Pub Date : 2023-07-03DOI: 10.1017/s0021855323000177
Gosego Rockfall Lekgowe
Abstract In 2003, the Botswanan Court of Appeal decided in Kanane v The State that discrimination on the basis of sexual orientation was not proscribed by the Botswanan Constitution because no evidence had been adduced showing that the society of Botswana was ready for gay individuals. After sixteen years, things changed: in 2019, in Letsweletse Motshidiemang and LEGABIBO (as amicus) v The Attorney General, the High Court held that the law criminalizing anal intercourse violated the fundamental rights of gay people. In 2021, the Court of Appeal upheld the High Court decision. This commentary briefly examines these three decisions. It argues that Kanane gave too much weight to public opinion to the detriment of constitutional interpretation. Through a robust approach to generous interpretation of fundamental rights, the Motshidiemang decisions partly remedied the flaw in Kanane. However, judicial clarification is still required on some aspects of the decision.
{"title":"A New Dawn for Gay Rights in Botswana: A Commentary on the Decision of the High Court and Court of Appeal in the Motshidiemang cases","authors":"Gosego Rockfall Lekgowe","doi":"10.1017/s0021855323000177","DOIUrl":"https://doi.org/10.1017/s0021855323000177","url":null,"abstract":"Abstract In 2003, the Botswanan Court of Appeal decided in Kanane v The State that discrimination on the basis of sexual orientation was not proscribed by the Botswanan Constitution because no evidence had been adduced showing that the society of Botswana was ready for gay individuals. After sixteen years, things changed: in 2019, in Letsweletse Motshidiemang and LEGABIBO (as amicus) v The Attorney General, the High Court held that the law criminalizing anal intercourse violated the fundamental rights of gay people. In 2021, the Court of Appeal upheld the High Court decision. This commentary briefly examines these three decisions. It argues that Kanane gave too much weight to public opinion to the detriment of constitutional interpretation. Through a robust approach to generous interpretation of fundamental rights, the Motshidiemang decisions partly remedied the flaw in Kanane. However, judicial clarification is still required on some aspects of the decision.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48676548","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-09DOI: 10.1017/s0021855323000116
J. Mike
Human rights are best protected when they enjoy the binding enforceability of the law. Recognizing the binding status of human rights in national constitutions and legal systems is central to demanding accountability, compelling actions and sanctioning violations. Conferring human rights with legal recognition also empowers people and provides the option of pursuing remedies. Furthermore, the duty of the state to protect and respect human rights is triggered when they receive prescription under the law. In Nigeria, however, certain rights pertaining to economic, social and cultural rights do not receive the binding force of constitutional law. This article argues that the judiciary can act as an alternative and complementary recourse to advance and secure the commitment to the right to health. Drawing on a comparative perspective from countries where the judiciary has proactively upheld this right, it maintains that the Nigerian judiciary can take action to enhance the legal and judicial implementation of the right to health.
{"title":"Enhancing the Right to Health in Nigeria through Judicial Intervention","authors":"J. Mike","doi":"10.1017/s0021855323000116","DOIUrl":"https://doi.org/10.1017/s0021855323000116","url":null,"abstract":"\u0000 Human rights are best protected when they enjoy the binding enforceability of the law. Recognizing the binding status of human rights in national constitutions and legal systems is central to demanding accountability, compelling actions and sanctioning violations. Conferring human rights with legal recognition also empowers people and provides the option of pursuing remedies. Furthermore, the duty of the state to protect and respect human rights is triggered when they receive prescription under the law. In Nigeria, however, certain rights pertaining to economic, social and cultural rights do not receive the binding force of constitutional law. This article argues that the judiciary can act as an alternative and complementary recourse to advance and secure the commitment to the right to health. Drawing on a comparative perspective from countries where the judiciary has proactively upheld this right, it maintains that the Nigerian judiciary can take action to enhance the legal and judicial implementation of the right to health.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"1 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41324645","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-01DOI: 10.1017/S002185532300013X
Sègnonna Horace Adjolohoun
Abstract A body of jurisprudence is emerging in Africa's most active regional courts on the independence of national judiciaries. This article reveals that while regional case law relevantly echoes efforts by municipal courts to safeguard themselves, circumstances demonstrate that such case law requires greater contextualization across systems. In this regard, the traditional paradigm of linking independence to executive appointments does not empirically stand the test of the multiplicity of independence factors, executive-free regimes have not proved effective in safeguarding independence, and legal traditions or judicial systems have increasingly become irrelevant to the effectiveness of any independence regime. Factors that transcend the traditional determinants of executive control include the nature and functions of the court involved, and the history and background of the judicial structure of the country or region. Notably, the discussion also reveals the need to strike a critical balance between individual rights to a fair trial and inter-state directive policy towards judicial independence as set out in the African Charter.
