Pub Date : 2022-08-11DOI: 10.17159/1996-2096/2022/v22n1a8
Isidore Kwadwo Tufuor
This article examines the extent of participation of accused persons in criminal proceedings in Ghana, particularly in the context of the procedural limits to the right to silence and its associated privilege against self-incrimination. Though normatively set along a libertarian theory that largely insulates the accused from matters of proof, the article finds that the legal regime of the right to silence not only admits of several procedural burden-shifting mechanisms that enjoin accused persons to speak and participate in the proof process, it also permits the drawing of adverse inferences against the accused's exercise of the right to silence in several instances. The analysis extends to a critical evaluation of the benefits of silence in the operational design of the adversarial trial. In that context, it discusses the extent of the accused's beneficial use of the right to silence and finds it an imprudent and legally-uninformed exercise that may deprive the accused person of their right to aggressively partake in the search of facts and evidence and thus of their right to adversarial trial. The article is relevant as it constitutes the first attempt at defining the criminal justice policies underlying the limitations to the right to silence in Ghana. It adds to the existing knowledge on the right to silence in criminal proceedings as it delves into the philosophical underpinnings of the criminal procedure which is increasingly leaning towards a truth-finding and utilitarian ideology away from the core due process theory that generally defines the adversarial criminal procedure.
{"title":"Due process or crime control? An examination of the limits to the right to silence in criminal proceedings in Ghana","authors":"Isidore Kwadwo Tufuor","doi":"10.17159/1996-2096/2022/v22n1a8","DOIUrl":"https://doi.org/10.17159/1996-2096/2022/v22n1a8","url":null,"abstract":"This article examines the extent of participation of accused persons in criminal proceedings in Ghana, particularly in the context of the procedural limits to the right to silence and its associated privilege against self-incrimination. Though normatively set along a libertarian theory that largely insulates the accused from matters of proof, the article finds that the legal regime of the right to silence not only admits of several procedural burden-shifting mechanisms that enjoin accused persons to speak and participate in the proof process, it also permits the drawing of adverse inferences against the accused's exercise of the right to silence in several instances. The analysis extends to a critical evaluation of the benefits of silence in the operational design of the adversarial trial. In that context, it discusses the extent of the accused's beneficial use of the right to silence and finds it an imprudent and legally-uninformed exercise that may deprive the accused person of their right to aggressively partake in the search of facts and evidence and thus of their right to adversarial trial. The article is relevant as it constitutes the first attempt at defining the criminal justice policies underlying the limitations to the right to silence in Ghana. It adds to the existing knowledge on the right to silence in criminal proceedings as it delves into the philosophical underpinnings of the criminal procedure which is increasingly leaning towards a truth-finding and utilitarian ideology away from the core due process theory that generally defines the adversarial criminal procedure.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43187655","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 : 2022-08-11DOI: 10.17159/1996-2096/2022/v22n1a7
Francis Kofi Korankye-Sakyi, Solomon Faakye, P. Atupare
Article 38(1) of the 1992 Constitution of Ghana provides that 'the state shall provide educational facilities at all levels and in all the regions of Ghana, and shall to the greatest extent feasible, make those facilities available to all citizens'. 'Feasible' in plain language means 'if possible'. This means that if it not possible, educational facilities would not be made available to all. Article 38(3) also provides that the state shall 'subject to the availability of resources' provide equal and balanced access to secondary education and other pre-tertiary education. The wording of article 38(3) suggests that, in the event of a lack of resources, there would be no equal and balanced access to basic education. Articles 38(1) and 38(3) serve as a constitutional constraint to the Free Compulsory Basic Education in Ghana because, if the provision of educational facilities is subject to 'feasibility' and if its equal and balanced access is subject to resource availability, then free compulsory universal basic education as envisaged under international human rights instruments will be difficult to realise. Through a doctrinal approach to research based on legal literature, this article analyses the issue of whether or not the justiciability of the right to education has been adequately addressed by the legal jurisprudence in Ghana. We conclude that the Constitution, legislation, policy and jurisprudence of the courts acknowledge that the right to education is a right that can be enforced in courts. In this sense, there are many avenues through which one can argue for justiciability of the right in Ghana, including through article 33(5) of the Constitution.
