OpenUCT :: Browsing by Subject "Human Rights Law"

Browsing by Subject "Human Rights Law"

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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
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
An evaluation of whether South Africa fulfils the requirements of the International Covenant on Economic, Social and Cultural Rights: To what extent is South Africa obliged to realise the right to basic education, and to what extent is South Africa meeting those obligations?
(2021) Köglmeier, Mareike; Calland, Richard
This thesis addresses the right to ‘basic education' in South Africa by focusing on the International Covenant on Economic, Social and Cultural Rights (ICESCR). To what extent South Africa is bound by this treaty and whether it is fulfilling its obligations are the central questions of the thesis. To provide answers to these questions, the situation in South Africa regarding the various aspects of this right in terms of the 4-A scheme, which was developed in order to define the country's obligations as per the ICESCR, is examined. It can be seen from the 4-A scheme that South Africa is bound by the ICESCR regarding basic education to a large extent. This includes that schools must be physically and economically accessible to learners, and that there must be a comprehensive infrastructure. The ICESCR also calls for a certain quality of education to be provided to learners with disabilities, as well as for learners to be provided with food. Based on this examination regarding these aspects of the right to education according to the ICESCR, it can be concluded that South Africa often does not meet these requirements.
Open Access
Analysis of the possibility of, and challenges associated with, the qualification for refugee status of victims of human trafficking in South Africa
(2011) De Souza, Monica; Powell, Cathleen
The aim of the enquiry is to establish whether trafficking victims could find protection within a particular human rights framework - that of refugee law - and to assess any factors that may hinder qualification for such protection.
Open Access
Balancing state sovereignty and the protection of human rights: a case study on the impact of the requirements of state consent and the exercise of political will on the functioning of the human rights systems of the African Union and the Southern African Development Community
(2021) Kunaka, Sheryl; Woolaver, Hannah
In recent decades, achieving the goal of the global protection of human rights has been approached most commonly through multilateralism. States have since abandoned notions of self-reliance in favour of interdependency and collaboration, leading to a proliferation of international, regional, and sub-regional multilateral organizations. However, the definition of ‘multilateralism' restricts the application of the legal frameworks of these organizations to sovereign states that have voluntarily consented to be bound by the obligations contained therein. State consent and political will drive multilateralism, and the requirement of voluntariness in these forms has been utilised as a means of respecting the internationally recognized legal principle of state sovereignty. Consequently, voluntariness has impacted the effective functioning of organizations such as the African Union (‘AU') and the Southern African Development Community (‘SADC'). This thesis proposes that the less significant the impact of voluntariness is on a regional or sub-regional human rights system, the more effective it will be in its role of protecting human rights. This thesis provides practical ways of lessening the impact of voluntariness, in order to strengthen the human rights legal frameworks of the AU and the SADC; and to improve the functioning of their respective compliance mechanisms. This thesis achieves the aforementioned by drawing from the systems' European and African regional and sub-regional counterparts.
Open Access
Children's rights and child labour: a comparative study of children's rights and child labour legislation in South Africa, Brazil and India
(2014) September, Jerome; Kalula, Evance
This dissertation will, through the analysis of various pieces of legislation and taking account of the daily realities of children in South Africa, Brazil and India (IBSA), outline the progress made to reduce and eradicate the exploitation of children, through the elimination of child labour. These three countries are chosen because of the particular challenges they face, but also because as part of the IBSA group, they have committed themselves to working together in the advancement of key international matters, including issues of human rights and social justice. The India, Brazil and South Africa (IBSA) group has further recently been held up as a global example for the efforts made by nations in the elimination of the worst forms child labour. The ultimate goal is the total elimination of child labour. This dissertation will draw attention to the complexities and contradictions in policy and practice, with particular reference to concepts such as ‘Child Labour’ and the ‘Worst Forms of Child Labour’. This dissertation will compare [the experience of] childhood in these countries, and explore the risk factors that place particular children, and families, at risk of utilising child labour as a source of income.
