Pub Date : 2021-12-31DOI: 10.17159/1996-2096/2021/v21n2a43
P. Oamen, Eunice O Erhagbe
The role of international cooperation and assistance in the realisation of economic and social rights has not been given sufficient attention in existing literature. It is also quite concerning that, although the impact of climate change has dominated scholarly debates in recent times, most of the discussions focus on environmental and economic perspectives, with scanty reference to its specific impact on the realisation of economic and social rights. However, the fact is that climate change not only alters the environment, but also adversely affects the realisation of economic and social rights of people, especially the most vulnerable groups of society. This article appraises these adverse effects of climate change in Nigeria and argues for an international cooperation approach towards mitigation and adaptation mechanisms. Drawing on several United Nations human rights and climate change instruments, the article theorises 'contributory and legally obligatory grounds' to affix an international obligation to developed countries in favour of developing countries such as Nigeria, in the latter's efforts to address the socio-economic impact of climate change. However, it notes that international cooperation is complementary, not substitutive of the Nigerian government's obligation to realise economic and social rights with locally-available resources.
{"title":"The impact of climate change on economic and social rights realisation in Nigeria: International cooperation and assistance to the rescue?","authors":"P. Oamen, Eunice O Erhagbe","doi":"10.17159/1996-2096/2021/v21n2a43","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n2a43","url":null,"abstract":"The role of international cooperation and assistance in the realisation of economic and social rights has not been given sufficient attention in existing literature. It is also quite concerning that, although the impact of climate change has dominated scholarly debates in recent times, most of the discussions focus on environmental and economic perspectives, with scanty reference to its specific impact on the realisation of economic and social rights. However, the fact is that climate change not only alters the environment, but also adversely affects the realisation of economic and social rights of people, especially the most vulnerable groups of society. This article appraises these adverse effects of climate change in Nigeria and argues for an international cooperation approach towards mitigation and adaptation mechanisms. Drawing on several United Nations human rights and climate change instruments, the article theorises 'contributory and legally obligatory grounds' to affix an international obligation to developed countries in favour of developing countries such as Nigeria, in the latter's efforts to address the socio-economic impact of climate change. However, it notes that international cooperation is complementary, not substitutive of the Nigerian government's obligation to realise economic and social rights with locally-available resources.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43901221","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 : 2021-12-31DOI: 10.17159/1996-2096/2021/v21n2a27
O. Okafor, Godwin EK Dzah
Africa (including its human rights system) is rarely imagined or considered an originator, agent and purveyor of ideas, including in the human rights sphere. On this occasion of the fortieth anniversary of the adoption of the 1981 African Charter on Human and Peoples' Rights which founded the African human rights system, it is only fitting that its contributions or otherwise to global human rights praxis, over these four decades, be examined from this perspective. Utilising the theory of the norm life cycle, developed by scholars of international relations who work within 'strategic social constructivism', this article examines how the African human rights system has, or has not, functioned as a 'norm leader' with regard to certain important and increasingly widely-accepted human rights standards. To that extent, the article examines (as examples) certain human rights norms first elaborated and made into legally-binding forms in the African Charter, widely circulated and having achieved a considerable level of global dispersal and adoption, in part, as a result of the work of the African Commission on Human and Peoples' Rights and the African Court on Human and Peoples' Rights. Focusing on three important norms (the right to self-determination, the right to development and the right to the environment) and based on a study of academic and other literature, treaties or instruments, case law and records of international negotiations, the article attempts to respond systematically to this overarching question. The article argues that although the African human rights system clearly is not a state, the critical but globally under-appreciated roles it has played regarding the globalised socialisation of certain human rights ideas fits within, and helps in extending, social constructivist human rights theory and praxis. The article concludes with a reflection on some key limitations that are observable as to how far the system has been able to travel in the direction of norm leadership in human rights law.
