Faculty of Law
Centre for Human Rights
Selected Highlights from Research Findings
The aim of this research project, The exclusive jurisdiction of the high court on the guardianship aspect of parental responsibilities and rights: a missed opportunity for effective reform, was to explore the importance of the aspect of guardianship in relation to children: how the exclusivity of the jurisdiction of the high courts will affect children, the possible reasons for the exclusive jurisdiction and what remedy would be appropriate to address this matter. Once the whole of the Children’s Act, Act 38 of 2005, comes into operation, the parental responsibilities and rights of care and contact will be able to be awarded and terminated under the jurisdiction of the high court, divorce courts and children’s courts. Allowing children’s courts to hear care and contact proceedings, previously referred to as custody and access, is an innovation introduced by the Children’s Act. However, the Children’s Act left the jurisdiction in matters relating to the parental responsibility and right of guardianship exclusively to the high courts, which the researcher views as a missed opportunity to reform. It is not in line with the overall aim of the Children’s Act, which is to make courts accessible, since children’s courts are located in all magistrate’s courts and are therefore easily accessible – geographically and financially – to communities. The researcher recommended that all sections in the Children’s Act that provide for the exclusive jurisdiction of the high court with regard to guardianship should be amended. Guardianship must, as will be the case with the parental responsibilities and rights of care and contact, be adjudicated in the children’s court. The high court will retain its jurisdiction, but it will not be exclusive
Contact person: Ms RLK Ngidi.
The Centre for Human Rights conducted a study on the potential and actual relevance of international human rights law and domestic law for the protection of the rights of sexual minorities in African countries south of the Sahara. The study was conducted on behalf of the Office of the High Commissioner for Human Rights. Information was collected by way of desktop research and on-site visits to four countries: Mozambique, Kenya, Cameroon and Côte d’Ivoire. The researchers found that violations against members of sexual minority groups occur on an extensive scale in the region. The major claims of sexual minorities bring into play the governments’ duty to protect and respect their rights. At a minimum, sexual minorities demand protection from the state against the numerous and often violent violations of their rights by other individuals. The study recommends that governments must protect the rights of sexual minorities. There must not only be effective prosecution of crimes committed by non-state actors against gays, lesbians, bisexuals and transgender persons, but also meaningful efforts to sensitise the population to the plight of sexual minorities. Politicians should refrain from exploiting popular intolerance to gain support. Anti-discrimination laws and effective enforcement of these laws should be put in place and existing laws should be applied without bias
Contact person: Prof FJ Viljoen.
In this study, the researcher examined key issues such as the legal framework in place for the protection of freedom of conscience, including court jurisprudence, the religious demography of Zimbabwe, and the place of religion in politics, education and the Zimbabwean lifestyle. It also scrutinises the co-existence of ideologically antagonistic practices, such as Pentecostal Christianity versus indigenous beliefs and practices. The researcher argues that the subject of religion is not a sensitive one in Zimbabwe. Hence, it does not easily occur in political or general debates. Drawing from his own experiences, he concludes that, apart from looking after spiritual needs, churches play a significant role in subsidising the state's obligations in the provision of socio-economic rights such as health, education and food. For this reason, churches have an important place in national politics as partners in development. The researcher found that churches, in addition to looking after the spiritual needs of people, also play a significant role in subsidising the state’s obligations in the provision of socio-economic rights such as health, education and food. For this reason, churches have an important place in national politics as partners in development
Contact person: Mr T Mutangi.
