Pub Date : 2023-07-24DOI: 10.17159/1996-2096/2023/v23n1a8
Perekeme Mutu
Studies have shown that children residing in countries affected by armed conflict are more likely not to attend school as compared to other children. This is the fate of millions of children in Northern Nigeria, where the attacks on educational facilities by Boko Haram terrorists and the general insecurity in the region have resulted in the closing down of thousands of schools in the region by the government at various levels, without viable alternative methods of enabling access to education for the affected children. This serves as the foundation for the question addressed in this article, namely, whether the general insecurity in the region absolved the government of its obligation to ensure access to basic education for children in the region. Through the interrogation of various international, regional and domestic legal instruments and jurisprudence, the article argues that the insecurity in the northern region does not absolve the government of its obligation to provide the enablement for children to access basic education in the region. As a way of recommendation, the article explores the possibility of the government leveraging technology as a method of enabling access to basic education to children in the affected areas.
{"title":"Leveraging technology to deliver basic education to children in conflict areas of Northern Nigeria","authors":"Perekeme Mutu","doi":"10.17159/1996-2096/2023/v23n1a8","DOIUrl":"https://doi.org/10.17159/1996-2096/2023/v23n1a8","url":null,"abstract":"Studies have shown that children residing in countries affected by armed conflict are more likely not to attend school as compared to other children. This is the fate of millions of children in Northern Nigeria, where the attacks on educational facilities by Boko Haram terrorists and the general insecurity in the region have resulted in the closing down of thousands of schools in the region by the government at various levels, without viable alternative methods of enabling access to education for the affected children. This serves as the foundation for the question addressed in this article, namely, whether the general insecurity in the region absolved the government of its obligation to ensure access to basic education for children in the region. Through the interrogation of various international, regional and domestic legal instruments and jurisprudence, the article argues that the insecurity in the northern region does not absolve the government of its obligation to provide the enablement for children to access basic education in the region. As a way of recommendation, the article explores the possibility of the government leveraging technology as a method of enabling access to basic education to children in the affected areas.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43020875","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-24DOI: 10.17159/1996-2096/2023/v23n1a9
Priccilar Vengesai
This article undertakes an analysis of a Zimbabwean High Court case, Mangwende v Machodo, on the refund of the bride price. It is ascertained in the article that the bride price is a legal requirement for customary marriages, hence constituting a significant founding culture for customary marriages. A point of contention motivating the article is, as was held in the case under discussion, that a cheating wife's bride price may be withheld by the husband who would have not paid it in full or, where it was paid up, he can be refunded in full. The gap that exists in this scenario is that, in the case of the husband cheating, the wife does not have a corresponding recourse. The one-sidedness of this custom displays a grave inequality to the prejudice of women. It is also argued that the bride price refund violates the wife's dignity. It is therefore recommended that customary law around the bride price must be developed to meet the constitutional demands of gender equality. In developing this customary law, an important factor to consider is the duration of the marriage. In a situation where a couple stayed together for a reasonable period, each party playing his or her role, it cannot be fair for the husband to be refunded. There could be scenarios where the wife cheats, soon after the bride price was paid and before the couple move in together as husband and wife, when the bride price can be refunded. Furthermore, not all bride price items are refundable and, therefore, those components of bride price that can be refunded must be clearly defined.
{"title":"Mangwende v Machodo: Bride price refund and the violation of women's rights in contemporary Zimbabwe","authors":"Priccilar Vengesai","doi":"10.17159/1996-2096/2023/v23n1a9","DOIUrl":"https://doi.org/10.17159/1996-2096/2023/v23n1a9","url":null,"abstract":"This article undertakes an analysis of a Zimbabwean High Court case, Mangwende v Machodo, on the refund of the bride price. It is ascertained in the article that the bride price is a legal requirement for customary marriages, hence constituting a significant founding culture for customary marriages. A point of contention motivating the article is, as was held in the case under discussion, that a cheating wife's bride price may be withheld by the husband who would have not paid it in full or, where it was paid up, he can be refunded in full. The gap that exists in this scenario is that, in the case of the husband cheating, the wife does not have a corresponding recourse. The one-sidedness of this custom displays a grave inequality to the prejudice of women. It is also argued that the bride price refund violates the wife's dignity. It is therefore recommended that customary law around the bride price must be developed to meet the constitutional demands of gender equality. In developing this customary law, an important factor to consider is the duration of the marriage. In a situation where a couple stayed together for a reasonable period, each party playing his or her role, it cannot be fair for the husband to be refunded. There could be scenarios where the wife cheats, soon after the bride price was paid and before the couple move in together as husband and wife, when the bride price can be refunded. Furthermore, not all bride price items are refundable and, therefore, those components of bride price that can be refunded must be clearly defined.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44312855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-24DOI: 10.17159/1996-2096/2023/v23n1a6
Tinyade Kachika
In recent years, community laws to address harmful practices affecting women and girls in rural Malawi have been forming under the leadership of traditional authorities (chiefs), plural justice system actors who usually are suspected by international human rights law and jurisprudence of being on the side of women's rights violations. Yet, being community engineered, the community laws have some potential to practically protect women and girls from harmful practices. Taking off from a 'norm internalisation' conceptual footing, this article closely examines how the phenomenon of community laws sits with the expectations of international human rights law and jurisprudence on measures that states ought to take to internalise norms protecting women and girls from harmful practices. The article establishes that international human rights law and jurisprudence is saturated with calls for states to prioritise formal and macro-level measures to address harmful practices, although latest jurisprudence at both United Nations and African Union levels has cautiously begun to also recognise the role of plural justice systems. The article argues that it is high time that the human rights treaty-monitoring bodies started to critically re-examine the high insistence on formal measures, given that the community laws, which are also internalising the norm protecting women from harmful practices, are manifesting at the level of chiefs' jurisdictions.