{"title":"Critical reflections on the justiciability of the right to education in Ghana","authors":"Francis Kofi Korankye-Sakyi, Solomon Faakye, P. Atupare","doi":"10.17159/1996-2096/2022/v22n1a7","DOIUrl":"https://doi.org/10.17159/1996-2096/2022/v22n1a7","url":null,"abstract":"Article 38(1) of the 1992 Constitution of Ghana provides that 'the state shall provide educational facilities at all levels and in all the regions of Ghana, and shall to the greatest extent feasible, make those facilities available to all citizens'. 'Feasible' in plain language means 'if possible'. This means that if it not possible, educational facilities would not be made available to all. Article 38(3) also provides that the state shall 'subject to the availability of resources' provide equal and balanced access to secondary education and other pre-tertiary education. The wording of article 38(3) suggests that, in the event of a lack of resources, there would be no equal and balanced access to basic education. Articles 38(1) and 38(3) serve as a constitutional constraint to the Free Compulsory Basic Education in Ghana because, if the provision of educational facilities is subject to 'feasibility' and if its equal and balanced access is subject to resource availability, then free compulsory universal basic education as envisaged under international human rights instruments will be difficult to realise. Through a doctrinal approach to research based on legal literature, this article analyses the issue of whether or not the justiciability of the right to education has been adequately addressed by the legal jurisprudence in Ghana. We conclude that the Constitution, legislation, policy and jurisprudence of the courts acknowledge that the right to education is a right that can be enforced in courts. In this sense, there are many avenues through which one can argue for justiciability of the right in Ghana, including through article 33(5) of the Constitution.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42689136","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 : 2022-08-11DOI: 10.17159/1996-2096/2022/v22n1a3
Vivian Nasaka John-Langba
The upsurge in the global numbers of refugees and asylum seekers since 2015 and the resultant protection failures witnessed particularly in Europe led to renewed debates on the need to reform the refugee protection regime to identify pathways that would enhance protection. Key in these debates was the need to identify actors that could enhance the refugee protection regime, including accountability for failures to protect. Among such actors identified are national human rights institutions. This article situates NHRIs within the nexus between international human rights law and international refugee law to frame an understanding of their role in the refugee protection regime. It then considers the evolution of the international refugee protection regime in light of the emergence of NHRIs and critically reviews their positioning with reference to the mandate of the United Nations High Commissioner for Refugees and the Global Compacts on Refugees and Migration. Specific opportunities at the African regional level are subsequently discussed to support the assertion that NHRIs can perform a specific role in promoting the effective implementation of refugee rights, including as avenues for state accountability.
{"title":"Implications and opportunities of the international refugee protection regime for national human rights institutions in Africa","authors":"Vivian Nasaka John-Langba","doi":"10.17159/1996-2096/2022/v22n1a3","DOIUrl":"https://doi.org/10.17159/1996-2096/2022/v22n1a3","url":null,"abstract":"The upsurge in the global numbers of refugees and asylum seekers since 2015 and the resultant protection failures witnessed particularly in Europe led to renewed debates on the need to reform the refugee protection regime to identify pathways that would enhance protection. Key in these debates was the need to identify actors that could enhance the refugee protection regime, including accountability for failures to protect. Among such actors identified are national human rights institutions. This article situates NHRIs within the nexus between international human rights law and international refugee law to frame an understanding of their role in the refugee protection regime. It then considers the evolution of the international refugee protection regime in light of the emergence of NHRIs and critically reviews their positioning with reference to the mandate of the United Nations High Commissioner for Refugees and the Global Compacts on Refugees and Migration. Specific opportunities at the African regional level are subsequently discussed to support the assertion that NHRIs can perform a specific role in promoting the effective implementation of refugee rights, including as avenues for state accountability.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49475080","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 : 2022-08-11DOI: 10.17159/1996-2096/2022/v22n1a4
Marystella Auma Simiyu
African governments are increasingly enacting laws that criminalise false news or adopting practices such as internet shutdowns as strategies to address the spread of online false news during elections. These approaches have an adverse effect on the way in which citizens exercise their freedom of expression and access information necessary to develop an informed electorate that can meaningfully participate in elections. Electoral authoritarian regimes also adopt such practices to supress critical voices and reduce the transparency and integrity of electoral processes that have been tilted in their favour. Admittedly, false news poses a threat to the quality of information in the public sphere, particularly when deployed to manipulate the decisions of voters. This article calls for more proactive and human rights-based approaches to addressing the scourge of false news. In doing so, the article juxtaposes the measures adopted by South Africa (2019 and 2021) and Tanzania (2020) in their elections. It recommends that states and other stakeholders implement media and information literacy measures and ensure that owners of digital technologies apply human rights-based approaches in their policies and practices as opposed to punitive measures and internet shutdowns. This reflects a democratic culture that is more in alignment with international laws and standards on promoting and protecting freedom of expression during elections.
