Research Articles (Centre for Human Rights)

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The domestic impact of the ICERD on TRC-related prosecutions in South Africa : a story of lost opportunities for post-apartheid justice
Sibanyoni, Ntokozo (African Centre for the Constructive Resolution of Disputes, 2025)
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD/the Convention) is a response to apartheid in pre-democratic South Africa. Article 6 obliges states to provide reparations to victims of discrimination. However, 31 years into its democracy, South Africa is haunted by a poor record of prosecuting apartheid. While popular discussions focus on the failure of the government to prosecute, this article focuses on the extent of the Convention's domestic impact on the prosecutions. This contribution uses a working definition of domestic impact, which emphasises the efforts of all stakeholders in the state's reporting process. The contribution relies on data collected through desktop research and semi-structured interviews with people working on race-related issues, to assess the extent to which article 6 of the Convention has been realised. Arguing that the Convention has made a delayed and limited impact on prosecutions, the article discusses factors that have hindered impact and provides recommendations towards the realisation of article 6 of the Convention.
Reading gender through lived experiences of albinism in South Africa : a feminist analysis
Sharma, Sonya; Mgijima-Konopi, Innocentia; Larochelle, Karen; Reimer-Kirkham, Sheryl (Routledge, 2026)
Albinism caused by a deficiency of melanin in the body is a non-contagious genetic condition. Because of the paleness of the skin and eyes, persons with albinism experience sensitivity to the sun’s ultraviolet radiation and visual impairment. Recently, albinism has received more global attention by human rights advocates and researchers and nationally in South Africa by democratic inclusive policies because of the social and physical stigmatisation that people with albinism suffer. Studies of mothers with albinism and/or who have a child with albinism have also been a recent focus. While this work importantly documents the gender inequality they experience as a social determinant of health and useful implications for social and health policy, we take a different approach. Expanding this research, we draw on qualitative interviews conducted in South Africa with women and mothers impacted by albinism and healthcare and social work professionals to understand how albinism can inform social readings of gender. Applying a feminist theoretical framing to our analysis of participant experiences of albinism, we critically discuss gender as it relates to parenting, other intersecting social structures such as patriarchy and belief systems, and how inequality brought about by gender and albinism can be collectively challenged.
A reflection on the implementation and impact of the decision of the African Court in Jebra Kambole, Bob Chacha Wangwe & LHRC and Tike Mwambipile & Another : a case study of Tanzania
Thomas, Irene Nyakagere (Pretoria University Law Press, 2025)
The implementation and impact ofthree African Court judgments against Tanzania - Jebra Kambole v Tanzania, Bob Chacha Wangwe & LHRC v Tanzania and Tike Mwambipile & Equality Now v Tanzania - reveal the full spectrum of compliance outcomes and the power of 'extra-compliance' effects in advancing human rights despite systemic challenges across regional human rights systems. The African Court in Jebra Kambole ordered the amendment ofarticle 41(7) of the Constitution to allow judicial review of presidential elections. However, five years later, Tanzania has neither amended the provision nor submitted the required report, marking clear non-compliance with the Court's decision. Yet, the ruling became a rallying point for constitutional-reform campaigns and inspired three new election-related cases before the Court. The decision in Bob Chacha Wangwe found the former electoral law lacking independence safeguards. The 2024 electoral reforms that directly responded to the order of the Court introduced statutory qualifications and impartiality requirements for election officials, achieving partial compliance, though partisan returning officers remain a lingering concern and a focus of continued advocacy. Tike Mwambipile was declared inadmissible on res judicata grounds, yet the mere filing of the case - combined with parallel regional litigation - triggered swift policy reversal. Within months following the declaration of the judgments, Tanzania ended the decades-long ban on pregnant schoolgirls, issuing re-entry guidelines that directly benefited thousands of girls. These cases demonstrate that compliance enhances the Court's legitimacy. Nonetheless, significant human rights gains can still emerge through indirect channels such as intensified public debate, accelerated legislative and policy change, civil society mobilisation and normative influence on future litigation. Embracing these broader 'extra-compliance' effects provides a more realistic and hopeful measure of the African Court's contribution to domestic human rights protection than formal compliance rates alone.
