OpenUCT :: Browsing by Author "Lutchman, Salona"

Browsing by Author "Lutchman, Salona"

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Open Access
A 'harvest' in Malawi: the position of albinism in Refugee Law
(University of Cape Town, 2020) Bota, Jenala; Lutchman, Salona
The albinism community in Malawi has been faced with gruesome human rights violations for the past decade. These violations have included, assaults, kidnapping, mutilations, and murder. The cause of such violations is that the community of Malawi has for so long embraced the superstitious belief that the body parts of people with albinism are an essential charm for good luck. As a result of this, the albino community faces extinction because of the small population. The definition of a refugee under the 1951 Refugee Convention on the other hand, only provides for five grounds of persecution which includes race, religion, nationality, political opinion and membership of a particular social group. The dissertation seeks to unravel whether the international law grants refugee status to people with albinism. In response to the question, the dissertation analyses the definition of a refugee under the 1951 Convention. Persecution and inability of a State to protect victims of human rights violations are important elements to establish a solid case for refugee application. Hence, the dissertation tends to analyse whether the treatment of people with albinism in Malawi amounts to persecution. Besides, whether, they could be granted refugee status in other countries. The dissertation, furthermore, tends to analyse whether there are other mechanisms of the international community that are used to protect people with albinism. The findings in this thesis are that albinism is a ground of persecution because of the treatment that is followed due to their defined characteristics. That due to certain factors that needs to be satisfied to amount to effective national protection; Malawi has failed to protect people with albinism. Therefore, based on those factors, people with albinism could be granted international protection of refugees. Though there are other mechanisms by the international community used to protect people with albinism, there is a need to change the definition of a refugee under the 1951 Convention to accommodate problems arising in the contemporary world.
Open Access
Access to justice and locus standi in Nigeria: Assessing the impact of the common law approach to locus standi on sexual minorities' human rights
(2024) Nkopane, Thandolwethu; Lutchman, Salona
Access to justice is a right guaranteed in all international and regional instruments and domestic constitutions. The full enjoyment, protection, and respect of all fundamental human rights rests on the ability of states to establish effective judicial remedies. The ability of all persons within a state to access these judicial remedies through courts is however limited by procedural rules that do not reflect the modern interpretation of the law. Although access to courts is provided for in several instruments including treaties and state practice, Nigeria has failed to ensure that sexual minorities enjoy their right to access courts. This paper intends to assess the effective implementation of the right to access to courts, particularly for sexual minorities in Nigeria in light of Nigerian courts restrictive approach to locus standi. The research argues that the restrictive interpretation of procedural rules does not facilitate access to justice but violates international human rights. The research draws a clear link between the state obligations under international law to respect, protect and fulfil human rights of sexual minorities and liberally interpreting the law using principles of equality, non-discrimination and effectivity.
Open Access
Banking on sustainable development: the role of development finance institutions in advancing constitutional obligations in light of South Africa's just energy transition
(2024) Omar, Zahra; Lutchman, Salona
Four decades since the warning bells first rang for climate change, South Africans sit in the dark amidst an energy crisis, an environmental crisis and a development crisis. For too long has the country been unable to generate energy in a way that guarantees security of supply and affordability for its people, and in a manner that is environmentally and socially sustainable. It is no secret that the burning of fossil fuels for energy generation is the biggest contributor to greenhouse gas emissions; and this finds itself in a region particularly vulnerable to the impacts of climate change and already crippled by the triple challenge of poverty, inequality and unemployment. The minerals-energy complex – a legacy of South Africa’s colonial era – has played its part in these interlocking crises by trapping the economy into a fossil fuel-dependent energy system that has failed to protect our environment and our people. Enabling this system is a set of South African Development Finance Institutions mobilizing the financial resources for major energy development projects in the country. These institutions have sustained the minerals-energy complex through their support for the fossil fuel industry – a reflection of public policy that continues to prioritise economic growth over environmental and human welfare. Not only does the financing of fossil fuels in this context undermine the right of South Africans to sustainable development, but also violates the rights to equality, dignity and to life. A continuation on this development path would, furthermore, undermine South Africa’s international human rights and climate change obligations, and in particular, its commitment under the Paris Agreement to make finance flows consistent with a pathway to a low-carbon economy and climate-resilient development. Alongside these international obligations, section 24(b)(iii) of the Constitution imposes a clear obligation on the state to protect our environment for the benefit of present and future generations through ‘securing ecologically sustainable development and use of our natural resources while promoting justifiable socio-economic development’. As state-owned institutions endowed with an evolved legislative mandate to promote sustainable development in our constitutional era, Development Finance Institutions have a crucial role to play in advancing these obligations by redirecting their finance towards development that is ecologically sustainable, economically sound, and socially just and inclusive. South Africa’s journey to a low-carbon economy places these Development Finance Institutions in a unique position to foster a transformative Just Energy Transition and to shift the development paradigm to one that is centred on the interdependency between the protection of the environment and the fulfilment of human rights.
