International Law Protecting Women from Domestic Abuse: Is it a Fallacy?

by | Sep 27, 2019 | ANUL, ANUL 2014 I1

International Law Protecting Women from Domestic Abuse: Is it a Fallacy?

Authors Ruth Aura-Odhiambo

ISSN: 2521-2613
Affiliations: None
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 94 – 118

Abstract

Domestic violence has been recognised as a violation of human rights under international law. It is a form of discrimination against women and a violation of their substantive rights including the right to life, the right to liberty and security of the person, the right to be free from torture and the right to health. However, at the national level, it is sanctioned by customs and traditions and perceived as a private issue that does not warrant external intervention. The false impression that domestic violence is purely a private or personal issue is in part due to the failure of most countries to effectively address the quandary of violence against women. Consequently, the national legal infrastructure, designed to distinguish between public and private law, does not assist domestically abused women. The failure of the national legal framework to address domestic violence has invited the application of international law as an option for victims of domestic abuse. The inadequacy has further fuelled international, regional, national and local campaigns, orchestrated by feminists, to promote the use of international law standards and principles to guide the protection of women from domestic violence at the domestic level. This article investigates the efficacy or otherwise of employing standards and principles of international law at the national level as an effective response mechanism of addressing domestic violence. The article argues that although international law provides domestic violence victims with an opportunity to have their issues addressed on a higher pedestal, its effective application is still a mirage in Kenya.

South Africa’s Reasonableness Test and its Rejection of the United Nations’ Minimum Core Concept

by | Sep 27, 2019 | ANUL, ANUL 2014 I1

South Africa’s Reasonableness Test and its Rejection of the United Nations’ Minimum Core Concept

Authors Adedokun Ogunfolu, Oluwatomilola Adewoye

ISSN: 2521-2613
Affiliations: None
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 68 – 93

Abstract

The reasonableness test, developed by South Africa’s Constitutional Court in the adjudication of socio-economic rights to health care, housing, and water supply under the 1996 South African Constitution, represents a paradigm shift towards improved accountability in public governance. But the court has also struggled to justify its rejection of the minimum core concept of the United Nations Committee on Economic, Social and Cultural Rights. The court would rather hide behind a purported inability of access to information to interpret the core contents of the socio-economic rights. There is need for an improvement in the effectiveness of socio-economic rights litigation, especially by eliciting comprehensive evidence that reflects what the minimum core of a particular right should be. Focus should also be on providing sufficient proof that the Government has resources which it can deploy to meet the urgent socio-economic needs, and show that a current policy or programme of the Government is unreasonable in the light of available resources. Such strategic litigation, coupled with the willingness of the court to give effective remedies will go a long way in the promotion of socio-economic rights in South Africa.

Political and Socio-Economic Transformation under a New Constitutional Dispensation: An Analysis of the 2010 Kenyan Constitution as a Transformative Constitution

by | Sep 27, 2019 | ANUL, ANUL 2014 I1

Political and Socio-Economic Transformation under a New Constitutional Dispensation: An Analysis of the 2010 Kenyan Constitution as a Transformative Constitution

Authors Nicholas Wasonga Orago

ISSN: 2521-2613
Affiliations: Independent Researcher on Economic, Social and Cultural Rights and an Advocate of the High Court of Kenya
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 30 – 67

Abstract

Kenya has laboured under the challenges of poverty, inequality and political as well as socio-economic marginalisation, with the result that the country has struggled to achieve sustainable development. These challenges contributed to the struggle for a new political as well as socio-economic emancipation, a struggle which culminated in the promulgation of a new Constitution on 27 August 2010. The new Constitution contains several mechanisms aimed at the transformation of Kenya’s political as well as socio-economic situation both in the public and private sphere with the objective of enhancing equality, human dignity, social justice and the respect for human rights and fundamental freedoms. This article undertakes an analysis of the 2010 Kenyan Constitution using the parameters of transformative constitutionalism, developed in relation to the 1996 South African Constitution, to determine whether the 2010 Kenyan Constitution can effectively be termed a transformative constitution. The article concludes that the 2010 Constitution has all the necessary features of a transformative constitution and can effectively be used by the courts and other sectors of society so as to achieve political as well as egalitarian socio-economic transformation in Kenya.

