Women and Disability in Africa: African Disability Protocol to the Rescue?

Farirai-Sinothando-Sibanda

Author: Farirai Sinothando Sibanda
Master’s Candidate, Centre for Human Rights, University of Pretoria

It is a gross injustice that disability rights in Africa have previously not been prioritised given that 80% of persons with disabilities live in developing countries. However, this situation seems to be gaining some attention with most African states having ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) with the exception of three, namely Cameroon, South Sudan and Eritrea. Following this trajectory, in 2018, the African Union (AU) member states adopted the African Disability Protocol which will enter into force after ratification by 15 AU member states. Despite its potential to enhance persons with disabilities’ enjoyment of their rights, as of March 2022, the African Disability Protocol has only been ratified by three countries namely; Mali, Kenya, and Rwanda which is disappointingly low.

The UNCRPD is a key instrument in advancing the rights of persons with disabilities, but it lacks the specificity to the African context. Due to poverty and other issues in Africa, the situation of persons with disabilities, especially women, differs radically from that in other regions. Article 6 of the UNCRPD addresses women in two general provisions by obligating states to protect them from discrimination, ensure enjoyment of their rights and empower them. However, it does not specify the actions that states must take to fulfil these obligations. Resultantly, the UNCRPD does not adequately address the unique situation of persons with disabilities in Africa.

2017 Edouard Dropsy for Human Rights Watch

Women with disabilities in Africa are reportedly three times more likely to have unmet needs for health care; three times more likely to be illiterate; twice less likely to be employed, and twice times less likely to use the internet. The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa attempts to address the needs of women with disabilities through article 23, which obligates state parties to take specific measures commensurate with women with disabilities’ physical, economic, and social needs as well as their participation in decision-making; and to ensure that their right to freedom from violence, including sexual abuse, discrimination based on disability and the right to be treated with dignity.

The African Disability Protocol provides the most extensive elaboration of the rights of women with disabilities in article 27. Article 27 obligates state parties to ensure that the barriers that hinder the participation of women with disabilities in society are eliminated, thus recognising that lack of participation may be attributable to societal barriers and not lack of interest. Therefore, the state parties need to be proactive in their efforts to eliminate these barriers. State parties are further required to ensure that women with disabilities are included in mainstream women’s organisations and programmes. This provision seeks to ensure that women with disabilities are not treated as an afterthought in the women’s rights movement. It aims to ensure that women with disabilities are included in women’s organisations not just as beneficiaries but rather as members of these organisations.

The African Disability Protocol also obligates state parties to ensure that women with disabilities access information, communication, and technology. Given that today’s world is increasingly digitised, this is a timely innovation. Access to information, communication, and technology is a necessity for anyone living in this digital age and this provision reaffirms that women with disabilities must have the same level of access as everyone else.

Article 27(h) stipulates that state parties must ensure that women with disabilities have access to income-generating opportunities and credit facilities. This is contextually relevant to the African continent given that poverty and exclusion is higher among persons with disabilities. By obligating state parties to guarantee access to income-generating opportunities and credit facilities, the Protocol requires states to actively create opportunities through which women with disabilities can earn a living and be independent.

Article 27(k) also obligates state parties to ensure that the sexual and reproductive health rights of women with disabilities are guaranteed, and that these women have the right to retain and control their fertility and are not sterilised without their consent. This is progressive, particularly in the African context where the sexual and reproductive rights of women with disabilities are susceptible to violation fuelled by negative social attitudes and beliefs. These abuses include forced sterilisation, which is quite prevalent. Thus, this provision is unique to the African Disability Protocol, which seeks to ensure that women with disabilities are protected from such abuses. Furthermore, this provision recognises that women with disabilities are women and may indulge in sexual relations and should retain their bodily autonomy in those relationships, like other women.

Considering the extensive protections that the African Disability Protocol provides to women with disabilities, AU member states need to ratify this instrument expeditiously, so it can come into effect. To that end, human rights, disability rights and women’s organisations need to intensify their advocacy efforts to popularise the African Disability Protocol and call for its ratification.

About the Author:

Farirai is a Zimbabwean lawyer and a Master’s Candidate in the LLM in Human Rights and Democratisation in Africa Program at the Centre for Human Rights, University of Pretoria.

