OpenUCT :: Browsing by Author "Chirwa, Danwood"

Browsing by Author "Chirwa, Danwood"

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Open Access
A case study of whether South Africa's foreign policy with Zimbabwe and China is informed by its constitutional and international human rights obligations
(2020) Madima, Reshoketswe; Chirwa, Danwood
South Africa is a country that in the past has experienced gross human rights violations, and therefore has sought never again to have such violations. The government has sought to protect people's human rights by including them in the country's Constitution. Furthermore, South Africa has engaged with various international human rights bodies to further advocate for good human rights practices. However, the country has encountered some domestic challenges, with inequality and poverty being rife in the country. These challenges have implications for South Africa's economic foreign policy goals. This study explores South Africa's foreign policy with the Chinese government and the Zimbabwean government to explain why the country has chosen countries with poor human rights such as these. The research study will be centred around the period from 2008 to 2017. The offensive realism theory formed the theoretic framework of this research study. The study employed a qualitative research strategy as well as an interpretivist research paradigm. The findings show that when it comes to South Africa's foreign policy agenda, the government's goal is to establish a partnership with another country that will ultimately benefit the economic interests of South Africa, regardless of the country's human rights principles.
Open Access
Advancing the best interests of the child in South African family-related legal disputes
(2025) Clarke, Sharna-Lee; Chirwa, Danwood
This thesis examines the extent to which South Africa complies with international standards in protecting the best interests of the child in family-related legal disputes. The thesis applies a doctrinal methodology, drawing on primary sources such as international treaties, South African legislation, and case law, as well as secondary sources, including academic literature and general comments from treaty bodies. The thesis argues for an approach to protecting the best interests principle that encompasses substantive elements that should guide the courts when determining what is in the child's best interests; and procedural safeguards to ensure that the child's substantive rights are protected during the decision-making process. This approach emphasises the recognition of children as autonomous rights holders with evolving and developing capacities and needs and the significance of their participation in decision-making processes. The thesis finds that, in general, South Africa's legal framework aligns strongly with substantive elements and procedural safeguards of the best interests principle as developed by international child rights law. The analysis of the practice of the best interests principle in international child abduction decision-making reveals that South African courts generally succeed in incorporating substantive elements into the decision-making process. However, significant procedural challenges, including delays in appointing legal representation, resource constraints, and inefficiencies in expediting decisions, undermine the consistent protection of children's rights. These procedural shortcomings often hinder the practical realisation of the best interests principle, particularly in time-sensitive contexts like international child abduction cases. To address these challenges, the thesis recommends targeted procedural reforms. This includes mandating the timely appointment of independent legal representatives for children in all abduction cases, supported by clear guidelines and adequate resources. It further advocates for ongoing training for legal professionals representing children and the development of specialised multidisciplinary support services to ensure holistic and child-focused decision making. These refinements would serve to harmonise procedural efficiency with substantive protections, thereby enhancing the implementation of the best interests principle in practice
Open Access
Advancing the best interests of the child in South African family-related legal disputes
(2025) Clarke, Sharna-Lee; Chirwa, Danwood
This thesis examines the extent to which South Africa complies with international standards in protecting the best interests of the child in family-related legal disputes. The thesis applies a doctrinal methodology, drawing on primary sources such as international treaties, South African legislation, and case law, as well as secondary sources, including academic literature and general comments from treaty bodies. The thesis argues for an approach to protecting the best interests principle that encompasses substantive elements that should guide the courts when determining what is in the child's best interests; and procedural safeguards to ensure that the child's substantive rights are protected during the decision-making process. This approach emphasises the recognition of children as autonomous rights holders with evolving and developing capacities and needs and the significance of their participation in decision-making processes. The thesis finds that, in general, South Africa's legal framework aligns strongly with substantive elements and procedural safeguards of the best interests principle as developed by international child rights law. The analysis of the practice of the best interests principle in international child abduction decision-making reveals that South African courts generally succeed in incorporating substantive elements into the decision-making process. However, significant procedural challenges, including delays in appointing legal representation, resource constraints, and inefficiencies in expediting decisions, undermine the consistent protection of children's rights. These procedural shortcomings often hinder the practical realisation of the best interests principle, particularly in time-sensitive contexts like international child abduction cases. To address these challenges, the thesis recommends targeted procedural reforms. This includes mandating the timely appointment of independent legal representatives for children in all abduction cases, supported by clear guidelines and adequate resources. It further advocates for ongoing training for legal professionals representing children and the development of specialised multidisciplinary support services to ensure holistic and child-focused decision making. These refinements would serve to harmonise procedural efficiency with substantive protections, thereby enhancing the implementation of the best interests principle in practice.
