Browsing by Author "Amien, Waheeda"

Now showing 1 - 15 of 15
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    Basic Human Rights Documents for South Africans
    (1998) Amien, Waheeda; Farlam, Paul
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    Criminalising Marital Rape in Botswana: The Need for Legal Reform
    (2020) Nasha, Refilwe M; Amien, Waheeda
    Marital rape is not a criminal offence in Botswana. This means therefore that, the law of Botswana recognises other forms of rape, except for marital rape. Marital rape is a form of intimate partner violence that the Convention on the Elimination of all Forms of violence Against Women refers to as domestic violence. Marital rape is also a form of gender based violence against women because it is a violence that is directed against women because they are women. Marital rape results in serious medical, emotional and mental harm. As a result, marital rape violates numerous human rights that range from the right not to be subjected to torture or to cruel, inhuman, or degrading treatment or punishment, the right to security and liberty of the person, as well as the right to health, just to mention a few. The human rights that are violated by marital rape are provided for under international human rights instruments that Botswana has ratified. Further, The Constitution of Botswana contains, in its Bill of Rights, a provision that guarantees every person in Botswana protection of the law regardless of sex. The biggest challenge for this dissertation is that there is no scientific evidence that serves as authority that marital rape does occur in Botswana. However, the findings of the studies conducted on gender based violence show there is a strong possibility of marital rape due to some cultural factors that give men sexual entitlement in a marriage. Further some women have come out to relate their rape ordeals at the hands of their husbands. With this dissertation, I seek to make a case for the criminalisation of marital rape. My argument in this dissertation is that, even without scientific evidence in the form of statistics, any form of violence against women is a violation of women human rights. As a result, it is necessary for Botswana to put measures in place, including criminalising marital rape, to protect married women’s human rights. Further, even though a sovereign state, Botswana has ratified international human rights instruments and is therefore bound by its international obligations to prevent, eradicate and punish any form of violence that violates human rights. Furthermore, other than what international law provide in regard to criminalisation of marital rape, marital rape needs to criminalised in order to provide effective protection and remedies for married women against marital rape.
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    The effectiveness of protecting children's rights in post-conflict Liberian society
    (2015) Farinde, Louisa Omolara; Amien, Waheeda
    This dissertation will primarily involve desk-based research to examine those provisions of the Liberian Children's Law that refer to measures preventing the use of children in armed conflict, measures protecting children from being used in armed conflict as well as measures reintegrating children into society who have participated in such violence in their past in light of CRC standards. Reference will also be made to scholarly contributions on children's rights in postconflict societies, reports on and documentation of the condition of child rights in Liberia and the relevant international and regional human rights instruments including the International Convention on the Rights of the Child, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Rome Statute of the International Criminal Court, and the African Charter on the Rights and Welfare of the Child. Among critiquing the Children's Law by comparing its standards to other international human rights instruments, feasibility of the Children's Law will be examined by considering 1) justiciability, 2) accessibility, and 3) enforceability as criteria indicating whether the Children's Law is a substantive document and proves effective in theory or not.