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Climate change and internal displacement

Authors: Zanele Christine Fengu, Meron Eshetu Birhanu and Bernice Asante

“Internal Displacement and climate change are both highly complex phenomena. In the public debate we often hear about ‘climate-related displacement’ or even ‘climate refugees’, and very often this is done with a note of alert”.

The Global Classroom on Human Rights recently held its annual meeting, which was hosted by the Centre for Human Rights, University of Pretoria with Internal Displacement as its theme. The programme featured enlightening presentations from members across the world who reflected on legal and non-legal approaches to the matter. A key message which came from the engagement was the need to adopt a climate justice approach to climate change and how our legal frameworks could embody this principle.

Climate change is an injustice, which places a disproportionate burden on those who have contributed the least to the problem. The concept of climate justice, therefore, developed as a response to the injustice and inequalities experienced by the most vulnerable communities who are being harmed through a problem that is not of their making and seeks to secure global justice. In general, it aims to make climate-related actions consistent with international human rights agreements, principles and norms. In 1990 the Intergovernmental Panel on Climate Change (IPCC) revealed that one of the negative impacts of climate change is human mobility. The Internal Displacement Monitoring Centre (IDMC) further noted that at least 7 million people were internally displaced by disasters across 104 countries and territories as of 31 December 2020.

Although climate-induced displacement has a wide range of impacts, something which was interesting was the effect it had on the right to health, particularly, mental health. The Global Campus Caucasus team presenting on this topic made a case for how this type of displacement should not be thought of in isolation as it has very real consequences on the more apparent rights such as the right to shelter and nutrition, as well as something less obvious such as mental health.

The principle of climate justice requires states to adopt a human rights-based approach to address the plights of those who have been affected by climate-induced displacement, integrate human rights in existing climate policies and be guided by human rights considerations in all climate change-related actions, including prevention, mitigation, adaptation, finance and technology. From observations, a clear trend across various parts of the world is the reluctance to use the term ‘climate justice’ in law. Perhaps this is a result of the lack of understanding of the concept and how the climate – an environmental notion, could be thought of in terms of justice – a human rights notion. The two ideas are inseparable as evidenced by the human rights implications of climatic phenomena.

Africa stood out for having one of the most progressive regional frameworks on climate change. The Convention for the Protection and Assistance of Internally Displaced Person in Africa (Kampala Convention) is the first and the only legally binding regional instrument which extensively covers the issues of climate change as a driver of internal displacement, and mandates states to take measures to protect and assist IDPs displaced due to natural or human-made disasters, including climate change and addresses the role of multinational corporations. Apart from enhancing the protection of IDPs, the adoption of the Convention plays a vital role in encouraging states to develop IDPs laws and policies at the national level.

Another trend observed was the referral to displacements as ‘relocations’. The implications of this are that there is underreporting in displacement statistics making the matter seem less prevalent than it actually is. There is a need for states to refrain from this practice so as to allow for accuracy and for the matter to be treated with the urgency it deserves.

The impacts of climate change have been found to cause migration and increase the likelihood of conflict. This link was highlighted using case studies from Asia and South Sudan. It is a common occurrence for conflict to arise when members of a community have been displaced. This leads to a rise in tribalism and internal political instability. A prime example of this is the health impacts that arise due to forced migration and internal displacement. Population displacement compromises the provisions and distributions of medical services to the immediate population, thus making tough diseases more difficult to handle and contain. Apart from the increased risk of disease spread, other non-climate factors such as; sexual and gender-based violence, human trafficking and violence are also results of internal displacement caused by climate change. The presentation, therefore, pointed out the need to understand migration and security as they are not simply linked phenomena, but an integral component of the same underlying process

It was clear from the presentations that the existence of legal measures alone would not suffice in abating the climate crisis. In addition to these, industry-specific best practices must be determined by all sectors including mining, energy, retail, etc. Stakeholders in these industries include states, multinational corporations, businesses, non-governmental organisations, civil society organisations and individuals. All stakeholders should endeavour to meaningfully and conscientiously participate in this initiative. Their participation should not be regarded as a matter of preference as it currently is, but rather as the default way of life. For instance, it cannot be that environmentally friendly shopping bags are still only offered as an alternative to single-use plastic bags. Commitments to lower emissions cannot be made as a mere courtesy gesture. Recycling and garbage organising must be practised from the household level to the industrial level. Environmental awareness and friendliness must become standard practice by all.