Open Access
Child Soldiers: victims or perpetrators - how they are treated under international law and Sierra Leonean law
(2007) Baader, Philine; Chirwa, Danwood
Archbishop Desmond Tutu once said: 'We must not close our eyes to the fact that child soldiers are both victims and perpetrators. They sometimes carry out the most barbaric acts of violence. But no matter what the child is guilty of, the main responsibility lies with us, the adults. There is simply no excuse, no acceptable argument for arming children'.
Open Access
In chronic exile: A critique of South Africa's legal regime for refugees in protracted refugee situations
(2017) Khan, Fatima; Chirwa, Danwood
The major thrust of refugee protection worldwide is directed towards providing assistance to refugees in emergency situations. In South Africa, a large number of refugees have moved beyond this initial emergency phase such that the extended nature of their refugee status has left them in a state of continuous vulnerability. Their prolonged exile has led to violations of various rights recognised by international law and South Africa’s own constitutional and refugee law. Faced with restricted access to rights, refugees in South Africa live in poverty, are frustrated, and do not realise their full potential, to say nothing about the overt and brutal attacks they constantly face as victims of xenophobia. Their continued status as refugees deprives them of opportunities and subjects them to constant fear of harassment and exploitation. Even though neither the UNHCR nor the South African government has classified refugees living in South Africa as being in a protracted situation, many refugees have been in South Africa for five years or longer, with no durable solution in sight. This thesis highlights the plight of refugees in protracted refugee situation in South Africa and recommends suitable solutions to the problems this situation raises.
Open Access
Justice for the child offender : to what extent does Zambia comply with international law standards?
(2013) Kabwe, Chiti Yvonne; Chirwa, Danwood
The concept of child justice has existed for quite some time. The concept involves among other things, a separate judicial system for children who come into conflict with the law. The international community has embraced the concept in a number of international instruments to which States such as Zambia are a party. The effect of such ratification is that States Parties are administer child justice in the manner laid out by international standards and norms. This thesis therefore sets out to consider to what extent Zambia has complied with international law standards on child justice particularly for the juvenile offender. The international legal framework as it currently operates will therefore be considered in this study. An examination of Zambia?s current laws will also be taken into account and an analysis of whether or not such laws live up to international standards will be made. Recommendations will then be made on any shortcomings that may be observed
Open Access
Procedural justice under the principle of legality in South African administrative law
(2025) Steytler, Isabeau Elizabeth; Chirwa, Danwood; Corder, Hugh
The South African Constitution provides everyone with a right to administrative action that is procedurally fair. This right is given legislative effect in the Promotion of Administrative Justice Act (PAJA), under which the requirements of procedural fairness are broadly applicable and robust. The application of procedural fairness under the Constitution and the PAJA is however limited to those exercises of public power classified as ‘administrative action'. In giving meaning to the concept of administrative action under the Constitution, the Constitutional Court has excluded from its ambit, executive, legislative and judicial action, while the PAJA excludes a multiplicity of additional exercises of public power. There are accordingly a large number of exercises of public power that are not reviewable as administrative action (non-administrative action). Non-administrative action is, however, not exempt from judicial oversight. It is subject to the principle of legality, which was developed by the Constitutional Court as a safety net to ensure that all exercises of public power are subject to some standards of review. It has thus far been developed to include review for lawfulness and rationality and it was expected that when the appropriate case arose, it would be developed to include review for procedural fairness. When that case arose, however, the Constitutional Court found that procedural fairness was not a