From prohibition to prevention of torture : ratification of the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment by Kenya
Adegalu, Foluso (Pretoria University Law Press, 2025)
According to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), state parties are required to establish or designate national preventive mechanisms (NPMs) mandated to conduct regular, independent and unannounced visits to all places of deprivation of liberty and to issue recommendations aimed at preventing torture and ill-treatment. Despite having become a party to the Convention against Torture (CAT) in 1997 and adopting robust constitutional and statutory safeguards against torture, Kenya has not ratified OPCAT. Instead, torture prevention within Kenya's detention system is pursued through a network of oversight institutions, notably the Kenya National Commission on Human Rights (KNCHR) and the Independent Policing Oversight Authority (IPOA). However, these oversight mechanisms are constrained by structural limitations. They are predominantly reactive, allow only restricted access to places of detention, rely on court orders or prior notification, have fragmented institutional mandates, and display limited political prioritisation of preventive monitoring. While Kenya's existing institutions possess significant investigative capacity and normative legitimacy, they fall short of OPCAT standards due to the absence of an independent, systematically preventive monitoring mandate. Ratification of OPCAT and the establishment of an NPM, therefore, would complement, rather than duplicate, Kenya's current accountability framework by embedding torture prevention as a core operational principle. In doing so, OPCAT ratification has the potential to strengthen transparency in detention settings, reduce the risk of torture and ill-treatment, and enhance alignment with Kenya's constitutional values and international human rights commitments. Ratification of OPCAT has been hampered as much by institutional and political dynamics as by legal considerations. The article concludes that overcoming these obstacles would require a multi-pronged phased approach entailing initial emphasis on legal initiation and consensus building, followed by careful institutional design, legislative entrenchment of the NPM and capacity building.
Listening for silences in Algeria : eliminating the structural silencing of survivors of conflict-related rape as entrenched in Africa during colonisation
Lasseko-Phooko, Matilda (Pretoria University Law Press, 2025)
Conflict-related rape remains a tactic, driven by the extent of injury to a community through injury to the bodies of women. The harm is an individual harm to the women victims and a community harm owing to unwritten rules of what womanhood represents in society. Women victims carry the shame of the perpetrator's actions while the community at large, the shame of failing to protect their women, and their womanhood, from rape and its consequences. Patriarchal colonisation in Africa entrenched patriarchal social norms on femininity and womanhood, amplifying those that were already in some pre-colonial contexts. This continues to sustain a structural, socially enforced, silencing of victims of conflict-related rape in post-colonial Africa. This paper focusses on the structural silencing of conflict-related rape victims. This article demonstrates the colonial roots of entrenched structural silencing of conflict-related rape victims in Africa. With a focus on Algeria, it shows the causal connection between the colonial harm to women arising from the entrenched structural silencing of victims of conflict-related rape and the sustained structural harm that continues to manifest in the post-colonial state. The Algerian War of Independence (1954-62) and the Algerian Civil War (1992-2000) are used as case studies for this. The paper considers what reparations for the imposition of this silencing as a structural and gendered harm would be for Algerian women. This analysis includes the question of post-colonial state responsibility to eradicate the ongoing structural harm that manifests in the country -despite it having a demonstrable root cause that is in part attributable to colonisation.