{"title":"The African human rights system as 'norm leader': Three case studies","authors":"O. Okafor, Godwin EK Dzah","doi":"10.17159/1996-2096/2021/v21n2a27","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n2a27","url":null,"abstract":"Africa (including its human rights system) is rarely imagined or considered an originator, agent and purveyor of ideas, including in the human rights sphere. On this occasion of the fortieth anniversary of the adoption of the 1981 African Charter on Human and Peoples' Rights which founded the African human rights system, it is only fitting that its contributions or otherwise to global human rights praxis, over these four decades, be examined from this perspective. Utilising the theory of the norm life cycle, developed by scholars of international relations who work within 'strategic social constructivism', this article examines how the African human rights system has, or has not, functioned as a 'norm leader' with regard to certain important and increasingly widely-accepted human rights standards. To that extent, the article examines (as examples) certain human rights norms first elaborated and made into legally-binding forms in the African Charter, widely circulated and having achieved a considerable level of global dispersal and adoption, in part, as a result of the work of the African Commission on Human and Peoples' Rights and the African Court on Human and Peoples' Rights. Focusing on three important norms (the right to self-determination, the right to development and the right to the environment) and based on a study of academic and other literature, treaties or instruments, case law and records of international negotiations, the article attempts to respond systematically to this overarching question. The article argues that although the African human rights system clearly is not a state, the critical but globally under-appreciated roles it has played regarding the globalised socialisation of certain human rights ideas fits within, and helps in extending, social constructivist human rights theory and praxis. The article concludes with a reflection on some key limitations that are observable as to how far the system has been able to travel in the direction of norm leadership in human rights law.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42805351","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 : 2021-12-31DOI: 10.17159/1996-2096/2021/v21n2a37
W. Rosenberg
This article looks at the development of 'baby safe haven' laws in Namibia as a response to unsafe infant abandonment and examines the lack of similar laws in South Africa to curb this practice. The central question addressed in the article is whether an obligation rests with the South African legislature to prevent unsafe infant abandonment by providing a safe alternative. This question is expounded upon by looking at the approach or the mechanisms adopted in countries around the world with a specific focus on South Africa's neighbouring country, Namibia. The impact of the non-legalisation of any of these mechanisms in South Africa is dealt with through analysing the various human rights that are infringed in terms of the South African Constitution. The previous laws governing the abandonment of infants in Namibia are compared with the more recent introduction of 'baby safe haven' laws, which is indicative of how far Namibia has come in moving from emulating South African laws in the realm of children to taking the lead in introducing a safe alternative to unsafe abandonment. Lastly, the current South African law, which is reactive in its approach to infant abandonment, is dealt with. The conclusion is reached that in view of what Namibia has done an obligation indeed rests on the South African legislature urgently to implement similar laws to save the lives and protect the various other rights of unsafely abandoned infants. It is proposed that 'baby savers' and 'baby safe haven laws' urgently should be introduced in South Africa to prevent further deaths through the unsafe abandonment of infants in places such as toilets, pit latrines and open fields.