{"title":"Juxtaposing emerging community laws and international human rights jurisprudence on the protection of women and girls from harmful practices in Malawi","authors":"Tinyade Kachika","doi":"10.17159/1996-2096/2023/v23n1a6","DOIUrl":"https://doi.org/10.17159/1996-2096/2023/v23n1a6","url":null,"abstract":"In recent years, community laws to address harmful practices affecting women and girls in rural Malawi have been forming under the leadership of traditional authorities (chiefs), plural justice system actors who usually are suspected by international human rights law and jurisprudence of being on the side of women's rights violations. Yet, being community engineered, the community laws have some potential to practically protect women and girls from harmful practices. Taking off from a 'norm internalisation' conceptual footing, this article closely examines how the phenomenon of community laws sits with the expectations of international human rights law and jurisprudence on measures that states ought to take to internalise norms protecting women and girls from harmful practices. The article establishes that international human rights law and jurisprudence is saturated with calls for states to prioritise formal and macro-level measures to address harmful practices, although latest jurisprudence at both United Nations and African Union levels has cautiously begun to also recognise the role of plural justice systems. The article argues that it is high time that the human rights treaty-monitoring bodies started to critically re-examine the high insistence on formal measures, given that the community laws, which are also internalising the norm protecting women from harmful practices, are manifesting at the level of chiefs' jurisdictions.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44225472","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-24DOI: 10.17159/1996-2096/2023/v23n1a4
Noluthando P Ncame
The establishment of a permanent international criminal court was a necessity and the fear of it infringing on a state's sovereignty was real and ever present. As a result of this fear the International Criminal Court could not be awarded primary jurisdiction, and a compromise had to be reached in which it would operate under a regime of complementarity. This article focuses on the Simone Gbagbo case, as the first woman to be charged by the Court, with the object of nuancing the principle of complementarity in the various stages of an international criminal trial and the extent to which it portrays the tension of state sovereignty, tracing it from its infant historical or rudimentary practices to the current practice and making the necessary recommendations. All of this will be done by contextualising it all within the Cote d'lvoire situation, particularly as it relates to complementarity. The article makes recommendations that focus on how and why the lCC should avoid seeking to dictate and impose its prosecutorial strategy on the domestic officials so as to avoid a crisis of its legitimacy being questioned, and the state's refusal to cooperate with the Court. lt concludes with the caution that when the practices of the lCC and its Prosecutor make charging decisions for the state and embrace undermining the prosecutorial discretion of the domestic authorities, then the principle of complementarity will have been officially decimated and the principle of complementarity officially birthed.
