considered. In 1998 an extensive report was brought out by the South African Law Commission wherein certain recommendations were made to the Minister of Justice pertaining to, inter alia, the application of the integration rule in the South African law of contract. The Law Commission was of the opinion that the disadvantages of the integration rule outweighed the advantages of legal certainty and finality and recoomended that the rule be abolished and that more subjective evidence should be allowed to ascertain the true intention of the parties. The recommendations by the Law Commission however apparently died a slow death and there has been no attempt since to abolish or modify the rule in the South African legal system.
 In 'n previous article the view was held that the integration rule is based on a legal rule or legal fiction and that it can therefore be validly abolished or modified by legislation. Legislation is however a drastic step which should only serve as a last resort and other alternatives should first be considered. This article considers one such a possible alternative, namely the remedy of rectification. The focus will be in particular on a brief discussion of the application of the integration rule in the South African law of contract, the field of application and scope of rectification, the relation between rectification and the integration rule, and, lastly, if rectification can be utilised to avoid the strict application of the integration rule and consequently serve as an instrument for the (indirect) abolition or modification of the rule in the South-African law of contract. The conclusion is that the remedy of rectification would in all probability not in all instances be able to avoid the strict application of the integration rule and that legislation seems to be the only workable alternative to abolish or modify the integration rule in the South African law of contract.

"Contributory Intent" as a Defence Limiting Delictual Liability

In terms of delictual liability, the term "fault" generally refers to the defendant's conduct, whereas "contributory fault" refers to the plaintiff's conduct. "Contributory intent" is a form of "contributory fault" and may apply as a defence limiting delictual liability within the ambit of the Apportionment of Damages Act 34 of 1956 (hereinafter referred to as the "Act"). In terms of the Act, the extent of the plaintiff's as against the defendant's fault is taken into account, resulting (in certain instances) in a reduction of the award to the plaintiff. The Act currently regulates the apportionment of damages based on fault in South Africa. The Act does not specifically provide for conduct performed intentionally, and this also seems to be the situation in quite a few foreign jurisdictions. Initially our courts applied the Act to instances of "contributory negligence" (the other form of "contributory fault") only, but in recent times they have applied it to instances of "contributory intent". This change has occurred as a result of practical situations that arose unexpectedly, where the courts had in the interest of serving justice to deal with cases of intentional conduct on the part of the plaintiff and the defendant. The effect of "contributory intent" as a defence in terms of delictual liability is uncertain and contentious not only in South Africa but in foreign jurisdictions as well. The South African Law Reform Commission undertook a review of the Act and published a report on its findings. The Commission acknowledged that since the Act was passed there have been major developments in the law of delict which the Act has been unable to accommodate, resulting in anomalies in this area of the law. It acknowledged that it is unsatisfactory for our courts to go beyond the parameters of the Act in order to reach a just and equitable result when dealing with the apportionment of liability. The Apportionment of Loss Bill 2003 (hereinafter referred as the "Bill") has been drafted to replace the current Act but has unfortunately not been promulgated. Over ten years have passed since it was drafted. In respect of the Bill, "contributory intent" as a defence limiting delictual liability would be recognised. It is hoped that this contribution will bring about a renewed interest in this forgotten but valuable Bill.

Judicial fragmentation on indigenous property rights: causes, consequences and solutions

ABSTRACTThis article engages in the analysis of the phenomenon of judicial fragmentation as affecting the case law of regional human rights bodies on indigenous property rights. It aims at identifying the features of such divergent understanding of indigenous rights between the European Court of Human Rights, the Inter-American Court of Human Rights and the African Commission of Human and People’s Rights, investigating the causes behind it. Finally, after having highlighted some of the adverse consequences of judicial fragmentation, the article presents some possible solutions for ensuring convergence and a higher standard of protection for indigenous rights.

The Contribution of Victims and Survivors to the Process of Reconciliation in Northern Ireland

In recent post-conflict societies, people who have been directly or indirectly affected by political violence (‘victims and survivors’) have been involved in reconciliation processes, whose archetype is the South African Truth and Reconciliation Commission. Conflict-resolution theories have defined reconciliation as a long process necessary to create or recreate links between once-divided individuals and/or communities. This process aims at establishing a peaceful society and usually gives an important role to victims and survivors.This paper considers Northern Ireland as a case study to take stock of an ongoing and pragmatic process which could inform other post-conflict societies.

The Contribution of Victims and Survivors to the Process of Reconciliation in Northern Ireland

In recent post-conflict societies, people who have been directly or indirectly affected by political violence (‘victims and survivors’) have been involved in reconciliation processes, whose archetype is the South African Truth and Reconciliation Commission. Conflict-resolution theories have defined reconciliation as a long process necessary to create or recreate links between once-divided individuals and/or communities. This process aims at establishing a peaceful society and usually gives an important role to victims and survivors. This paper considers Northern Ireland as a case study to take stock of an ongoing and pragmatic process which could inform other post-conflict societies.

Networking with a Network: The Liverpool African Committee 1750–1810

Historians are increasingly using networks as an analytical framework. However, recent research has stressed the inherent problems with networks, including networking institutions. Historians therefore have to consider why and in what ways actors do, or did, engage with networks. This article posits a novel interdisciplinary methodology by bringing together regression analysis, visual analytics, and history to analyze actors’ relationshipswith an institutionrather than with one another. This methodology, illustrated by the case study of the Liverpool African Committee, from 1750 to 1810, demonstrates that actors’ relationships with an institution may beaffectiveorinstrumental, reflecting different relationshipswithand usesofthe network. Moreover, actors’ relationships with an institution are not static and change over time. The methodology and case study presented in this article suggest a reassessment of the understanding of metropolitan business networking institutions to reflect the complexity of their use.

The Role of the African Commission on Human and Peoples’ Rights in Developing Norms and Standards on HIV/AIDS and Human Rights

AbstractThis article examines the role of the African Commission on Human and Peoples' Rights (African Commission) in establishing norms and standards on HIV and human rights that will assist African governments in addressing human rights abuses in the context of HIV as well as in combating the spread of the epidemic. The article argues that through the promotional and protective mandate of the Commission, opportunity exists for the establishment of important norms and standards to guide African states in addressing human rights challenges raised by HIV/AIDS. It concludes by arguing that the African Commission needs to forge more collaboration with states and civil society groups to ensure proper implementation of its norms and standards at the national level