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    Equality in higher education partnerships: defining the concept in divergent contexts
    (2021) Hagenmeier, Conrad Cornelius Andreas; Kalula, Evance; de Wit, Hans; Amien, Waheeda
    This thesis investigates how an appropriate theoretical framework for equal partnerships between universities in divergent contexts could be formulated, based on the principle of substantive equality. Literature has to date not addressed whether equality should be a principle underlying higher education partnerships, and the concept of equality in higher education partnerships has not yet been defined. This thesis explores present practices and conceptualisations of equality, specifically in partnerships between higher education institutions of divergent strengths, through a literature study, a survey of university stakeholders responsible for the management of bilateral international university partnerships, four minicase studies and a doctrinal review of the South African Constitutional Court's equality jurisprudence. An interpretivist paradigm is applied; Fredman's four-dimensional understanding of substantive equality serves as its theoretical framework. The internet-based survey tool ‘SurveyMonkey' was used to collect data for the survey. Data evaluation was undertaken using the analytical tools embedded in SurveyMonkey, the Statistical Programme for the Social Sciences (SPSS), and qualitative data was thematically analysed. The mini-case studies applied present practices and conceptualisations of equality in higher education partnerships, specifically in those between higher education institutions of divergent strengths, as the primary unit of reference. The substantive equality jurisprudence of the South African Constitutional Court was evaluated using Fredman's four-dimensional model of substantive equality. The most notable insight from the empirical research is that there is no uniform understanding of equality in higher education partnerships. Based on the empirical and doctrinal research, a theoretical framework was formulated. For partnerships to be considered equal, certain criteria from an open-ended list should be met, which include a value-foundation in mutuality, transparency and accountability, trust, equity and fairness, academic freedom, promotion of education, research and development, and ubuntu. Partners should make contributions that are equally meaningful, considering their context. They should be able to achieve their priorities to an equal extent through the partnership. The partners should recognise and affirm their equal worth, as well as the equal worth of all those who participate in partnership activities in all spheres of the collaboration. Open and transparent communication should be practised, and partnership decision-making processes should equally weigh all partners' voices and ensure that minority views are considered. The partnership as a whole should affirm the diversity of partner universities.
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    Evaluating the alignment of the refugee status determination process with international and national human rights and refugee law: a cross-country analysis of Sweden and South Africa
    (2024) Aytan, Selma; Amien, Waheeda
    In South Africa, the domestic refugee legislation, the Refugees Act 130 of 1998, was established in 1998.1 However, the country continues to struggle to correctly implement and apply the refugee law in a successful manner. Furthermore, outside its domestic refugee legislation, South Africa has both ratified and signed the 1951 United Nations Convention Relating to the Status of Refugees2 (1951 Convention) as well as the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention).3 The country has hence committed to honoring the outlined obligations in both conventions in accordance with international law and to enact the Refugees Act.4 South Africa has further agreed to the 1967 Protocol Relating to the Status of Refugees5 and the 1948 United Nations Universal Declaration on Human Rights (UDHR).6 An important section that is outlined in all of these instruments is the right to seek and enjoy asylum. Further, the 1951 Convention was established to specifically protect people who are fleeing any form of persecution in their country of origin due to grounds such as race, religion, nationality, political opinion or membership to a particular social group.7 However, regardless of the provided grounds, South Africa has at times shown to fail to recognize such grounds during the refugee status determination process. With the country's extensive processing times as well as the hardship to receive more than a temporary residency in the country for long periods of times, many refugees and/or asylum seekers are put into uncertain circumstances which can have negative effects on both their physical and mental health. Sweden, a country on the opposite north altitude of South Africa, has traditionally had a wellestablished outwardly image of being an open and welcoming country for refugees. As a member-state of the European Union, Sweden is obliged to follow any policies that the EU develops. The European Council in 1999 began to develop the Common European Asylum System (CEAS)8, which would be foundational in the inclusive and full application of the 1951 Convention.9 This established system has undergone a couple of different developmental periods since its inception. During, what is commonly referred to as, the European influx of refugees that began in 2015, many deficiencies in the EU refugee and asylum policies and laws were exposed. Consequently, many of the member-states who were affected began to increase their engagement in terms of the future direction of the EU asylum and refugee policies and laws. Numerous countries additionally began to refuse their obligations in terms of EU policies and laws surrounding the topic. The European refugee influx also marked an important transition in Sweden's refugee and asylum policies. Prior to 2015, Sweden took pride in being a generous state in terms of their national asylum and refugee system, as well as the quality of care which refugees and asylum seekers were provided at the point of arrival. One prime example of this was in 2013 when all Syrian and stateless persons seeking asylum were guaranteed and provided permanent residency, given that they were arriving from war-torn Syria. This policy has since changed, and it is far more complicated and difficult for an asylum seeker and refugee to attain permanent residency. There has been a notable switch in Sweden's stance on accepting and receiving refugees and asylum seekers even after the 2022 election, in which a far-right majority now is politically in charge of the country. With the difficulties that asylum seekers and refugees are now facing in terms of having their refugee status determined globally, this paper seeks to first, investigate whether South Africa's refugee status determination process has ever fully been aligned with human rights and refugee law; secondly, investigate why Sweden has begun to move towards a similarly difficult refugee status determination process as South Africa. The analysis will be conducted through desk-top research comprising academic literature, international and regional treaties, legislation, government reports, policy documents, relevant case studies, academic publications, journal articles, book chapters and books. By applying desk-top research, the dissertation will attempt to provide a comprehensive understanding of the challenges and difficulties that refugees and asylum seekers face today in both countries.
