OpenUCT :: Browsing by Author "Chirwa, Danwood Mzikenge"

Browsing by Author "Chirwa, Danwood Mzikenge"

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Open Access
Access to justice by refugees and asylum seekers in South Africa
(2011) Okpechi, Abiola; Chirwa, Danwood Mzikenge; Burman, S
Premised on the fact that access to justice is essential, if rights are to be actually enjoyed, this thesis set out to examine the extent to which refugees and asylum seekers are able to access justice in South Africa, both for the enforcement of their rights and to settle disputes or other interests at law. In doing this, the thesis examines the obligations that South Africa owes to refugees and asylum seekers on access to justice, and how it gives effect to those obligations.
Open Access
The balance between child autonomy and parental autonomy in Malawi; an analysis of the Child Care, Protection and Justice Act
(2018) Mkandawire, Leona Temwa; Chirwa, Danwood Mzikenge
For a long time children have been considered to be vulnerable persons, incapable of making rational decisions. As a result, decisions have been made for children by other people such as their parents or guardians. In most African societies, including Malawi, children remain largely voiceless and dependent on their parents who view their role mainly as being to protect children from their own actions and actions of other people. However, international law considers children as autonomous persons capable of making their own decisions. Thus, it requires states to recognise the autonomy a child although it also recognises that parents are free to raise children the way they want. Both the CRC and the African Children's Charter recognise children as bearers of rights and guarantee their right to take part in decisions that affect them. These treaties also recognise the principles of the best interests of the child, non-discrimination, and the child's right to life, survival and development. This thesis finds that while the best interests' principle has been domesticated under the Constitution, the other principles are not explicitly entrenched in the Constitution or under the Child Care, Protection and Justice Act. At best, they can be implied in other provisions of the Act. Overall, the Child Care, Protection and Justice Act leans towards enhancing the parental autonomy in child rearing and institutional protection of children rather than towards the emancipation of children in accordance with their evolving capacities.
Open Access
Balancing child participation rights, parental responsibility and state intervention in medical and reproductive decision-making under South African law
(2014) Moyo, Admark; Chirwa, Danwood Mzikenge
Throughout history, the boundaries between children’s rights, parental responsibility and state intervention have been regularly redrawn. At the heart of this process is the need to recognise the separate personhood of the child and the important role played by parental guidance in the proper upbringing of children. While participation rights spring from the child’s autonomy-related claims, parental guidance and state intervention arise from the child’s need for protection, at least until the child either reaches the age of consent or attains majority status. Thus, children are now seen as holders of autonomy rights who should nonetheless be protected, by parents and the state, from personal decisions that threaten other important interests. At the international level, the separate personhood of the child has been legally reinforced by the adoption of the Convention on the Rights of the Child. This instrument entrenches non-discrimination, child participation rights, the best interests of the child and the right to life, survival and development as general principles of children’s rights. These principles have been largely domesticated in South African law and play an important role in determining how much autonomy and protection should be given to children. This study relies upon primary and secondary legal materials to explain whether international and domestic law strike an appropriate balance between children’s autonomy, parental responsibility and state intervention in decision-making.
Open Access
Child justice in Botswana: The compatibility of the children's act with international and regional standards
(2009) Somolekae, Kepaletswe Chikhwa; Chirwa, Danwood Mzikenge
Open Access
A critical analysis of child trafficking laws and policies in South Africa
(2011) Portellas, Laverne Fleur; Chirwa, Danwood Mzikenge
The trafficking of children has been recognised by the international community as a transnational organised crime that affects children globally. As the child rights movement has grown in momentum over the last few decades, so has the concern regarding the exploitation of children. Child trafficking is certainly one of the gravest forms of abuse currently perpetuated against a child and his/her rights. Despite the numerous policy documents, international treaties and various other legal documents prohibiting the sale of children for any purpose; these documents have not resulted in the decrease or elimination of child trafficking. This paper will engage with child trafficking through a human rights lens in order to highlight the full extent of child abuse perpetuated by child trafficking. It is due to the very nature of child trafficking that resulted in the international and regional community enacting legal instruments to deal with different aspects of this crime. These instruments require states to prevent and punish the trafficking of children. This paper will examine South Africa s child trafficking laws and policies having regard to its international and regional obligations.