Open Access
Breaking the Glass Ceiling: Germany and its obligation to equal leadership representation under CEDAW
(2024) Hagedorn, Katharina; Lutchman, Salona
CEDAW guarantees equal rights for men and women. Its member states are obliged to implement those rights through policies and legislation, to enact the overall goal of social and structural change. CEDAW and its Committee have not made clear whether that includes a right to equal representation of women in senior and leadership positions. According to the World Economic Forum's Global Gender Gap Report, Germany is one of the leading countries in providing women with equal rights. However, they trail behind other European countries in their efforts of achieving equal representation in senior and leadership positions. My research therefore consists of two main questions: does CEDAW include a right to equal leadership representation? If so, is Germany fulfilling that obligation? The answer to those questions will provide a base for further research in that area. The identified shortcomings will be helpful in holding Germany's government accountable for its obligations under CEDAW as well as revealing areas of improvement. This research takes a legal approach, rather than an economic or sociological approach and uses desktop and literature research. I considered the principles of equality and the specific provisions within CEDAW to conclude that it does contain a right to equal leadership representation. Equally, I studied the legislation in Germany regarding women's quotas for management positions in Germany's biggest companies (First and Second Management Positions Act). I conclude that the Leadership Positions Act, being classified as a temporary special measure under CEDAW, is currently sufficient to fulfil the obligation to equal leadership representation. However, there is a need for constant re-evaluation and I recommend increasing the women's quota included in the Act from 30 Per cent to 40 Per cent.
Open Access
Closing “The Mediterranean Cemetry”: whether the European agenda on migration (immediate action) aimed at curbing the Africa-EU migration “crisis” is International Law compliant?
(2018) Mandela, Walter; Lutchman, Salona
The aim of the thesis is to establish whether the EAM (Immediate Action), formulated to curb the Africa-EU irregular migration “crisis” complies with international law. The thesis commences by arguing that migration today is a bastion of state sovereignty though fettered to a very limited extent by human rights, international law and states’ inter-dependence. The thesis then discusses the right to asylum and the principle of non-refoulement under international law. This is followed by a discussion on the EU as “sui generis” supra national entity that champions human rights and the rule of law globally followed by a review of its “sui generis” immigration law and rules under which the EU and member states share competence. Fundamental terminologies in the migration discourse: Migrants, Irregular Migrants, Refugees and Asylum Seekers are defined. A critique of The Refugee Convention4 is done, revealing its parochial, Eurocentric, racist, sexist nature and incompatibility with recent human rights developments; factors that to a large extent make it archaic and divorced from the realities of today’s refugee dynamics yet the Convention is the centrepiece of international refugee protection today. The thesis then interrogates the Africa-EU irregular mass-migration; the push and pull factors as well as the general modus operandi are reviewed. The generally recognised routes; Western Mediterranean, Central Mediterranean and West African which facilitate the migration are assessed. Lastly, the thesis then analyses the compliance of the EAM (Immediate Action) with international law. Each of the Immediate Actions; 1) Saving Lives at Sea 2) Targeting Criminal Smuggling Networks 3) Relocation 4) Resettlement 5) Working in partnership with third countries 6) Using the EU's tools to help frontline are subjected to the relevant international law governing them to test their compliance with international law. Final conclusions of the thesis are then drawn.