Rights-based disarmament, demobilisation and reintegration as a measure to address security risks posed by vigilante groups in the Lake Chad Basin
Kilonzo, Josephat (Pretoria University Law Press, 2025)
Since 2009, Boko Haram insurgency has become a serious challenge to security and safety in the Lake Chad Basin. Despite the robust military response against Boko Haram and its splinter factions by Nigeria, Cameroon, Niger and Chad, the group has remained resilient. It has continued to conduct attacks causing the deaths of thousands and displacement of millions of people. Due to the inadequacies of security responses by the four Lake Chad Basin states, vigilante groups have emerged to protect their communities through combating Boko Haram. While the vigilante groups have been celebrated for turning the tide against the insurgency, there have been concerns about the future of the vigilante groups. This is based on the fear that they may pose security risks to their communities in future if they turn to ordinary criminal activities or organised crime. This article explores the reliance on vigilante groups against Boko Haram in Cameroon, Chad, Nigeria and Niger. It also discusses the security concerns about the future of vigilante groups, and finally considers rights-based disarmament, demobilisation and reintegration of vigilante groups as a potentially valuable measure to address the security risks posed by the vigilantes to their communities.
Leveraging constitutional review to combat retrogressive communication surveillance laws in Francophone Africa
Makunya, Trésor Muhindo; Sindani, Jonas Kakule (Pretoria University Law Press, 2025)
An important feature of the revival of constitutionalism in Francophone African countries has been the establishment of constitutional courts with the power to review the constitutionality of laws and other norms before they are enacted or implemented. Constitutional review was intended not only to ensure the balance between the three traditional powers but also to protect hard-won constitutional rights and freedoms, particularly in countries where the pre-1990 judicial system was used to undermine individual rights and freedoms. With the growing interest in digital technologies and space as new platforms for democratic expression, several Francophone African states have devised new laws and mechanisms to stifle online and offline expression. While the adoption of these laws may be justified by the need to protect the government’s legitimate purposes, they are mostly intrusive and unlawful under constitutional and international human rights law. The question then arises as to whether constitutional review in Frenchspeaking African countries is well equipped to prevent the enactment and implementation of retrogressive communications surveillance laws and, if so, whether it has been used successfully to that end. The article starts by providing an overview of communication surveillance legal norms in Francophone Africa before confronting them with emerging constitutional and international human rights standards. It then examines the potential for constitutional review to prevent the enactment or implementation of regressive communication surveillance acts and actions before it assesses the potential for mobilising against such laws through constitutional review. The article concludes by arguing that while constitutional review is well equipped to prevent the enactment of retrogressive communications surveillance laws, it has not been effectively used by judges and civil society groups in Francophone Africa. The judicial activism and culture of constitutional litigation that is commonplace in many English-speaking jurisdictions can be emulated to stop the descent into digital authoritarianism.
The peril of digital privacy and free speech in Uganda
Basimanyane, Dorcas K. (Pretoria University Law Press, 2025)
Digital privacy and freedom of expression in Uganda are in peril. Despite subscribing to the basic tenets of democracy, social justice and the rule of law, the Ugandan government has emerged as one of the modern-day digital space tyrants, becoming infamous for exercising excessive powers over digital spaces for political reasons. Such notoriety has been compounded by the continued deployment of surveillance equipment to enable extensive spying on civilians, members of opposition, and activists to silence them. The 1995 Constitution guarantees protections for the rights to privacy, freedom of conscience, expression, movement, assembly and association, and it reiterates the state's obligation to respect, uphold and promote these rights. Similarly, the constitutional general limitation clause under article 43 provides that the rights may be limited for reasons of 'public interest'. However, recourse to public interest may not permit political persecution, detention without a trial or any curtailment of the enjoyment of human rights and freedoms beyond what is acceptable and demonstrably justifiable in a free and democratic society. Yet, revelations on the ground prove that there are several incidents where the 'public interest card' has been invoked beyond what is reasonably admissible in a free and democratic society.