{"title":"Mechanisms adopted in curbing unsafe infant abandonment: A comparison between Namibia and South Africa","authors":"W. Rosenberg","doi":"10.17159/1996-2096/2021/v21n2a37","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n2a37","url":null,"abstract":"This article looks at the development of 'baby safe haven' laws in Namibia as a response to unsafe infant abandonment and examines the lack of similar laws in South Africa to curb this practice. The central question addressed in the article is whether an obligation rests with the South African legislature to prevent unsafe infant abandonment by providing a safe alternative. This question is expounded upon by looking at the approach or the mechanisms adopted in countries around the world with a specific focus on South Africa's neighbouring country, Namibia. The impact of the non-legalisation of any of these mechanisms in South Africa is dealt with through analysing the various human rights that are infringed in terms of the South African Constitution. The previous laws governing the abandonment of infants in Namibia are compared with the more recent introduction of 'baby safe haven' laws, which is indicative of how far Namibia has come in moving from emulating South African laws in the realm of children to taking the lead in introducing a safe alternative to unsafe abandonment. Lastly, the current South African law, which is reactive in its approach to infant abandonment, is dealt with. The conclusion is reached that in view of what Namibia has done an obligation indeed rests on the South African legislature urgently to implement similar laws to save the lives and protect the various other rights of unsafely abandoned infants. It is proposed that 'baby savers' and 'baby safe haven laws' urgently should be introduced in South Africa to prevent further deaths through the unsafe abandonment of infants in places such as toilets, pit latrines and open fields.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48423142","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 : 2021-12-31DOI: 10.17159/1996-2096/2021/v21n2a36
E. Jordaan
The election of human rights-abusing states to the human rights bodies of the United Nations has long been a source of dissatisfaction. There have been repeated calls that such states should not be members of the UN Human Rights Council. This article compares the HRC records of Rwanda, an authoritarian state, with that of South Africa, a liberal democracy. The focus falls on 12 country-specific situations and nine civil and political rights issues that appeared before the HRC from 2017 to 2019. It is demonstrated that Rwanda has been a much stronger defender of international human rights than South Africa. This finding contradicts various empirical and theoretical studies that posit a positive relationship between domestic democracy and respect for human rights, on the one hand, and international support for human rights, on the other. This finding further suggests that demands that the HRC should only have members with respectable domestic human rights records should be tempered.
{"title":"Worthy of membership? Rwanda and South Africa on the United Nations Human Rights Council","authors":"E. Jordaan","doi":"10.17159/1996-2096/2021/v21n2a36","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n2a36","url":null,"abstract":"The election of human rights-abusing states to the human rights bodies of the United Nations has long been a source of dissatisfaction. There have been repeated calls that such states should not be members of the UN Human Rights Council. This article compares the HRC records of Rwanda, an authoritarian state, with that of South Africa, a liberal democracy. The focus falls on 12 country-specific situations and nine civil and political rights issues that appeared before the HRC from 2017 to 2019. It is demonstrated that Rwanda has been a much stronger defender of international human rights than South Africa. This finding contradicts various empirical and theoretical studies that posit a positive relationship between domestic democracy and respect for human rights, on the one hand, and international support for human rights, on the other. This finding further suggests that demands that the HRC should only have members with respectable domestic human rights records should be tempered.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43152835","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 : 2021-12-31DOI: 10.17159/1996-2096/2021/v21n2a38
Sadiki Koko
The Central African Republic currently is in search of the most suitable approach to adopt in order to address serious crimes and human rights violations committed in the country in recent years. This article is a contribution to the ongoing debate relating to transitional justice options in post-transition CAR. It suggests a three-pronged policy; focusing on the perpetrators, the victims and on society generally. The proposed policy in respect of perpetrators refers to the International Criminal Court, the Special Criminal Court and the national judiciary. Amnesty could be granted to suspected perpetrators willing to cooperate fully with transitional justice institutions. Such individuals equally could be subjected to diverse forms of lustration in exchange for forgiveness. As far as victims are concerned reparation programmes should be adopted and the necessary skills provided in order to enable them, their relatives and communities to earn a living. Lastly, society-focused transitional justice initiatives could involve the effective operationalisation of the Truth, Justice, Reparation and Reconciliation Commission, the establishment of a permanent national peace and dialogue commission and the involvement of community-based mechanisms and religious leadership. Yet, in order to increase the likelihood of success for the proposed transitional justice policy, the overall capacity of the CAR state ought to be significantly improved. Furthermore, external polities will have to refrain from interfering in the country's internal affairs and, at the same time, the international community should increase its support of the CAR.