Open Access
Ending childhood statelessness by 2024: a consideration of South Africa's laws and policies in light of the United Nations High Commisisoner for refugees #ibelong campaign
(2024) Sader, Shazia; Lutchman, Salona
There are approximately 10 million people globally that are Statelessness and there are several reasons for why children in South Arica are stateless. One of the major causes of statelessness is due to the gaps in laws, policies and practices that deny an individual the right to a nationality, at birth or later in life. Stateless children do not hold a nationality and as a result they are marginalised and faced with difficulties in gaining access to basic human rights and are denied access to services such as education, healthcare, and social grants, due to not having a valid legal identity. This research paper has identified that the children of refugees, asylum seekers and migrants in South Africa are vulnerable and at a particular risk of statelessness due to a denial of birth registration and other reasons. Since 1974, the United Nations High Commissioner for Refugees (UNHCR) has been tasked with working together with governments to prevent statelessness, to identify and reduce statelessness situations, and to protect people who are recognised as stateless. In November 2014, UNHCR launched the #IBelong Campaign to End Statelessness which advises on 10 actions that States should implement by 2024 in order to eradicate statelessness and to ensure that policies and practices are brought in line with the Global Action Plan to End Statelessness. Out of the ten actions to end statelessness, this research paper focusses on the following five actions: 1. Ensure that no child is born stateless. 2. Accede to the UN Statelessness Conventions. 3. Ensure birth registration for the prevention of statelessness. 4. Issue nationality documentation to those with entitlement to it. 5. Grant protection status to stateless migrants and facilitate their naturalization It is unclear whether South African law, policies and practices comply with the five actions identified above. These actions are pivotal to the eradication of childhood statelessness, because as mentioned above, statelessness has a devastating impact on children. Therefore, this dissertation is concerned with the following: Given the commitments made by South Africa to end statelessness by 2024, has South Africa in the past ten years: a. Undertaken law reform to address the gaps in laws and practices to prevent childhood statelessness in terms of the five identified actions? b. Regressed in terms of its domestic laws and practices with respect to these five actions, consequently perpetuating childhood statelessness?
Open Access
Examining the role of the legislature and judiciary in the context of Traditional and Religious Personal and Family Systems in South Africa
(2024) Morgan, Kayla; Lutchman, Salona; Amien Waheeda
This paper addresses the role the legislature and the judiciary play in protecting the rights to culture and freedom of religion in the context of traditional and personal law systems. The argument is that they have not. The paper first focuses on the historical context in which the right to culture and freedom of religion arose. The majority African, coloured, and Indian populations were denied these rights which impaired their livelihood and dignity. Their most intimate relationships were not recognised as customary and religious marriages were declared ‘immoral' due to the potential for polygyny in these marriages. However, with the advent of the Constitution, the Recognition of Customary Marriages Act 120 of 1998(‘RCMA'), the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (‘RCLSA') were enacted to recognise and regulate African customary law. However, these Acts do not provide sufficient protection for the right to culture as first, the RCLSA fails to preserve African concepts that underline customary rules of succession and has instead imported common law notions of succession. Secondly, section 3(1)(b) of the RCMA has created many problems for the judiciary to ascertain and apply the requirements of a customary marriage. The judiciary has taken an inconsistent approach in cases pertaining to the requirements of a customary marriage, namely the payment of lobolo and the ‘handing over' of the bride. This inconsistent approach, coupled with the judiciary's failure to develop African customary law has mainly affected women. Their marriages were declared invalid due to the judiciary's inconsistency, resulting in their inability to seek relief through legislation such as the Intestate Succession Act 81 of 1987. Thus, the failure of the legislature and judiciary to apply and enforce living customary law has resulted in insufficient protection being afforded to individuals enforcing their culture. The legislature and judiciary have also failed to provide sufficient protection for the right to freedom of religion and women's rights. The legislature has failed to enact legislation that recognises and regulates Muslim marriages. The judiciary has provided some relief to vulnerable Muslim women by extending legislation to include them as spouses and eventually providing common law recognition to Muslim marriages in Women's Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23. However, this is not sufficient protection as there is no regulation of Muslim marriages which allows for the maintenance of gender-discriminatory practices. This affects women in these marriages as ulamā bodies often adopt traditional and conservative interpretations of Islamic law such as arbitrarily issuing talaq certificates without consulting the wife. The failure of the legislature to enact legislation that recognises and regulates Muslim marriages violates South Africa's international and regional obligations to ensure equal rights between spouses. Thus, the legislature and the judiciary have failed to provide sufficient protection for the right to culture and freedom of religion in the context of traditional and religious personal law systems.
