OpenUCT :: Browsing by Author "Barratt, Amanda"

Browsing by Author "Barratt, Amanda"

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Open Access
A tentative proposal for mediation in the Zambian Family Court
(2021) Chisompola, Lois; Barratt, Amanda
These changes have set stage for the development of family law in Zambia as well as the growth of alternative dispute resolution, particularly, mediation. They also bring to the forefront the opportunity and challenge of re-envisioning what a court system should look like. This study seeks to assess how each of these changes can fit together into one comprehensive system for a Family Court model.
Open Access
Adjudication of child relocation disputes in South Africa
(2021) Marumoagae, Motseotsile Clement; Barratt, Amanda
This thesis discusses the adjudication of child relocation disputes (CRDs) in South Africa. The central thesis is that judges require adequate legislative guidance when exercising their discretion in CRDs. At present, judges adopt widely different reasonings when adjudicating CRDs and this has led to inconsistent CRDs jurisprudence. Due to lack of legislative guidelines, judges can choose to rely on any factor to reach their desired outcomes while at the same time rejecting those factors that might contradict their intended outcomes. In typical CRDs, parents who have been awarded the care and residency (usually mothers) wish to relocate with their children. They usually attempt to justify the proposed relocation on factors such as: their right to freedom of movement; pursuit of new romantic relationships; better work opportunities; improved standard of living; concern about crime; attainment of quality education; reuniting with family members; lack of family support; and abuse from non-custodial parents among others. Non-custodial parents often object to the proposed relocation on the basis that relocation will affect their rights to maintain contact with their children. To substantiate this claim, they usually indicate the extent of their interest in their children's lives and the amount of time they spend with their children. They often question the genuineness and good faith of the intended relocation and cast doubt on the ability of relocating parents to provide a better life for their children post-relocation. Occasionally, they invoke arguments relating to the disruption of the child's life and routine, including schooling, faith, and extramural activities. This thesis argues that CRDs are not as unique as they are often made out to be. For every CRD, there is likely to be precedent, local or foreign that can shed light on how such dispute should be adjudicated. However, many CRDs cases, both in South Africa and in foreign jurisdictions deal with similar CRDs differently. This makes it easy for judges who are adjudicating CRDs to reject certain precedents and follow others, or to reject the approaches of all previous cases and formulate their own novel approaches. This thesis argues that judges through their discretion can formulate their own approaches, which they can use to reject evidence that is contrary to their desired outcomes and rely instead on evidence that supports their intended outcomes. As a result, CRDs jurisprudence invokes many judicial approaches such as: reliance on predetermined presumptions for and against relocation; the reasonableness test; tender years and maternal preference; and the exceptional or compelling circumstances test. Judges can use these tests to either grant or refuse custodial parents' permission to relocate. When the application of certain tests works against their intended outcomes, judges have skilfully deviated from such tests to suit their subjective views on parenting. Judicial discretion is usually exercised in the name of the Best Interests of the Child (BIC) principle, which is thoroughly discussed in this thesis. Most importantly, this thesis argues for the limitation of judicial discretion in CRDs through the provision of legislative guidelines which will assist judges when determining CRDs. This thesis proposes an amendment to the Children's Act 38 of 2005, to incorporate a specific chapter dealing with CRDs which considers the involvement of both parents in their children's lives to the extent possible. There is a shift in thinking regarding CRDs in some jurisdictions, where the roles of both parents in their children's lives are adequately assessed when CRDs are determined. The proposal of this thesis is centred around the establishment of a legislative mechanism that will enable judges to identify, select, weigh, and adequately balance competing factors in CRDs to ensure that all cases are thoroughly investigated and considered.