{"title":"Judges Guarding Judges: Investigating Regional Harbours for Judicial Independence in Africa","authors":"Sègnonna Horace Adjolohoun","doi":"10.1017/S002185532300013X","DOIUrl":"https://doi.org/10.1017/S002185532300013X","url":null,"abstract":"Abstract A body of jurisprudence is emerging in Africa's most active regional courts on the independence of national judiciaries. This article reveals that while regional case law relevantly echoes efforts by municipal courts to safeguard themselves, circumstances demonstrate that such case law requires greater contextualization across systems. In this regard, the traditional paradigm of linking independence to executive appointments does not empirically stand the test of the multiplicity of independence factors, executive-free regimes have not proved effective in safeguarding independence, and legal traditions or judicial systems have increasingly become irrelevant to the effectiveness of any independence regime. Factors that transcend the traditional determinants of executive control include the nature and functions of the court involved, and the history and background of the judicial structure of the country or region. Notably, the discussion also reveals the need to strike a critical balance between individual rights to a fair trial and inter-state directive policy towards judicial independence as set out in the African Charter.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"67 1","pages":"169 - 187"},"PeriodicalIF":0.4,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45716455","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-01DOI: 10.1017/S0021855323000141
T. Makunya
Abstract The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) established a reporting process to monitor compliance. Despite its shortcomings, this process provides an opportunity for states to engage in a frank, constructive and open dialogue with the African Commission on the measures they have adopted to realize women's rights and the challenges they face. The DRC's initial report on implementing the Maputo Protocol provides an opportunity to assess how the country has advanced women's rights. This article notes that the DRC has adopted legislation and policies to comply with some of its obligations under the protocol. However, these have not brought about much transformation in terms of effective enjoyment of rights due to the contested nature of many women's rights and the community's patriarchal mindset. The article argues that states should focus on extra-legal measures that can counteract negative attitudes and beliefs towards women's rights.
{"title":"Beyond Legal Measures: A Review of the DRC's Initial Report under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa","authors":"T. Makunya","doi":"10.1017/S0021855323000141","DOIUrl":"https://doi.org/10.1017/S0021855323000141","url":null,"abstract":"Abstract The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) established a reporting process to monitor compliance. Despite its shortcomings, this process provides an opportunity for states to engage in a frank, constructive and open dialogue with the African Commission on the measures they have adopted to realize women's rights and the challenges they face. The DRC's initial report on implementing the Maputo Protocol provides an opportunity to assess how the country has advanced women's rights. This article notes that the DRC has adopted legislation and policies to comply with some of its obligations under the protocol. However, these have not brought about much transformation in terms of effective enjoyment of rights due to the contested nature of many women's rights and the community's patriarchal mindset. The article argues that states should focus on extra-legal measures that can counteract negative attitudes and beliefs towards women's rights.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"67 1","pages":"225 - 240"},"PeriodicalIF":0.4,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47407193","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-29DOI: 10.1017/S0021855323000128
Mmiselo Freedom Qumba
Abstract Special economic zones (SEZs) can be described as “carved out jurisdictions within the overall jurisdiction of a state in order to introduce different laws and regulations that are usually more trade and investment friendly”. South Africa's SEZs are created under the Special Economic Zones Act 16 of 2014. This article analyses the country's legal framework for SEZs, which legal scholars have thus far only examined from a purely economic perspective. It provides a brief historical overview of industrial development zones, examines the 2014 act and suggests some reforms within the SEZ legislative framework. A comparative analysis is provided by drawing some lessons from BRICS member countries that have a successful record in operationalizing SEZs.
{"title":"Evaluating South Africa's Special Economic Zones","authors":"Mmiselo Freedom Qumba","doi":"10.1017/S0021855323000128","DOIUrl":"https://doi.org/10.1017/S0021855323000128","url":null,"abstract":"Abstract Special economic zones (SEZs) can be described as “carved out jurisdictions within the overall jurisdiction of a state in order to introduce different laws and regulations that are usually more trade and investment friendly”. South Africa's SEZs are created under the Special Economic Zones Act 16 of 2014. This article analyses the country's legal framework for SEZs, which legal scholars have thus far only examined from a purely economic perspective. It provides a brief historical overview of industrial development zones, examines the 2014 act and suggests some reforms within the SEZ legislative framework. A comparative analysis is provided by drawing some lessons from BRICS member countries that have a successful record in operationalizing SEZs.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"67 1","pages":"275 - 295"},"PeriodicalIF":0.4,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45018795","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-27DOI: 10.1017/S0021855323000104
Lydia M Zerom, Isaias T. Berhe, S. Andemariam
Abstract Djibouti and Eritrea have been in conflict since June 2008 when their troops fought along the Djibouti–Eritrea border. The conflict revolves around the location of the border and sovereignty over the strategically located Doumeira Islands and adjacent reefs. In 2010 Qatar brokered a mediation agreement and began to implement it, but withdrew in 2017 without notifying Eritrea and without providing reasons to either country. The dispute raises a number of international law issues. This article focuses on the validity and application of three relevant colonial treaties (from 1900, 1901 and 1935) that defined the boundary, one of which (the 1935 Treaty) did not enter into force. Issues relevant to the determination of the borderline and sovereignty over the disputed islands and the unique challenges that may arise are discussed in light of the colonial treaties, relevant International Court of Justice jurisprudence and other international law principles, particularly uti possidetis juris.