requirement under the principle of legality. The result was an all-or-nothing divide in respect of procedural fairness: while administrative action is subject to the potentially extensive requirements of procedural fairness under the PAJA, non-administrative action is not subject to procedural fairness at all. When subsequently faced with facts that cried out for the application of procedural fairness, the Constitutional Court did not reverse or limit its finding but found that consultation (usually the remit of procedural fairness) could in certain circumstances be required as a matter of rationality, a ground that became known as ‘procedural rationality'. The courts have subsequently relied on procedural rationality as a basis for requiring consultation in certain circumstances. When doing so, they have noted that procedural rationality is not to be conflated with procedural fairness, as it is rooted within the concept of rationality, and that requiring consultation under procedural rationality is therefore not at odds with the inapplicability of procedural fairness under the principle of legality. The difference between procedural fairness and procedural rationality is significant. Rationality is concerned only with the logical connection between the means and ends of a decision, while fairness is concerned far more expansively with the dignity and fair treatment of affected persons, the value of providing decision-makers with all the facts, and the public importance of justice not only being done but also being seen to be done. The research question of this thesis is therefore, given the conceptual differences between procedural fairness and procedural rationality, can procedural rationality effectively fill the gap left by the exclusion of procedural fairness from legality review where consultation is necessary in order to achieve procedurally just outcomes? The conclusion arrived at is that procedural rationality is not capable of fulfilling the role of procedural fairness under the principle of legality for a number of reasons stemming from its conceptual underpinning in rationality rather than fairness. The thesis recommends three alternative ways in which this gap could nevertheless be addressed.
Open Access
Revisiting the classification of private military and security contractors under international humanitarian law
(2013) Mutuma, Kenneth Wyne; Chirwa, Danwood
The past two decades have witnessed the emergence and rapid growth of private military and security contractors (PMSCs). Today these corporate entities make up a global security industry based on the provision of security services to both state and non-state clientele across the world whose value is over 100 billion dollars. Although their initial rise was intimately associated with post-Cold War factors and were expected to taper off with the decline of these factors, these speculations have not materialised. Instead, the gap presented by the demand for and supply of security services with the advent of the war on terror has bolstered their growth to the point that the world's leading military power, the United States of America, has become dependent upon these actors. It is not surprising that their rapid rise has sparked enormous interest regarding their activities. In particular the services of PMSCs during armed conflict has generated intense debates on how they should be viewed and treated in this context. These debates have intensified as high profile PMSCs have been forced to submit to the scrutiny of the public because of their use of violence in scenarios that amount to gross violations of human rights and humanitarian law. Even far more significant is the underlying question of the nature of the services they carry out on the battlefield — including services that constitute direct participation in hostilities — and whether the present legal regime governing armed conflict foresees, and adequately caters for, this peculiarity. International humanitarian law classifies all actors operating in armed conflicts as either combatants or civilians, conferring rights and obligations upon them on the basis of where it is that they fall in this divide. To this end, this study relies upon primary and secondary legal materials to outline the current legal regime and ascertain on which side of the dichotomy these actors lie. This study concludes that the majority of PMSC personnel will be considered as civilians, a contradiction of in view of the reality of their activities, and proceeds to make a case for a review of their legal status in the light of certain challenges that arise from their present classification.