Open Access
The battle for policy space : strategic advantages of a human rights approach in international intellectual property negotiations
(2008) Barratt, Amanda; Kinderlerer, Julian
The patent system exists to encourage the development of new products from which society will benefit. The strength of protection awarded to patented products is a policy decision, allowing states to balance the monopoly rights of patent-owners against the inherent social costs of monopoly protection. The effective policy space within which states may establish domestic patent policy is increasingly circumscribed by international rules prescribing minimum protection levels regardless of local circumstances or consequences. In international negotiations, developing states have attempted to resist policy space curtailment using arguments that rely on foundational principles of the intellectual property system: its public purpose and its commitment to balancing costs and benefits. This negotiating stance has not been effective; its opponents counterargue that stronger patent protection achieves the same ends. This dissertation examines the resulting circular discussions at the 2001-2003 Doha negotiations and the WIPO Development Agenda talks since 2004. I argue that the impasse stems from an inability to move beyond the costs-benefits tension inherent in the patent system. Economists have been unable to resolve this tension by identifying optimal protection levels. Furthermore, intellectual property theory is unable to provide a bottom line at which the short-term social costs of patent monopolies must be deemed unacceptable, regardless of anticipated longerterm benefits. The developing states' negotiating stance will be strengthened if a bottom line can be identified. I argue that the International Covenant on Economic Social and Cultural Rights provides benchmarks to fulfil this function. ICESCR obligations are specific, objective, and measurable; they have international legitimacy; and they bind almost all states. I examine the Article 12 right to health to show that states violate the ICESCR if they ratify other treaties which reduce policy space and make it more difficult for states to adopt policies to meet their domestic or extraterritorial obligations. I also examine Article 15, concluding that it is insufficiently developed to offer firm guidelines. I use insights from international relations theory to examine the practical possibilities of adopting a human rights-based approach, and argue that the strategy will become progressively more effective as human rights norms are internalized through the negotiating process and by other means.
Open Access
The best interests of the child : a critical evaluation of how the South Africa court system is failing to use section 7 of the Children's Act accordingly in divorce proceedings
(2016) Sisilana, Ziphokazi Dimpho; Barratt, Amanda
South Africa has a history of human rights atrocities that have created an urgency to attend to the previously marginalised and vulnerable groups of society. The Constitution of the state as well as other international treaties have created provisions that entrench the commitment to protect the child. This has been done through the inclusion of the 'best interests of the child' principle in the instruments. This study examines the development of the 'best interests' of the child. Furthermore, it analyses how and why the principle developed in the international and national context. The purpose is to come to the findings that the newly introduced Children's Act has created a better scope of protection than the previous common law precedent. The leading component of the study is criticising the method of the application of the 'best interests' of the child principle in South Africa. The author will specifically focus of section 7 of the Children's Act and prove why the courts should be applying this provision in child-related cases.
Open Access
Bioethics and human rights in international law: genetic engineering, euthanasia and/or physician assisted suicide
(2022) de Oliveira, Carina Teresa; Barratt, Amanda
Medical advancements and improved scientific knowledge has introduced various benefits to society, while also creating contentious debates and issues concerning the impacts these medical advancements and/or procedures have had on human rights. In particular, the impact on human rights that medical and scientific advancements have arisen in regards to specific forms of genetic engineering, euthanasia and physician-assisted suicide. This dissertation is aimed at specifically focusing on the dichotomy of ideologies and legislation concerning the rights to human dignity and privacy in relation to the medical advancements involving genetic engineering, euthanasia and physician-assisted suicide. Genetic engineering is broadly considered to be an umbrella term that comprises various medical technologies, including preimplantation and prenatal genetic testing and selection, as well as genetic editing. Preimplantation and prenatal genetic testing enables the detection of a disease or defective condition of an embryo or foetus, while genetic editing enables the alteration of an embryo or foetuses genes to remove mutations or defective conditions to improve the overall living condition of the embryo when it is born. These different practices within the broad realm of genetic engineering use medical technologies to essentially “pick and choose” what physical and medical traits an individual should bear, in an attempt to avoid offspring with serious illnesses or unwanted conditions that could potentially cause the individual a lifetime of suffering. Although it is important to note that genetic engineering has also confronted a plethora of ethical and legal objections, a specific form of medical technology within the broad framework of genetic engineering, specifically preimplantation and prenatal genetic testing, is still