The Administration of Criminal Justice Act, 2015 as a harbinger for the elimination of unlawful detention in Nigeria

SUMMARY Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (1999 CFRN) guarantee the rights to dignity of the person, personal liberty and freedom of movement. These rights connote that no one shall be arbitrarily arrested; anyone arrested shall be brought before a court of competent jurisdiction within a reasonable time, otherwise such detention is unlawful; where a person is lawfully detained, it shall be under humane conditions. Despite these constitutional safeguards, people continue to be detained in detention centres beyond the permissible periods without an order of court and in inhumane conditions. Thus, unlawful detention is one of the challenges confronting the administration of the criminal justice sector in Nigeria. In 2015 the National Assembly, in a bid to address the challenges in the sector, particularly unlawful and inhumane detention, enacted the Administration of Criminal Justice Act (ACJA) which is generally perceived as revolutionary legislation owing to provisions such as sections 29, 33 and 34 thereof. These sections require the chief judges of the various High Courts to appoint a judge or magistrate to visit detention centres at least once in a month to review cases of unlawful detention and awaiting trial detainees. This article adopts a doctrinal research methodology in examining the impact of these provisions in overcoming the menace of unlawful detention in Nigeria. It examines the challenges that may confront the implementation of these sections of the Act, such as administrative bottlenecks and unscrupulous attitudes of the personnel of the various detention centres. The article makes vital recommendations on how to overcome the challenges of taming the negative tides of unlawful detention in Nigeria. Key words: Constitution; criminal justice system; detention centres; magistrate; Nigeria

Utilising the due diligence standard to interrogate Kenya's accountability efforts with regard to survivors of sexual violence in the 2007-2008 post-election violence

SUMMARY Sexual violence is a human rights violation and is addressed under a growing number of international agreements including the 1993 Declaration on the Elimination of Violence against Women, among others. This article uses the due diligence standard, as elaborated on by the UN Special Rapporteur on Violence against Women, to interrogate Kenya's domestic accountability efforts with regard to sexual violence in the 2007/2008 post-election violence. It finds that Kenya suffered from a number of structural and systemic shortcomings that resulted in its failure to meet its obligation to prevent, investigate, prosecute and compensate for such acts of sexual violence perpetrated by both state and non-state actors. Key among them are a lack of well-coordinated multi-sectoral approaches to address sexual violence; human capacity gaps in the provision of medico-legal services to survivors; and systemic failures in the investigation and prosecution of sexual violence cases. The article further highlights the hope for future accountability inherent in the recent ruling in Constitutional Petition 112 of 2013 which held the state accountable for all gaps and shortcomings in responding to sexual violence during the post-election violence. The article concludes by advocating community-based multi-sectoral approaches in prevention and response to sexual violence in the Kenyan context with an emphasis on improving both human and technical capacities for provision of medico-legal services to survivors. Key words: sexual violence; human rights; Kenya 2007-2008 postelection violence; medico-legal responses to sexual violence

Cascading impacts of climate change and the rights of children in Africa: A reflection on the principle of intergenerational equity

SUMMARY This article explores the manner in which climate action at the African regional level protects and promotes children's rights with considerations being had to the principle of intergenerational equity. It establishes that while the concept of intergenerational equity is entrenched in the international and African regional climate change framework for the protection of children, neither the Convention on the Rights of the Child nor the African Children's Charter mentions the concept. However, CRC and the African Children's Charter oblige states to take into consideration the views of children and protect their best interests in climate action (to ensure intergenerational equity) and in achieving a sustainable future. Using a doctrinal research method, the article examines the regional legal and institutional responses to the cascading impacts of climate change and how they safeguard children's rights to a sustainable future. It proceeds to critically analyse child rights-responsive provisions in the African Children's Charter that could potentially enhance the utility of the principle of intergenerational equity in the context of climate action in Africa. The article argues that the principle of intergenerational equity could, in theory, be used as a useful tool for the protection and promotion of the rights and interests of children from climate change impacts. Key words: children's rights; climate change; climate justice; future generations; intergenerational equity

A teleological approach to interpreting socio-economic rights in the African Charter: Appropriateness and methodology

SUMMARY The incorporation of socio-economic rights in the African Charter on Human and Peoples' Rights should be considered a vital move towards the transformation of socio-economic conditions of the people on the continent. However, the envisaged socio-economic transformation depends largely on how these rights are interpreted. It is the task of the supervisory organs of the African Charter to develop the scope and content of these rights and their related obligations through interpretation. To achieve this interpretative objective, interpretive process of the supervisory organs should be guided by an appropriate approach to interpretation that is applied coherently. This article argues that the teleological approach to treaty interpretation is an appropriate approach to interpreting socio-economic rights in the African Charter. The article develops a methodology for application of the teleological approach through which socio-economic rights in the African Charter may be effectively interpreted. Key words: socio-economic rights; African Charter; effective interpretation; teleological approach to interpretation

The protection of individual labour rights in Zimbabwe

SUMMARY The protection of individual labour rights in Zimbabwe is deficient despite the fact that the Constitution protects these rights. In looking to explore how this could be addressed, this article considers the evolution of the state's obligation to protect individual labour rights to this point and relies on individual labour rights protection at a global level with particular insights drawn from the approach taken to the protection of these rights in two jurisdictions, namely, England and South Africa. The approach to the protection of individual labour rights in these two jursidictions has influenced the Zimbabwean approach to highlight that effective protection of individual labour rights is possible only when courts actively look to protect these rights. The article argues that the reason for deficiencies in the Zimbabwean approach is the fact that courts are not doing enough to protect individual labour rights in Zimbabwe. The solution to this issue, therefore, lies in Zimbabwean courts taking a more proactive role in protecting individual labour rights. Key words: labour rights; constitutionalism; individual labour rights; codification; acccess to court