{"title":"Freedom of expression and African elections: Mitigating the insidious effect of emerging approaches to addressing the false news threat","authors":"Marystella Auma Simiyu","doi":"10.17159/1996-2096/2022/v22n1a4","DOIUrl":"https://doi.org/10.17159/1996-2096/2022/v22n1a4","url":null,"abstract":"African governments are increasingly enacting laws that criminalise false news or adopting practices such as internet shutdowns as strategies to address the spread of online false news during elections. These approaches have an adverse effect on the way in which citizens exercise their freedom of expression and access information necessary to develop an informed electorate that can meaningfully participate in elections. Electoral authoritarian regimes also adopt such practices to supress critical voices and reduce the transparency and integrity of electoral processes that have been tilted in their favour. Admittedly, false news poses a threat to the quality of information in the public sphere, particularly when deployed to manipulate the decisions of voters. This article calls for more proactive and human rights-based approaches to addressing the scourge of false news. In doing so, the article juxtaposes the measures adopted by South Africa (2019 and 2021) and Tanzania (2020) in their elections. It recommends that states and other stakeholders implement media and information literacy measures and ensure that owners of digital technologies apply human rights-based approaches in their policies and practices as opposed to punitive measures and internet shutdowns. This reflects a democratic culture that is more in alignment with international laws and standards on promoting and protecting freedom of expression during elections.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46794633","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 : 2022-08-11DOI: 10.17159/1996-2096/2022/v22n1a10
Liberty Kudzai Masekesa
In its quest to deal with sustainability challenges continuously posed by rapid urbanisation, the international community reinvigorated the role of local governments as co-global actors in pursuance of the global sustainable development agenda by dedicating to cities Sustainable Development Coal 11 (SDC 11) of the United Nations 2030 Sustainable Development Agenda. SDC 11 is accompanied by ten time-bound targets directed towards making cities and human settlements across the world inclusive, safe, resilient and sustainable by 2030. Reports reveal that Zimbabwe, among other countries, is struggling to give effect to these targets, including Target 11.6 which requires local authorities to contribute towards reducing 'the adverse per capita environmental impact of cities'. Struggling with this target has implications for the enjoyment of environmental rights, among other fundamental rights. As such, using a human rights-based approach, this article explores how the right to a healthy environment entrenched in the 2013 Constitution of Zimbabwe can be used to pursue Target 11.6. Although the huge potential of the human rights-based approach remains untapped in Zimbabwe, the article argues that its adoption in relation to Target 11.6 appears, in theory, to be the most appropriate means for the enjoyment of the right to a healthy environment as local authorities have a shared responsibility to adhere to human rights norms and standards. In light of the commendable precedents set by the judiciary in some cases, local authorities are recommended to consider the implication of legal provisions on the right to a healthy environment in the process of exercising their legislative or executive powers directed towards the realisation of Target 11.6.