Non-Participation in the Communications Procedure of the African Commission on Human and Peoples’ Rights

by | Sep 27, 2019 | ANUL, ANUL 2014 I1

Non-Participation in the Communications Procedure of the African Commission on Human and Peoples’ Rights

Authors Japhet Biegon

ISSN: 2521-2613
Affiliations: None
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 1 – 29

Abstract

For close to three decades now, the African Commission on Human and Peoples’ Rights has served as the continental human rights supervisory mechanism in Africa. During this period, the African Commission has been instrumental in interpreting the Charter rights through its inter-State and individual communications procedure. However, while much has been written about this procedure, little attention has been paid to the implications of non-participation of parties in the procedure. This article examines this phenomenon with a view to demonstrating that there are direct and indirect links between non-participation of parties and the weakness and inefficiency that has come to be associated with the work of the African Commission. In particular, the article shows that non-participation has had the effect of delaying the decision-making process of the African Commission, undermined the quality of its jurisprudence, and contributed to non-compliance with the decisions of the body.

Realising the Right to Water in South Africa: Challenges of Incorporating a Human Rights-based Approach

by | Sep 27, 2019 | ANUL, ANUL 2015 I2

Realising the Right to Water in South Africa: Challenges of Incorporating a Human Rights-based Approach

Authors Oluwabunmi Lucy Niyi-Gafar

ISSN: 2521-2613
Affiliations: Lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Ilorin, Nigeria
Source: Africa Nazarene University Law Journal, 2015, Issue 2, p. 72 – 89

Abstract

South Africa has been applauded for its laudable model of a human rights-based approach to potable water. The South African Constitution, and the operationalisation of the National Water Act (NWA) and the Water Services Act (WSA), have contributed to the creation of an enabling environment for access to potable water in South Africa. However, this approach may not have completely benefited poor black South Africans as revealed by the 2014 South African Human Rights Commission (SAHRC) report. A human rights-based approach to potable water in South Africa has, therefore, neglected the category of people for which it was originally adopted to serve.

The Pursuit of International Peace and Security: An Assessment of the Role of the International Court of Justice

by | Sep 27, 2019 | ANUL, ANUL 2015 I2

The Pursuit of International Peace and Security: An Assessment of the Role of the International Court of Justice

Authors Damfebo Kieriseiye Derri, Perekedou James Fawei

ISSN: 2521-2613
Affiliations: ACI Arb and Senior Lecturer, Faculty of Law, Niger Delta University, Nigeria; PNM, ACI Arb, Private Legal Practitioner and Member, Nigerian Bar Association
Source: Africa Nazarene University Law Journal, 2015, Issue 2, p. 53 – 71

Abstract

The International Court of Justice (ICJ) was established as an organ of the United Nations to promote international peace and security through the pacific settlement of disputes, among other judicial functions. However, there is a problem of effective discharge of judicial functions by the ICJ with regard to the achievement of the objective of promoting international peace and security. This article examines the problems that have arisen in that context, and makes appropriate recommendations. In doing this, the article takes into consideration the constitutive instruments, the foundational philosophies of the ICJ and scholarly opinions. The article postulates the view that in line with the Statute establishing the ICJ, the Court is not only an organ of the United Nations (UN), with the role of merely exercising judicial functions, but has the responsibility, theoretically and philosophically, to give life to the purpose clause of the United Nations Charter. Article 1 of the United Nations Charter affirms the major purpose of the UN as being the maintenance of international peace and security, in addition to other incidental commitments, such as developing friendly relations among states, and promoting international cooperation in the resolution of various international problems.

The Unity Dow Case and the Constitutional Protection of Women in Botswana

by | Sep 27, 2019 | ANUL, ANUL 2015 I2

The Unity Dow Case and the Constitutional Protection of Women in Botswana

Authors Bonolo Ramadi Dinokopila

ISSN: 2521-2613
Affiliations: Senior Lecturer, University of Botswana, Department of Law, Gaborone, Botswana
Source: Africa Nazarene University Law Journal, 2015, Issue 2, p. 35 – 52

Abstract

In 1992, the Court of Appeal of Botswana ruled that a woman who was married to a foreigner could pass on citizenship to her children born of the marriage. In this landmark case, the highest court of the land asserted the rights of women and delivered what would emerge as a major blow to patriarchy in the country. This article focuses on the influence that the Attorney General v Dow (Unity Dow case) has had in the empowerment of women in Botswana. In particular, the extent to which there has been a shift from patriarchy to the protection, promotion and fulfilment of women’s rights is discussed. The article also ascertains the extent to which the international legal regime on women’s rights has influenced developments in the law in Botswana.