{"title":"Justice in conflict: Principle of complementarity or principle of competition?","authors":"Noluthando P Ncame","doi":"10.17159/1996-2096/2023/v23n1a4","DOIUrl":"https://doi.org/10.17159/1996-2096/2023/v23n1a4","url":null,"abstract":"The establishment of a permanent international criminal court was a necessity and the fear of it infringing on a state's sovereignty was real and ever present. As a result of this fear the International Criminal Court could not be awarded primary jurisdiction, and a compromise had to be reached in which it would operate under a regime of complementarity. This article focuses on the Simone Gbagbo case, as the first woman to be charged by the Court, with the object of nuancing the principle of complementarity in the various stages of an international criminal trial and the extent to which it portrays the tension of state sovereignty, tracing it from its infant historical or rudimentary practices to the current practice and making the necessary recommendations. All of this will be done by contextualising it all within the Cote d'lvoire situation, particularly as it relates to complementarity. The article makes recommendations that focus on how and why the lCC should avoid seeking to dictate and impose its prosecutorial strategy on the domestic officials so as to avoid a crisis of its legitimacy being questioned, and the state's refusal to cooperate with the Court. lt concludes with the caution that when the practices of the lCC and its Prosecutor make charging decisions for the state and embrace undermining the prosecutorial discretion of the domestic authorities, then the principle of complementarity will have been officially decimated and the principle of complementarity officially birthed.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45519646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-24DOI: 10.17159/1996-2096/2023/v23n1a2
R. Shawa, F. Coomans, Helen Cox, L. London
In 2020 the United Nations Committee on Economic, Social and Cultural Rights published its 25th General Comment on the right to enjoy the benefits of scientific progress (REBSP). The General Comment describes the normative content of the right, including the obligations of the state and the entitlements of rights holders. It addressed the major gap in the REBSP, which was the lack of internationally-accepted interpretations of what the right entails. This article aims to shed light on the REBSP, and to demonstrate how it can be applied to advance public health. The article argues that the application of the REBSP requires a balancing act between the rights of researchers or scientists and the rights of users of the scientific knowledge they generate. It further argues that, when applied to health, the REBSP has the potential to improve access to better prevention, diagnosis and treatment of diseases, and could draw attention to neglected diseases, which mostly affect developing countries.
{"title":"A promising potential: Using the right to enjoy the benefits of scientific progress to advance public health in Africa","authors":"R. Shawa, F. Coomans, Helen Cox, L. London","doi":"10.17159/1996-2096/2023/v23n1a2","DOIUrl":"https://doi.org/10.17159/1996-2096/2023/v23n1a2","url":null,"abstract":"In 2020 the United Nations Committee on Economic, Social and Cultural Rights published its 25th General Comment on the right to enjoy the benefits of scientific progress (REBSP). The General Comment describes the normative content of the right, including the obligations of the state and the entitlements of rights holders. It addressed the major gap in the REBSP, which was the lack of internationally-accepted interpretations of what the right entails. This article aims to shed light on the REBSP, and to demonstrate how it can be applied to advance public health. The article argues that the application of the REBSP requires a balancing act between the rights of researchers or scientists and the rights of users of the scientific knowledge they generate. It further argues that, when applied to health, the REBSP has the potential to improve access to better prevention, diagnosis and treatment of diseases, and could draw attention to neglected diseases, which mostly affect developing countries.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46699404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-24DOI: 10.17159/1996-2096/2023/v23n1a5
Theophilus E Coleman, Ernest Yaw Ako, Joshua G Kyeremateng
The Ghanaian Parliament is currently considering the passage of a law to re-criminalise consensual same-sex conduct between adults in private. If passed into law, the Anti-LGBTQ+ Bill will usher in a 'second wave' of criminalisation of lesbian, gay, bisexual, transgender, intersex, queer (LGBTIQ+) conduct and related activity. Section 104(1) (b) of the Criminal Offences Act of Ghana already criminalises 'unnatural carnal knowledge', which targets sexual conduct between persons of the same sex. The proponents of the Bill, a group of parliamentarians, argue that homosexuals do not have rights that can be protected by law. They also argue that homosexuality is against the culture and religion of most Ghanaians and, therefore, should be criminalised. The proposed law seeks to uphold the sanctity of a so-called Ghanaian family and cultural values by criminalising the right to free speech, including academic freedom; freedom of movement and association; and imposes an obligation on every Ghanaian to promote the contents of the Bill, including reporting homosexuals and homosexual activity to the police. This article argues that the foundational argument on which the Bill hinges is flawed, misconceived, and a total mischaracterisation of fundamental human rights enshrined in the 1992 Constitution of Ghana. In addition, viewed from a socio-legal, historical and anthropological perspective, the Bill is an unnecessary and misconceived exercise which, if successful, would derail the democratic gains Ghana has made over the years. Overall, the central arguments in support of the Bill fall short of the minimum threshold to limit the constitutional rights of persons in Ghana.