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    Human trafficking for the purpose of organ removal : a human rights based perspective
    (2016) Tunde-Yara, Faith; Amien, Waheeda
    Human trafficking for the purpose of organ removal, known to be an obscure and uncommon form of trafficking in persons, has since become a popular phenomenon across various countries of the world. The crime is recognized in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, which supplements the United Nations Convention against Transnational Organized Crime. A reason for the inclusion of this form of trafficking in this particular international instrument on transnational organized crime is because most forms of trafficking, and more particularly human trafficking for the purpose of organ removal, as well as organ trafficking are generally perpetrated by transnational organized criminal groups. This dissertation seeks to consider the crime in detail, from a human right-based approach. This approach acknowledges that trafficking in all its forms, is a violation of human rights and seeks to depart from the common debates surrounding the spread of organ trafficking over the years. A large proportion of these debates have attributed the shortage of organs to the spread of the organ black market and organ trafficking in general. These debates have therefore focused on addressing the shortage of organs by developing systems to promote altruistic donation of organs. Even though there is an international recognition and admittance of the fact that human trafficking for the purpose of organ removal constitutes a serious human right abuse, there is still a wide gap in the body of research that focuses on the human right abuses involved in this type of human trafficking, and the need to protect and promote the rights of victim-donors. The aforementioned gap will serve as the crux of this dissertation as efforts will be made to address the inherent human rights abuses that victim-donors face. This dissertation will begin by introducing the crime of human trafficking through a brief historical overview. It will then proceed to give a background information on human trafficking for the purpose of organ removal. Subsequent chapters will address in detail the trends and patterns of the crime, the modus operandi of organ traffickers, the role players in organ trafficking networks, the consequences of the crime on the victims involved, the inherent human right violations promoted through the continuous perpetration of the crime of human trafficking for the purpose of organ removal, and the responses that have been given to curbing the crime from different international, regional and national institutions. Case studies will be examined to buttress the facts and findings of the entire dissertation.
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    Image Based Sexual Abuse: The Effectiveness of Malawi s Legal Framework
    (2024) Kanyongolo, Ulemu; Amien, Waheeda
    The prevalence of technology and social media has resulted in gender-based violence going beyond the physical and into the digital space. Violence against women which occurs online or with the use of technological means is referred to as technology-facilitated violence, a term which includes a plethora of actions such as harassment and image based sexual abuse. Image based sexual abuse (IBSA) is “non-consensual sharing of images or videos- real or fake- that are either sexually suggestive or sexually explicit.” Although non-consensual sharing of images is certainly not a new phenomenon, increased use in social media and technology contributes to IBSA becoming more widespread, and women are on the receiving end of the majority of image based sexual abuse. IBSA infringes on the right to privacy because the pictures which are shared are sexual or intimate in nature and they are directed at an unintended audience without consent.5 Rackley and McGlynn argue that such a violation is two-fold. Firstly, it may occur where a perpetrator breaches the trust of a victim and non-consensually distributes images that were consensually created; and secondly, such a violation may occur where the image is both created and disseminated without consent.6 Rackley and McGlynn also argue that in both instances, the right to privacy is not derived from the intimate nature of the image, but from a breach of the victim's trust. The right to privacy is constitutionally protected in Malawi.7 Section 21 of the Constitution states, “Every person shall have the right to personal privacy”. Women's right to privacy is in constant threat with the prevalence of IBSA. Malawi is no exception to this phenomenon, and the question arises whether the Malawian legal framework addresses IBSA. Malawian women whose privacy is violated because of IBSA are usually unable to seek redress because as Chisala-Templehoff argues, many people do not know about Malawi's laws