About the Authors:

Zanele Christine Fengu holds Bachelor of Arts degree in International Relations and Law and a Bachelor of Laws from the University of the Witwatersrand. Zanele previously worked as a legal researcher with Corruption Watch South Africa. In 2021 she was selected to be a mentee with the prestigious South African Chapter of the International Association of Women Judges also as a fellow of the Young African Leaders Initiative – Regional Leadership Center in Southern Africa. She currently serves as a Youth Advisory Panelist for the United Nations Population Fund in South Africa.

Bernice Asante holds a Bachelor of Arts in Communications from the Grand Canyon University in the U.S.A, Arizona, and a Master of Jurisprudence in Rule of Law for Development from the Loyola University Chicago, in Rome Italy. She is a human rights advocate with more than two years of experience working as a legal, communications and publications fellow at the Institute for Human Rights and Development in Africa (IHRDA).

Meron Eshetu Birhanu holds a bachelor degree in law from Dilla University, Ethiopia and received a gold medal award for the highest scorer graduate of law in the academic year of 2021. She has been actively involved in a variety of activities that aim to promote human rights, notably women’s and children’s rights. She also worked as an intern at Dilla University Free Legal Aid Centre.

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The place of liberal feminism in the struggle for gender equality in Kenya.

Author: Davis Thuranira
Student, Kenyatta University, Kenya

Major Premise

The framers of the constitution[1] provided adequate mechanisms to counter gender discrimination and foster equality among all sexes and gender in the country. As a matter of fact, several legal provisions incline to an ideology of equality that seeks to overhaul the existing societal structure which anchors discrimination and unequal treatment of women.

Equality, non-discrimination, inclusiveness and protection of the marginalized are among the key principles featured under Article 10[2]. The provision universally applies to all persons and demands compliance by the state, including its organs, while exercising its constitutional mandate. The state is required to invoke its authority by giving effect to the two-third gender rule. Additionally, these principles and others that support gender equality are emphasized in the constitution since such are the basis for any democratic society that the constitution envisions. The applicability of these principles is mandatory, and the courts have on several occasions emphasized that the principles are not aspirational as argued by critics but realistic, practicable and binding on everyone. In the case of Rono v Rono[3], the Court of Appeal authoritatively asserted that the Constitution shields women from customary succession laws that bar women from inheriting property. The Court held that both male and female children are treated equally before the law and that discriminatory rules are invalid and unconstitutional to the extent that it treats women as inferiors to men.

Further, the Bill of Rights also encompasses the principle of non-discrimination which is incorporated into substantive rights thereby protecting every person from discrimination on the grounds of sex and marital status. The government is obligated to enforce this right and ensure that both men and women are accorded equal treatment and benefit of the law through affirmative actions and other legal and socio-economic strategies.

Most importantly, Article 100[4] lists women among marginalized groups since they trail men in the level of their involvement in the public and private affairs of the state. These groups, including women are entitled to a law facilitating their representation in the legislative arm of the government with dissolution of parliament being a consequence of non-compliance with the obligation.

The philosophy of feminism has centered the discussion on a transformative jurisprudence that focuses on the achievement of gender equality in Kenya. The adoption of such philosophy might be accommodated by Articles 159 and 259 which seems to guide the formulation of a theory for the interpretation of the constitution which should be done in a manner that promotes human rights and good governance. Liberal feminism focuses on equality of men and women and equal participation of both sexes in the political field and activities of the state.[5] Philosopher Wendy Williams, a key feminist scholar, criticizes the tendency of other feminism schools for perpetuating more inequalities by their focus on preferential treatment instead of equality and self-autonomy which are the central features in the much more progressive liberal feminism.