The researcher presented the findings of her research project on sexual offences legislation in southern Africa at the United Nations Division for the Advancement of Women expert group meeting in Vienna in May 2008. The aim of this meeting was to analyse different approaches in the law for addressing all forms of violence against women, with particular attention to experiences in different legal systems and the scope of such legislation, to assess lessons learned in the implementation of legislation on violence against women, with particular attention to effectiveness of legislation, legislative reforms over time, the reasons for such reforms, and methodologies for evaluating the effectiveness of legislative frameworks, and to identify good practices in the law and recommended standards for legislation on violence against women, with particular attention to different forms of violence against women. In her paper, she highlighted the key features of sexual offences legislation in South Africa, Lesotho, Namibia, Swaziland, Zimbabwe and Tanzania, including the definition of rape, the inclusion, or lack thereof, of rape in marriage as an offence, compulsory HIV testing of accused sexual offenders, sentencing and legislated care for survivors. She found that the majority of states in the Southern African Development Community (SADC) do not have specific sexual offences legislation, despite obligations in international law. This discords with the pervasiveness of sexual violence in the region. While the limitations of the law, with respect to violence against women in particular, are recognised, the enactment of respective legislation is not least an international human rights obligation of states; moreover, it is a necessary step in the creation of an enabling framework for the promotion and protection of women’s rights. States must move beyond inaction and tolerance for sexual violence, especially in the face of the HIV pandemic in southern Africa. The struggle against gender inequality and all its manifestations, of which sexual violence is one, must move from the rhetoric of policy into law, providing not only for punitive measures for perpetrators, but for protection and remedies for survivors. The laws should be guided by international human rights norms, including General Recommendation 19 of the Committee on the Elimination of Discrimination against Women (CEDAW), the Beijing Platform for Action and the African Women’s Rights Protocol, all of which identify comprehensive measures, including legislation, to be taken by states with respect to violence against women. Campaigns for the universal ratification of the Women’s Rights Protocol within SADC must continue with vigour. While new legislation provides an opportunity to address HIV in relation to sexual violence, the implications of HIV-related provisions in law must be well considered and guided by international human rights norms, with the best interests of the survivor at the forefront of each intervention. Compulsory testing and consideration of HIV as an aggravating factor in sentencing should not be replicated as best practice. Provision of post-exposure prophylaxis (PEP), on the other hand, at state expense, is promising in the South African model, but needs to be amended to remove limitations and improved upon by those states yet to enact laws on sexual offences. It also needs to be accompanied by a comprehensive package of care. The absence of a legislative framework that comprehensively addresses violence against women in southern Africa sends a message of tolerance for crimes that perpetuate gender inequality
Contact person: Ms K Stefiszyn.
The aim of this research project was to provide a tentative analysis of the process on how the African Peer Review Mechanism (APRM) can fulfil a complementary role with regard to the promotion and protection of human rights in Africa. The aim of the APRM is to prompt states to draft a national programme of action (PoA) to remedy identified governance deficiencies. The review process takes place under the auspices of the African Union (AU) and its development framework, NEPAD. The researcher found that a weak feature in all the first country reports submitted to the panel for review is the fact that there is no correlation between the analysis in the report, the recommendations and the PoA. He recommended that the panel should assist in framing the issues in the PoA, but that a state should have the right to approach an issue differently from that suggested by the panel, as long as it explains the motivation behind the divergent approach. In addition, the reports also display a lack of consistency. Ideally, to allow for easy comparison, the same issues should be dealt with under the same objective. It is essential that the PoA becomes an integrated programme for change and not an à la carte wish list. The PoA should also be realistic. Recommendations by the panel on priorities in the PoA could be helpful both for the country under review and for international donors. Accuracy is very important in a process of this nature. Unfortunately, self-assessments, country review report findings, panel recommendations and government responses include sweeping statements that, on close scrutiny, sometimes turn out to be questionable and occasionally wrong. In terms of human rights, the researcher found that issues have been addressed to some extent in the country review reports. However, the lack of a human rights focus in the self assessment could influence a lack of such a focus in the country review report. This lack of human rights perspective follows from the emphasis on self assessment in the APRM process. Improvements in approach would include a greater reliance on human rights standards and principles in devising proposed actions to deal with identified problems. International human rights norms could also be relied on to define the indicators to measure progress in the PoA. It should be noted that the APRM process, both in its analysis and in actions to remedy deficiencies, relies heavily on formal institutions. Not much attention is given to the important role that informal institutions play in Africa. The APRM framework documents identify participation as an important factor in achieving the goals of the process. For effective participation, there is a need for a free and strong national civil society
Contact person: Mr M Killander.
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