African Human Rights Law Journal

This article argues that the inhabitants of the Kakuma refugee camp are in a special relationship with the state, resulting in an increased duty of care of the latter towards the former. The effect of this increased duty of care ultimately results in a positive obligation to provide face masks to the inhabitants to protect them from COVID-19, based on the right to the best attainable standard of health and the right to life. The article then turns to the question of who is responsible to provide such face masks in the camp. After first analysing the situation on site, the article argues that a shift of responsibility of the host state to the UN Refugee Agency took place.

Orianna Haldimann

Lukas Biedermann

Distribution of face masks in Kakuma refugee camp during a pandemic: Legal obligations and responsibilities

疫情期间卡库马难民营口罩发放：法律义务与责任

While human rights-based climate litigation has globally increased exponentially in the past few years, no cases related to the climate crisis have been filed before the regional African human rights bodies. The aim of this article is to systematically review the requirements for successful litigation before one of the African human rights bodies, namely, the African Committee of Experts on the Rights and Welfare of the Child. The article considers the potential for successful climate change litigation before the African Children's Committee based on the possible substantive rights arguments, the procedural challenges that may have to be overcome, and the potential remedies that may be granted by the African Children's Committee. It concludes that the Children's Committee is an important potential forum for child rights-based climate litigation, given that it provides strong substantive rights protection, including for the rights of future generations, broad and adaptable provisions on standing, and has a record of granting strong and transformative remedies.

Elsabé Boshoff

Samrawit Getaneh Damtew

The potential of litigating children's rights in the climate crisis before the African Committee of Experts on the Rights and Welfare of the Child

在非洲儿童权利和福利专家委员会前就气候危机中的儿童权利提起诉讼的潜力

Robert I Rotberg

Recent publications

近期出版物

The African Commission on Human and Peoples' Rights is increasingly taking on the role of a regional electoral adjudication body in resolving election-related human rights violations. While this role is essential because of the contested nature of elections in Africa and the inability of many national election resolution mechanisms to sanction election irregularities, the African Commission must master the intricacies of election dispute resolution in member states for its recommendations to be based on sound legal principles. Its decision in the Ngandu case provides an opportunity to assess the nature of some of the challenges faced by the Commission when adjudicating election-related disputes and how to overcome these. In this decision, the African Commission found that the Democratic Republic of the Congo had violated the complainant's right to defence, to political participation and to work following the annulment of his election as a member of the National Assembly by the country's interim Constitutional Court (the Supreme Court of justice). The analysis of the case suggests that, despite the African Commission's ability to re-affirm the relevance of the right to political participation for the consolidation of democracy in Africa and protecting the right to a fair trial and to work, it must address three types of challenges in its role as election-adjudication body using the procedural mechanisms provided for in both the African Charter and the Rules of Procedure. These challenges are the knowledge of electoral justice systems operating in the DRC and Africa at large; the impossibility of restitution as a form of reparation; and the state's participation in proceedings and the implementation of recommendations.

Trésor Muhindo Makunya

Overcoming challenges to the adjudication of election-related disputes at the African Commission on Human and Peoples' Rights: Perspectives from the Ngandu case

克服非洲人权和人民权利委员会在裁决选举相关争议中的挑战：从恩甘杜案看

Critical Legal Studies suggests that any serious legal advocacy must critically engage with the social and political subtext of the law in order to yield positive outcomes. This suggestion is equally applicable to advocacy for sexual and gender minorities in contexts such as Nigeria. Based on this premise, this article employs theories of political homophobia, elite power and social exclusion to analyse the social and political context surrounding the evolution of criminalising laws during the colonial phase of Nigeria's history. The article proceeds to show that political homophobia, through laws that criminalised same-sex relationships, was a strategic tool utilised under the colonial administration to protect colonial interests and maintain the legitimacy of colonisation. This strategy was a colonial imperative regardless of whether or not the local population may have agreed to or participated in the process. The outcome of, and incentive for, this process of political homophobia included the social exclusion of a large majority of the population for the benefit of an elite class. It is argued that an understanding of the rationale behind the colonial evolution of anti-gay laws can provide an insight into the entrenchment of political homophobia in Nigeria and similar legal systems in Africa and challenge the rhetoric that these laws reflect African values.

Ayodele Sogunro

An analysis of political homophobia, elitism and social exclusion in the colonial origins of anti-gay laws in Nigeria

尼日利亚反同性恋法律殖民起源中的政治恐同、精英主义与社会排斥分析

The Basic Education Laws Amendment Bill (BELA Bill) is one of the most significant reforms to the South African basic education legal framework since 1994. While the amendments impact on a wide range of issues, this article focuses specifically on the BELA Bill's amendments to the policy-making functions of the localised structures in education governance, known as school governing bodies (SGBs), in particular, changes to the unchecked autonomy the SGBs in making language and admission policies for schools. The article notes that the model of education decentralisation that was adopted in post-1994 democratic South African has been highly contested. This manifested during the country's 1994 negotiated transition, continued in the school governance litigation and in the BELA Bill public participation processes. The article argues that the jurisprudence emanating from school governance litigation acknowledges the history of racism and apartheid spatial injustice that has had the effect of limiting access to well-resourced schools for black people in South Africa. The South African Constitutional Court, therefore, placed a duty on SGBs when formulating policies to be cognisant of the broader systemic concerns in education impacting on the access rights of learners. The jurisprudence has now been codified into law in the school governance reforms in the BELA Bill. The article illustrates how the formulation of school governance principles, and their ultimate inclusion in the BELA Bill, exists as a case study in transformative constitutionalism beyond the courts. This is due to a range of contributing factors, such as the interventions of progressive amici in these cases; a degree of judicial activism displayed by the Constitutional Court in the school governance litigation; the proactive codification by the state of the jurisprudential principles; and the progressive support for the inclusion of the school governance amendments in the BELA Bill during the public participation processes.

