The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women

The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women

by | May 1, 2022 | SLR, SLR V33 I1

The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women

Authors: Kennedy Kariseb

ISSN: 1996-2193
Affiliations: BJuris LLB (UNAM) LLM LLD (UP), Lecturer, School of Law, University of Namibia
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 42 – 56
https://doi.org/10.47348/SLR/2022/i1a2

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Kariseb, K
The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women
Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 42 – 56
https://doi.org/10.47348/SLR/2022/i1a2

Abstract

By using the mechanism of the Special Rapporteur on the Rights of Women  in Africa (SRRWA) as a matrix, this article assesses the responsivity of the  mechanism of the SRRWA in combating violence against women (“VAW”). The  article argues that the mechanism of the SRRWA has taken up the challenge of  contributing, in a substantive manner, to norms development relating to VAW.  It finds that although VAW is not an explicit thematic area in the mandate  of the SRRWA, compared to the United Nations Human Rights Council’s  special rapporteur on violence against women, its causes and consequences,  in practice it features quite distinctly in the work of the mechanism. This is  indicative of the modest focus, response and contribution of the mechanism to  this intractable human rights issue. 

The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women

Protecting transgender women within the African human rights system through an inclusive reading of the Maputo Protocol and the proposed Southern African Development Community Gender- Based Violence Model Law

by | May 1, 2022 | SLR, SLR V33 I1

Protecting transgender women within the African human rights system through an inclusive reading of the Maputo Protocol and the proposed Southern African Development Community Gender- Based Violence Model Law

Authors: Tegan Snyman and Annika Rudman

ISSN: 1996-2193
Affiliations: LLB LLM (Stell), PhD candidate, Department of International and European Union Law, Erasmus, University Rotterdam; LLB LLM PhD (Gothenburg), Professor of International Law, Department of Public Law, University of Stellenbosch
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 57 – 77
https://doi.org/10.47348/SLR/2022/i1a3

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Snyman, T and Rudman, A
Protecting transgender women within the African human rights system through an inclusive reading of the Maputo Protocol and the proposed Southern African Development Community Gender- Based Violence Model Law
Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 57 – 77
https://doi.org/10.47348/SLR/2022/i1a3

Abstract

Under Article 1 of the Maputo Protocol “women” are defined as “persons  of the female gender”. Notwithstanding this definition, transgender women,  persons whose gender is female but who were assigned male at birth, are  yet to be recognised or protected under the Protocol. On the contrary, on  the African continent, transgender women are some of the most vulnerable  persons in society. Due to their frequent misidentification as homosexual  men, and widespread criminalisation of homosexuality, these women  are regularly discriminated against and victims of stigma and violence.  Furthermore, because of the denial of their gender identities, these women  are deprived of their legal recognition and subsequent protection of their  human rights. This article considers discrimination against transgender  women and contrasts it with the provisions of the Maputo Protocol. This  article utilises the teleological approach to treaty interpretation, together  with postmodern intersectional feminist legal theory and queer legal theory  as well as fundamental principles of international human rights law such as  dignity, equality and non-discrimination. Finally, the article considers the  recognition and protection of transgender women in light of the proposed  SADC GBV Model Law. 

The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women

The Niamey Guidelines to combat sexual violence and its consequences in Africa and sexual harassment: A case study of Nigeria

by | Apr 30, 2022 | SLR, SLR V33 I1

The Niamey Guidelines to combat sexual violence and its consequences in Africa and sexual harassment: A case study of Nigeria

Authors: Ebenezer Durojaye and Temitayo Lawal

ISSN: 1996-2193
Affiliations: LLB (Lagos) LLM LLD (Free State), Head Socio-Economic Rights Project, Dullah Omar Institute, University of the Western Cape; LLB (Nigeria) LLM (UWC), Assistant Chief State Counsel, Sexual and Gender-Based Violence Unit, Federal Ministry of Justice, Abuja, Nigeria
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 78 – 99
https://doi.org/10.47348/SLR/2022/i1a4

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Durojaye, E and Lawal, T
The Niamey Guidelines to combat sexual violence and its consequences in Africa and sexual harassment: A case study of Nigeria
Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 78 – 99
https://doi.org/10.47348/SLR/2022/i1a4

Abstract

This article examines the importance of the provisions of the Niamey  Guidelines to Combat Sexual Violence and its Consequences in addressing  sexual violence, including sexual harassment in Africa. Using Nigeria  as a case study, the article examines the provisions of international and  regional human rights instruments in addressing sexual harassment. It  discusses the Guidelines’ approach to addressing sexual violence, including  sexual harassment. The article highlights some of the salient provisions of  the Niamey Guidelines on sexual violence, which include the obligation of  states to prevent sexual violence, protecting and supporting victims of sexual  violence, investigating and prosecuting sexual violence, ensuring reparation  to implementing international and regional norms on sexual violence at the  national level. The analysis of the Niamey Guidelines vis-à-vis legislation  to address sexual harassment in Nigeria is grounded in asking the woman  question. This refers to how laws, policies and judicial decisions take account  of the lived experiences of women. Thereafter, the article discusses some  of the gaps in the approach by the Nigerian government to address sexual  harassment and offers recommendations for the way forward. 