Open Access
A critical analysis of the child justice system in (mainland) Tanzania
(2016) Bakta, Seraphina Msengi; Chirwa, Danwood Mzikenge
This study critically examines the child justice system in mainland Tanzania in the light of principles recommended by international child rights law. Thus far, international child rights law has developed a three-dimensional approach to child justice: an effective system to prevent child delinquency, the use of non-judicial procedures, and the development of special procedures aimed at protecting the rights of the child when judicial interventions are unavoidable. This approach is consistent with modern philosophical thinking about child justice. The analysis of Tanzania's policies and laws on the prevention of child delinquency revealed glaring inadequacies. In particular, the laws fail to provide adequate legal protection to their socio-economic rights, such as those relating to health services and education. Since children subjected to violence and those lacking access to the basic necessities of life are the most prone to delinquency, the lack of policy attention to these areas mean that most of those children are likely to continue to engage in delinquency. Tanzania's child justice system places undue reliance on judicial mechanisms. Although an attempt has been made of late to introduce some provisions allowing for the use of non-judicial interventions, these lack sufficient legal foundation and are not used consistently. Despite its reliance on judicial mechanisms, Tanzania's child justice system is not as child friendly as one would expect. Granted, judicial mechanisms make provision for the child's rights to information, to be heard, to privacy and to an expeditious process. However, they do not adequately protect the child's rights to legal representation and to protection against prosecution for status offences. Sentences such as repatriation, detention at the President's pleasure and corporal punishment, which are inconsistent with international law, are still legally allowed. Substantial reforms are required in order to make Tanzania's child justice system compliant with international law and modern notions of justice. The reforms that have been made through the recently enacted Law of the Child Act 2009 are commendable but, as this thesis shows, much more remains to be done in order to guarantee in full the rights of the child in Tanzania's child justice system.
Open Access
A critical analysis of the impact of the Bill of Rights on punishment in Malawi
(2015) Gumboh, Esther; Chirwa, Danwood Mzikenge
Malawi's penal regime has a long history of retributive and deterrent punishment and unfair trials. In the absence of a constitutional set up that recognised human rights and driven by the need to maintain colonial authority, punishment during the colonial period was largely premised on retribution and deterrence. The one-party regime that took over after independence was characterised by gross violation of human rights. The adoption of the Constitution in 1994 ushered in a more humane regime of punishment premised on human rights. Complemented by international law, the Bill of Rights has several provisions which clearly intend to create a penal system that is consistent with international standards. This study examines the extent to which punishment in Malawi reflects international and constitutional standards regarding the aims of punishment, the forms of punishment, and post-sentencing procedures. In answering this question, the study investigates whether, over 20 years after the adoption of the Constitution, Malawi has realised the promises of the Bill of Rights for punishment. It therefore analyses the aims of punishment, the forms of punishment, and release procedures to determine if they comply with Constitution. The findings of this thesis reveal that while some progress has been made in aligning the penal regime with constitutional and international standards, there are some aspects of punishment that are in conflict with these standards. The study proposes some solutions to address these gaps.
Open Access
A critical analysis of the legislative framework regulating intercountry adoption in South Africa and Ghana
(2014) Rushwaya, Chipo Irene; Chirwa, Danwood Mzikenge
There are millions of children worldwide without parental care, families and homes. The HIV/AIDS pandemic, civil wars and poverty among other factors have contributed to the population of millions of orphans and destitute children in Africa. The Convention on the Rights of the Child (CRC) provides that ‘a child temporarily or permanently deprived of his or her family environment, or in whose best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance by the State.’ Thus, States Parties have an obligation to provide alternative care for such children in accordance with their national law. Such care includes ‘foster placement, kafalah of Islamic law, adoption and placement in suitable institutions.’ The CRC also recognizes intercountry adoption as one of the many possible solutions to children deprived of a family environment or parental care. However, it is only considered as a last resort if the child cannot be cared for in the country of origin.
Open Access
Does the 1951 UN Convention Relating to the Status of Refugees adequately protect refugess from refoulement?