Open Access
Children's rights and girl child marriages : a case study for Malawi
(2016) Mkali, Theodora Talumba; Manjoo, Rashida
The harmful traditional practice of child marriage remains one of the main challenges towards the full realization and enjoyment of children's rights in Africa. In the sub-Saharan Africa alone, countries such as Malawi are faced with the problem of child marriage where as high as 40% of the women are married as children. Malawi has a substantive legal framework that affords protection and prohibits the harmful practice of child marriage. However, child marriages remain prevalent in Malawi where harmonisation of the laws is problematic. This has the effect of robbing the girl child of her childhood, access education and health among other rights that she is entitled. Addressing this problem in Malawi as a matter of urgency is crucial for the promotion, protection and realisation of children's rights, especially to the girl child. This study therefore conducts an analysis of the legal framework and contextual practice of child marriage in Malawi based on desk research of various laws in Malawi and literature. This analysis is premised on the understanding that human rights law within a legal framework plays a major role towards ensuring that young girls are protected from child marriage and its attendant consequences. This study has found that the laws of Malawi are not synchronised with each other especially with the Malawi Constitution with regard to protecting the rights. The case in point for instance is the recent passing of the Marriage, Divorce and Family Relations Act which reflects international and regional human rights standards, but is inconsistent with the Constitution of Malawi. It is recommended that Malawi should through the law address the practice of child marriage by amending the Constitution to remove any ambiguities. In this regard, creating a protective legal framework must not be done in vain. This should be supported by effective implementation of national development plans that aim to realise the rights of children, especially the girl child.
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 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
Deconstructing section 25 of the Constitution: has the inclusion of property rights in section 25 of the Constitution helped or hindered the transformation purpose of the Constitution, and specifically the state's commitment to land reform?
(2017) Basajjasubi, Allan Nsubuga; Calland, Richard
Prior to the advent of the Constitution and constitutional democracy land policies of the apartheid state secured resource ownership and control of land exclusively for the white minority, whilst dispossessing large communities of black, coloured and Asian people and banishing them to designated "native reserves". Shortly before the transition to democracy liberation groups together with the old apartheid regime, sought to negotiate on land policies which not only constitutionalized property rights but which also constitutionalized a priority to land reform in order to redress the injustices of the past. This paper examines whether the law, as captured in s 25 of the bill of rights, stood in the way of government inn unfolding a progressive programme of land reform. As a contribution to the debate surrounding issues on the appropriateness of the expropriation of land as a means of accelerating the pace of land reform, this papers offers a critical lens through which the state's current land reform policies are evaluated against the Constitution's transformative agenda of facilitating for an equitable system of land rights that provide development opportunities for black and coloured South Africans. Through an analysis of constitutional jurisprudence-including academic literature and legislation- this paper aims to investigate whether section 25 by reason of a lacking of sufficient expropriation and redistribution, as mechanisms for accelerating land reform, is anti-transformation. By deconstructing section 25 (the property clause) my paper offers insight into the controversial and rebuttable presumption that it is in fact not the Constitution but the state, that is responsible for frustrating and impeding the pace of transformation via constitutionally permissible land reform.
Open Access
'Don't send your sick here to be treated, our own people need it more': immigrants' access to health care in South Africa
(2015) Alfaro-Velcamp, Theresa; Calland, Richard
This minor dissertation argues that there is more than a disjuncture between theory and practices, particularly for refugees and migrants and doctors in South Africa. The core idea of the Bill of Rights is that socio-economic rights are for everyone. Yet, its application suggests everyone means all citizens in the post-apartheid period, rather than all residents in South Africa. In the international domain, the human rights discourse calls on states to recognise responsibility extending to all peoples residing in a sovereign nation- state; but progressive realisation can hamper this aspiration. By employing progressive realisation within South African law, the idea that the state pays for what it can and makes future efforts to change, socio-economic rights for everyone currently cannot be achieved. This dissertation examines how Constitutional Court rulings on access to healthcare and relevant statutes have not been uniformly granted to everyone causing a disjuncture between law and practice.
Open Access
The elusive justice for women: a critical analysis of rape law and practice in Kenya
(2015) Lekakeny, Ruth Nekura; Smythe, Dee
This thesis seeks to uncover the challenges encountered by women and girl victims of rape in seeking recourse through the criminal justice system in Kenya. To do this I focus on their experiences in three major points of service provision, i.e. the police, the health facilities and the courts. I then explore, as a secondary research question, whether an integrated service provision approach provides solutions to these challenges. Article 48 of the Constitution of Kenya provides that 'The state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice'27 This obligation places a tall order on the state and all its agents to ensure that anyone in pursuit of justice should access it with the minimum obstacles.