The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women

The legal impunity for gender-based violence against intersex, transgender, and gender diverse persons in Kenya: A legal recognition issue for the African human rights system

by | Apr 30, 2022 | SLR, SLR V33 I1

The legal impunity for gender-based violence against intersex, transgender, and gender diverse persons in Kenya: A legal recognition issue for the African human rights system

Authors: Milka Wahu Kuria and Shelmith Gatwiri Maranya

ISSN: 1996-2193
Affiliations: LLB (University of Nairobi) LLM (Dar es Salaam), Legal Aid Clinic Coordinator, Jomo Kenyatta University of Agriculture and Technology Founder, Amka Africa Justice Initiative; LLB Jomo Kenyatta University of Agriculture and Technology, Project Coordinator, Amka Africa Justice Initiative
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 100 – 122
https://doi.org/10.47348/SLR/2022/i1a5

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Kuria, MW and Maranya, SG
The legal impunity for gender-based violence against intersex, transgender, and gender diverse persons in Kenya: A legal recognition issue for the African human rights system
Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 100 – 122
https://doi.org/10.47348/SLR/2022/i1a5

Abstract

In 2019, a judge of the Supreme Court of Kenya issued a public apology  to an intersex person for a decision the court handed down in 2010. The  judge regretted the court’s failure to appreciate the identity and human  rights needs of intersex persons in that case. R.M. had petitioned the High  Court for redress due to the sexual, psychological, and emotional abuse  he had suffered while detained at the state correctional facilities. This case  highlighted the various forms of violence that intersex, transgender, and  gender diverse persons (“ITGDPs”) experience on account of their gender  identity. Studies reveal that gender-based violence against ITGDPs in Kenya  is intricately conjoined with a lack of socio-cultural and legal recognition of  their gender identities. The exclusion engenders pervasive violence by state  actors and private individuals. Despite the growing use of public interest  litigation (“PIL”) as a mechanism for pursuing the goals of legal recognition  and social, economic, and political emancipation of ITGDPs in Kenya, there  is scant improvement in policy and practice. The same lacuna obtains in the  African human rights mechanisms. The apology, the research findings and  the unyielding PIL create the appropriate occasion for a critical examination  of the effects of the assumption on synonymy and binarism of gender and sex  espoused by the national and the African human rights system, on sexual  and gender-based violence (“GBV”) against ITGDPs in Kenya. This article  analyses the nexus and how a lack of legal recognition of ITGDP gender  identities and expression aggravates sexual and GBV against the group  against the backdrop of the African human rights system. 

The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women

Role of the police in access to justice for sexual and gender-based violence perpetrated against diverse women in Zimbabwe

by | Apr 30, 2022 | SLR, SLR V33 I1

Role of the police in access to justice for sexual and gender-based violence perpetrated against diverse women in Zimbabwe

Authors: Munatsi Shoko, Kerry Vermaak and Annika Rudman

ISSN: 1996-2193
Affiliations: PhD Candidate, MA Population Studies (UKZN), Lecturer, Nehanda Centre for Gender and Culture Studies, Great Zimbabwe University, Masvingo; PhD Public Health, Lecturer, Population Studies Unit, University of KwaZulu-Natal; LLB (Lund), LLM (Lund) PhD (Gothenburg), Professor of International Law, Department of Public Law, University of Stellenbosch
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 123 – 138
https://doi.org/10.47348/SLR/2022/i1a6

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Shoko, M, Vermaak, K and Rudman, A
Role of the police in access to justice for sexual and gender-based violence perpetrated against diverse women in Zimbabwe
Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 123 – 138
https://doi.org/10.47348/SLR/2022/i1a6

Abstract

Bound by the 2013 Constitution of Zimbabwe (“Zimbabwean Constitution”),  as informed by regional human rights law, Zimbabwean police should facilitate  access to justice for everyone. This article interrogates the lived realities of  diverse women in terms of how the police in Zimbabwe respond when they  report cases of sexual and gender-based violence (“SGBV”). Using qualitative  data this article also interrogates institutional practices questioning the  alignment of laws and actions to the Zimbabwean Constitution. The findings  show that the reluctance of the police to efficiently and appropriately  engage with SGBV cases reported by diverse women is encouraged by the  homophobic context in which these take place. The ability of the police to  provide justice to diverse women who experience SGBV can be strengthened  by repealing the laws that criminalise same-sex relations and sodomy and by  implementing regional human rights law as interpreted through Resolution  275 of the African Commission on Human and People’s Rights. 