Faranaaz Veriava

The Basic Education Laws Amendment Bill: A case study in transformative constitutionalism beyond the courts

《基础教育法修正案：超越法院的转型宪政主义案例研究》

This article argues that beyond the obligation of states to respect, promote and fulfil the right to education, the obligation to protect, which is crucial, is often neglected. Additionally, it highlights that access to and availability of education is limited when states do not protect the school space by making it safe for learners. With a focus on Nigeria, the article argues that the lack of fulfilment of the obligation to protect by the Nigerian state is a violation of its obligations under international human rights law. Relying on Nigeria's commitments under various African human rights treaties, national law and policies, the article makes recommendations on how the obligation to protect can be realised and, thus, the right to education respected in its entirety in Nigeria.

Azubike C Onuora-Oguno

Theophilus Silas

The constitutional obligation to protect the right to education in Nigeria: A call for action

尼日利亚保护受教育权之宪法义务：行动的呼唤

Over the years, there has been a challenge for Rastafarian and female Muslim children to access education in public schools as well as Christian-aided or assisted schools in Malawi. This challenge has been due to a policy requiring all students or learners in public schools to have short and combed hair. There is a belief that the policy, dating back to Malawi's one-party era, targeted Rastafarian children and female Muslim children due to their maintaining dreadlocks or long hair and wearing of the hijab, respectively. In challenging this infringement of access to education by Rastafarian and female Muslim students in Malawi, the country has witnessed litigation, circulars and memoranda of understanding. This article examines the effectiveness of the adopted approaches in addressing access to education for Rastafarian and female Muslim children. In so doing, the author presents the applicable legal and policy framework. The article subsequently looks at how access to education challenges have been addressed in relation to female Muslim students and Rastafarian children, respectively. Before the conclusion, there is a brief discussion of the justiciability of the right to education in Malawi and related issues of the role of the courts and other stakeholders. Based on this analysis and examination, the article concludes that much as the adopted approaches have played a crucial role in ensuring access to education for Rastafarian and female Muslim children, there is a need for more action in terms of legislative reform as well as dissemination and public awareness, in particular regarding the recent High Court decision concerning Rastafarian children and their access to education. The article recommends further study on the issue of access to education in Malawi, especially on other aspects of education accessibility as well as dealing with other religious groups.

Mateo Fatsani Chitha

Evaluating access to education for Rastafarian children and Muslim girls in Malawi

评估马拉维拉斯特法里教儿童和穆斯林女孩的教育机会

The right to basic education is enshrined in section 29(1) of the Constitution of the Republic of South Africa, 1996, which clearly states that basic education is extended to 'everyone'. In 2016 the Eastern Cape Department of Education took a decision to stop funding the education of learners without birth certificates, passports or permits. In 2019 the High Court in Makhanda declared this decision unconstitutional and found that all learners, irrespective of their documentary status or their nationality, are entitled to attend school in South Africa. This article considers the Centre for Child Law &amp; Others v Minister of Basic Education &amp; Others judgment and its role in advancing the right to basic education in South Africa. It maps the events leading up to the litigation, the strategy in bringing the matter and the findings of the Court, and considers the challenges in implementing the judgment. It finds that while the findings of the Court have provided some clarity on the interpretation of section 29(1) of the Constitution and its application to undocumented learners, some ambiguity in the framing of the order and a lack of awareness of the judgment among schools and provincial education departments have hampered implementation. In addition, new legislative and policy developments may undo some of the strides occasioned by the judgment.

Anjuli Maistry

Cecile van Schalkwyk

Litigating the right to basic education for undocumented children in South Africa: The role of the courts in advancing access to schools

南非无证儿童基本教育权诉讼：法院在促进入学方面的作用

There is broad acceptance that the right to basic education is a fundamental multiplier right. However, the implementation of the right to education has still not been fully achieved in sub-Saharan Africa. Over the last two decades, educational development has witnessed notable improvement in Africa, as the number of children accessing school at all levels has increased. Despite this considerable gain, equal access to quality education remains far from being achieved. This is evidenced in a 2022 report released by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) on out-of-school children, which indicates that an estimated 244 million children between the ages of six and 18 years worldwide were not attending school. Ninety-eight million of these children reside in sub-Saharan Africa. There have also been further setbacks due to the COVID-19 pandemic which impeded the progress of many children at school, and caused many to disengage. Without urgent political will and investment in education, the situation will likely get worse as the region faces a rising demand for education due to an expanding school age population. This requires a scaling up of education by the public sector. A further risk is the spread of low fee private schooling which, while it may serve a purpose on a temporary basis, endangers the public system if it is unregulated or causes governments to cut back on planning, budgeting and spending on public education.

Ann Skelton

Perekeme Mutu

Editorial: Special focus on promoting access to basic education through the law in sub-Saharan Africa

编者按：撒哈拉以南非洲通过法律促进基础教育普及的特别关注

Publication Information	Publisher: Pretoria University Law Press，Publishing cycle: ，Journal Type: journal，Open Access Journals: Yes
Basic data	Year of publication: 2019，Proportion of original research papers: 0.00%，Self Citation Rate:N.A.， Gold OA Rate: 0.00%
Average review cycle	网友分享经验：24 Weeks

African Human Rights Law Journal

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