Open Access
Evaluating The Human Rights Committee's Advancement of Norms to Protect Individuals of Diverse Sexual Orientation, Gender Identity and Expression and Sex Characteristics
(2021) Stærfeldt, Leonora Kleppa; de Vos, Pierre
Throughout the world human rights abuses are committed against individuals on the grounds of their sexual orientation, gender identity and expression or sex characteristics (SOGIESC). The Human Rights Committee (HRC), which is the monitoring body of the International Covenant on Civil and Political Rights (ICCPR), can play a role in ensuring that human rights violations targeting SOGIESC diverse groups end. This can be done through the advancement of SOGIESC norms. By advancing SOGIESC norms the HRC would affirm that the rights in the ICCPR extend to SOGIESC diverse groups, thus promoting protection of SOGIESC diverse groups' civil and political rights. This dissertation examines the extent to which the HRC advances SOGIESC norms. This is realized through a combination of quantitative and qualitative analysis of how the HRC has engaged with SOGIESC under the auspice of its three monitoring functions – Views in individual communications, Concluding Observations and General Comments. The findings are explored within the theoretical framework of norm formation and theories about intrinsic qualities of successful norms. The analysis reveals that the HRC's advancement of SOGIESC norms is characterized by uneven progress. On one hand, the analysis demonstrates that the HRC has progressed significantly in its advancement of SOGIESC norms during the last 25 years. The HRC has increasingly advanced norms to affirm that numerous rights enshrined in the ICCPR extend to SOGIESC diverse groups. On the other hand, the analysis shows that progression on advancement of SOGIESC norms by the HRC is qualified. The HRC has not advanced the distinct SOGIESC norms equally, nor do the SOGIESC norms advanced by the HRC apply equally to individuals of diverse sexual orientation and gender identity and expression and sex characteristics. It is concluded that there is still scope for the HRC to improve advancement of SOGIESC norms. The dissertation offers three recommendations as to how the HRC can improve advancement of SOGIESC norms to achieve more comprehensive protection of SOGIESC diverse groups' human rights.
Open Access
Gender Identity, Refugeehood, and Belonging: Transgender Asylum-Seekers and International Refugee Status Determination (RSD)
(2022) Deakin, Christina Mihoko; Khan, Fatima
This research deals with transgender asylum-seekers and refugee status determination (RSD). It considers the excessively complex legal developments and discourse surrounding gender-related asylum applications and challenges the strict interpretation of the 1951 Convention Relating to the Status of Refugees and limited understandings of sex, gender, and sexual orientation by decision makers. This research adopts a queer critical analysis of international refugee law and provides a nuanced understanding of transgender identities to explain the shortcomings and misunderstandings that arise from gender-related asylum cases. This article provides recommendations for the advancements of appropriate legal approaches to gender-related asylum claims that will improve the protection of transgender asylum-seekers during the RSD process, provide a foundation for conceptual change to the asylum system, and promote the rule of law and human rights.
Open Access
Gender-based violence and gender stereotyping in international law
(2012) Bishop, Julia; Manjoo, Rashida
As Rashida Manjoo, the UN Special Rapporteur on violence against women, suggests, women who are empowered “understand that they are not destined to subordination and violence; they resist oppression; and they develop their capabilities as autonomous beings and they increasingly question the terms of their existence in both public and private spheres.” By altering stereotypes and empowering women, GBV could be prevented from occurring in the first place, and discrimination and inequality could be mitigated or, hopefully, eradicated. Women’s human rights, and women in general, have been consistently marginalized in international and regional binding documents. This, in many ways, is a product of the stereotype that women are less important than men, and that their rights should therefore be accorded less significance – a twisted logic that only leads to women being further marginalized. The hypothesis of this dissertation is that in order to eradicate GBV in times of so-called peace, it is essential that discriminatory stereotypes of women be altered. This dissertation will examine stereotyping as an underlying cause of GBV, and whether the international and regional normative frameworks provide sufficient protections for women in regards to GBV. There will also be discussion about whether or not States comply with the obligations that do exist, and how States have (or have not) altered the behaviours and attitudes which characterize a stereotyped view of gender roles.
Open Access
The global development agenda and the human rights of women in Africa
(2015) Moorad, Anah Kelone; Manjoo, Rashida
2015 signals the end of the Millennium Development Goals. Amidst the present reflection on, and analysis of, the progress of the implementation of the current development agenda, the draft post-2015 SDGs are in the final stages of their development. With the imminent adoption of the new goals by UN Member States in September 2015 the post-2015sustainable development agenda aims to integrate the principle of sustainability in order to continue the global drive for economic and human development within environmental limits. Through a comparative analysis of the Millennium Development Goals, the draft post-2015 Sustainable Development Goals as well as the documents that have contributed to their development, this paper critiques the manner in which the human rights of women have been, and will continue to be, addressed by the global development agenda. Additionally, using the African continent as a case study, this dissertation exposes the role played by regional political and human rights systems on the implementation of the global intention. Neglecting to adequately promote and protect the human rights of women in the continent reflects a lack of consideration for the interconnected nature of socioeconomic and environmental development and has wider consequences globally.