generally more accepted on a global scale, both by society and by legislatures, than the practices of genetic editing or euthanasia and/or physician-assisted suicide, which aims to restore an individual's human dignity, privacy and autonomy by assisting these individuals suffering from severe illnesses or defective conditions to peacefully conclude their undignified lives. Euthanasia and/or physician assisted suicide, essentially involves an individual or medical practitioner administering a lethal agent to a patient in order to relieve them of their severe and chronic suffering. This dissertation intends to analyse the bioethics and international law concerning the dichotomy present between the application of preimplantation and prenatal genetic testing utilized in the selection process of a life to attempt to ensure an individual without illnesses, with the more dominant prohibition on euthanasia and/or physician assisted suicide to terminate the life of a human being suffering with those very same traits, conditions and/or illnesses that preimplantation and prenatal genetic testing intends to detect and then allow an individual to either terminate the embryo or foetus, or not. This bioethical debate seems to be increasingly contradictory, whereby preimplantation and prenatal genetic testing, although still facing criticism by some states, is being introduced and accepted far more commonly across the globe, while the option of an individual having the freedom of autonomy to make an informed decision to bring an end to their suffering through euthanasia and/or physician assisted suicide, is largely rejected. This dissertation essentially explores the irony present in bioethics in the manner in which there exists far greater societal and legislative support for preimplantation and prenatal genetic testing and selection to effectively allow the avoidance of chronic suffering, than there is for the protection of the human dignity and autonomy of individuals by terminating the severe chronic suffering caused by these very same conditions that the former medical interventions intend to eradicate.
Open Access
Community based mental health care: a necessity for realising the right to independent living and community inclusion of persons with mental disabilities in Uganda
(2023) Atim, Patricia; Barratt, Amanda
Using a purely doctrinal legal analysis, the thesis advocates for the provision of community based mental health care as a key strategy in promoting the realisation of the right to independent living and community inclusion for persons with mental disabilities (PWMDs) in Uganda. Uganda ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRDP) on the 25th September 2008 without reservations following its adoption in 2006. This is in addition to earlier undertakings in a number of preceding international and regional human rights treaties that guaranteed the rights of persons with disabilities (PWDs). Prior to the ratification of the UNCRPD, Uganda's also had national progressive legal framework, like the Constitution of the Republic of Uganda, 1995 and the Person with Disability Act 2006 (now Persons with Disabilities Act 2020) that provided meaningful safeguards towards the protection of the rights of PWDs. Despite these commendable legislative gains, the thesis contends that Uganda is still largely premised in the medical model of disability and far from tangibly attaining the aspirations set out in the UNCRPD and its paradigm shift to the social and human rights model of disability. The recently enacted Mental Health Act 2019 though progressive still falls short of streamlining the provision of community based mental health care to address the long standing practice of institutionalisation of PWMDs in mental health facilities and prisons. The social and environmental barriers manifested in negative attitudes, stigma and discrimination are characteristic of the populace. Institutionalisation, isolation and segregation of PWMDs in violation of Article 19 of the UNCRPD and other related articles is evidently persistent. To exacerbate the situation, Uganda has not yet conceived a plan to design an independent or community living strategy or policy for her citizens with mental disabilities.
Open Access
Compensation for victims of sexual violence in South Africa : a human rights approach to remedial criminal compensation provisions
(2013) Greenbaum, B; Barratt, Amanda
The author questioned why state attorneys, prosecutors and magistrates/judges in South Africa rarely review the compensation concerns of sexual violence complainants and witnesses in criminal sentencing matters, and in quasi-criminal civil forfeiture proceedings, as is frequently done for other classes of complainants (namely, commercial crime complainants and victims of violent crime in general). A conclusion was reached, after conducting extensive research for this thesis, that offender and state compensation processes were sparingly utilized in cases of sexual violence, in part, due to institutional biases that resulted in discrimination. The above finding was substantiated by way of twenty-seven (27) interviews with criminal justice role-players, eight (8) court file case studies and forty-seven (47) victim surveys. The above subject matter is important because failures by criminal justice state role-players to review the compensation concerns of sexual violence victims, on account of biases, causes real harm to these vulnerable complainants. For example, research in this thesis confirmed that state and offender compensation can assist sexual violence complainants with their cultural obligations, court appearances and post-assault health expenses and to pre-empt compensation reviews on account of biases disrupts victims' post assault recoveries. Further, compensation can assist sexual violence complainants with security related expenses, including relocation costs, so as to avoid repeated victimization.