(2013) Jaravani, Motion; Schreier, Tal; Chirwa, Danwood Mzikenge
Open Access
The exercise of prosecutorial discretion during preliminary examinations at the International Criminal Court
(2016) Olugbuo, Benson Chinedu; Chirwa, Danwood Mzikenge; Woolaver, Hannah
This study explores the exercise of prosecutorial discretion during preliminary examinations at the International Criminal Court. The key questions it investigates are whether there is a secure legal and theoretical basis upon which such discretion can and should be exercised and whether the Prosecutor of the International Criminal Court understands, develops and applies appropriate rules governing such discretion consistently. The study involves the analysis of various primary and secondary sources of law regulating the exercise of prosecutorial discretion. It begins by looking at the exercise of discretion at the national and international judicial systems to understand how their practices have informed and influenced the International Criminal Court Prosecutor, and then examines the provisions of the Rome Statute and its rules of evidence and procedure to determine the scope of the exercise of prosecutorial discretion. It also critically reviews the policy paper on preliminary examination adopted by the International Criminal Court Prosecutor. The study argues that, although the International Criminal Court Statute does not provide clear guidance on the exercise of prosecutorial discretion during preliminary examinations, there is a sufficient legal and theoretical basis upon which to exercise this discretion during preliminary examinations at the International Criminal Court. Article 42 of the Statute of the International Criminal Court, which provides for the independence of the Office of the Prosecutor is one such legal and theoretical basis. Thus, the Rome Statute clearly endorses the theory of prosecutorial neutrality. After expounding such a legal and theoretical basis, the thesis examines six case studies which represent six preliminary examinations conducted by the International Criminal Court Prosecutor in the conflicts in Uganda, Sudan, Côte d'Ivoire, Central African Republic, Kenya and Libya. The examination will answer the question whether the Prosecutor has exercised discretion in accordance with the spirit of the International Criminal Court Statute, and in a manner that would assuage claims that the Court is not neutral, especially in its dealing with African states. The analysis of these case studies shows that the Prosecutor has not exercised its discretion consistently and in a manner that can inspire public confidence in the administration of international criminal justice. To remedy this situation, the study recommends, among other things, the need for clarity on the exact roles of the Prosecutor and Pre-Trial Chambers during preliminary examinations, beyond the current practice where the Pre-Trial Chamber can only authorise the opening of proprio motu investigations. Second, the study recommends the review of the policy on the gravity of crimes. Although the policy paper on preliminary examination has clarified the fact that gravity involves both quantitative and qualitative analysis of victims of international crimes, it is not yet clear how to carry out gravity analysis. Third, the study proposes enhancing positive complementarity during preliminary examinations in order to encourage national efforts in the investigation and prosecution of international crimes. Finally, the study recommends that the decision to suspend or defer investigations or prosecutions in the 'interests of justice' under article 53 of the Rome Statute should be a shared responsibility between the Court and the United Nations Security Council.
Open Access
Holding multinational corporations accountable for human rights violations under International, African regional and South African Law
(2017) Allie, Shamima; Chirwa, Danwood Mzikenge
This thesis will focus on examining MNCs violation of human rights with specific reference to the environment and child labour. This paper will critique existing measures South Africa has adopted and implemented to prevent MNCs from committing such harmful practices and to hold them accountable for violating the aforementioned rights. This will be done by focusing in particular on MNCs operating in the extractive industry in South Africa. The study will consider the nature of human rights violations MNCs in this sector have been accused of and how, if at all, they are being held accountable. Lastly, this thesis will provide recommendations in respect to better prevention and accountability of MNCs of human rights violations.
Open Access
Human rights and jus Cogens: Questioning the use of normative hierarchy theory in human rights law
(2009) Mayua, Jim Nzonguma; Chirwa, Danwood Mzikenge
A Jus cogens is a hierarchically superior norm 'from which no derogation is permitted'. This peremptory norm suggests that there is a hierarchy among rules relating to international law. As such the recent trend of placing human rights norms in the catalogue of jus cogens has had a significant impact on both domestic and international law. For instance, in Barcelona Traction, Light and power Co, Ltd (Belgium v Spain), the International Court of Justice (ICJ), when making a distinction between the obligation of states towards the international community as whole and those arising vis-Ñ -vis another state, held that the former are obligation erga omnes in view of their importance
Open Access
The implications of the right to health for the democratic republic of Congo in relation to access to medical service and medical care Dady Mbwisi Mumbanika.
(2012) Mumbanika, Mbwisi Daddy; Chirwa, Danwood Mzikenge
Open Access
In search of philosophical justifications and suitable models for the horizontal application of human rights
(2008) Chirwa, Danwood Mzikenge
This article critiques the dominant view that human rights do not bind non-state actors. It ties the dominant discourse to the natural rights theory and, to a lesser extent, the positivist school of thought. A critique of these traditions reveals that there are no insurmountable philosophical barriers to recognising the application of human rights to non-state actors and the private sphere. Drawing on Marxist and feminist philosophical schools, as well as African conceptions of human rights, it argues that the view that non-state actors should be bound by human rights can be defended philosophically. The article ends with an analysis of the various options through which human rights obligations of non-state actors may be enforced within a domestic constitutional framework.
Open Access
The International Criminal Court and its potential to prevent human rights violations : with special consideration to the actual African situation
(2014) Hofmann, Ronald; Chirwa, Danwood Mzikenge
This work looks exclusively at future-oriented elements of the purposes of criminal punishment. It examines in particular the impact of the ICC on human rights, especially on the African continent. The main problem in this context is to define clearly such a possible positive impact on the human right situation and to establish proof of it. In the absence of a proof of such a positive impact in the past, the present or the foreseeable future, the justifying of the ICC from an African perspective or in general is in question.