Constitutional literacy in Africa : imperatives for an informed, engaged and empowered citizenry
Fombad, Charles Manga (Taylor and Francis, 2025-03-04)
Although scholars have pointed to a global problem of constitutional illiteracy, the situation is particularly acute in Africa. Unlike in most Western democracies, constitutional literacy and the need for measures to address it have not attracted the necessary attention in Africa at either national or continental levels. The contention of this paper is that the future of constitutionalism, democracy, and good governance in Africa depends not only on how sound constitutions are but on how well the people of the continent know the constitutions, appreciate their significance, and are ready to engage with all aspects of them in their daily lives. To consider how knowledgeof their constitutions could empower ordinary Africans and enable more involvement in governance, the paper begins by looking briefly at the concept of constitutional literacy and its relevance to contemporary developments before discussing attempts made in some African countries to promote such literacy. The paper highlights measures that are essential for fostering a culture of constitutional literacy. The crux of the argument is that the prospects for a sustained struggle for constitutional democracy in Africa would be enhanced by an actively informed citizenry that understands the content, purposes, and values of its constitutions.
Locally relevant, ethically urgent : defending SASOP’s stance on transgender and non-binary youth
Dunkle, K.L.; Lynch, Ingrid; Msweli, Sakhile; Addinall-van Straaten, Ronald; Brouard, Pierre W.; De Beer-Procter, Jenna-Lee; Madlala, Nkanyiso; McLachlan, Chris; Muller, Madeleine; Pickstone-Taylor, Simon; Pillay, Mershen; Spitaels, Ariane; Tomson, Anastacia; De Vries, Elma (AOSIS, 2026-01-23)
No abstract available.
Making a case for the establishment of African investment court under the AfCFTA
Qumba, Mmiselo Freedom (Koninklijke Brill, 2025-09)
This contribution presents a proposal for the establishment of Permanent African Investment Court as a reformative alternative to the traditional Investor-State Dispute Settlement (ISDS) mechanism. The paper is motivated by the widely criticised ISDS mechanism from a broad spectrum of stakeholders and constituencies. It observes that African states have historically been disadvantaged within international investment arbitration landscape. The argument is then advanced that for the AfCFTA to succeed, it must be supported by a dispute settlement mechanism that provides for the adequate balance between investor and state interests. After exploring the current context for dispute settlement on the continent, this paper emphasises the importance of establishing a sound dispute settlement procedure on the continent and argues that a Permanent Investment Court that protects the ability of African nations to promote sustainable development, and public interests should be established under the AfCFTA’s Investment Protocol.
The regulation of terrorist online content in Africa : an overview of the applicable regional instruments and the legal frameworks of South Africa, Kenya and Nigeria
Mwale, Brenda Achieng (Routledge, 2026)
The rapid advancement in technology has made society increasingly dependent on information and communication technology (ICT). Unfortunately, this dependence has also created new opportunities for terrorist groups to use the Internet for their activities. Over the years, there has been a significant rise in terrorist online activity, with these groups using the Internet for various purposes, including the dissemination of terrorist content. This is particularly concerning for African countries, where Internet use by terrorist groups and dissemination of terrorist content is increasing. However, the complexity of regulatory measures within the continent due to diverse legal frameworks, as well as capacity and implementation challenges, complicate efforts to address this issue. In this context, this article explores how existing regional instruments and national laws address terrorist online content. It proposes a unified and multifaceted approach to improve the regulatory measures in Africa.
A cultural citizenship lens for the cinematic representation of queer persons with physical disabilities in African films
Ikpo, David Nnanna Chukwukadibia (Taylor and Francis, 2025-07-14)
This study recognizes the double jeopardy African queer persons with physical disabilities face. It also recognizes that cinematic representations are paths through public imagination and through which perceptions of minorities are curated. Cinematic representations of queer persons with physical disabilities can be reconfigured to guide the public imagination toward the inclusivity of queer persons with disabilities, and to influence corresponding law and practice. On the African continent, cinematic representations of queer persons with physical disabilities are almost nonexistent, which translates into a “crisis of imagination.” Existing normative human rights frameworks as well as prevalent, beliefs, norms, and attitudes have yet to embrace the full citizenship of human rights of these minorities. This article employs the joint lens of human rights and cultural citizenship as paths through which best practices for cinematic representation of queer persons with physical disabilities can be considered. This study argues for the belonging of queer persons with physical disabilities in African cinematic representations, public imagination across African communities, as well as the broader human rights project (including the United Nations Convention on the Rights of Persons with Disabilities; African Commission Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity; African Charter on Human and Peoples’ Rights; and Protocol to the African Charter on Human and Peoples’ Rights of Persons with Disabilities in Africa).