Open Access
Indigenous peoples and the right to culture : an international law analysis
(2009) Afadameh-Adeyemi, Ashimizo; Barratt, Amanda
In the post or neo-colonial era, the question of fair and equitable treatment of indigenous peoples remains a subject of international political and legal discourse. Efforts have been made to study ways of promoting and protecting indigenous rights and to develop international norms for the protection of these rights. These efforts have sprung forth a plethora of questions; these questions include 'who qualifies as indigenous peoples?' and 'what rights do they enjoy under international law.' This thesis takes a cursory look at the conceptual underpinnings of indigenous peoples and specifically evaluates their right to culture in the parlance of international law.
Open Access
Is South African Refugee Law creating a stateless generation?
(2019) Lee, Megan Catherine; Barratt, Amanda
Despite an international framework guaranteeing fundamental rights to all those who belong to the human family, nationality if often a prerequisite to accessing these rights and thus, a lack of nationality, or statelessness, often carries dire consequences. Furthermore, regardless of international, regional and domestic laws protecting the right to a nationality, the United Nations High Commissioner for Refugees (UNHCR) estimates that more than 10 million persons are stateless worldwide. In addition to not being able to vote or run for public office, stateless persons are often unable to access other fundamental rights, such as the right to education, housing or health care. Stateless persons are also vulnerable to abuse, exploitation and human trafficking. Furthermore, despite their close connection in history, the protection of stateless persons has, for decades, taken a backseat to that of refugees and asylum seekers. As a result, stateless persons are often forced to rely on the safeguards provided by the mechanisms designed to protect refugees and asylum seekers and, while these may be able to alleviate some of the consequences of statelessness, they will never be able to provide an absolute solution to statelessness – i.e. the granting of nationality. This reliance on the asylum system is evident in South Africa, where no specific laws or procedures protecting stateless persons exist. In examining the refugee law in South Africa, the manner in which these laws are implemented, as well as other legislation relevant to the protection of stateless persons, it is evident that the South African government’s policy decisions relating to the asylum system are aiming to shrink the asylum protection space in South Africa and are inadvertently leading to situations of both de jure and de facto statelessness. In addition, the conduct of the DHA is placing large groups at risk of statelessness and leaving vulnerable groups with little to no legal remedies. In a State which hosts an estimated 10 000 stateless persons, these policy decisions and implementation practices urgently need to be addressed in order to resolve existing situations of statelessness as well as to prevent future statelessness.
Open Access
Protection Orders in South Africa: The Effectiveness of Implementation and Enforcement for Victims of Gender-based Violence
(2021) Ncube, Mongiwa Pamela; Barratt, Amanda
This study's focus is aimed at determining the effectiveness of a protection order (PO) in South Africa obtained against gender-based violence (GBV). This legal instrument's function is to protect victims against further violation from the perpetrator. The Domestic Violence Act 116 of 1998 (DVA), grants victims the right to a PO. However, the enormous number of GBV cases in South Africa continues to increase. This alludes to South Africa's lack of adequate implementation and enforcement, in contradiction of its constitutional obligation to protect. The continued prevalence of GBV requires an investigation of whether preventative legal instruments, such as the PO, are fulfilling their purpose and the judicial implications of failure to provide protection. This study examined the international human rights law obligation South Africa has to promote and fulfil the right to protection against GBV. Extensive existing research confirms that victims of GBV, statistically, are likely to be female. It was vital to examine obligations that South Africa has assumed through regional legal mechanisms, as they similarly guide implementing protective measures against GBV. The national legal framework was revisited and the provisions in the DVA were reassessed to give a clear indication of the PO processes. The outcome of the study revealed that South Africa's PO process provisions in the DVA, have enabled South Africa to comply with its international, regional and domestic obligation to safeguard victims against GBV. However, there are glaring shortcomings in the implementation of the PO machinery. Law enforcement and prosecuting authority were found to be major contributors to these shortcomings. The research found that several of these essential service providers are challenged with full adherence to the provisions regarding the granting of the PO. These shortcomings have the effect that, in practice, South Africa has failed to comply with its obligations to international and regional human rights treaties and the South African Constitution. This study recommends ways in which POs can be applied more successfully in South Africa. The study suggests revised and strengthened legal processes, and more effectively informed intervention strategies.