The African Children's Charter and ending corporal punishment of children in Africa: A work in progress

SUMMARY Corporal punishment is the most common form of violence against children worldwide, including in Africa. Corporal punishment violates children's rights to respect for their human dignity and physical integrity. The African Charter on the Rights and Welfare of the Child provides for every child's right to be protected from violence and ill-treatment. The African Committee of Experts on the Rights and Welfare of the Child and other human rights bodies consistently examine states on their progress towards prohibiting and eliminating corporal punishment. In the context of the thirtieth anniversary of the African Children's Charter, this article aims to examine the progress made towards the prohibition and elimination of corporal punishment of children in all settings, in Africa. It highlights the challenges and shortcomings in implementing this campaign in Africa. The role of the African Children's Committee in promoting and protecting the human rights imperative to prohibit corporal punishment of children is also examined, especially as regards the legal barriers to end the corporal punishment of children in Africa. Key words: African Children's Charter; children's rights; corporal punishment; Agenda 2040

Is the forfeiture of criminally-acquired property in Tanzania compliant with the Constitution?

SUMMARY Asset recovery, which involves the forfeiture of criminally-acquired property, is considered to be an effective mechanism of addressing serious and organised crime within national boundaries and across international frontiers. This is a paradigm shift from penal law and policy-making bodies of concentrating on persons only to also address their minds to property. The current legal position is that asset recovery in Tanzania is conviction based. This means that forfeiture orders must be preceded by the conviction of an accused. When carried out as expected, the mechanism has an impact of depriving criminals of their ill-gotten wealth, thereby striking them at a point where it hurts most. All this is aimed at ensuring that the convict is denied the enjoyment of the fruits of his criminal acts, serving as a deterrent and an attempt by the state to suppress the conditions that lead to unlawful activities. It disrupts criminal activities and prevents the possibilities of using the proceeds of crime to reinvest in other forms of crime. Tanzania has a legal and institutional framework that deals with the forfeiture of criminally-acquired assets. However, the basic question into which this article enquires is whether this framework is human rights compliant. To respond to this question, the discussion looks at the provisions of the Bill of Rights as entrenched in the country's Constitution in relation to the asset recovery legal regime and inquires whether the latter reflects those constitutional provisions. Despite some limitations that are apparent in the course of enforcing legal provisions on asset recovery, the article concludes that all Tanzanians, including suspects, are treated equally before the law. As such, they are all expected to enjoy the rights and freedoms that are contained in the Constitution. There are avenues through which those who feel aggrieved can pursue their complaints. Key words: forfeiture; illegally-acquired property; concealing profits from crime; Constitution; human rights compliance

An assessment of the regulatory legal and institutional framework of the mining industry in South Africa and Kenya for effective human rights protection: Lessons for other countries

SUMMARY The priorities ofAfrican governments regarding the extractive industry tend to focus on economic interests leading them to provide a conducive environment for investments by private entities. Furthermore, reforms in the industry are inclined to promote these priorities with less consideration for adequate protection for affected people and their environment, including protection from resulting social and environmental impacts. The result in economies endowed with mineral resources is that resources are poorly managed and the outcomes of exploitation of mineral resources are environmental degradation, loss of lives, displacement, conflicts between companies and mining communities, protests against mining projects, and human rights violations. These problems in the long run slow down development and forestall its benefits because of poor regard for the concerns of affected people by the government and companies. Filling the gaps in extractive policies, particularly in the area of protection of communities and their environment affected by activities of the extractive industry, is essential to tackle the environmental and social outcomes of mining activities. In this article the legal and institutional framework regulating the mining industry in selected jurisdictions in Africa is examined to determine the extent to which they respond to the problems arising from the development of mineral resources, particularly the human rights violations caused by the adverse impacts of mining. Some lessons are drawn for the benefit of other countries. The article argues that some of these mining policies poorly encourage effective protection of affected communities, particularly human rights, in mining developments. The article proposes that mineral legal regimes need to be strengthened for the effective protection of affected people and their environment. Key words: mining industry; mineral resources; mining; mining policies; human rights

Sub-regional organisations and the responsibility to protect: A case for the localisation and normative repatriation of sub-regional authority for coercive measures

SUMMARY The adoption of the responsibility to protect by the United Nations General Assembly marked a key milestone in the advancement of human security and the international protection of human rights. The textual adoption by the UNGA, however, was skewed in favour of the world order as it existed at the adoption of the Charter of the United Nations. Key among the recommendations downplayed by the UNGA text is the place of regional and sub-regional organisations in the implementation of the responsibility to protect. The consequence has been that sub-regional organisations have often been sidelined and their position on conflicts overlooked by the United Nations Security Council in its authorisation of R2P-related interventions. This article utilises the differences between the original R2P concept and the R2P norm adopted by the UNGA as well as subsequent discourses and state practice flowing from these differences to argue for R2P's localisation in the African context and for the normative repatriation of the authority of sub-regional organisations to adopt coercive measures under R2P. The article uses the Economic Community of West African States to illustrate the potential for sub-regional organisations to implement R2P when accorded the requisite regional and international support. Key words: sub-regional organisations; responsibility to protect; norm localisation; norm repatriation; peace and security