Misleading marketing of unhealthy foods and beverages to children in South Africa as a consumer protection issue
Omoruyi, Aisosa Jennifer; Durojaye, Ebenezer (Springer, 2025-06)
Childhood overweight and obesity, which predisposes children to various non-communicable diseases, is a fast-rising public health burden in South Africa. Children are growing up in an obesogenic food environment that features intense marketing of unhealthy food and beverages using various channels and appealing strategies including misleading health and nutrition claims. This paper examines the applicability of the Consumer Protection Act No. 68 of 2008 (the CPA) in addressing the misleading marketing of unhealthy foods to children. The Act provides certain standards to guide the marketing of goods, including the prohibition of false, misleading, or deceptive representation of material facts. The paper examines the legal prohibition of false, misleading, or deceptive representations in marketing and how they have been interpreted by the National Consumer Tribunal and the courts. It also explores avenues among the redress processes and mechanisms provided in the CPA in addressing misleading marketing of unhealthy food and beverages to children. The overall aim is to show that the South African consumer protection legal framework offers a viable opportunity amongst other legal and policy measures to address misleading marketing of unhealthy foods and beverages to children. HIGHLIGHTS • Misleading health/nutrition claims on otherwise unhealthy food products is a common strategy in child-directed marketing which contributes to childhood overweight and obesity in South Africa. • Under the Consumer Protection Act No. 68 of 2008, misleading health/nutrition claims not only constitute material misrepresentation but are also reasonably likely to mislead or deceive children as well as their parents or caregivers. • The South African consumer protection legal framework offers a viable opportunity, among other legal and policy measures, to address the misleading marketing of unhealthy foods and beverages to children.
Decolonizing African mental health laws : a case for Kenya
Juma, Paul Ochieng; Ngwena, Charles (Cambridge University Press, 2024-02)
The aim of this article is to use a decolonial approach to interrogate Kenya's laws and policies that compel the admission and treatment of persons with psychosocial disabilities. Against the backdrop of the colonization of Africa, the article appraises the historical development of Kenyan mental health laws. It critically analyses domestic policies, legislation, court decisions and the Constitution as they apply to admission to healthcare facilities of persons with psychosocial disabilities and to the freedom to decide about treatment, in order to reveal the persistence of coloniality. It highlights gaps in the protection of equality, dignity and liberty. It also draws on pertinent provisions of the Convention on the Rights of Persons with Disabilities as a juridical method for translating a decolonial agenda into a normative framework. Ultimately, the article proposes a framework for decolonizing Kenya's mental health laws and policies.
Disapproving and yet not aligning : African stances on the aggression against Ukraine
Traoré, Sâ Benjamin (Routledge, 2025-07)
Reactions to Russia’s invasion of Ukraine have not been similar in all parts of the world. States in the Global South have shown considerable resistance to joining the in-unison responses adopted by Western countries. Based on their official positions, especially at the United Nations General Assembly, this article aims to examine the potential impact of African states’ reluctance to strongly condemn Russia’s use of force against Ukraine on the regime of non-use of force in international relations. Drawing insights from the body of literature in political science and international relations – generally neglected by international layers – the contribution makes two interrelated claims: First, it argues that contrary to what it has suggested, African states’ massive abstention during the voting of UNGA resolutions on Ukraine do not implicate any meaningful shift in their traditionally strict interpretations of the non-use of force rule in international relations. Indeed, the ‘reserved attitude’ of African states during the UNGA votes on Ukraine does not amount to approval or tacit endorsement of Russia’s unlawful use of force. If anything, voting explanations suggest a firm rejection of Russia’s positions and consider its action illegal.