{"title":"Implementing transitional justice in post-transition Central African Republic: What viable options?","authors":"Sadiki Koko","doi":"10.17159/1996-2096/2021/v21n2a38","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n2a38","url":null,"abstract":"The Central African Republic currently is in search of the most suitable approach to adopt in order to address serious crimes and human rights violations committed in the country in recent years. This article is a contribution to the ongoing debate relating to transitional justice options in post-transition CAR. It suggests a three-pronged policy; focusing on the perpetrators, the victims and on society generally. The proposed policy in respect of perpetrators refers to the International Criminal Court, the Special Criminal Court and the national judiciary. Amnesty could be granted to suspected perpetrators willing to cooperate fully with transitional justice institutions. Such individuals equally could be subjected to diverse forms of lustration in exchange for forgiveness. As far as victims are concerned reparation programmes should be adopted and the necessary skills provided in order to enable them, their relatives and communities to earn a living. Lastly, society-focused transitional justice initiatives could involve the effective operationalisation of the Truth, Justice, Reparation and Reconciliation Commission, the establishment of a permanent national peace and dialogue commission and the involvement of community-based mechanisms and religious leadership. Yet, in order to increase the likelihood of success for the proposed transitional justice policy, the overall capacity of the CAR state ought to be significantly improved. Furthermore, external polities will have to refrain from interfering in the country's internal affairs and, at the same time, the international community should increase its support of the CAR.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43910814","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 : 2021-12-31DOI: 10.17159/1996-2096/2021/v21n2a46
Daniel Eloff
The COVID-19 pandemic that commenced in 2020 confronted South African courts with questions regarding the rationality of decision making during exigent times. South African administrative law has seen continuous development since the negotiated adoption of South Africa's constitutional dispensation. This article examines the effect of the COVID-19 pandemic on the interpretation and application of the test for rationality by examining three particular 'lockdown' cases and how the test was subsequently applied, in all three cases under expedited circumstances and with truncated times in terms of procedure. The three cases discussed dealt with the rationality of decisions made through executive action aimed at protecting the public against the spread of COVID-19 through restrictive measures that limited an array of constitutional rights. The article concludes that the consistent application of the rationality test and, more importantly, the supremacy of the Constitution and its guaranteed rights, do not change with the onset of a pandemic. Moreover, the scrutiny applied over governmental decision making should not waiver.
{"title":"The rationality test in lockdown litigation in South Africa","authors":"Daniel Eloff","doi":"10.17159/1996-2096/2021/v21n2a46","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n2a46","url":null,"abstract":"The COVID-19 pandemic that commenced in 2020 confronted South African courts with questions regarding the rationality of decision making during exigent times. South African administrative law has seen continuous development since the negotiated adoption of South Africa's constitutional dispensation. This article examines the effect of the COVID-19 pandemic on the interpretation and application of the test for rationality by examining three particular 'lockdown' cases and how the test was subsequently applied, in all three cases under expedited circumstances and with truncated times in terms of procedure. The three cases discussed dealt with the rationality of decisions made through executive action aimed at protecting the public against the spread of COVID-19 through restrictive measures that limited an array of constitutional rights. The article concludes that the consistent application of the rationality test and, more importantly, the supremacy of the Constitution and its guaranteed rights, do not change with the onset of a pandemic. Moreover, the scrutiny applied over governmental decision making should not waiver.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41427328","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 : 2021-12-31DOI: 10.17159/1996-2096/2021/v21n2a45
Ntombizozuko Dyani-Mhango
In the Grace Mugabe decision in which the conclusion was arrived at that Grace Mugabe was not entitled to spousal immunity by virtue of being the wife of the then incumbent foreign head of state, Vally J remarked that the late former President Mugabe would not have been entitled to immunity had he been accused of committing the assault. This article analyses this remark and its potential negative impact on South Africa's relationship with other African states. The analysis is valuable as South Africa has positioned itself as being a human rights state that strives to play a significant role in peace making in Africa and consistently has argued that removing customary international law immunity, to which foreign heads of state are entitled, may undermine these intentions. The article examines South Africa's position on personal immunity for foreign heads of state in customary international law against the backdrop of the Mugabe decision. It argues that as it currently stands South African law recognises absolute personal immunity for foreign heads of state in cases not relating to the perpetration of international crimes.
