Browsing by Author "Baase, Mathabo"

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    Cultural transformation: an analysis of the community bylaws and legal mechanisms in combating the practice of 'Kusasa Fumbi' in Malawi
    (2024) Kumbambe, Tamandani; Baase, Mathabo
    This dissertation critically examines the intricate relationship between cultural practices, Malawi's legal framework, and the emergent role of community bylaws in combating the persistent issue of Kusasa Fumbi, a harmful cultural practice affecting the girl child in Malawi. The study addresses fundamental questions regarding the efficacy of community bylaws, the role of domestic and international laws, the prevalence of Kusasa Fumbi in rural regions, and the adverse impacts on girls. The dissertation begins by acknowledging the severity of the issue, noting that sexual initiation rites involving minors infringe upon their human rights, pose health risks, and have enduring adverse effects on their socioeconomic status, access to education and physical and mental well-being. Despite such risks, the practice of Kusasa Fumbi is shielded by cultural beliefs, rarely reported to authorities, and perpetrators often escape prosecution. The limited enforcement of existing laws relating to Kusasa Fumbi is cited as a significant obstacle. The dissertation explores the emergence of community bylaws, primarily led by traditional authorities, as an attempt to address harmful practices in rural Malawi. The study examines these community bylaws and their potential contribute to shielding women and girls from harmful cultural practices. It explores how the community bylaws offer a bridge between formal law and on-the-ground cultural practices. Central to the research is the examination of Malawi's legal framework and its alignment with international and regional standards for protecting girls from harmful rites of passage. The study critically examines the persistence of this harmful cultural practice, deeply entrenched within communities under the guise of tradition and culture. Two key questions are posed: Can community bylaws contribute to combating Kusasa Fumbi? What roles can domestic and international law play in eradicating such oppressive and dehumanising practices? The research aims to highlight the significance of addressing harmful cultural practices, as gender disparities persist due to deeply entrenched cultural attitudes. The study emphasizes the vulnerability of underage girls to such harmful traditions and attitudes, hindering their educational opportunities.
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    Evaluating the impact of child agency and autonomy on parental care and supervision in the context of socio-cultural practices with specific reference to African communitarianism
    (2024) Adejimi, Praise; Baase, Mathabo
    Since the enactment of the United Nations Convention on the Rights of the Child (UNCRC), child autonomy and agency has garnered more support and advocacy from the international law community. There has been support in favour of giving children a bigger voice and including them in the decision-making process when it comes to matters that concern the child. As a result, controversies ensue on whether the growing support of child autonomy and agency will negatively impact the roles that parents fulfil in the lives of their children. For example, parents are primarily responsible for the development and upbringing of the child. Consequently, if children were to have a louder voice than their parents, there is a possibility that the roles would be reversed, and the child would ultimately be responsible for their own development. For this reason, parents are particularly concerned that the rights of care and supervision bestowed upon them by the law will be lost in favour of sole consideration for the interest of the child. This is contrary to the values of African communitarianism which encourages the interest of the community to prevail over any individual interest. As a result, when both rights are placed in situations that lead them to conflict with one another, neither the child's, the parent's or the community's interests are served. Two examples that showcase this predicament include children giving consent to their own medical treatment plan and the sexual rights of a child. Therefore, the question remains whether the interest of the child should be achieved at the expense of the parent. This thesis demonstrates that, by highlighting the importance of both rights and appreciating their intertwined nature, there is no need for the rights of the child and the rights of the parent to compete with one another. Rather, a balance should be struck in order to accommodate the differing rights. By reconceptualising the notion of ‘child autonomy and agency,' such balance can be struck.
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    The rights and best interests of children conceived through rape: the missing maintenance of rapist fathers in South Africa
    (2024) Friedmann, Indio Anais; Baase, Mathabo
    The global shift in recognising children as independent rights holders demands that States Parties must adhere to the best interests of the child principle, obliging them to adopt legislative measures that align with children's rights as outlined in international law. Accordingly, South Africa's legislative frameworks, including the Children's Act 38 of 2005, emphasise a child centered approach, requiring all child-related decisions to be grounded in the best interests of the child. However, there is a notable absence in international and domestic guidance regarding the rights and best interests of children conceived through rape. It is within this context that this dissertation argues that South Africa's current legislation fails to adequately provide for children born of rape. Such a failure violates international and constitutional obligations owed to children. This dissertation examines this current legislative lacuna in South Africa concerning such children, specifically focusing on the Children's Act and Maintenance Act 99 of 1998. The Children's Act, in section 1(a), excludes rapist fathers from the definition of a parent, thereby denying them parental responsibilities and rights, including the responsibility to contribute to the child's maintenance. While seemingly aimed at protecting the child's best interests, this legal stance creates a lacuna, leaving children born of rape without maintenance from the rapist father. Maintenance is a crucial factor determining a child's well-being and opportunities, encompassing rights such as adequate living standards, education, healthcare, housing, and dignity. The existing legislation only entitles children born of rape to maintenance from the biological mother, unlike children born of consent who can receive dual maintenance. Moreover, this differential treatment based on the manner of conception raises concerns of unfair discrimination. Due to these consequences, amendments to the Children's Act and Maintenance Act are necessary to ensure maintenance obligations from rapist fathers, irrespective of the child's birth status. By analysing international and domestic perspectives, this research highlights the child's right to receive maintenance as part of their best interests, challenging the current exclusionary provision in its current form.