{"title":"A human rights-based approach to implementing Target 11.6 of Sustainable Development Goal 11 in Zimbabwe","authors":"Liberty Kudzai Masekesa","doi":"10.17159/1996-2096/2022/v22n1a10","DOIUrl":"https://doi.org/10.17159/1996-2096/2022/v22n1a10","url":null,"abstract":"In its quest to deal with sustainability challenges continuously posed by rapid urbanisation, the international community reinvigorated the role of local governments as co-global actors in pursuance of the global sustainable development agenda by dedicating to cities Sustainable Development Coal 11 (SDC 11) of the United Nations 2030 Sustainable Development Agenda. SDC 11 is accompanied by ten time-bound targets directed towards making cities and human settlements across the world inclusive, safe, resilient and sustainable by 2030. Reports reveal that Zimbabwe, among other countries, is struggling to give effect to these targets, including Target 11.6 which requires local authorities to contribute towards reducing 'the adverse per capita environmental impact of cities'. Struggling with this target has implications for the enjoyment of environmental rights, among other fundamental rights. As such, using a human rights-based approach, this article explores how the right to a healthy environment entrenched in the 2013 Constitution of Zimbabwe can be used to pursue Target 11.6. Although the huge potential of the human rights-based approach remains untapped in Zimbabwe, the article argues that its adoption in relation to Target 11.6 appears, in theory, to be the most appropriate means for the enjoyment of the right to a healthy environment as local authorities have a shared responsibility to adhere to human rights norms and standards. In light of the commendable precedents set by the judiciary in some cases, local authorities are recommended to consider the implication of legal provisions on the right to a healthy environment in the process of exercising their legislative or executive powers directed towards the realisation of Target 11.6.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44001045","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 : 2022-08-11DOI: 10.17159/1996-2096/2022/v22n1a5
Paul Mudau
A human rights perspective to this article intertwines the rights to information and political participation. It deals with the intersections between the provision of civic and voter education (CVE), and the opportunities and threats pertaining to the feasibility of finding digital solutions for enhanced voter participation in democratic electoral processes during the coronavirus disease (COVID-19) pandemic in Africa. Under normal circumstances and while conducted through physical contact sessions, CVE is aimed at providing citizens with communication, general and life skills to constructively participate in democratic electoral processes. The greater the attendance in CVE events, the greater the conviction that a significant number of participants have been enlightened and encouraged to fully participate. As a result, electoral democracy becomes enriched and consolidated. However, the impacts of the COVID-19 pandemic render the physical training and dissemination of this crucial CVE information cumbersome, principally when considering the strictly-restricted number of attendants at events, consequently placing in disarray the enhancement of voter participation. Electoral management bodies, which are inherently charged with the responsibility for promoting CVE, confront the challenges for securing meaningful voter participation. Reliance on technological systems in the promotion of a consolidated electoral democracy during the COVID-19 pandemic emerges as a measure of last resort. Cognisant of the numerous developmental challenges encountered by many African countries, the feasibility of digital solutions in this instance could be far-fetched. More so, the digital divide and its impacts militate the empowerment of poor voters in remote rural areas where access to technological infrastructure and equipment is distantly slim.
{"title":"Promoting civic and voter education through the use of technological systems during the COVID-19 pandemic in Africa","authors":"Paul Mudau","doi":"10.17159/1996-2096/2022/v22n1a5","DOIUrl":"https://doi.org/10.17159/1996-2096/2022/v22n1a5","url":null,"abstract":"A human rights perspective to this article intertwines the rights to information and political participation. It deals with the intersections between the provision of civic and voter education (CVE), and the opportunities and threats pertaining to the feasibility of finding digital solutions for enhanced voter participation in democratic electoral processes during the coronavirus disease (COVID-19) pandemic in Africa. Under normal circumstances and while conducted through physical contact sessions, CVE is aimed at providing citizens with communication, general and life skills to constructively participate in democratic electoral processes. The greater the attendance in CVE events, the greater the conviction that a significant number of participants have been enlightened and encouraged to fully participate. As a result, electoral democracy becomes enriched and consolidated. However, the impacts of the COVID-19 pandemic render the physical training and dissemination of this crucial CVE information cumbersome, principally when considering the strictly-restricted number of attendants at events, consequently placing in disarray the enhancement of voter participation. Electoral management bodies, which are inherently charged with the responsibility for promoting CVE, confront the challenges for securing meaningful voter participation. Reliance on technological systems in the promotion of a consolidated electoral democracy during the COVID-19 pandemic emerges as a measure of last resort. Cognisant of the numerous developmental challenges encountered by many African countries, the feasibility of digital solutions in this instance could be far-fetched. More so, the digital divide and its impacts militate the empowerment of poor voters in remote rural areas where access to technological infrastructure and equipment is distantly slim.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48447629","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 : 2022-08-11DOI: 10.17159/1996-2096/2022/v22n1a11
H. Nyane
As a liberal constitution, the Constitution of Lesotho maintains a bifurcated human rights framework. Human rights are embodied in two distinct chapters - chapter II and chapter III - with different legal implications. Chapter II contains civil and political rights styled 'fundamental human rights and freedoms' while chapter III embodies socio-economic rights styled 'principles of state policy'. The right to life falls under chapter II, while the right to health is under chapter III. The juridical effect of this division is that socio-economic rights are not judicially enforceable. The courts have been tenacious in maintaining this division. The High Court's recent decision in Lesotho Medical Association v Minister of Health has challenged this prevailing judicial policy. In this case the Court adopted a liberal approach to the right to life in enforcing the right to health. The Court held that the failure by the Ministry of Health to provide personal protective clothing to health workers was a violation of the right to life. The main question for human rights scholarship is whether this decision could signal a change of approach by the judiciary in Lesotho in favour of the liberal approach to the right to life. This article sets out to investigate this question.