Open Access
Gender and the Rule of Law in Theory and Practice: Challenges and Prospects for Strengthening Women's Access to Justice in Gender-Based Violence Cases
(2023) Beninger, Christina; Lutchman, Salona; Manjoo Rashida
The rule of law is increasingly viewed at the global policy level as essential to human rights, justice and development. Rule of law reform programming is now a core part of development efforts led by the United Nations and other actors in more than 150 countries around the world. Yet, the rule of law in both theory and practice is subject to a range of critiques and contested interpretations. Despite the prominence and prevalence of the rule of law both as a normative value and a priority area of development assistance, in reality an enormous justice gap exists globally, especially for women. Although feminist critiques highlight concerns about how the rule of law works for women, gender gaps persist in rule of law literature. This thesis adopts a feminist lens and draws on international human rights frameworks to critically investigate how gender, and specifically the gendered dimensions of access to justice for women, is considered and integrated in the rule of law in theory and practice. Given the prevalence of gender-based violence against women (GBV), increasingly recognized at international legal and normative policy levels as one of the world's most pervasive human rights violations, and the endemic challenges with accessing justice for women in GBV cases, the thesis applies a thematic focus to this issue. Linking theory with practice, the thesis presents original qualitative research from both local and global levels, drawing on diverse perspectives from rule of law practitioners and gender experts. A unique in-depth case study from Myanmar, a transitional and conflict-affected context, provides insights into the diffuse, plural justice continuum women must navigate to seek justice in GBV cases, encountering barriers at every step. The research findings demonstrate that there is evidence of growing attention to gender issues, and especially women's access to justice, in rule of law policy and programming, although gaps between rhetoric and reality persist. Significant challenges include male-dominated patriarchal legal and political systems that tend to show little political will for integrating gender into rule of law programs. Discriminatory social and cultural norms overarch and shape experiences of and responses to GBV cases and attempts to seek justice, and impede efforts to strengthen women's access to justice and gender integration in rule of law programming. The thesis findings identify key features of the process and actors involved in the multidirectional process of promoting and resisting normative change related to gender and the rule of law. Finally, iv the thesis identifies a proposed framework of key approaches to integrate gender into rule of law programming, aiming to contribute towards bridging the global gender justice gap.
Open Access
How feminist legal theory can help to safeguard the rights and interests of disadvantaged women and girls during crises: lessons from the COVID-19 pandemic and South Africa
(2024) Pitt, Jordan Chloe; Lutchman, Salona
Periods of global and national crisis have a tendency to upend progress made with respect to women's and girls' equality. Laws and policies created during these periods, seemingly neutral on their face, are often hastily constructed in a bid to ensure swift crisis management and an amelioration of immediate harm. These policies, however, fail to take into account the unique lived realities of women and girls, in general, and disadvantaged women and girls, in particular. Such oversight results in the unfavourable inevitability that they will be prevented from enjoying rights and freedoms on an equal basis with men. The COVID-19 pandemic represents a manifestation of such a crisis scenario as the measures employed by governments to deal with the virus have resulted in the exacerbation of already-existing gender inequalities, risks and vulnerabilities. This dissertation seeks to investigate South Africa's response to the COVID-19 pandemic as a case study of a crisis and the adverse impact of this response on the rights and interests of disadvantaged women and girls in the country. A feminist lens, in the form of Feminist Legal Theory, is used to elucidate this disproportionate impact. In order to assess and evaluate South Africa's response, this dissertation analyses the obligations that are placed on State parties to ensure the protection of women's equality during crises as they are contained in regional and international human rights instruments. With a particular focus on the Convention on the Elimination of Discrimination Against Women, the Maputo Protocol and the recommendations of their respective institutional bodies, this dissertation finds that there is a clear duty on State parties to take positive steps to implement and create gender-responsive mitigation measures to ensure that virus-containment strategies do not result in discrimination along gendered and socioeconomic lines, albeit indirectly. Having regard to these obligations, this dissertation finds that South Africa has failed to adequately safeguard the rights of its women and girls during this crisis. The government's mitigation policies in various sectors were either absent, gender-blind, or not sufficiently responsive so as to ensure adequate protection of the rights of women and girls as a heterogenous group. Lessons gleaned from South Africa reveal a pressing need for the inclusion and amplification of the voices of the most vulnerable in future crisis decision-making.