Open Access
Rape as Torture: Is South Africa in Breach of its International Obligations?
(2020) Chavda, Reshma; Barratt, Amanda
Rape is one of the most heinous and degrading crimes that exist. It attacks the victim's sense of human dignity and self-worth. Some argue that the crime of rape is akin to that of torture. The issue of rape is one that is experienced around the world; however, South Africa is one of the highest countries affected. This paper argues that South Africa is in contravention of its international obligations under the United Nations Convention Against Torture, and the Convention on the Elimination of all Forms of Discrimination Against Women, specifically with regards to the crime of rape and its relation to the crime of torture. This paper aims to prove the above statement through, first establishing a link between the crimes of rape and torture and that that this link is applicable in both international law and South African law. This paper will proceed to show that there are obligations, stemming from both international and domestic laws, on South Africa to take positive steps in preventing the crime of rape among private persons. This paper will demonstrate that through failing its obligation of due diligence in this regard, the state of South Africa fails to comply with the duties imposed upon it by international law.
Open Access
Stolen sperm : should the law absolve an involuntary father from the duty to furnish child maintenance?
(2015) Smith, Samantha; Barratt, Amanda
The terrain of family law is increasingly complex and diverse and is constantly adapting to the changing social, cultural, political and economic landscape in which it is located. It is thus open to much development, particularly in the area of parenthood. In its simplest form, parenthood results when two consenting adults, knowingly and willingly, engage in sexual intercourse to conceive a child. The allocation of parental rights and responsibilities is therefore simplified on the basis that both parties consented to becoming parents. However, the assignment of legal parenthood is not always as clear-cut. Over the past three decades, the courts in the United States, in particular, have been tasked with adjudicating cases in which a biological father has refused to furnish child maintenance on the grounds that he was sexually forced into parenthood. These claims have highlighted the tension between biological fatherhood and legal parenthood, and have thus created a legal, ethical and practical quagmire in family law. Therefore this dissertation will explore the instances in which paternity is deceitfully imposed, the plethora of legal problems that arise and the possible legal routes open to involuntary fathers to avoid paying child support.
Open Access
Surrogacy in South Africa. Is there a need to amend laws on remunerated surrogacy?
(2024) Musvavairi, Ruvimbo; Barratt, Amanda
The issue of surrogacy is gaining prominence, because of the rise of infertility in South Africa and globally. The availability of new technological innovations and improvements, shortage of children for adoption and the desire to have a child who is genetically related to the parents is prompting and increasing number of infertile couples to resort to surrogacy. One of the pertinent issues relates to the remuneration of the surrogate mother. The main purpose of this study has been to determine whether there is any need to amend the current laws on surrogacy in South Africa to include remuneration for work rendered by the surrogate mother through pregnancy and childbirth. From this understanding, this area remains relevant and needs attention. Notwithstanding the potential gains that may be made by amending the laws on remunerated surrogacy, some scholars have expressed their objections and concerns that it gives rise to challenging legal, cultural, ethical, and moral issues, including exploitation, dehumanisation, marketing of surrogate mothers, exploitation and sale of children, and psychological harm and creation of black market. However, some scholars argue that remunerated surrogacy does not amount to the sale of children or the exploitation of children because the payment to the surrogate mother is not for the transfer of the child and the rights from the surrogate mother to the commissioning parents, but rather for the services rendered by the surrogate mother and for the pain and suffering endured during pregnancy and childbirth. Since the issue of remunerated surrogacy is contentious not only in South Africa but internationally, the research examines illustrative examples from selected foreign jurisdictions with different approaches to remunerated surrogacy, such as India, Uganda and California. The main argument that the study puts forth is that surrogacy laws should be amended to accommodate remunerated surrogacy, for instances where the surrogate mother is being compensated for the services that she rendered. Remunerated surrogacy agreements must be carefully regulated to avoid the dangers of permitting wholesale commercial surrogacy, resulting in the commodification of children and the exploitation of women. Ideally, the surrogate agreement between the parties and the terms of the agreement must include the legal, financial and contractual rights that will bind the parties to the agreement. The agreements must be mutually beneficial to the parties (child, surrogate mother and commissioning parents) and couched in a way that will provide proper protection to the parties of the surrogacy agreements. The regulations must be in a way that protects the best interests of the child.