The responsivity of the mechanism of the Special Rapporteur on the Rights of Women in Africa in combating violence against women

Evening out the divide between rights and culture: a case for mobilising positive culture in state responses to gender-based violence in Kenya

by | Apr 30, 2022 | SLR, SLR V33 I1

Evening out the divide between rights and culture: a case for mobilising positive culture in state responses to gender-based violence in Kenya

Author: Faith Kabata

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Lecturer, Kenyatta University School of Law
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 139 – 160
https://doi.org/10.47348/SLR/2022/i1a7

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Kabata, F
Evening out the divide between rights and culture: a case for mobilising positive culture in state responses to gender-based violence in Kenya
Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 139 – 160
https://doi.org/10.47348/SLR/2022/i1a7

Abstract

The main focus of the article is on the inadequacy of state responses in  eliminating gender-based violence in its structural and direct expressions.  The article departs from the premise that gender, sexuality, and identity are  cultural constructs and argues that culture and social constructs are dynamic  and changing, hence state responses to eliminate gender-based violence must  engage the positive and egalitarian aspects of African culture for social  legitimacy. While acknowledging that constitutional and legal frameworks  lay a normative foundational basis for protection against gender-based  violence, the effectiveness of these frameworks must be measured through  implementation. It is in the implementation of the constitutional and legal  norms that cultural contestations emerge, for instance, in the context of  structural forms of gender-based violence such as female genital mutilation  and marital rape. The main question that the article seeks to answer is  how states can bridge the gap between norms and implementation which  arises out of cultural contestations. Focusing on Kenya as a case study,  the article examines state responses to structural forms of gender-based  violence, specifically, female genital mutilation and marital rape. The Kenyan  constitutional framework recognises culture as the foundation of the nation  and the right to culture in the Bill of Rights, and on equal footing embraces  egalitarian principles which place dignity, freedom, and equality at the core of  societal relations. Applying doctrinal research methodology, we analyse case  law on female genital mutilation and legislative initiatives in the prohibition  of marital rape to identify and distil the judicial and legislative approaches  on the interplay between the prohibition of gender-based violence norms and  culture. Based on this, the article suggests proposals on how the progressive  aspects of African culture that resonate with the egalitarian constitutional  structure can be engaged in state responses to gender-based violence. 

Horizontal accountability: Bottom-up oversight of public duty bearers in Malawi

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

Horizontal accountability: Bottom-up oversight of public duty bearers in Malawi

Authors: Dan Kuwali and Chikosa M Silungwe

ISSN: 2521-2605
Affiliations: Dan Kuwali holds an LLD (Lund). He is an Extraordinary Professor of Law at the University of Pretoria, South Africa; Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Sweden; Adjunct Professor and Executive Director, Centre for Strategic Studies, Malawi University of Science and Technology; Fellow at the Carr Centre for Human Rights Policy, Harvard Kennedy School; and Chief of Legal Services and Judge Advocate General, Malawi Defence Force; Chikosa Silungwe holds a PhD (Warwick). He is a Former Attorney General, Government of the Republic of Malawi and a consultant at the Mizumali Foundation, Lilongwe, Malawi
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 1 – 23
https://doi.org/10.47348/JCLA/v9/i1a1

Abstract

The principle of public duty requires that public authorities should be held accountable for their acts, omissions, decisions, policies and use of public resources. Focusing on Malawi as a country whose democracy has been tried and tested, this paper locates and dissects the notion of public duty in s 12 of the Constitution of Malawi as an instrument for horizontal accountability that can be employed by the citizenry, based on ss 15 and 41 of the Constitution, for more effective and proactive oversight, as opposed to an ex post facto mechanism exercised by the Ombudsman in terms of s 123 of the Constitution. The central argument of this paper is that those who exercise a public duty do so based on people’s sovereignty and they have an obligation to account to the people for the exercise of State authority. The paper concludes that public duty is a corollary of democratic accountability, and both derive from the protection of individual rights and the rule of law.