{"title":"A human rights critique of Ghana's Anti-LGBTIQ+ Bill of 2021","authors":"Theophilus E Coleman, Ernest Yaw Ako, Joshua G Kyeremateng","doi":"10.17159/1996-2096/2023/v23n1a5","DOIUrl":"https://doi.org/10.17159/1996-2096/2023/v23n1a5","url":null,"abstract":"The Ghanaian Parliament is currently considering the passage of a law to re-criminalise consensual same-sex conduct between adults in private. If passed into law, the Anti-LGBTQ+ Bill will usher in a 'second wave' of criminalisation of lesbian, gay, bisexual, transgender, intersex, queer (LGBTIQ+) conduct and related activity. Section 104(1) (b) of the Criminal Offences Act of Ghana already criminalises 'unnatural carnal knowledge', which targets sexual conduct between persons of the same sex. The proponents of the Bill, a group of parliamentarians, argue that homosexuals do not have rights that can be protected by law. They also argue that homosexuality is against the culture and religion of most Ghanaians and, therefore, should be criminalised. The proposed law seeks to uphold the sanctity of a so-called Ghanaian family and cultural values by criminalising the right to free speech, including academic freedom; freedom of movement and association; and imposes an obligation on every Ghanaian to promote the contents of the Bill, including reporting homosexuals and homosexual activity to the police. This article argues that the foundational argument on which the Bill hinges is flawed, misconceived, and a total mischaracterisation of fundamental human rights enshrined in the 1992 Constitution of Ghana. In addition, viewed from a socio-legal, historical and anthropological perspective, the Bill is an unnecessary and misconceived exercise which, if successful, would derail the democratic gains Ghana has made over the years. Overall, the central arguments in support of the Bill fall short of the minimum threshold to limit the constitutional rights of persons in Ghana.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44592269","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-24DOI: 10.17159/1996-2096/2023/v23n1a3
R. B. Bernard
Child labour results in children working under dangerous and hazardous conditions, which affects their growth and development, as well as their health and safety. It also results in the abuse (physical and mental) and violation of the rights of a child. It is important to note that not all forms of work undertaken by a child are considered child labour. The highest incidence of child labour in the world is in Africa and, therefore, this requires better regulation and monitoring. It is argued that the banning of child labour in Africa currently is not achievable given the socio-economic factors, cultural perspectives and beliefs about childhood and the role of the child. This article looks at child labour in the African context and argues for the harmonisation of child labour laws, in the Common Market for Eastern and Southern Africa, the East African Community and Southern African Development Community through regional integration. There are several benefits to the legal harmonisation of child labour laws: uniformity and certainty in the law, which facilitates better regulation; consistency in the interpretation and application of the law; and sharing of resources and capacity development, to highlight a few. The article concludes that the subregional integration of child labour laws through legal harmonisation currently is a viable option for these regions.
{"title":"The regional regulation of child labour laws through harmonisation within COMESA, the EAC and SADC","authors":"R. B. Bernard","doi":"10.17159/1996-2096/2023/v23n1a3","DOIUrl":"https://doi.org/10.17159/1996-2096/2023/v23n1a3","url":null,"abstract":"Child labour results in children working under dangerous and hazardous conditions, which affects their growth and development, as well as their health and safety. It also results in the abuse (physical and mental) and violation of the rights of a child. It is important to note that not all forms of work undertaken by a child are considered child labour. The highest incidence of child labour in the world is in Africa and, therefore, this requires better regulation and monitoring. It is argued that the banning of child labour in Africa currently is not achievable given the socio-economic factors, cultural perspectives and beliefs about childhood and the role of the child. This article looks at child labour in the African context and argues for the harmonisation of child labour laws, in the Common Market for Eastern and Southern Africa, the East African Community and Southern African Development Community through regional integration. There are several benefits to the legal harmonisation of child labour laws: uniformity and certainty in the law, which facilitates better regulation; consistency in the interpretation and application of the law; and sharing of resources and capacity development, to highlight a few. The article concludes that the subregional integration of child labour laws through legal harmonisation currently is a viable option for these regions.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44712620","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-24DOI: 10.17159/1996-2096/2023/v23n1a1
Apollin Koagne Zouapet
Forty years after the adoption of the African Charter on Human and Peoples' Rights, the African architecture for the promotion and protection of human rights in Africa has been enriched both at the normative and institutional levels. This enrichment has led in legal analyses both to the affirmation of the existence of an 'African human rights system', on the one hand and, on the other, to the criticism of an unnecessarily complex and not always efficient mechanism. After highlighting the specific logic of the emerging African system, this article indicates the avenues for institutional and methodological reform that should lead to the construction of a truly coherent, effective and efficient African human rights system.