Open Access
The constitutionality of the Maiden Bursary
(2022) Mdutywa, Asiphe; Barratt, Amanda
The South African Constitution and the Convention on the Elimination of All Forms of Discrimination Against Women and other international law instruments are missioned to ensure the advancement and protection of women by eradicating discriminatory actions targeting women, on any platform. The introduction of the Maiden Bursary, to advance the futures of young women, seeks to empower women. However, the process of achieving this advancement perpetuates negative gender stereotypes and a safe haven for discrimination. Therefore, this thesis unpacks the constitutionality and assesses the extent to which the bursary may limit constitutional rights such as equality and dignity. This thesis roots its argument on case law, legislation, and existing literature on virginity testing.
Open Access
The law and the beautiful: a critical analysis of how Kenyan Law addresses appearance discrimination
(2024) Karanja, Esther; Barratt, Amanda
Appearance discrimination is an example of how discrimination mutates and continues to permeate in society undetected. Appearance discrimination is propagated subconsciously in most instances, hence making it hard to recognize or even regulate. Consequently, appearance discrimination is described as a social and ethical issue as opposed to a legal issue. This misconceived notion has acted as a catalyst for the silent but harmful invasion of appearance discrimination in Kenya. Kenyan law avails schools and workplaces, the discretion to formulate and enforce dress codes and grooming practices, under limited supervision. These dress codes and grooming practices seem fair and inobtrusive at face value, however, they have created a habitable environment for the proliferation of appearance discrimination. Appearance discrimination is particularly formidable because it creates a novel form of discrimination, and intersects with other forms of discrimination such as racism and sexism. Appearance discrimination as an individual concept, limits an array of fundamental rights and freedoms such as, the freedom of expression and the freedom from discrimination. Additionally, when appearance discrimination intersects with protected characteristics such as sex, race, religion, and culture, it 1) circumvents the existing anti-discrimination laws which intend to eradicate discrimination based on protected characteristics, 2) creates a loophole for injustice and 3) exposes marginalized and vulnerable groups to prejudice. This dissertation, therefore, analyses the concept of appearance discrimination both as an individual concept and when it intersects with other forms of discrimination, to highlight the detrimental effects of this form of discrimination. Additionally, this dissertation investigates whether Kenyan law efficiently protects its citizens against the perilous effects of appearance discrimination. The protection against appearance discrimination in Kenya is then juxtaposed to the progressive laws in the United States of America (USA), for purposes of testing the efficacy of Kenyan law. The juxtaposition proves that Kenyan law is inadequate in efficiently protecting against appearance discrimination. Consequently, this dissertation makes recommendations on how Kenyan law can improve its efficiency in protecting against appearance discrimination, and formulates a draft statute that Kenya can adopt.