Open Access
Human trafficking for the purpose of organ removal : a human rights based perspective
(2016) Tunde-Yara, Faith; Amien, Waheeda
Human trafficking for the purpose of organ removal, known to be an obscure and uncommon form of trafficking in persons, has since become a popular phenomenon across various countries of the world. The crime is recognized in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, which supplements the United Nations Convention against Transnational Organized Crime. A reason for the inclusion of this form of trafficking in this particular international instrument on transnational organized crime is because most forms of trafficking, and more particularly human trafficking for the purpose of organ removal, as well as organ trafficking are generally perpetrated by transnational organized criminal groups. This dissertation seeks to consider the crime in detail, from a human right-based approach. This approach acknowledges that trafficking in all its forms, is a violation of human rights and seeks to depart from the common debates surrounding the spread of organ trafficking over the years. A large proportion of these debates have attributed the shortage of organs to the spread of the organ black market and organ trafficking in general. These debates have therefore focused on addressing the shortage of organs by developing systems to promote altruistic donation of organs. Even though there is an international recognition and admittance of the fact that human trafficking for the purpose of organ removal constitutes a serious human right abuse, there is still a wide gap in the body of research that focuses on the human right abuses involved in this type of human trafficking, and the need to protect and promote the rights of victim-donors. The aforementioned gap will serve as the crux of this dissertation as efforts will be made to address the inherent human rights abuses that victim-donors face. This dissertation will begin by introducing the crime of human trafficking through a brief historical overview. It will then proceed to give a background information on human trafficking for the purpose of organ removal. Subsequent chapters will address in detail the trends and patterns of the crime, the modus operandi of organ traffickers, the role players in organ trafficking networks, the consequences of the crime on the victims involved, the inherent human right violations promoted through the continuous perpetration of the crime of human trafficking for the purpose of organ removal, and the responses that have been given to curbing the crime from different international, regional and national institutions. Case studies will be examined to buttress the facts and findings of the entire dissertation.
Open Access
Humanitarian intervention: legality, legitimacy and the search for solutions
(2017) Babatunde, Elkanah Oluwapelumi; Powell, Cathleen
Humanitarian intervention refers to the use of force for the protection of human rights in a foreign state and usually against the will of the state in which force is used. The legality of unilateral humanitarian Intervention is a widely contested area in contemporary international law. It is a discussion that cuts across law, morality and foreign policy. Humanitarian intervention brings to the fore the contention between the principles of sovereignty and political independence on one hand and human rights and the principle of common humanity on the other hand. Some scholars contend that humanitarian intervention is a violation of the principles of sovereignty and political independence of states and violates Article 2(4) of the United Nations (UN) Charter. Other scholars have argued that Artcicle 2(4) of the UN Charter does not prohibit the use of force for human rights purposes but rather prohibits use of force which is targeted against a state's political framework or territorial annexation. They argue further that huamn rights constitutes one of the purposes of the UN and it is therefore unthinkable that the UN Charter will prohibit the use of force for such a purpose as human rights. Humanitarian intervention thus stands at the crossroasds of very foundational principle of both customary international law and the UN Charter. In this thesis, I argue that humanitarian intervention is illegal under the UN Charter as it does not fall within the two exceptions to the use of force: self-defence and Security Council sanctioned use of force. However, I go further to argue for the legitimacy of humanitarian intervention based on the principles of common humanity and wider principles of sovereignty. This argument draws from the just war doctrine as postulated by Grotius and other early just war theorists. The need to allow for unilateral intervention is pertinent given the rise in the abuse of power by some governments. Sovereignty should not be an umbrella that shields human rights abuses.
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
Improving the international and regional, legal and policy framework in the prevention of sexual exploitation and abuse of women and children by international and regional peacekeepers
(2016) Connan, Katie; Manjoo, Rashida
This dissertation will examine how an international and regional, legal and policy framework can be used to prevent continuing sexual exploitation and abuse by international and regional peacekeepers. It will examine what the different laws and policies contained within the framework currently articulate about sexual exploitation and abuse of women and children in peacekeeping settings, and evaluate their effectiveness at preventing this kind of misconduct. This dissertation will conclude by exploring how the effectiveness of the overall framework could be further improved.