Open Access
International child abduction parental child abduction to non-Hague countries: where the law is incomplete
(2024) Moerat, Nadia; Lutchman, Salona
At the forefront of human rights atrocities in recent years is the subject of the abduction of women and children, most commonly and distressingly encountered in cases of human trafficking and in more recent years increasingly found in the abduction of youngsters in war-time conflict. A surprising number of abductions are however perpetrated by parents or family members, an area seemingly sufficiently governed by the United Nations Convention on the Civil Aspects of International Child Abduction wherein the Convention offers a quick result in the immediate return of a child to the country of habitual residence. However, little to no similar efficient legal remedy is currently available to parents or legal guardians in the instance where their child is taken to a non-Hague country. This paper endeavours to analyse and compare the legal mechanisms employed in South Africa to retrieve children abducted to non-Hague countries by relating South African laws and legal process to legal practices applied in other States in similar situations and further assessing what, if any, effective enforcement mechanisms can be found in international and regional legal instruments. In particular custody laws of Islamic States are considered in relation to western concepts of custody and rights. In doing so, the comparative analysis seeks to examine which areas within the national and global legal system may require further attention and possible improvement whilst acknowledging the significance and role of the child’s best interest and the duty of care owed by the State to protect those interests.
Open Access
International criminal law and the African girl child soldier: does the international criminal law framework provide adequate protection to the African girl child soldier?
(2017) Hlatshwayo, Belinda S T; Lutchman, Salona
This dissertation aims to answer the question: does the international criminal law framework provide adequate protection to the African girl child soldier? The motivation for the choice of this question came about in my final year of LLB. I conducted research on crimes against humanity committed by Boko Haram, and found a lot of research had been conducted on the use of children in war. I became particularly interested in the use of girl child soldiers because of the disparity between them and their male counterparts - how they were used during conflicts and the definitions of child soldier in international statutes. The constant reference in international treaties of child soldiers as those who take part in 'direct hostilities', I felt excluded girl child soldiers from protection as girl child soldiers are often used as base-camp soldiers, spies and often times sexually, physically and emotionally abused.
Open Access
International displacement and state compliance with international human rights standards: the current protection of internally displaced persons' right to physical security in Nigeria
(2018) Bjoerkan, Maren; Lutchman, Salona
There are approximately 65.3 million forcibly displaced people in the world. A large majority of these people are internally displaced. Of the 40.8 million internally displaced persons' (IDPs) worldwide, Nigeria had a total of 1,955,000 IDPs at the end of 2016. Consequently, Nigeria is among the countries with the highest number of displaced persons globally. A wide range of political, economic, social, and environmental factors, including poverty, corruption, and internal armed conflict, affect the population in Nigeria and contribute to internal instability. Thus, as Nigeria represents a complex and multi-layered situation of internal displacement, it makes for an interesting case study to understand international protection of IDPs. This dissertation asks whether the current protection of IDPs' right to physical security in Nigeria complies with international human rights standards. The current international legal framework in place for the protection of IDPs is relatively extensive, and undergoes continuous development. The United Nations Guiding Principles for the Protection of Internally Displaced People and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), as well as general human rights mechanisms, comprehensively set out the rights and guarantees for the protection of the physical security of IDPs. Although there has been great improvement in recent years relating to the legal protection of and assistance to IDPs, the de facto implementation and enforcement of these frameworks in Nigeria is not in full compliance with international human rights standards.
Open Access
Is SA law and policy equipped to deal with the peculiarities of Human Trafficking?