Open Access
To sell or not to sell? An analysis of the Tafelberg sale in the light of the right to adequate housing in the International Covenant on Economic, Social and Cultural Rights
(2022) Willems, Stijn; Barratt, Amanda
In 2015, the Western Cape Provincial government (‘WCPG') decided to sell the Tafelberg estate, an old school building located at Seapoint, a suburb of Cape Town. The property was no longer used and the WCPG wanted to generate additional financial means for the construction of an administrative building in central Cape Town. However, Reclaim The City and Ndifuna Ukwazi, two civil society organisations working around housing rights and social justice, criticised the sales decision. They called for the property to be used for the development of affordable housing in order to help addressing the lack of affordable housing in central Cape Town. Eventually, they challenged the sale before the High Court of South Africa, Western Cape Division, which put aside the sales decision in August 2020. In this dissertation, the Tafelberg case is analysed in the light of the right to adequate housing in the International Covenant on Economic, Social and Cultural Rights (‘ICESCR'). In order to make that assessment, the first part of the paper gives an overview of the content and interpretation of that right. The second part of the paper then focuses on the housing situation in Cape Town and on the Tafelberg case in particular. It is argued that the WCPG's decision to sell the Tafelberg estate is not compatible with the right to adequate housing in the ICESCR. The decision can be seen as a retrogressive measure that in principle is not allowed under the ICESCR. The arguments presented to the high court by the WCPG, cannot convincingly justify the adoption of such a retrogressive measure. The decision cannot be reconciled with the ICESCR's requirements that housing should be adequate and that priority should be given to vulnerable and disadvantages communities.
Open Access
Towards the institutionalization of divorce mediation in Nigeria: a case study of Enugu State
(2020) Anidi, Ugochinyelu Chikodili Nerissa; Barratt, Amanda
Nigerian divorce laws and the divorce litigation process pose severe psychological, social-cultural, economic, and legal problems for families going through divorce in Nigeria. This thesis argues that divorce mediation may be able to ameliorate the harsh effects of these laws and process. This thesis seeks to achieve the following objectives: (1) To determine if the divorce mediation process can achieve the goals of a good divorce process, (2) To determine if the divorce mediation process can provide solutions to the myriad of unique problems which face families going through divorce in Nigeria, and (3) To determine the possibility of incorporating divorce mediation into the family dispute resolution system in Nigeria through an institutionalized divorce mediation program at the government-funded citizens' mediation centres. These objectives are achieved through an in-depth review of the customary and statutory laws regulating marriage and divorce in Nigeria as well as a review of the divorce litigation process in Nigeria. This thesis employs both desk and empirical research methods. It examines legislation, policy documents and academic treatises on divorce and divorce mediation. It also utilizes semistructured interviews to examine the Citizens' Rights and Mediation Centre, Enugu State, to determine its viability as a vehicle for the institutionalization of divorce mediation in Nigeria. The thesis finds that indeed divorce mediation achieves the aims of good divorce law. It further finds that while the divorce mediation process is not a panacea, its features lend themselves easily to the resolution of the myriad of problems which face families going through divorce in Nigeria. It also finds that divorce mediation can be incorporated into the Nigerian family dispute resolution system through an institutionalized divorce mediation program at the state-funded citizens' mediation centres present in several states in the country. It concludes that incorporating divorce mediation into the family dispute resolution system in Nigeria will ameliorate some of the harsh effects of the current divorce system. It offers short and long term proposals for the institutionalization of divorce mediation in Nigeria.
Open Access
Towards the legal protection of married women: Combating and criminalising marital rape in Kenya
(2019) Guantai, Liz; Barratt, Amanda
This dissertation addresses the most neglected form of sexual violence in Kenya - marital rape. Drawing from prevailing statistics and testimonies by survivors, it confirms the existence of marital rape in Kenya and delves deeper into the prevailing social and legal dynamics that condone it. On examining the existing legal framework governing sexual violence in Kenya, the finding is that there is no law that explicitly criminalises marital rape. Marital rape is a human rights issue as it curtails women‟s enjoyment of their right to equality and dignity. This dissertation argues that Kenya has a duty to honour her State obligations under international human rights law to respect, protect and fulfill human rights. The dissertation concludes that by not criminalising marital rape, Kenya has failed to satisfy her treaty obligations under International Human Rights Law. The dissertation further draws insights from other jurisdictions‟ legal responses to marital rape through a comparative study of South Africa, India and Australia. The main recommendation of this dissertation is that Kenya should explicitly criminalise marital rape in order to respect, protect and fulfill her human rights obligations pertinent to women. Moreover, it is recommended that a comprehensive response to marital rape requires the State to embrace both legal and extra-legal reforms that will not only criminalise but ultimately combat marital rape in the long term.