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    The implementation of the universal jurisdiction over torture in European countries
    (2016) Coppée, Tom Jean G; Amien, Waheeda
    This dissertation presents an evaluation of universal jurisdiction over torture offenses. By doing so, it focuses on European states, in particular Belgium, France and the United Kingdom, all of which show a particular openness to prosecute torture offences on the basis of universal jurisdiction. It is demonstrated that Belgium, France and the United Kingdom have complied with the obligation set out in article 5(2) of the UN Torture Convention to establish universal jurisdiction over torture offences in their domestic legislation. They were, moreover, the first countries to conduct torture trials on this ground. However, 30 years after the signature of the Convention, such trials rarely occur because European prosecutors and courts face both practical and legal problems. I argue that some controversies have been solved, especially those relating to the non-retroactivity of the implemented legislation, the prohibition of amnesties, as well as the legality of the proceedings in the absence of the offender and of the operation of a principle of subsidiarity. The latter principle would give primacy jurisdiction at least to the territorial state that wants and is able to prosecute. However, the controversies relating to the legality of the universal jurisdiction over the torture of citizens of non States Parties, the ne bis in idem prohibition, the broad immunities and the establishment of efficient legislation and cooperation between states are far from being settled. I argue that the cooperation between states at the regional and international level is needed to solve the legal and practical issues about universal jurisdiction over torture, and to stop its differentiated applications. The forum state is also responsible to provide prosecution and police services with a suitable working context that has clear and efficient legislation and guidelines about universal jurisdiction over torture. Indeed, successful prosecution primarily devolve to these criminal practitioners' motivation.
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    Is there a universally acknowledged human right to water? : an analysis of obligations under international, regional and national law : a case study of Germany and South Africa
    (2016) Penkalla, Michaela; Amien, Waheeda
    The purpose of this dissertation is to assess whether or not there is a universal human right to water. The problem of water scarcity and high death rates due to a lack of access to clean water is still prevalent across the globe today, making it hard to believe that a human right to water is still not codified in international law. This dissertation analyses international as well as national law to assess whether a human right to water is universally acknowledged by the international community despite not being codified. It is argued, that there is still no explicit universal human right to water in international law. However, this dissertation acknowledges that a human right to water does exist as a derivate right, which is almost universally acknowledged. As a derivative right, it is, however, not as equally strong as explicitly acknowledged rights in the core international human rights instruments. This dissertation also provides a brief overview of corporate involvement under the human right to water. An assessment is made as to whether or not international law imposes direct obligations and responsibilities on companies. It is argued in this dissertation that companies have a particular responsibility for the implementation of the human right to water despite states remaining the primary subjects responsible.