Open Access
The distribution of rights and responsibilities under international climate change law: an examination of the equity approach advanced by African states
(2022) Babatunde, Elkanah Oluwapelumi; Chirwa, Danwood
Mapping global climate change negotiations from 1992 to 2015, this thesis set out to examine how African states have sought to interpret the principle of equity within international climate change negotiations and the extent to which climate change treaties, from the United Nations Framework Convention on Climate Change (UNFCCC) to the Paris Agreement, have reflected these notions of equity. The thesis examined the inequality in the volume of country emissions, and the financial and technological ability of different state parties to undertake climate change action and the implication of these inequalities on the distribution of rights and responsibilities within climate change treaties. This thesis has shown that in various negotiations pertaining to the development of climate change treaties including the Paris Agreement, African states have consistently advanced arguments about equity that reflect principles of distributive and restorative justice. In advancing this interpretation of equity, African states have argued that they should be excluded from onerous legal obligations under these treaties so that climate change action does not impede the realisation of their developmental objectives. For them to bear such responsibilities, they have been arguing, their fulfilment can only be guaranteed if there is adequate financial and technological support from developed states. This thesis shows that there is credibility in the arguments. First, science has shown that developed states are responsible for the majority of the global emissions of greenhouse gas. It, therefore, follows that they should bear primary responsibility for addressing the consequences of such emissions. Secondly, developed states are better equipped with the finances and technology necessary for tackling climate change. To place the financial and technological responsibility for climate change on African states would be to place on them an unfair burden, which, in any case, is impossible to be borne by them; lex non cogit ad impossibilia. The thesis argued, however, that the differentiation of rights and responsibilities with respect to climate change cannot apply indefinitely. There must be a ‘cut-off' point. Developed states cannot be held perpetually liable for global emissions. As developed states' emissions decline and that of African states and other developing states increase, the distribution of rights and responsibilities must reflect this change. The current differentiation should only apply as a transitional window for developed states to reduce their emissions and for African states to pursue development and increase their capacity to respond to climate change and its challenges. v In this transitional period, the necessary climate technologies must be viewed as global public goods from which no state should be excluded.
Open Access
The human rights responsibilities of host states in relation to child marriages involving refugees, a study of European responses to the European refugee crisis
(2019) Walz, Alexa; Chirwa, Danwood
Child marriage is defined as a marriage or informal union in which one of the spouses is under the age of 18. It is a widespread form of gender-based violence rooted in gender inequality, religious and cultural beliefs, and traditions. The practice is often associated with poverty, lack of education, domestic violence, and early pregnancy which entails serious health implications for girls. In times of armed conflict, child marriage frequently occurs as a coping strategy due to an increase of poverty and security threats. Ongoing crises in the Middle East and Africa have brought hundreds of thousands of refugees to Europe. Among them are hundreds of minor married girls, and European states are often unsure how to deal with them. This thesis aims to identify state obligations under international and European regional human rights law and refugee law. It finds that international human rights documents seek to eliminate child marriage through criminalisation of the practice but fail to determine a minimum age of marriage. International refugee law recognises child marriage as an asylum ground but does not stipulate binding provisions regarding family unity with the girl’s parents or her husband. Analysis of European law shows that the approach adopted by the Council of Europe corresponds with UNHCR guidelines, including a broad understanding of family. The European Union, on the other hand, follows a more restrictive way, excluding married minors from family reunification with their parents and preventing them from reunification with their spouse until a certain age. Several European states have tightened their laws and no longer recognise any child marriages concluded abroad. This paper argues that this narrow approach ignores the need for a case-by-case assessment and thus violates international standards of child protection, particularly the best interests principle.
Open Access
The Libyan slave trade: a study on the responsibility of the Libyan government and relevant regional and international bodies based on international standards
(2019) Nyirongo, Rachael; Chirwa, Danwood
In 2015, the “Migrant Crisis” caused panic in Europe, with Europe experiencing a high number of migrants arriving from the sea. Some countries increasing their bans on migrants and other limiting their migrant intake, the repercussions faced by the migrants in Libya have been atrocious. Soon, there were various reports exposing the abuse that the migrants were facing en route to Europe, one of these being slavery. Libya is the main transit route for migrants on their way to Europe and as a result, Libya has been facing a large influx of migrants. These migrants travel to Libya with the aim of being smuggled across the sea in the hopes of penetrating European borders and seeking asylum. Unfortunately, these migrants have found themselves to be victims of grave human rights abuses, including the crime of slavery. In 2017, CNN aired the first video footage that exposed the slave trade taking place in Libya. The thesis focuses on the potential accountability of the Libyan Government, the African Union, the European Union and the United Nations. It focuses on the relevant regional and international instruments and principles, including the Responsibility to Protect doctrine. Through various reports, it looks at the abuses the migrants are facing and which parties are responsible for these abuses. The thesis finds that whilst all bodies contributed to the crisis, and all bodies reacted, there are clear indications of some of them not working at their full capacity. However, as the thesis deals mainly with regional and international bodies, their accountability is limited