The Constitutional Court of Uganda: Blurring/misunderstanding its jurisdiction

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

The Constitutional Court of Uganda: Blurring/misunderstanding its jurisdiction

Author: Jamil Ddamulira Mujuzi

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape, South Africa
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 24 – 66
https://doi.org/10.47348/JCLA/v9/i1a2

Abstract

Article 137 of the Constitution of Uganda (the Constitution) provides for the jurisdiction of the Constitutional Court (the Court) to interpret the Constitution and to determine whether any law or conduct—act or omission—is contrary to the Constitution. The drafting history of art 137 shows that the court’s jurisdiction to interpret the Constitution is different from that of declaring whether any law or conduct is inconsistent with the Constitution. However, the jurisprudence of the Court shows that it has blurred the distinction between these two mandates. In this article, the author relies on the drafting history of art 137 to argue, inter alia, that the Court’s approach in this regard is debatable. It is also argued that, although the intention of the drafters of the Constitution was that the Court was not to be the first and final court in matters of constitutional interpretation, the literal interpretation of art 137 and the jurisprudence on art 137 show the opposite. It is further argued that in some instances the Court has misunderstood its jurisdiction under art 137(5) and (6) and that the Court does not have the power to declare legislation unconstitutional under art 137(5). It is also submitted that the Court’s argument that its jurisdiction is limited to interpreting the Constitution or that any petition before it cannot be resolved without first interpreting the Constitution is erroneous. It is further argued that Uganda may have to follow the South African model in which other courts, such as the High Court and the Supreme Court of Appeal, are also empowered to declare legislation unconstitutional.

Recusal of a judge in adjudication: Recent developments in South Africa and Botswana

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

Recusal of a judge in adjudication: Recent developments in South Africa and Botswana

Authors: Chuks Okpaluba and Tumo C Maloka

ISSN: 2521-2605
Affiliations: LLB LLM (London) PhD (University of the West Indies); Research Fellow, Centre for Human Rights, University of the Free State, South Africa; BA LLB LLM (UCT) LLD (UFH), Associate Professor, Department of Mercantile and Labour Law, University of Limpopo
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 67 – 93
https://doi.org/10.47348/JCLA/v9/i1a3

Abstract

Both at common law and under contemporary constitutional jurisprudence, the principle is that a judge who finds himself or herself in a situation where their personal interest(s) in the case in court will lead a dispassionate and independent observer to reasonably suspect that they will be biased or reasonably apprehended to be so, must not sit and hear the case. Even before the commencement of the hearing, the judge is expected to disclose their interest(s) in the case or association with one of the parties to both sides in the case so as to hear their views on the matter. Otherwise, a party who might be prejudiced by the outcome should, as early as possible in the proceedings, apply to the judge to recuse himself or herself from adjudicating the case. Sometimes, the judge might have entered the adjudication without any personal baggage, but one of the parties apprehends bias on account of the utterances or conduct of the judge in the proceedings, and the party affected must apply for the recusal of the judge from the trial or proceedings. Recent developments have shown that the circumstances in which recusal is permissible are far from being exhausted, hence the category of possible recusal cases is not closed. The cases that have arisen in the last ten years in Botswana and South Africa are very extensive in terms of volume and the variety of the issues that they raise and therefore they provide the material around which this article is constructed.

Discretion in the exercise of jurisdiction in conflict cases in Nigeria

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

Discretion in the exercise of jurisdiction in conflict cases in Nigeria

Authors: Chilenye Nwapi, Emeka J Egbebu and Thankgod Akazua

ISSN: 2521-2605
Affiliations: Research Associate, Canadian Institute of Resources Law, University of Calgary, Calgary, Canada; Senior Magistrate, Imo State Judiciary, Owerri, Nigeria; 4th Year Law Student, Rivers State University, Port Harcourt, Nigeria
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 94 – 129
https://doi.org/10.47348/JCLA/v9/i1a4

Abstract

This article analyses the jurisprudence of discretionary jurisdiction in conflicts cases in Nigeria to interrogate the considerations of theory and practical policy (or lack thereof) that, in the authors’ view, have influenced the development of the relevant law and procedure. The analysis includes an assessment of whether too much or too little weight has been given to some theories or policies. The article discusses discretionary jurisdiction in three main situations: (1) where the defendant is outside the jurisdiction of the forum court and, therefore, must be served ex juris; (2) when the court is invited to decline jurisdiction based on the doctrine of forum non conveniens; and (3) when there are parallel proceedings in a foreign jurisdiction. A key finding is that discretionary jurisdiction in Nigeria is highly under-theorised in the jurisprudence. Nigerian intellectuals have, for their part, not given the subject adequate consideration. There is, therefore, a dearth of literature to draw on. The article sifts through the rules of court and court decisions to discover the theoretical and practical considerations for the courts’ exercise of discretionary jurisdiction in the three situations mentioned.