Challenges Presented to the Legal Regime by the Emergence of Private Military Contractors

by | Sep 27, 2019 | ANUL, ANUL 2015 I2

Challenges Presented to the Legal Regime by the Emergence of Private Military Contractors

Authors Kenneth Wyne Mutuma

ISSN: 2521-2613
Affiliations: Lecturer, School of Law, University of Nairobi
Source: Africa Nazarene University Law Journal, 2015, Issue 2, p. 1 – 34

Abstract

The past two decades have witnessed the emergence and rapid growth of private military and security contractors (PMSCs). Today, these corporate entities make up a global security industry based on the provision of security services to both state and non-state clientele across the world, whose value is over 100 United States billion dollars. Although their initial rise was intimately associated with post-Cold War factors, and was expected to taper off with the decline of such factors, these speculations have not materialised. Instead, the gap presented by the demand for and supply of security services, especially with the advent of the war on terrorism, has bolstered their growth to the point that the world’s leading military power, the United States of America (USA), has become dependent upon these actors. It is not surprising that their rapid rise has sparked enormous interest regarding their activities. In particular, the services of PMSCs during armed conflict have generated intense debates on how they should be viewed and treated. These debates have intensified as high profile PMSCs have been forced to submit to the scrutiny of the public because of their use of violence in scenarios that amount to gross violations of human rights and humanitarian law. Even far more significant is the underlying question of the nature of the services that the PMSCs carry out in the battlefield, including services that constitute direct participation in hostilities. In addition, there is the question of whether the current legal regime governing armed conflict foresees, and adequately caters for, this peculiarity. International humanitarian law classifies all actors operating in armed conflicts as either combatants or civilians, conferring rights and obligations upon them on the basis of where they fall in this divide. On that basis, this article seeks to ascertain on which side of the dichotomy these actors are classified. It concludes that the majority of PMSC personnel will be considered as civilians, which is a contradiction in view of the reality of their activities. It is on the basis of that reality that the article proceeds to discuss the challenges that arise from the current classification of PMSCs.

Socio-Economic and Cultural Rights under the 2010 Constitution of Kenya: Justiciable or Aspirational?

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

Socio-Economic and Cultural Rights under the 2010 Constitution of Kenya: Justiciable or Aspirational?

Authors Obat Joseph Wasonga, PLO Lumumba

ISSN: 2521-2613
Affiliations: Lawyer at Lumumba & Lumumba Advocates, Nairobi; Director/Chief Executive and Secretary, Kenya School of Law Board
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 118 – 139

Abstract

Economic, social and cultural rights are human legal entitlements relating to the workplace, social security, family life, environment, participation in the cultural life, and access to housing, food, water, health care and education. International human rights instruments are grounded on the fact that particular entities, such as States, have a duty to protect, promote, and fulfil such rights. On that basis, the holders of the rights may correspondingly make claims on the duty-bearers. Therefore, an evaluation of the fulfilment of human rights should examine the extent of the obligation of the dutybearers, as well as the extent of enjoyment of the legal entitlements by the rights holders. This article investigates the theoretical basis for the inclusion of economic, social and cultural rights in the 2010 Constitution. It addresses the question whether the protection of such rights is an indication that the Constitution has a transformative agenda that proceeds beyond the mere guarantee of abstract equality. It also evaluates whether there is a genuine commitment to transform Kenya from a society based on socio-economic deprivation to one that is grounded on equal and equitable distribution of resources. It is in that context that the article examines the issue of justiciability of socio-economic rights under the 2010 Constitution of Kenya.

The Memorandum of Understanding on Double Taxation between Nigeria and Kenya: An Appraisal

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

The Memorandum of Understanding on Double Taxation between Nigeria and Kenya: An Appraisal

Authors MK Adebayo, SM Olokooba

ISSN: 2521-2613
Affiliations: Lecturer and Head, Department of Private and Property Law, Faculty of Law, University of Ilorin; Lecturer, Faculty of Law, University of Ilorin
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 102 – 117

Abstract

It is the practice in most States for income tax to be imposed both on worldwide income derived by residents of the country and on income derived by non-residents generated within the country. The effect of such a system is that income derived by a resident of one State from a source in another country is subjected to tax in both States. This position clearly discourages foreign investment, hence the conclusion of double taxation treaties between States. The focus of this article is, therefore, an appraisal of the memorandum of understanding (MoU) agreement on double-taxation recently entered into by Nigeria and Kenya. It argues that the MoU, if effectively implemented, will boost trade and economic development through increased revenue generation from taxation. The article elucidates on the jurisprudential basis of double taxation treaties by States and then proceeds to undertake a critical analysis of the MoU by Nigeria and Kenya.