(2020) Houston, Lorna; Lutchman, Salona
Tens of thousands of men, women and children are being trafficked around the world and brutally exploited. This research investigated if SA law and policy is equipped to deal with the peculiarities of Human Trafficking. This dissertation's central thesis is that the legal and policy response to human trafficking in South Africa is inadequate to deal with its peculiarities. The anti-trafficking response must extend beyond the application of human rights and criminal law to include a cross-cutting, multi-sectoral, socio-economic and political response that addresses its causes and consequences. The study considers and explores the definition of human trafficking, its causes, consequences and the peculiarities and specificities of human trafficking in SA. The international, regional and domestic legal frameworks and their relevance for human trafficking is outlined with emphasis on the Prevention and Combatting of Trafficking in Persons Act 7 of 2013 and the National Policy Framework. A feminist lens using Intersectionality and Standpoint Theory, is applied to inform the critical analysis of the research question. This thesis demonstrated that South Africa's law and policy although promising, is insufficient in dealing with the peculiarities of human trafficking. The law needs to better account for the root causes of trafficking. It is essential that this response is informed by intersectionality to enable the implementation of broader solutions especially addressing the violation of social and economic rights and the root causes of trafficking.
Open Access
Is the emotional security of children adequately safeguarded in South African divorce law and procedure? An appraisal of how divorce law and procedure in South Africa can be adjusted to fully cater to and protect the emotional security of children during divorce proceedings
(2024) Chimwendo, Tamanda; Lutchman, Salona
Children, defined as those below the age of 18 by article 1 of the 1989 United Nations Convention on the Rights of the Child (CRC), are a particularly vulnerable group as a result of their limited legal capacity and autonomy. As a consequence of this, legal rules and procedure in domestic jurisdictions as well as internationally have been developed to specifically protect the interests of children in any and all matters involving children. Divorce, while ordinarily an action involving those with full legal capacity, can be a matter involving children should there be children of the dissolving marriage. Therefore, there is an obligation grounded in the best interests of the child principle, (provided for by article 3 of the CRC), to develop divorce law and procedure in a manner that highlights and protects the best interests of children. The best interests of the child, as per the 2013 General Comment no. 14, is a multifaceted principle, rule, and independent right involving various elements. Given that an expected and significant effect of divorce on the children of divorce is an emotional toll and a state of emotional insecurity, the focus of this research is the development of divorce law and procedure highlighting and protecting the best interests of the children with a specific focus on the emotional security interest of the child. The main argument of this paper asserts that current divorce law and procedure in the Republic of South Africa does not adequately protect the emotional security interest of children on the threshold placed by international law standards, by the South African constitution, and by domestic South African legislation
Open Access
Navigating the criminalisation-decriminalisation dilemma in sex work: an analysis of its affects on human rights and proposals for their safeguard
(2023) Gandhi, Dipesh; Lutchman, Salona
This dissertation will examine how certain legal systems deal with both sex workers and those involved in the sex trade. It will demonstrate that several legal systems have failed to achieve their intended goals of protecting the rights of ‘everyone' and to establish a method to effectively address sex work. The ongoing debate surrounding sex work is mostly centred on whether it can be considered as a legal form of labour or whether it is born out of gender inequity. The anti-sex work human rights supporters believe that women enter the industry primarily as a result of poor socioeconomic circumstances or compulsion, while the pro-sex work human rights supporters believe that sex workers should be considered victims because of the prejudices they suffer. Sex workers face numerous obstacles, therefore, an adequate legislative framework to address these concerns is vital. The present international and local legal frameworks should prioritise the vulnerability of sex workers, and governments must intervene to adopt legislation that improves their lives. Sex workers have traditionally been stigmatised and marginalised, making it difficult for them to campaign for reforms in sex work laws and regulations, or for their concerns to be taken seriously. The recognition of women's right to equality as an enforceable fundamental right may be attested due to the presence of internationally recognised human rights frameworks. This exclusion acknowledges that the majority of sex work victims are women and young girls. However, it might be claimed that the various legal frameworks compel states to adopt measures aimed at protecting women against sexual exploitation, and that they should be gender-neutral in construction and consistent with the protection of sex workers' human rights. Even though gender inequity and prejudice are factors that impact a woman's choice to enter and work in the sex industry, criminalising these women for those decisions adversely affects their human rights. There are significant human rights distinctions between criminalisation, which has the aim of entirely abolishing sex work, and decriminalisation, which seeks to fully realise the human rights of sex workers. Criminalisation falls significantly short of addressing these human rights concerns, whereas decriminalisation will provide a solution to gradually fade the current stigma that sex workers face, reducing their vulnerability to violence and abuse.