{"title":"The interface between the right to life and the right to health in Lesotho: Can the right to health be enforced through the right to life?","authors":"H. Nyane","doi":"10.17159/1996-2096/2022/v22n1a11","DOIUrl":"https://doi.org/10.17159/1996-2096/2022/v22n1a11","url":null,"abstract":"As a liberal constitution, the Constitution of Lesotho maintains a bifurcated human rights framework. Human rights are embodied in two distinct chapters - chapter II and chapter III - with different legal implications. Chapter II contains civil and political rights styled 'fundamental human rights and freedoms' while chapter III embodies socio-economic rights styled 'principles of state policy'. The right to life falls under chapter II, while the right to health is under chapter III. The juridical effect of this division is that socio-economic rights are not judicially enforceable. The courts have been tenacious in maintaining this division. The High Court's recent decision in Lesotho Medical Association v Minister of Health has challenged this prevailing judicial policy. In this case the Court adopted a liberal approach to the right to life in enforcing the right to health. The Court held that the failure by the Ministry of Health to provide personal protective clothing to health workers was a violation of the right to life. The main question for human rights scholarship is whether this decision could signal a change of approach by the judiciary in Lesotho in favour of the liberal approach to the right to life. This article sets out to investigate this question.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43579271","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 : 2022-08-11DOI: 10.17159/1996-2096/2022/v22n1a1
K. Magliveras, G. Naldi
The right to freedom of movement of persons in a state is recognised by article 12 of the African Charter on Human and Peoples' Rights as a fundamental human right but, more generally, freedom of movement is also exercised in the context of continental economic integration, a crucial norm in economic integration projects. Not long after the entry into force of the African Charter in 1986, the first steps towards economic integration were taken, and the freedom of movement was enshrined in the Treaty Establishing the African Economic Community. As the AEC lost steam, the African Commission on Human and Peoples' Rights upheld the right to unhindered trans-border freedom of human mobility and curtailed attempts by states to interfere with it. In 2018 the adoption of the Protocol to the AEC Treaty on the free movement of persons manifested in an unambiguous manner the economic aspects of this human right. This article reviews the relevant African Union instruments on the free movement of persons and examines the relevant decisions issued by the African Commission. It also explains how the human rights aspects of the freedom of movement closely interact with its economic features and the importance that an expansive and properly drafted prohibition of discrimination has in securing that human mobility on the continent will not be compromised.