{"title":"Challenges in Applying Colonial Boundary Treaties to the Resolution of the Djibouti–Eritrea Border Dispute","authors":"Lydia M Zerom, Isaias T. Berhe, S. Andemariam","doi":"10.1017/S0021855323000104","DOIUrl":"https://doi.org/10.1017/S0021855323000104","url":null,"abstract":"Abstract Djibouti and Eritrea have been in conflict since June 2008 when their troops fought along the Djibouti–Eritrea border. The conflict revolves around the location of the border and sovereignty over the strategically located Doumeira Islands and adjacent reefs. In 2010 Qatar brokered a mediation agreement and began to implement it, but withdrew in 2017 without notifying Eritrea and without providing reasons to either country. The dispute raises a number of international law issues. This article focuses on the validity and application of three relevant colonial treaties (from 1900, 1901 and 1935) that defined the boundary, one of which (the 1935 Treaty) did not enter into force. Issues relevant to the determination of the borderline and sovereignty over the disputed islands and the unique challenges that may arise are discussed in light of the colonial treaties, relevant International Court of Justice jurisprudence and other international law principles, particularly uti possidetis juris.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"67 1","pages":"189 - 204"},"PeriodicalIF":0.4,"publicationDate":"2023-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45086902","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-04-14DOI: 10.1017/s0021855323000050
A. Ekeke
Abstract Protests play a significant role in the political, economic, social and cultural life of our societies. Protests have repeatedly motivated positive social change. Through protesting, individuals and groups express disagreement, opinions and objections to government actions or inactions. Protests bring attention to errors in governance and demand their rectification. The right to peaceful protest is protected under the international and African regional human rights frameworks, including the Nigerian Constitution. In Nigeria, the Public Order Act is designed to support the appropriate and peaceful conduct of peaceful assemblies (protests), meetings and processions. Yet the Nigerian government does not respect the right to peaceful protest, particularly in the case of protests against the government. This can be seen in recent protests against Nigeria's notorious Special Anti-Robbery Squad. This article examines the context of the application of the right to peaceful protest in Nigeria in view of the recent #EndSARS protests.
{"title":"Right to Peaceful Protest in Nigeria and the Recurrent Syndrome of Brutalization: The #EndSARS Protest Debacle","authors":"A. Ekeke","doi":"10.1017/s0021855323000050","DOIUrl":"https://doi.org/10.1017/s0021855323000050","url":null,"abstract":"Abstract Protests play a significant role in the political, economic, social and cultural life of our societies. Protests have repeatedly motivated positive social change. Through protesting, individuals and groups express disagreement, opinions and objections to government actions or inactions. Protests bring attention to errors in governance and demand their rectification. The right to peaceful protest is protected under the international and African regional human rights frameworks, including the Nigerian Constitution. In Nigeria, the Public Order Act is designed to support the appropriate and peaceful conduct of peaceful assemblies (protests), meetings and processions. Yet the Nigerian government does not respect the right to peaceful protest, particularly in the case of protests against the government. This can be seen in recent protests against Nigeria's notorious Special Anti-Robbery Squad. This article examines the context of the application of the right to peaceful protest in Nigeria in view of the recent #EndSARS protests.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"67 1","pages":"317 - 327"},"PeriodicalIF":0.4,"publicationDate":"2023-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46037035","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-31DOI: 10.1017/s0021855323000098
Ejemen Ojobo
The act of whistleblowing is not common in Nigeria; this can be attributed to the cultural norms of Nigerian society where deference is paid to those in positions of power and it is often viewed as taboo to speak up against them. This problem of not speaking up is further compounded by the lack of robust whistleblowing legislation which protects whistleblowers from reprisals. The need to protect whistleblowers was brought to the forefront after the implementation in 2016 of the Nigerian stopgap policy on whistleblowing, leading to the Whistleblower Protection Bill proposed in 2019, legislation that seeks to provide wider protection to whistleblowers. This article examines this bill, identifying its limitations; it does not rehash previous scholarly debates about whether incentives are necessary, but rather focuses on bringing the Nigerian perspective to the fore, thus contributing to the existing literature in this area.
{"title":"A Review of the Effectiveness of the Nigerian Whistleblowing Stopgap Policy of 2016 and the Whistleblower Protection Bill of 2019","authors":"Ejemen Ojobo","doi":"10.1017/s0021855323000098","DOIUrl":"https://doi.org/10.1017/s0021855323000098","url":null,"abstract":"\u0000 The act of whistleblowing is not common in Nigeria; this can be attributed to the cultural norms of Nigerian society where deference is paid to those in positions of power and it is often viewed as taboo to speak up against them. This problem of not speaking up is further compounded by the lack of robust whistleblowing legislation which protects whistleblowers from reprisals. The need to protect whistleblowers was brought to the forefront after the implementation in 2016 of the Nigerian stopgap policy on whistleblowing, leading to the Whistleblower Protection Bill proposed in 2019, legislation that seeks to provide wider protection to whistleblowers. This article examines this bill, identifying its limitations; it does not rehash previous scholarly debates about whether incentives are necessary, but rather focuses on bringing the Nigerian perspective to the fore, thus contributing to the existing literature in this area.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48135326","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：