Open Access
International principles and methods employed by National Human Rights Institutions (NHRIs) as a means of promoting and protecting human rights, a case study of the Malawi Human Rights Commission (MHRC)
(2016) Gondwe, Mtendere; Chirwa, Danwood Mzikenge
This study generally focuses on the important role that National Human Rights Institutions (NHRIs) play in promoting and protecting human rights at the domestic level, hence the need for NHRIs to be effective and efficient in the discharge of their mandate. One way of improving the effectiveness and efficiency of a NHRIs is by ensuring that it adheres to international principles and methods of promoting and protecting human rights as well as by adopting best practices from other NHRIs. The study therefore traces the evolution of NHRIs and their recognition at the international level. It also analyses the different forms in which NHRIs exist and discusses the recommended international principles and standards that act as core minimum in terms of a NHRI's mandate, methods of operation, composition and other guarantees of independence. Due to the fact that states have a wide discretion to devise appropriate means of applying the core minimum principles, this study also presents several best practices from different NHRIs in their implementation of the international principles and standards. Particular attention has been directed at the Malawi Human Rights Commission (MHRC) by assessing whether the MHRC adheres to the international principles and standards in its operations, and to consider whether it could advance human rights better by improving its working methods.
Open Access
Mass influx refugee situations: law and practice
(2017) Chuula, Luyando; Chirwa, Danwood Mzikenge
The problem of refugees is a global one that is of concern to all states. There are rising numbers of refugees that are forced to migrate from their homes in search of safety. How states respond to refugee situations is very important for the protection of refugee's rights. The international community has been able to draft some international conventions and treaties that provide for the protection of refugees. However, most are drafted in a manner that caters for individual determination and protection procedures. This is despite the fact that refugees enter countries in large groups most times. The major international laws that that cater for group situations are not exact on who must take on the responsibility in mass influx situations, how this responsibility should be shared and also the form and manner that the responsibility sharing mechanisms should take. This research is an insight into the laws and current practise of state in times of mass influx refugee situations. The current crisis in Syria is an example of mass influx situations and how states have been handling the situation and this research analyses the Syrian situation in order to understand current state practice. The research also explores the laws that are currently in place to protect refugees and if they can be applied to mass influx situations while adequately guaranteeing the protection of the human rights of the refugees. It further explores the options that are open to states in times of mass influx, state practice and the obligations that should arise in such situations.
Open Access
Profits versus human rights : accountability for corporate complicity in human rights violations
(2011) Mathabathe, Rethabile; Chirwa, Danwood Mzikenge; Du Toit, André
This thesis seeks to examine the interplay between business and human rights within the context of political transitions from authoritarian to democratic rule. In the wake of the globalisation process and the subsequent breakdown of the Westphalian state system, transnational corporations (TNCs) have acquired augmented powers at a global level where previously states had been the only players; and yet TNCs have none of the human rights obligations of states, particularly under international law. This dissertation aims to examine why this accountability lacuna exists in relation to corporations, specifically in relation to state-sponsored human rights violations in which TNCs are complicit.
Open Access
Protecting foreign children within South African borders: an evaluation into unaccompanied and undocumented foreign minors in South Africa
(2017) Liedeman, Jamie-Lee; Chirwa, Danwood Mzikenge
The main objective of the study is to investigate which policies are already in place pertaining to unaccompanied, separated and migrant children in South Africa. Children migrate to South Africa from neighbouring countries as Mozambique and Zimbabwe but also from countries as far away as the Democratic Republic of South Africa, without their parents or guardians. South Africa has developed legal and policy measures for securing the rights of children. Are these measures consistent with existing international frameworks and standards? Also, to what extent are these policies being used to resolve the problems unaccompanied children face? Related to this question is the issue of implementation. The thesis considers how the responsible departments and state officials such as Magistrates, social workers, police officials and the Department of Home Affairs implement these policies. This minor dissertation would then make some recommendations to the South African government.
Open Access
Protecting Human rights within Regional Economic Integration arrangements: A case study of the SADC tribunal
(2010) Simbyakula, Sambwa; Chirwa, Danwood Mzikenge
Colonialism left many African states both politically and economically fragile as a consequence of the partitioning of Africa by colonialists. The African states experienced difficulty surviving against Western economies so in response to this legacy, the new African leaders at independence called for political and economic integration. A huge ideological divide ensued in the early 1960s because not every nationalist was enthusiastic about political and economic integration. Therefore, at the continental level, a weak political integration process began with the Organisation of African Unity (OAU) being formed in 1963.