Minor premise

It is notable that Kenyan women live in a highly discriminatory society that has caricatured women as subordinates of men since time immemorial. The subservience of women through age-old cultural and societal practices has resulted in greater differences between men and women in the society. However, even though the constitution has encompassed certain measures to foster gender equality but the legal framework has been undermined and rendered insignificant in a manner that it fails to address the deep-rooted discrimination of women. Particularly, the Constitution provides for the two-third gender rule but parliament has adamantly failed to give it life. The deadline was set to expire 5years after the promulgation of the constitution but successive legislatures have downplayed this important socio-political milestone. Additionally, there are still other laws targeted at overhauling the social system that justifies patriarchy, toxic masculinity, female genital mutilation and other practices that are considered as affecting women disproportionately or perpetrating injustice on them. The entire legal framework designed to counter gender inequality seems to have hit a snag since it has been inefficient since its inception for lack of operationalization, political will and awareness.

There are numerous impediments that hinder the attainment of gender equality in Kenya and they range from socio-economic to political obstacles. Basically, women are considered as unworthy creatures by the society and as servants of the men. Their access to resources of economic viability is restricted and unlike men, they are condemned to stay at home and embark on domestic work which is mostly uncompensated and hardly rewarding. Notably, most women are not allowed to choose the trajectory of their life and attain full autonomy since the Kenyan society tends to dictate for them the dress code, family issues, life values and other aspects. The discrimination of women is evident in the political arena which has been dominated by men for a long period and the latter’s reluctance to adopt laws that stamp out discrimination.

Application

The gender equality laws requires full implementation by the government agencies and organs to ensure the Kenyan women are liberated from the practices and systems that undermine them and places them below men in the traditionally-constructed social and family hierarchies. Article 27 of the Constitution does not recognize these conceptions on the difference between men and women since it treats them as equal partners who should not be subjected to the biased societal rules that attempts to restrain them from realizing their full potential in any field.

The Kenyan parliament has been rebuked for failing to effectuate article 100 of the constitution and address the menace of underrepresentation of women who constitute more than half of the population. The unwillingness to discuss this obligation has been accounted for by the same problem that the two-third gender principle seeks to solve. That is, the inadequacy of female representatives in government institutions to push for the much sensitive and sometimes emotive women agenda. In the matter of Gender Representation in the National Assembly and the Senate[6], the Supreme Court took notice of unbalanced and unequal positions of men and women in the country and emphasized the need to ensure compliance with all anti-discriminatory provisions of the Constitution, international instruments and other laws.

Feminists and particularly liberals advocate for the gradual reassessment of the political and legal rules and practices to bring them into conformity with equality principles. This theory is compatible with the desired solution for inequality in Kenya. Although liberals maintain the public-private division that features in their philosophy, they provide for an allowance by the state to intrude into the private life of the citizens to solve domestic issues that might be aiding subservience of women. In line with this proposition, it is therefore necessary for the government to employ all mechanisms to eradicate discrimination in every sphere of life, not only in the public/political arena but also in employment, family, economic and business aspects. Additionally, the philosophy derived from the exposition of scholar John Rawls is applied to view equality as justice and inequality as the tool for injustice through which women are denied access to resources and self-autonomy as the case in Kenya where societal norms have been used to undervalue women.[7] Therefore, the Kenyan woman’s lack of access to education, maternal health and other crucial necessities despite being the major players in the production process and particularly labor, suggests that women have been overlooked and denied of their equal status to men.

According to Mitchel Oyuga, a legal officer at FIDA[8]whom I interviewed for this paper, gender discrimination in Kenya has had a remarkable reduction in the recent past but the failure by the legislature and other government organs to provide redress for unequal representation and other issues has receded the battle against discrimination while in its most critical phase. She further propounded that although FIDA does not exclusively advocate for a single feminist theory, they mostly lean towards liberal feminism owing to its principles on equality and free choice.

Conclusion

Summarily, the history and nature of gender discrimination in Kenya reveals that the relevant government agencies and the society in general has failed to address the menace satisfactorily as envisioned by the Constitution of Kenya, 2010. Most of the challenges that women face emanate from the inequalities rooted in the economic, social, cultural and political systems of the country. Therefore, liberal feminism, being a theory that lays much emphasis on individual autonomy and equal treatment of both sexes, should be the preferred feminist theory for Kenya, also owing to its compatibility with the existing legal framework and perfect response to the consequences of gender non-inclusivity. Thus, the adoption and implementation of laws, policies and initiatives with an equality element inherent in the liberalism theory is recommended in order to realize a society where women are not exploited and enslaved but treated as equal to men and with the dignity they deserve.