Open Access
Overcoming Parental Consent: How can International Human Rights Law be used to Protect a Child’s Right to Health in Childhood Immunization Cases?
(2020) Saukila, Walhalha Sphiwe; Lutchman, Salona
Children have the right to preventive medical treatment and interventions that serve their best interests. In the case of minors, this right is exercised by the parent or legal guardian with hopes that they will exercise their responsibility positively. Over the years however, this right has been challenged by an increasing number of parents withholding consent to immunize their children against some deadly diseases for one reason or another. This has led to a conflict between parental consent and the child’s right to health and resolving this conflict is an issue of law. Childhood immunizations are the first line of defence for a child and as such, should be considered a basic human right that needs to be protected. By denying this right to the child, it infringes on that child’s right to health and right to life. This should not be the case as international human rights law demands the protection of society’s most vulnerable members, especially children.
Open Access
Public participation as a tool for the realisation of socio-economic rights: the pitfalls of state organised spaces of participation
(2018) Phama, Wandisa; Lutchman, Salona
This paper seeks to investigate the legal structures and sources which provide for the obligations of the state to facilitate public participation in the realisation of socio-economic rights. The paper further explores the different interpretations of the notion of public participation in an attempt to critique and interrogate which kind of public participation actually allows for communities to meaningfully participate in the processes of the state to realise socio-economic rights. The paper will argue that the effectiveness of the state in facilitating public participation in its affairs depends on the notion of public participation adopted in a particular state. It will further argue that the effectiveness of such participation by communities is dependent on the understanding that meaningful spaces for participation occur through power contestations. Participation may mean very little for the realisation of socio-economic rights if the power of the state over citizens is not challenged and contested in spaces of participation. The paper will argue that for public participation to be meaningful in the realisation of socio-economic rights, it needs to occur in spaces in which the state will not have too much power over citizens to an extent that their participation is just for display. It will further argue that it is how people are perceived by the state and how they perceive themselves as citizens which determines their ability to challenge the state's power in spaces of participation. When communities are treated as citizens because of the rights they have, public participation processes to discuss the provision of basic services are then facilitated with the understanding of how communities can partner with the state with influence and power that is required to take decisions to realise their rights. It is submitted that part of the frustration with the exclusion in spaces where socio-economic rights enforcement decisions are taken is created by how South Africans as citizens are not always treated as rights bearers who can challenge the state. The exclusion of communities from planning for service delivery by the state has become internalised by some communities as part of the rules of the game of governance. Such internalised exclusion is a major contributing factor in the increased frustration with slow service delivery and a government that is unaccountable to the people. The paper will argue that for public participation to be an effective tool in the realisation of socio-economic rights taking into account the theories of power, space and citizenship there is a need for public education on how communities can demand a responsive behaviour from the state beyond protests. There is further need for state officials for example to attend workshops on their obligations to facilitate public participation in planning for the realisation of socio-economic rights when they take office. The paper will further argue that, in order for public participation to be effective in contributing to the realisation of socio-economic rights, Chapter 9 institutions also need to play a more active and visible role in communities and assist to hold the state accountable to facilitate public participation as that is one of the most important factors in the realisation socio-economic rights. The paper will argue that, although public participation is but one tool in the arsenal of tools to facilitate the realisation of socio-economic rights, it is important for many reasons. It is important for the manner in which it creates a space for decisions to be taken in an inclusive manner. The involvement of communities in the decision making processes of the state also legitimises the decisions so taken. Meaningful and inclusive public participation allows for a situation in which various options are put on the table in dialogues between the state and communities so that when a particular outcome is reached it could be what is best for those communities as other perspectives are heard and discussed.