Open Access
The protection of the rights of families of origin in inter-country adoption: an African context
(2022) Rushwaya, Chipo Irene; Chirwa, Danwood
The thesis addresses the question: how can the rights of parents be adequately protected in intercountry adoption in an African context? Inter-country adoption is recognised as one of the alternative care options for children deprived of parental or family care. However, it is only considered as a ‘last resort' when the child cannot be cared for in his or her country of origin. Although children deprived of parental or family care have the right to alternative care, international human rights law also recognises that parents have rights that should be protected. These rights include, among others, the right to found a family and to enjoy their family life. This creates a potential of conflict between the rights and interests of parents and the rights and interests of the child. Drawing from theories of the parent-child relationship and parenthood, international human rights law and private international law, this thesis provides a framework for inter-country adoption that serves the rights and interests of parents. The thesis argues that the principles of consent, adoptability and post-adoption procedural rights, taken together with the recommendation for a broad conception of parenthood which protects all forms of family relationships are key to a robust system of inter-country adoption that respects the rights of parents in inter-country adoption in an African context. To ensure that the rights of parents are protected in inter-country adoption, the law must sufficiently incorporate these principles. The thesis identifies three components that a legal framework ought to incorporate to protect the rights of parents in inter-country adoption. It argues that first, there must be clear provisions establishing the grounds in which children could be considered in need of alternative care or adoption. The law should establish the conditions under which children are considered adoptable and provide a clear and detailed definition of children to be declared genuinely adoptable. In addition, questions on who should give consent, how should consent be given and counselling must be made very clear in the law. Second, the legal framework must provide the procedures by which such a determination can be made. Questions of who determines the adoptability of a child, family tracing and the criteria for children to be declared genuinely adoptable must be made clear in the law. Third, the legal framework ought to provide mechanisms in which the validity of an adoption can be challenged in case of disputes and grievances. Three countries: Ghana, South Africa and Uganda are used as examples to demonstrate African countries experiences. The thesis demonstrates that to a considerable extent the regulatory framework governing inter-country adoption in the countries under study supports the legal framework proposed in this study. However, inter-country adoption practices have been done in ways that do not adequately protect the rights of parents. These relate to pre-adoption counselling, the requirement for consent in child adoption procedures, the requirement to ensure that consent has been freely given, effective tracing of the child's family before a declaration of adoptability and ensuring that parents have access to justice. As such, this thesis contributes to the legal discourse on inter-country adoption in an African context in protecting the rights of parents.
Open Access
The right to not be refused emergency medical treatment in South Africa
(2022) Dickson, Roxanne; Chirwa, Danwood
Emergency medical treatment is not expressly recognised as a right under international law, but it is implied under the right to the highest attainable standard of health as set out in article 12 of the ICESCR. Some states, including South Africa, have recognised emergency medical treatment as a right in its own respect. In South Africa, Section 27(3) of the Constitution provides that nobody may be refused emergency medical treatment. This thesis shows that while this is a constitutionally entrenched right and there is a legislative framework in South Africa giving effect to this right, there are gaps in the law that affect the effective implementation of this right. The concept of emergency medical treatment, or a medical emergency, remains ill-defined in South African legislation. The implications of this right for both state and private healthcare providers remain underdeveloped. The interests of the most vulnerable members of society are not adequately protected in legislation governing emergency medical treatment. Lastly, many people in South Africa do not have access to emergency medical treatment.
Open Access
The role of the media in fostering democracy in Zimbabwe
(2009) Mungoshi, Ray; Chirwa, Danwood
Since 2000, Zimbabwe's ruling party, the Zimbabwe African National Union Patriotic Front (Zanu PF) has methodically stifled democracy in the country by compromising the independence of the judiciary, the professionalism of the police; and intimidating the media. Over the last decade, the party has rid both the state media and the judiciary of impartial journalists and judges, and filled these institutions with its followers. The party purchases its supporters loyalty with presents of farms, expensive vehicles and scarce accoutrements of the consumer society. These material inducements have assisted Zanu-PF to drill an inequitable partisanship into the obsequious state media and instruct journalists to blackout opposition politicians to stymie resistance to its hegemony.

Browsing by Author "Chirwa, Danwood"

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