[1] Constitution of Kenya, 2010

[2] Ibid.

[3] Mary Rono v Jane Rono [2005] eKLR

[4] The Constitution of Kenya, 2010

[5] Amy R. Baehr, ‘Feminism, “Feminism interpretations of John Rawls” [2007] :150

[6] [2012] eKLR

[7] Genevieve R. Painter, International Encyclopedia of the Social & Behavioral Sciences (2nd edn, University of California 2015)

[8] Federation of Women Lawyers (Kenya). A non-partisan organization aimed at promoting gender equality and women empowerment in Kenya.

About the Author:

Davis Thuranira studies Bachelor of Laws (LLB) at Kenyatta University in Kenya

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Juridical Implication of Article 12 of the Convention on the Rights of Persons with Psychosocial Disability in the Health Sector of Ethiopia

Author: Hawi Asfaw
Associate Human Rights Officer, Ethiopian Human Rights Commission

Recognition of legal capacity is inseparably linked with the enjoyment of rights in the health sector since it is a prerequisite for a person to fully control his or her health and to make a free and informed decision concerning sexual, reproductive, and mental health. Article 12 of the Convention on the Right of Persons with Disability (CRPD) to which Ethiopia is a party, provides that states should recognize the legal capacity of persons with disability and provide them with access to support in the exercise of their legal capacity which in no way amount to substitute decision making. Additionally, article 25(d) of the CRPD states that the right to health includes the right to health care on the bases of free and informed consent which presupposes the recognition and protection of legal capacity by the state for its enforcement.

Article 339 of the Ethiopian Civil Code defines a person with a psychosocial disability as ‘… one who, as a consequence of his being insufficiently developed or as a consequence of a mental disease or his senility, is not capable to understand the importance of his actions’. It also refers to persons with psychosocial disability as ‘insane’ and ‘notorious insane’ which is a derogatory language.  Regarding legal capacity, though there is no condition under the CRPD that can be used to draw exception to full legal capacity, article 192 of the Ethiopian Civil Code states that ‘all physical persons have the capacity to perform acts of civil life unless declared incapable by law’. It also provides two grounds on which a person with psychosocial disability might be deprived of his/her legal capacity. One is the presumption of legal incapacity which applies in the case of ‘notorious insanity’ and the other is judicial interdiction of ‘insane person’ who is not notorious following an application made by the person, his spouse, or close relatives or by the public prosecutor per article 351 of the Civil Code. According to articles 341&342 of the Civil Code a person will be considered ‘notoriously insane’ if he is an ‘inmate of a hospital or of an institution for insane persons or of a nursing home’ or in a rural community where there are less than two thousand inhabitants, if ‘the family of that person, or those with whom he lives, keep over him a watch because of his mental status.’

Both the presumption of legal incapacity and judicial interdiction under the Ethiopian legal system restrict the right of persons with psychosocial disabilities to full enjoyment and exercise of their rights in the health sector contrary to articles 12&25 of the CRPD by putting the person declared incapable under full guardianship. Furthermore, article 377 of the Civil Code denies a person with a psychosocial disability the right to apply for withdrawal of the interdiction.

The absence of specific mental health legislation is also another challenge in guaranteeing health treatments for persons with psychosocial disability based on the standards of human rights in Ethiopia. The absence of legislative guarantees which could address challenges related to access to health care services, involuntary admission, and non-consensual treatment practices enables violation of human rights of persons with psychosocial disability in the health sector of Ethiopia. It also gives medical practitioners a ‘blank cheque’ which allows them to act arbitrarily without the informed consent of the person with psychosocial disability seeking health services.  Since there is no judicial review for involuntarily admitted persons, it limits the right to hearing in cases of involuntary admission or non-consensual treatment in the health sector.

Another problem is that once a person is ‘judicially interdicted’ and a guardian is appointed, there is no further timely judicial review about the change in capacity of the person admitted to the hospital. This gives limitless power which can be abused by guardians until the person recovers from the disability.

