Book Bench
Book Bench
Author: Hugh Corder
ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 139 Issue 2, p. 475-480
https://doi.org/10.47348/SALJ/v139/i2a10
Abstract
None
Correspondence: Cricket pitches on the Rondebosch Common
Correspondence: Cricket pitches on the Rondebosch Common
Author: Joel Krige
ISSN: 1996-2177
Affiliations: Member of the Cape Bar
Source: South African Law Journal, Volume 139 Issue 2, p. 481-489
https://doi.org/10.47348/SALJ/v139/i2a11
Abstract
None
Global perspectives of Africa: Harnessing the universal periodic review to process sexual and gender-based violence in SADC member states
Global perspectives of Africa: Harnessing the universal periodic review to process sexual and gender-based violence in SADC member states
Authors: SC Vollmer and DT Vollmer
ISSN: 1996-2193
Affiliations: BA (Denver) LLB LLD (Stellenbosch), Associate, Resilient LLP, Ontario; BEng (McMaster) MSc (UOIT), PhD student and CGS-D researcher (York University, Canada)
Source: Stellenbosch Law Review, Volume 33 Issue 1, 2022, p. 8 – 41
https://doi.org/10.47348/SLR/2022/i1a1
Abstract
This article examines the responsiveness of the African human rights system to sexual and gender-based violence (“SGBV”) from a collaborative framework combining both legal and computational methodologies. This alternative lens is proposed to address the need for urgent attention to the increasing SGBV and other human rights violations of persons based on their real or perceived sexual orientation, gender identity and expressions, and/ or sex characteristics (“SOGIESC”), as current research has not yet fully understood the reasons for the enduring gap between the norms and their implementation. Primarily, the focus of this research provides an intersection of the (un)responsiveness of the African human rights system to SGBV and the (in)adequacy of state responses to SGBV, including laws and practices that exacerbate SGBV, with a focus on the Southern African Development Community (“SADC”). The Universal Periodic Review (“UPR”), under the auspices of the United Nations Human Rights Council, was used to determine to what extent African states recognise and articulate positions on SGBV – results of which were used to assess further support through human rights mechanisms under the African human rights system. This article considers the international human rights record of African states on the issues of SGBV SOGIESC-based discrimination and violence. Through a systematic evaluation of the UPR record, the work presented here provides a framework for developing recommendations and/or observations for an integrated approach to advancing SOGIESC rights under the African human rights system. An artefact of the work is the development of a preliminary computational software program that was demonstrated to have captured trends in the aforementioned information with increased efficiency, potentially lowering costs and increasing accessibility.
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
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
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.
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
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 Niamey Guidelines to combat sexual violence and its consequences in Africa and sexual harassment: A case study of Nigeria
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
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 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
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.
Role of the police in access to justice for sexual and gender-based violence perpetrated against diverse women in Zimbabwe
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
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.
Evening out the divide between rights and culture: a case for mobilising positive culture in state responses to gender-based violence in Kenya
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
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
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.