{"title":"The free movement of people in Africa as a human right and as an economic right: From the African Charter to the African Economic Community Protocol of 2018","authors":"K. Magliveras, G. Naldi","doi":"10.17159/1996-2096/2022/v22n1a1","DOIUrl":"https://doi.org/10.17159/1996-2096/2022/v22n1a1","url":null,"abstract":"The right to freedom of movement of persons in a state is recognised by article 12 of the African Charter on Human and Peoples' Rights as a fundamental human right but, more generally, freedom of movement is also exercised in the context of continental economic integration, a crucial norm in economic integration projects. Not long after the entry into force of the African Charter in 1986, the first steps towards economic integration were taken, and the freedom of movement was enshrined in the Treaty Establishing the African Economic Community. As the AEC lost steam, the African Commission on Human and Peoples' Rights upheld the right to unhindered trans-border freedom of human mobility and curtailed attempts by states to interfere with it. In 2018 the adoption of the Protocol to the AEC Treaty on the free movement of persons manifested in an unambiguous manner the economic aspects of this human right. This article reviews the relevant African Union instruments on the free movement of persons and examines the relevant decisions issued by the African Commission. It also explains how the human rights aspects of the freedom of movement closely interact with its economic features and the importance that an expansive and properly drafted prohibition of discrimination has in securing that human mobility on the continent will not be compromised.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43310950","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 : 2022-08-11DOI: 10.17159/1996-2096/2022/v22n1a9
Perpetua Akoth Adar
There are a range of impediments in the pursuit of redress and reparations for sexual violence, more so in conflict and post-conflict situations. Often if accountability is sought through judicial institutions, it is through criminal proceedings. However, another option available is to file, simultaneously or alternatively, a civil and/or constitutional proceeding. In February 2013 six women and two men who were sexual and gender-based violence survivors of Kenya's 2007-8 postelection violence filed a constitutional petition. On 10 December 2020 the Kenyan High Court awarded four survivors Kes 4 million (approximately US $36 513) as general damages for the violation of their constitutional rights. This article, which is anchored on Kenya's human rights obligations, uses Kenya as a case study to examine the pursuit of domestic accountability through strategic litigation and the contribution made towards redress and reparation for survivors of sexual and gender-based violence from post-election violence. First, the author argues that the transitional justice approach in Kenya provided the foundation for the strategic litigation case. Therefore, the article provides an overview of key aspects of Kenya's transitional justice approach. Second, the author argues that to understand the significance of the strategic litigation, an understanding of the sexual and gender-based violence which necessitated the strategic litigation case is necessary. The article therefore examines Kenya's legacy of historical injustice and gross human rights abuses which played a role in the sexual and gender-based violence during post-election violence. Third, the author analyses the strategic litigation case, considering the key claims by the petitioners and the decision of the Court. Finally, the article discusses the lessons learnt and contribution made by this case. The author submits that, although imperfect, this strategic litigation was a valuable recognition and acknowledgment of sexual and gender-based violence survivors of post-election violence, contributed to reparation access and had an impact on domestic accountability as an option for redress and reparation.
{"title":"Domestic accountability through strategic litigation: Towards redress and reparations for Kenya's 2007-2008 post-election sexual and gender-based violence","authors":"Perpetua Akoth Adar","doi":"10.17159/1996-2096/2022/v22n1a9","DOIUrl":"https://doi.org/10.17159/1996-2096/2022/v22n1a9","url":null,"abstract":"There are a range of impediments in the pursuit of redress and reparations for sexual violence, more so in conflict and post-conflict situations. Often if accountability is sought through judicial institutions, it is through criminal proceedings. However, another option available is to file, simultaneously or alternatively, a civil and/or constitutional proceeding. In February 2013 six women and two men who were sexual and gender-based violence survivors of Kenya's 2007-8 postelection violence filed a constitutional petition. On 10 December 2020 the Kenyan High Court awarded four survivors Kes 4 million (approximately US $36 513) as general damages for the violation of their constitutional rights. This article, which is anchored on Kenya's human rights obligations, uses Kenya as a case study to examine the pursuit of domestic accountability through strategic litigation and the contribution made towards redress and reparation for survivors of sexual and gender-based violence from post-election violence. First, the author argues that the transitional justice approach in Kenya provided the foundation for the strategic litigation case. Therefore, the article provides an overview of key aspects of Kenya's transitional justice approach. Second, the author argues that to understand the significance of the strategic litigation, an understanding of the sexual and gender-based violence which necessitated the strategic litigation case is necessary. The article therefore examines Kenya's legacy of historical injustice and gross human rights abuses which played a role in the sexual and gender-based violence during post-election violence. Third, the author analyses the strategic litigation case, considering the key claims by the petitioners and the decision of the Court. Finally, the article discusses the lessons learnt and contribution made by this case. The author submits that, although imperfect, this strategic litigation was a valuable recognition and acknowledgment of sexual and gender-based violence survivors of post-election violence, contributed to reparation access and had an impact on domestic accountability as an option for redress and reparation.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48697153","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 : 2022-08-11DOI: 10.17159/1996-2096/2022/v22n1a13
F. Viljoen
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