Denial of legal capacity and the absence of legislative guarantees coupled with the substituted decision-making process results in involuntary admission to health facilities and non-consensual treatment of persons with psychosocial disabilities. As state party to the CRPD, Ethiopia has an obligation to align its laws with article 12 of the CRPD to recognize the legal capacity of persons with psychosocial disability to give free informed consent and to shift its laws from substituted decision-making paradigm to supported decision making. In line with this obligation should adopt specific legislation on mental health, which protects persons with psychosocial disability from involuntary admission, non-consensual treatments, undue influence, and provide a right to hearing in all cases of involuntary treatment. Regular and timely review by a competent, independent, and impartial authority as provided under article 12 of the CRPD should also be provided.

About the Author:

Hawi Asfaw is Associate Human Rights Officer at the Ethiopian Human Rights Commission. She holds an LLM Human Rights and Democratisation in Africa from Centre for Human rights, University of Pretoria, South Africa and LLB from Wolaita Sodo University, Ethiopia. She is also former lecturer and Dean of Wolaita Sodo University School of Law, Ethiopia.

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Contextualising and Advocating for Sexual Minority Rights within Kenya’s Transformative Constitution

Author: Laureen Mukami Nyamu
Student, Kabarak University School of Law in Nakuru, Kenya

Human rights are inherent to all human beings regardless of race, ethnicity, nationality, religion or other status [1] moreover they are universal but the universality of human rights is not enjoyed by sexual minorities due to discrimination. This discrimination stems from religious, socio- cultural, institutional and discriminatory laws and policies. These factors hamper the full enjoyment of human rights by sexual minorities.

The Constitution of Kenya 2010 is transformative in the realm of human rights by recognising the bill of rights as an integral part of Kenya’s democracy, social, economic and cultural policies and by having an elaborate Bill of Rights that remedies the subversion of human rights which was a characteristic of the repealed constitution. [2] This article will contextualise and show advocacy of sexual minority rights within the constitutional framework and provide a way forward as regards sexual minority rights.

Contextualisation

The Constitution of Kenya 2010 (hereinafter referred to as the Constitution) contains the following provisions in the bill of rights that shall be contextualised in the realm of sexual minority rights.

Every person has the right to life.[3] The term ‘every person’ when interpreted includes sexual minorities. This provision protects sexual minorities from the arbitrary deprivation of their life on account of their sexual orientation.

Every person is equal before the law and has the right to equal protection and benefit of the law.[4]  Equality includes full and equal enjoyment of rights and fundamental freedoms.[5] Sexual minorities should enjoy equal protection of the law to the same extent as other persons who are not sexual minorities. The state [6] and any person[7] is prohibited from discriminating against any person a various grounds among them being sex. The constitution also obligates the state to take legislative and affirmative action measures to redress any disadvantage suffered by individuals or groups because of past discrimination.[8]

Every person is afforded dignity and the right to have that dignity respected[9]. Respect of human dignity includes the respect to the bodily integrity and autonomy of the person. Sexual minorities often face violations to their dignity through the use of violence against their bodies and use of derogatory language against them. [10]This provision therefor entrenches and protects the right to dignity of sexual minorities.

The right to Freedom and security of every person includes the right not to be subjected to any form of violence[11] and torture. [12]This provision protects sexual minorities who are often the victims of violence and brutalities from their communities.

Advocacy

The Constitution advocates for sexual minority rights by establishing duties of the state regarding human rights which include; the duty to protect, promote, respect and fulfill rights and fundamental freedoms. [13] The constitution also gives everyone the right to institute court proceedings when a fundamental right and freedom has been violated.[14] Further, the courts in the application of a fundamental rights and freedom are obligated to adopt the interpretation that most favors its enforcement[15] as seen in the case of Eric Gitari v Non-Governmental coordination organisations coordination board and 4 others [16] whereby the court held that the term every person under article 36(1)[17] does not exclude homosexuals and the petitioner who was intending to register the Gay and Lesbians Human Rights Council with the respondent falls within the ambit of article 36 (1) of the constitution. This position therefor demonstrates that sexual minorities are entitled to not only the freedom of association but also all fundamental rights and freedoms stipulated under the constitution regardless of their sexual orientation.