{"title":"From 'puzzling' to comprehensible and efficient: Reform proposals to the African human rights framework through a 'system' lens","authors":"Apollin Koagne Zouapet","doi":"10.17159/1996-2096/2023/v23n1a1","DOIUrl":"https://doi.org/10.17159/1996-2096/2023/v23n1a1","url":null,"abstract":"Forty years after the adoption of the African Charter on Human and Peoples' Rights, the African architecture for the promotion and protection of human rights in Africa has been enriched both at the normative and institutional levels. This enrichment has led in legal analyses both to the affirmation of the existence of an 'African human rights system', on the one hand and, on the other, to the criticism of an unnecessarily complex and not always efficient mechanism. After highlighting the specific logic of the emerging African system, this article indicates the avenues for institutional and methodological reform that should lead to the construction of a truly coherent, effective and efficient African human rights system.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45107910","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-27DOI: 10.17159/1996-2096/2022/v22n2a12
F. Viljoen
{"title":"Editorial","authors":"F. Viljoen","doi":"10.17159/1996-2096/2022/v22n2a12","DOIUrl":"https://doi.org/10.17159/1996-2096/2022/v22n2a12","url":null,"abstract":"","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47630127","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-25DOI: 10.17159/1996-2096/2022/v22n2a2
M. Jimoh
Seizure of communication is an important stage in litigating before the African Commission on Human and Peoples' Rights. At this stage a complainant is required to disclose a prima facie case, in the absence of which the communication will be refused. The seizure criteria are contained in the African Commission's Rules of Procedure. However, the procedural rules are as important as the substantive rules. Where there are burdensome procedural rules in human rights litigation, it becomes more difficult to gain access to justice. The African Commission's Rules of Procedure 2020 guide the communication proceedings of the Commission. The 2020 Rules have introduced some salient provisions that hitherto were not contained in the Rules. Under the 2020 Rules the Secretary can seize a communication during inter-session on behalf of the African Commission. Efforts have also been made to fully separate admissibility criteria from seizure criteria by deleting the admissibility criteria contained under the seizure criteria in the previous Rules. Consequently, it no longer is a requirement for a communication to pass a preliminary test of the admissibility criteria at the seizure stage. Notwithstanding these changes, the African Commission still applied the jurisprudence of the previous Rules in African Freedom of Expression Exchange & 15 Others (represented by FOI Attorneys) v Algeria & 27 Others (FOI), where the Commission also set a higher prima facie standard. This article critiques the Commission's seizure criteria and procedure. It argues that the 2020 Rules have introduced novel provisions that would necessitate the Africn Commission to change its seizure jurisprudence. It recommends that the Commission should adopt the 'might' test at the seizure stage rather than the wide prima facie standard it adopted in FOI. In this way the African Commission would have the opportunity to receive more compelling evidence of violation of the African Charter at the merit stage, rather than shutting out communications at a stage where compelling proof is not required.
{"title":"A critique of the seizure criteria of the African Commission on Human and Peoples' Rights","authors":"M. Jimoh","doi":"10.17159/1996-2096/2022/v22n2a2","DOIUrl":"https://doi.org/10.17159/1996-2096/2022/v22n2a2","url":null,"abstract":"Seizure of communication is an important stage in litigating before the African Commission on Human and Peoples' Rights. At this stage a complainant is required to disclose a prima facie case, in the absence of which the communication will be refused. The seizure criteria are contained in the African Commission's Rules of Procedure. However, the procedural rules are as important as the substantive rules. Where there are burdensome procedural rules in human rights litigation, it becomes more difficult to gain access to justice. The African Commission's Rules of Procedure 2020 guide the communication proceedings of the Commission. The 2020 Rules have introduced some salient provisions that hitherto were not contained in the Rules. Under the 2020 Rules the Secretary can seize a communication during inter-session on behalf of the African Commission. Efforts have also been made to fully separate admissibility criteria from seizure criteria by deleting the admissibility criteria contained under the seizure criteria in the previous Rules. Consequently, it no longer is a requirement for a communication to pass a preliminary test of the admissibility criteria at the seizure stage. Notwithstanding these changes, the African Commission still applied the jurisprudence of the previous Rules in African Freedom of Expression Exchange & 15 Others (represented by FOI Attorneys) v Algeria & 27 Others (FOI), where the Commission also set a higher prima facie standard. This article critiques the Commission's seizure criteria and procedure. It argues that the 2020 Rules have introduced novel provisions that would necessitate the Africn Commission to change its seizure jurisprudence. It recommends that the Commission should adopt the 'might' test at the seizure stage rather than the wide prima facie standard it adopted in FOI. In this way the African Commission would have the opportunity to receive more compelling evidence of violation of the African Charter at the merit stage, rather than shutting out communications at a stage where compelling proof is not required.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45734606","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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