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    Non-state forms of conflict resolution: opportunities for improving criminal justice a case study of community courts in Mozambique
    (2022) Lorizzo, Concetta; Amien, Waheeda
    The Mozambican criminal justice system faces two main challenges, namely lack of access to justice for all and deplorable prison conditions. Judicial courts are distant and expensive; legal terminology is incomprehensible to the majority of people; and prisons are overcrowded. Mozambicans continue to rely on different normative systems, other than state justice, to resolve their disputes. Recognised mainly as informal, these non-state mechanisms have always been considered as closer, cheaper and faster than judicial courts. However, the literature on legal pluralism and the state has historically ignored the role that they play in criminal justice. Given this background, the thesis examines the limitations of legal pluralism and how the past shaped and continues to shape the particular relationship of the state with community courts in relation to criminal justice. The study makes use of materials derived from exploratory work in the Mozambican capital city of Maputo, including focus group discussions, individual interviews, access to case files, and various other empirical observations. The thesis analyses the functioning of community courts. The discourses and practices on criminal justice of these courts are most usually seen as situated within Eurocentric dominant political discourses about the nature of access to justice and punishment. Through a postcolonial analysis, however, the thesis aims at identifying community courts as forms of local knowledge; it explores the legal and practical obstacles and opportunities that community courts provide to improve access to criminal justice for petty crimes and ultimately their impact on the condition of prisons. The thesis shows that the revision of the community courts' law presents an opportunity to broaden the competence of the courts to include criminal cases punishable with imprisonment up to three years. Because of this, petty crimes would go through the state criminal justice system and more cases would be resolved at the community level. Community courts are trusted by the people and make use of a form of restorative justice. They reach decisions through mediation; assess the socioeconomic causes of a case; involve families and communities when needed; and apply alternatives to imprisonment. A shift of the state's mainstream attitude to community courts in relation to criminal justice is now needed – a move away from Eurocentric discourse and towards the recognition, in practice, of local knowledge.
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    Participatory constitutional reforms vs. realization of equal representation of men and women in the parliaments: a study of Kenya, Rwanda and Tanzania
    (2019) Lihiru, Victoria Melkisedeck; Amien, Waheeda
    In this thesis, the constitution-making legal frameworks in Rwanda, Kenya, and Tanzania are examined in relation to how they facilitated public participation in line with Article 25 of the International Covenant on Civil and Political Rights, 1966 and Article13 of the African Charter on Human and People’s Rights, 1986. In line with Articles 4 and 7 of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979, and Article 9 of the the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, 2003, the thesis gauges the level and impact of women’s participation in the constitution-making processes in furthering equal representation of men and women in parliaments. Findings contained in this thesis are informed by primary data from international, regional and national legal frameworks relating to participation in political decision-making processes and are supplemented by secondary data from credible reports, journal articles and books. Analysis of the colonial and early postcolonial constitutional formations depicts imposition of the constitutions by the colonial governments in consultation with a few African political elites. Generally, the colonial and early post-colonial constitutionmaking processes were founded on weak legal frameworks, denying the public, including women, the right to take part in constitution-making processes. The onset of international and regional conventions slowly influenced the opening of the constitution-making processes to the public. The 2003 Rwandan Constitution, 2010 Kenyan Constitution, 1977 Tanzanian Constitution and the subsequent stalled 2014 Tanzanian Proposed Constitution were founded on moderate strong legal frameworks allowing some level public participation. In terms of facilitating women’s participation, these frameworks suffered shortcomings in several aspects particularly in composition of constitution-making organs, access of uneducated and rural women and ensuring substantive participation by women. However, the 2003 Rwandan Constitution, the 2010 Kenyan Constitution, the 1977 Tanzania Constitution and the 2014 Proposed Draft Constitution of Tanzania contain equality and non-discrimination provisions. When it comes to women’s participation in parliaments, the definition of equality is equated to a percentage (mostly 30 per cent), which does not represent the meaning of equality. An increased number of women parliamentarians in the Rwandan, Kenyan, and Tanzanian Parliaments, has enabled the legislation of gender sensitive laws and policies in the areas of inheritance, gender-based violence, family law and land rights. However, there are many areas in which women parliamentarians fail to represent the real interests of women. Challenges related to the practice of first-past-the-post and proportional representation electoral systems and the practice of temporary special measures continue to hinder the realisation of equal representation of men and women in parliaments. Rwanda, Kenya, and Tanzania should adopt the equality-based proportional representation electoral system. Short-term recommendations are provided based on the contextual differences and uniqueness of each country under study namely Rwanda, Kenya and Tanzania.