The Way Forward

To achieve and promote sexual minority rights, the existing constitutional provisions should be interpreted in a manner that favors their realisation. This could be achieved by the inclusion of the term ‘sexual orientation’ as one of the  protected grounds under article 27(4) [18] This would enlarge the scope of protection of sexual minorities by expressly prohibiting discrimination on account of sexual orientation. Additionally the right to marry should be accorded not only to persons of the opposite sex [19] but also to persons of the same sex. Family is the basic and most crucial unit of society. Recognising the right to marriage by persons of the same sex will lead to the realisation of their rights by granting their sexual orientation legitimacy and acceptance in the society. This will contribute towards ending the social stigma that often contributes to discrimination and the subsequent infringement of their rights.

[1] Professor Naresh Vats, Gender Equality-Human Rights violations against sexual minorities.

[2] Article19 (1) Constitution of Kenya 2010.

[3] Article 26(1) Constitution of Kenya 2010.

[4] Article 27(1) Constitution of Kenya 2010.

[5] Article 27(2) Constitution of Kenya 2010.

[6] Article 27(4) Constitution of Kenya 2010.

[7] Article 27(5) Constitution of Kenya 2010.

[8] Article27 (6) Constitution of Kenya 2010.

[9] Article 28 Constitution of Kenya 2010.

[10] J Osogo Ambani, a Triple Heritage of Regulating Homosexuality in Kenya.

[11] Article 29(c) Constitution of Kenya 2010.

[12] Article 29 (d) Constitution of Kenya 2010.

[13] Article 21(1)

[14] Article 22(1) Constitution of Kenya 2010.

[15] Article 20(2) (b) Constitution of Kenya 2010.

[16] 2015 eKLR

[17] Every person has the right to freedom of association which includes the right to form, join or participate in the activities of an association of any kind.

[18] Constitution of Kenya 2010.

[19] Article 45 (2) Constitution of Kenya 2010

About the Author:

Laureen Mukami Nyamu is a second year undergraduate student at the Kabarak University School of Law in Nakuru, Kenya. She is interested in examining how human rights can be used to remedy disadvantages experienced by minorities as a result of discriminative policies and norms and how the law can redress these disadvantages.

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Inclusive national dialogue and accountability for rights violations can heal Ethiopia from a culture of impunity

Author: Dunia Mekonnen Tegegn
Human Rights Lawyer and Gender equality advocate

On 3 November 2020, conflict broke out between the Tigray People Liberation Front and Ethiopia’s National Defense Forces when the Tigray People Liberation Front assaulted the Northern command. Due to the conflict in Ethiopia, women and girls continue to bear the brunt of the cruel and inhuman acts committed by all parties involved in the conflict for the last 17 months. Many have lost their lives, suffered sexual violence, been displaced, and starved. Young girls, women living with disability, older women, and refugee women have been the target of brutal sexual violence. These crimes are horrific in nature as they represent the level of vengeance and humiliation pursued by actors to the conflict. Reports have highlighted the extent of these violations and implicated all sides to the conflict in war crimes and crimes against humanity.    

Impunity has for long characterized Ethiopia’s transitions. Ethiopia went through different transitional periods beginning from the imperial regime to Derg in 1974, from Derg to EPRDF in 1991, and from EPRDF to Prosperity Party in 2018 and currently going through a period of transition that is accompanied by violence and conflicts. Ethiopia and Ethiopians missed the chance to reconcile with the past particularly as far as gross human rights violations are concerned. Replacing impunity with accountability and establishing rule of law in the country remains unfulfilled to date.

In the context of the ongoing conflict, in the Tigray region of Ethiopia, Ethiopia’s National Defense Force, Eritrean Defense Force as well as Amhara Special Force and its allied militia are reported to have committed widespread sexual abuse against Tigrayan women. In the initial stages of the conflict, rape cases were reported in Mekele, Ayder, Adigrat, and Wukro hospitals of Tigray. Investigations on human rights in Tigray indicate that Tigrayan women were subjected to attempted rape, gang rape, oral and anal rape, and insertion of foreign objects into the vagina; in addition, they were subjected to  ethnic slurs and  degrading comments. They were also exposed to unwanted pregnancy, and sexually transmitted diseases. Access to humanitarian aid including access to sexual and reproductive health services remains a challenge. Sexual violence was reported to have been used as a weapon of war and as a deliberate strategy to terrorize, degrade and humiliate the victims. In the most hideous way, Eritrean women and girls fleeing persecution in Eritrea were also reported to have been raped by members of Eritrean Defense Forces and forces allied to the Tigray People Liberation Front in the Tigray region of Ethiopia where they sought refuge. To date, women who were impacted by the conflict continue to be the subject of abduction while on the move.