{"title":"Revisiting personal immunities for incumbent foreign heads of state in South Africa in light of the Grace Mugabe decision","authors":"Ntombizozuko Dyani-Mhango","doi":"10.17159/1996-2096/2021/v21n2a45","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n2a45","url":null,"abstract":"In the Grace Mugabe decision in which the conclusion was arrived at that Grace Mugabe was not entitled to spousal immunity by virtue of being the wife of the then incumbent foreign head of state, Vally J remarked that the late former President Mugabe would not have been entitled to immunity had he been accused of committing the assault. This article analyses this remark and its potential negative impact on South Africa's relationship with other African states. The analysis is valuable as South Africa has positioned itself as being a human rights state that strives to play a significant role in peace making in Africa and consistently has argued that removing customary international law immunity, to which foreign heads of state are entitled, may undermine these intentions. The article examines South Africa's position on personal immunity for foreign heads of state in customary international law against the backdrop of the Mugabe decision. It argues that as it currently stands South African law recognises absolute personal immunity for foreign heads of state in cases not relating to the perpetration of international crimes.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41377982","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 : 2021-12-31DOI: 10.17159/1996-2096/2021/v21n2a39
David Buzard
In order to dismantle institutionalised tribalism in the Democratic Republic of the Congo, which has fostered recurring war and armed conflict, its lynchpin of ethnocentric citizenship must be removed. Due to the Congolese law of nationality by birth being grounded in ethnicity, Congolese nationality has been and remains subject to political manipulation, particularly concerning the Banyamulenge people. In the latter half of the twentieth century the Congolese state has alternatively granted, withdrawn and reinstated their Congolese citizenship. Fundamentally, the basic Congolese nationality law - anchored in the Congolese Constitution - perpetuates a legal framework for racial division which does nothing to hinder but only enables malicious sympathies that tend toward exclusion, persecution, expulsion and genocide. To address this existential flaw, this article describes how the primacy of ethnicity in the Congolese law of nationality by birth violates three international human rights treaties that the DRC has accepted, thus laying a foundation for legal action to change the Constitution and nationality law of the DRC.
{"title":"Ethnocentric nationality in the Democratic Republic of the Congo: An analysis under international human rights law","authors":"David Buzard","doi":"10.17159/1996-2096/2021/v21n2a39","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n2a39","url":null,"abstract":"In order to dismantle institutionalised tribalism in the Democratic Republic of the Congo, which has fostered recurring war and armed conflict, its lynchpin of ethnocentric citizenship must be removed. Due to the Congolese law of nationality by birth being grounded in ethnicity, Congolese nationality has been and remains subject to political manipulation, particularly concerning the Banyamulenge people. In the latter half of the twentieth century the Congolese state has alternatively granted, withdrawn and reinstated their Congolese citizenship. Fundamentally, the basic Congolese nationality law - anchored in the Congolese Constitution - perpetuates a legal framework for racial division which does nothing to hinder but only enables malicious sympathies that tend toward exclusion, persecution, expulsion and genocide. To address this existential flaw, this article describes how the primacy of ethnicity in the Congolese law of nationality by birth violates three international human rights treaties that the DRC has accepted, thus laying a foundation for legal action to change the Constitution and nationality law of the DRC.","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48059585","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 : 2021-01-01DOI: 10.17159/1996-2096/2021/v21n1a19
D. Eyongndi