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    Reforming Hudud ordinances to reconcile Islamic criminal law with international human rights law
    (2016) Gabriel, Mark A; Amien, Waheeda
    International human rights laws are grossly violated by the hudud ordinances, with their extremely cruel punishments, including stoning for adultery, beheading for apostasy, and amputation for theft. Pakistan, Sudan, Brunei Darussalam and Saudi Arabia, for example, follow the doctrines of the four main Sunni schools of jurisprudence and enforce hudud ordinances, thereby violating some of the core international human rights law instruments to which they are State Parties. Orthodox Muslims generally defend the hudud ordinances, claiming that they are divine and immutable. This study refutes the aforementioned claim and demonstrates that it is legitimate and possible to reform hudud punishments to reconcile them with international human rights law. The thesis differentiates between Shariah and Islamic law. It argues that Shariah refers to the divine rulings recorded in the Qur'an and correct Sunnah, while Islamic law is not fully divine, for it includes also such prescriptions that have been developed by the human effort of Islamic jurists. The thesis demonstrates that reformation is an Islamic concept that requires that Muslims read the teachings of the Qur'an and the Sunnah in the context of their own time and environment. It is postulated, therefore, that the rulings of Islamic law need to be examined in the light of the Qur'an, the correct Sunnah and the Islamic core values promoted in them. These include several internationally protected human rights, such as the right to life, equality, and freedom of religion. The thesis points out that the main purpose of Shariah is to serve the benefit of the people and to protect them from harm. To this end, Shariah has provided the Islamic principles of reality and necessity. These require that the reality of life and the needs of the people be considered at all times. If necessary for the sake of the people, the principles allow for exceptions to be made to even definite provisions. It, further, demonstrates how these principles can be applied to reform the hudud ordinances to reconcile them with international human rights law.
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    The socio-legal significance of decriminalising sex work in South Africa
    (2021) Manuel, Stacey-Leigh; Amien, Waheeda
    This dissertation aims to interrogate the following research question: How would the decriminalisation of sex work model align with the South African human rights framework? The dissertation recommends the decriminalisation model of law reform, as it will fulfil public health goals and respect human rights. The study highlights the systemic patterns of abuse that sex workers in South Africa experience because of the criminalisation of sex work. In response to the research question, an analysis of the impact of criminalisation on sex worker's human rights is offered together with a description and analysis of existing legislative models such as the legalisation model (adopted in the Netherlands), partial criminalisation model (also known as the ‘end-demand' model, which is enforced in Sweden) and the decriminalisation model (applied in New Zealand and Australia), as well as how the aforementioned models might benefit sex workers and the broader society. In addition, the dissertation addresses the current legal position and jurisprudence on sex work in South Africa. The impact of the criminal law on sex workers and general society is discussed and the current untenable position created by outdated legislation is highlighted. An analysis of the current legal framework in South Africa that prohibits sex work is provided, and the impact of the current legal framework on sex worker's constitutional human rights is examined. The case precedents on sex worker human rights in South Africa and the existing legal models, as mentioned above, on sex work are also analysed. A consideration of South Africa's compliance obligations under international and regional human rights treaties and the South African Constitution, as well as the statutory approaches adopted in New Zealand, Australia and the Netherlands are further explored. The intended outcomes of this dissertation are: a) To illustrate that the decriminalisation model of sex work is compatible with the human rights framework in South Africa; and b) To provide a basis for a proposal for an appropriate legal model for South African policy makers, tasked with formulating and implementing a statutory framework that recognises and protects the human rights of sex workers in South Africa.
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    Working women in Cape Town: reconciling religious beliefs and modernity
    (2013) Thondoo, Sandrina; Amien, Waheeda
    A patriarchal reading of the Qur'ānic verse 4:34 implies the subordination of wives to their husband within their families. The fundamental duty of the husband to support his wife materially has led to the entrenched notion of male protection of women. In exchange for such protection, the wife has the reciprocal duty of obedience to her husband, which may lead to the restriction of her right to work, amongst other rights. In contemporary societies where women are increasingly participating in the maintenance of the family, different interpretations of the verse are now becoming more influential than the patriarchal view. Allowing women access to equal opportunities on the labour market and to receive equal remuneration will not only contribute to the overall improvement of society but could also lead to the effective implementation of gender equality as required by international legal standards and religious doctrines.