Ensuring equal and inclusive rights to access sexual and reproductive health services for adolescent girls with disabilities in Africa
Nkomo, Sindiso Nozitha; Durojaye, Ebenezer (Brill Academic Publishers, 2025-09)
In many African societies, access to sexual and reproductive health care services for adolescent girls remains very problematic. This is due to a number of reasons including socio-cultural factors, influence of religion, negative attitudes of health care providers and legal and policy barriers. The situation is further compounded for adolescent girls with disabilities as many of them are perceived as asexual and cannot make decisions about their sexual and reproductive health. Unfortunately, laws and policies related to sexual and reproductive health and rights (SRHR) of adolescent girls with disabilities tend to exclude their views, reinforcing stigma and discrimination against them. Using the substantive equality and inclusivity lens, this article argues that if adolescent girls with disabilities are to live a fulfilling and healthy life, they must have access to sexual and reproductive health services on an equal basis with others. More importantly, laws and policies to address gaps in access to SRHR services for adolescent girls with disabilities must adhere to rights-based principles such as respect for dignity, non-discrimination, participation and accountability which are entrenched in different human rights instruments. Drawing exemplars from across the region, the paper notes that these human rights instruments require African governments among other things to remove different barriers to access to SRHR services for adolescent girls with disabilities.
Examining the interconnection between debt, climate change, and conservation : the potential role of state-contingent debt instruments in Africa
Masamba, Magalie L. (Palgrave Macmillan, 2024-12)
This article investigates the link between debt, climate change, and conservation in Africa. It focuses on the possibility of the use of State-Contingent Debt Instruments (SCDIs) in this setting. The objective is to assess the efficacy of SCDIs in fostering sustainable debt management while also promoting climate adaptation, mitigation, and conservation efforts. While these instruments have garnered interest in the global financial landscape, their implementation in Africa requires further scrutiny. This gap may leave policymakers and stakeholders unsure about the potential success of using these tools to promote economic resilience and environmental sustainability.
Inter-state complaints under the African human rights system : a breeze of change?
Viljoen, Frans (Koninklijke Brill BV, 2024-06)
An inter-state procedure is provided for explicitly in the 1981 African Charter on Human and Peoples’ Rights, on which the African regional human rights system is based, but the mechanism remains underused. Exploring the question why such a small number of inter-state cases have been submitted under the Africa system, the article points to the influence of a general culture of non-intervention and a preference for non-confrontational dispute mechanisms among African States; the existence of alternative channels to resolve cases involving massive or widespread violations cases; African States have over the years placed growing confidence in the ICJ; the delays associated with the DRC decision; and a pervasive ignorance of inter-state complaints processes under the African system. To overcome some of these impediments, the article notes, inter-states cases may be masked as cases brought by individuals or NGO s whose interests overlap with those of States.
Public food procurement as a policy tool : exploring local government opportunities for non-communicable disease prevention in South Africa
Knipe, Paula; Durojaye, Ebenezer (Sweet and Maxwell, 2025)
This article examines public food procurement (PFP) as a policy tool, exploring the role of local government in strengthening non-communicable disease (NCD) prevention in South Africa. Against the backdrop of the NCD's burden, it unpacks legal and policy frameworks and the influence of corporate interest in food procurement, underscoring the importance of a human rights-based approach. The discussion incorporates international standards and best practices that South Africa can adopt. It examines how the Procurement Act 28 of 2024 offers opportunities to reform food procurement to align with the right to food and health, utilise public purchasing power, and prioritise sustainable development while addressing fragmentation in the procurement system. The article explores three public institutions; public health facilities, correctional service facilities, and schools, to showcase how harnessing local capacities through PFP could promote healthier food environments and reduce the consumption of unhealthy foods, thereby mitigating the NCDs burden. In doing so, it provides actionable opportunities to align public procurement with broader socio-economic policy objectives, ensure equitable resource allocation and capacity building, and implement accountability mechanisms needed to sustain food procurement systems and practices. The article positions local government as a transformative agent in shaping inclusive, equitable, and sustainable food systems in South Africa.

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