Open Access
Telemedicine as tool: towards fulfilling South Africa's legal obligations around access to medical abortion
(2024) Brain, Grace; Lutchman, Salona
South Africa's non-fulfilment of its legal obligations to provide abortion access to its population was only worsened by the COVID-19 pandemic. Despite the potential utility of medical abortion via telemedicine for the duration of the pandemic and beyond, health authorities in South Africa have not explicitly permitted the practice. This thesis asks whether medical abortion via telemedicine could be a useful tool in improving the state's fulfilment of its legal obligations around abortion access. It also discusses necessary limitations and regulations for medical abortion via telemedicine. This thesis is a desktop analysis, using published government, non-governmental organisation, and academic data and information. These were used to establish the legal obligations of the South African state regarding the provision of access to abortion; briefly assess the extent of fulfilment of these obligations; evaluate the potential utility of medical abortion via telemedicine in this context; and make recommendations for limitations and regulations on the practice of medical abortion via telemedicine. This work determines that, due to the significant lack of access to abortion services for the South African population, the state is in violation of its legal obligations around access to abortion. Moreover, medical abortion via telemedicine could be a useful tool in improving the fulfilment of these obligations. The implementation and scaling-up of medical abortion via telemedicine in South African public healthcare is therefore recommended, with necessary oversight and limitations. These findings demonstrate that increased fulfilment of South Africa's legal obligations around access to abortion may be possible. The state must act to increase fulfilment through implementing relevant recommendations, such as legislative amendments and the initiation of future programmes providing medical abortion via telemedicine. Moreover, health authorities in South Africa must amend their telemedicine guidelines, making the guidelines practical, evidence-based, and reasonably permissive of accepted medical practices such as medical abortion via telemedicine.
Open Access
The evolving law on sexual and reproductive health rights and the right to abortion in Kenya
(2021) Aliongo, Sara Ayoti Mate; Lutchman, Salona
Article 26(4) of the Constitution of Kenya guarantees the right to abortion in these circumstances: ‘where there is danger to the life of the mother; where there is danger to the health of the mother; if there is need for emergency treatment of any kind; and if allowed by any other written law.' Accordingly, this dissertation argues that the jurisprudence of international and regional human rights bodies demonstrates that the right to abortion is a justiciable human right. Therefore, it probes whether Kenya is honouring her state obligation to respect, promote and fulfil the right to abortion as a human right as guaranteed in the Constitution and international law obligations. Furthermore, it analyses Kenyan law and policy on the right to abortion and assesses whether Kenya's law on abortion is a barrier to the effective realization of the right to abortion. To investigate whether safe abortion is accessible to Kenyan women and a realizable human right in Kenya, the dissertation examines the Constitution, legislation and government policies on access to abortion vis-à-vis the reality and experiences of Kenyan women accessing safe abortion. The dissertation finds that the subsisting contradiction between the constitution and the penal code provisions on access to abortion reinforced by inconsistent policies from the government of Kenya continues to exacerbate unsafe abortion in Kenya thus hindering the effective realisation of the right to abortion in Kenya. The study compares how South Africa, has implemented its progressive law on the right to abortion and the insights that Kenya could draw from the South African experience.The study concludes by appealing to Kenya to ensure the effective realisation of the right to abortion by revoking the punitive clauses of the penal code, aligning laws and government policies with Article 26(4) of the Constitution, enacting the Reproductive Healthcare Bill that will expand access to abortion and educating Kenyans on the current permissive legal provisions on access to safe abortion.
Open Access
The plight of victims of wrongful acts committed by international organisations: a light at the end of the tunnel?
(2020) Likomwa, Ethel Tilly; Lutchman, Salona
The activities and the level of influence of International Organisations (IOs) have grown extensively in recent years. This has resulted in IOs having a greater impact, both positively and negatively, on the lives of individuals. In as far as the negative impact is concerned, it is a well established principal of international law that the wrongful conduct of an IO attracts the responsibility of that IO. The reality however is that holding IOs responsible for their wrongful acts is an uphill task. In this regard, there has been an increase in calls for more effective ways of holding IOs accountable for their actions. This thesis adds its voice to those calls. The point of departure however, is that in this thesis, the question of IO responsibility is approached from the perspective of the victims of the wrongful conduct of IOs. The call for greater effectiveness in holding IOs to account is made through an illustration of the difficulties faced by those attempting to seek redress for wrongs committed by IOs. Additionally, the thesis examines the role of domestic courts and institutions in holding IOs to account. This examination is necessary in light of the increasing trend of domestic and regional courts piercing the immunity veil of an IO, where that IO has not provided alternative dispute settlement mechanisms.

Browsing by Author "Lutchman, Salona"

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