Open Access
UCT Laptop Project Report and Appendices
(2016-02-24) Brown, Cheryl; Chernotsky, Kira; Marquard, Stephen; Fellingham, Kevin
In 2017 the University of Cape Town made a decision to roll out a programme to provide a new laptop to every first year undergraduate student fully funded through the National Student Financial Aid Scheme see http://mg.co.za/article/2017-02-16-00-flip-varsity-lectures-for-equal-success/ Over a period of fours year between 2013 and 2016, four courses at UCT (PHY1004W, CHE1005W, RDL 1008H/9H and AGP2039W) piloted the use of laptops in both formal and informal teaching and learning. This report summarizes the lessons learnt from this pilot programme.
Open Access
Women's right to access family planning and maternal health care services in Hwange rural district, Zimbabwe: challenges and opportunities
(2021) Sithole, Linet; Barratt, Amanda
The significance of reproductive health and rights cannot be overemphasised. Investment in the rights of rural women, specifically their reproductive health rights, is a fundamental determinant of their empowerment and social development. Access to reproductive health services enables rural women to make informed choices in their reproductive lives. This is of paramount significance because the exercise of choice in one domain opens possibilities for choices in others. International and regional human rights treaties recognise the significance of reproductive health rights for women's wellbeing and survival and require that State Parties provide access to reproductive health services. Zimbabwe has ratified the relevant human rights treaties and has domesticated many of their provisions through the Constitution and other laws. Zimbabwe has obligations to respect, protect, promote and fulfil the right to reproductive health. Despite these obligations, rural women face a plethora of challenges in accessing reproductive health services, and their right to reproductive health continues to be infringed. The infringement is in violation of Zimbabwe's international and domestic human rights obligations. The purpose of this study was to examine and establish the challenges confronting rural women when accessing reproductive health care services in Hwange Rural District Zimbabwe. Using a phenomenology qualitative research design, data were gathered through structured face-to-face interviews with 20 women of reproductive age and five health care providers. Data from the field were bolstered with reviews of extant literature. Collected field data were thematically analysed and presented. The research findings revealed that although most of Zimbabwe's legislative, policy and institutional frameworks have provisions that comply with international obligations, the frameworks also contain restrictive provisions which perpetuate the challenges women face in accessing reproductive health care services. Furthermore, the human-rights compliant legislative and policy frameworks are often not properly implemented, thus leading to a violation of the right to reproductive health in practice. The study's empirical research revealed that in Hwange Rural District, women's capabilities to exercise their reproductive rights are limited by factors such as physical barriers like distance to the nearest health facility, availability of services, quality of care given at health facilities, poverty, religion and patriarchal tradition. A major challenge unearthed by the study was that rural women in Hwange District are not aware of their reproductive health rights. This lack of knowledge is disempowering because women who do not know their rights are not knowledgeable enough to demand their rights or defend them when violated. To redress the challenges faced by rural women, the study found that women can use judicial and extra judicial mechanisms ─ including the courts, human rights institutions, nongovernmental organisations, and civil society organisations ─ for litigation, exertion of political pressure, awareness raising and grassroots mobilisation. Such strategies are essential for ensuring that women hold the State accountable for violations of their reproductive rights. The study concludes that there is need to raise awareness on the right to reproductive health and the enacted laws and policies so as to equip women with the necessary information that will allow them to exercise their rights. It recommends that intensive human rights education programmes for both the formal and informal sector should be prioritised. It recommends the provision of adequate resourcing of various state institutions responsible for women's rights issues. Further, there should be a situational analysis of challenges faced by rural women in Zimbabwe based on the intricate factors of location within rural areas, religion, gender, human rights knowledge, culture and tradition. After such situational analysis, there is need to enact laws and policies that respond directly to the unique challenges faced by rural women, without using a ‘one size fits all' approach.

Browsing by Author "Barratt, Amanda"

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