SUMMARY Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (1999 CFRN) guarantee the rights to dignity of the person, personal liberty and freedom of movement. These rights connote that no one shall be arbitrarily arrested; anyone arrested shall be brought before a court of competent jurisdiction within a reasonable time, otherwise such detention is unlawful; where a person is lawfully detained, it shall be under humane conditions. Despite these constitutional safeguards, people continue to be detained in detention centres beyond the permissible periods without an order of court and in inhumane conditions. Thus, unlawful detention is one of the challenges confronting the administration of the criminal justice sector in Nigeria. In 2015 the National Assembly, in a bid to address the challenges in the sector, particularly unlawful and inhumane detention, enacted the Administration of Criminal Justice Act (ACJA) which is generally perceived as revolutionary legislation owing to provisions such as sections 29, 33 and 34 thereof. These sections require the chief judges of the various High Courts to appoint a judge or magistrate to visit detention centres at least once in a month to review cases of unlawful detention and awaiting trial detainees. This article adopts a doctrinal research methodology in examining the impact of these provisions in overcoming the menace of unlawful detention in Nigeria. It examines the challenges that may confront the implementation of these sections of the Act, such as administrative bottlenecks and unscrupulous attitudes of the personnel of the various detention centres. The article makes vital recommendations on how to overcome the challenges of taming the negative tides of unlawful detention in Nigeria. Key words: Constitution; criminal justice system; detention centres; magistrate; Nigeria
{"title":"The Administration of Criminal Justice Act, 2015 as a harbinger for the elimination of unlawful detention in Nigeria","authors":"D. Eyongndi","doi":"10.17159/1996-2096/2021/v21n1a19","DOIUrl":"https://doi.org/10.17159/1996-2096/2021/v21n1a19","url":null,"abstract":"SUMMARY Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (1999 CFRN) guarantee the rights to dignity of the person, personal liberty and freedom of movement. These rights connote that no one shall be arbitrarily arrested; anyone arrested shall be brought before a court of competent jurisdiction within a reasonable time, otherwise such detention is unlawful; where a person is lawfully detained, it shall be under humane conditions. Despite these constitutional safeguards, people continue to be detained in detention centres beyond the permissible periods without an order of court and in inhumane conditions. Thus, unlawful detention is one of the challenges confronting the administration of the criminal justice sector in Nigeria. In 2015 the National Assembly, in a bid to address the challenges in the sector, particularly unlawful and inhumane detention, enacted the Administration of Criminal Justice Act (ACJA) which is generally perceived as revolutionary legislation owing to provisions such as sections 29, 33 and 34 thereof. These sections require the chief judges of the various High Courts to appoint a judge or magistrate to visit detention centres at least once in a month to review cases of unlawful detention and awaiting trial detainees. This article adopts a doctrinal research methodology in examining the impact of these provisions in overcoming the menace of unlawful detention in Nigeria. It examines the challenges that may confront the implementation of these sections of the Act, such as administrative bottlenecks and unscrupulous attitudes of the personnel of the various detention centres. The article makes vital recommendations on how to overcome the challenges of taming the negative tides of unlawful detention in Nigeria. Key words: Constitution; criminal justice system; detention centres; magistrate; Nigeria","PeriodicalId":36136,"journal":{"name":"African Human Rights Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67473148","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 : 2021-01-01DOI: 10.17159/1996-2096/2021/v21n1a21
Matilda E. K. Lasseko-Phooko, S. Mahomed
SUMMARY South Africa lags behind with regard to an effective framework supporting substantive equality in the legal profession. The structure of the legal profession and the number of women represented in the legal profession do not as yet reflect the diversity of South African society. A number of factors play a role in the skewed representation of female attorneys and advocates in the legal profession. In addition, formal equality cannot translate into gender transformation, as the issues that cause such inequalities extend beyond the scope of attaining sameness. International instruments suggest that special measures be adopted to achieve substantive equality specifically with regard to the role of women in the workplace. This article analyses the current composition of the legal profession from the perspective of gender and race, while promoting the concept of substantive equality as a preferred approach to gender transformation in the legal profession. It considers the theoretical framework for gender equality as a human right in South Africa by examining relevant legislation and international and regional instruments, and analysing the extent to which the Cape Bar maternity policy, as an existing transformation initiative, implemented on the basis of a gender stereotype, encourages substantive gender transformation in the legal profession. Key words: gender equality; human rights; legal profession; substantive equality; formal equality; gender transformation; gender stereotypes
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