The number of women who are subjected to sexual violence increased when the conflict expanded its horizon to Amhara and Afar regions of Ethiopia. In these two regions, Tigrayan forces were reported to have committed widespread sexual violence against Amhara and Afari women and girls. In Nifas Mewcha, vicinity in the Amhara region of Ethiopia, women were reportedly raped during a nine-day period. Women were subjected to gang rape including in front of their children, physically assaulted, called names and degraded with ethnic slurs, impregnated by their rapists and suffered mental health problems including anxiety and depression. They were also robbed and deprived of their source of income. Women were unable to access comprehensive post-rape care, including emergency contraception, post emergency prophylaxis for HIV and sexually transmitted infections. In these two regions, it was reported that  Tigray Forces used sexual violence to demoralize, dehumanize and punish communities. Sexual violence was used in a more premeditated and organized manner arbitrarily but also selectively for combat purposes.

Due to the nature of this crime, the tendency of survivors coming forward with what happened to them in the current context of Ethiopia is limited. There is a likelihood of under-reporting because of the nature of the Ethiopian polity where patriarchy is the dominant view.

Violations of Women’s Human Rights 

Conflicts exacerbate deep rooted inequalities in any country. The gender discrimination women and girls are subjected to in a society continues to amplify their victimization during the conflict. Outside situations of armed conflict, women in Ethiopia continue to face gender-based violence including marital rape and other evolving forms of violence such as acid attacks, gang rape, and abduction. In Ethiopia, the male is the traditionally acknowledged master of his family. Marriage is viewed as a means of strengthening the link between families and ethnic groups particularly in the rural parts of Ethiopia. Thus, the role of women in the society is that of cementing family ties through bride-wealth and producing children. The cultural perception of women as the property of men has led to a situation where all actors in the conflict used rape as a weapon. In most Ethiopian societies, at least until recently, men are the main breadwinners. This has facilitated the path for their dominance over domestic and public decisions and further shaped the view that any harm directed at women is harm to the honor of the men in their lives. In the current context of Ethiopia, women and girls continue to be the direct victims of the conflict as they were subjected to sexual violence. However, the attacks targeting women of a certain group also symbolize a desire to shame and degrade the men in their society and their community at large because of the status that is given to them in their society.

Ethiopia’s constitution provides full and equal rights for women under article 25, and 35. Ethiopia’s revised criminal code also provides an explicit prohibition of violence against women and girls, including rape.  It is important to note that Ethiopia’s criminal code also contains provisions related to crimes against humanity beyond sexual violence.  All members of the African Union including Ethiopia are bound to respect the rights protected under the African Charter on Human and People’s Rights. Article 5 of the African charter prohibits all forms of exploitation and degradation including, slavery, slave trade, torture, cruel, inhuman, or degrading punishment and treatment.

The African charter also promotes the liberty and security of a person under article 6.

Interpretations provided by the African Commission on Human and People’s Rights have directly referred to the application of Article 6 not only in promoting  physical safety in the context of arbitrary detention and torture , but also in the protection of women from sexual violence. In addition to the African Charter, article 3 of the International Covenant on Civil and Political Rights calls for the equal protection of women and girls with men in the context of enjoying both their civil and political rights. The same covenant under article 7 provides that women and girls should be protected from ‘torture or cruel, inhuman or degrading treatment or punishment’. Here, it has to be well understood that the human rights committee has defined torture to also include sexual violence.

As a result of the conflict, Ethiopian and Eritrean women and girls were deprived of the protections they had under national, regional, and international human rights law.

Credit to https://thejewishnews.com/2017/12/26/ending-silence-abuse/

It is important to understand that sexual violence is not and should not be considered as an unavoidable outcome of any conflict. It is a crime that is prohibited, preventable and punishable under International Humanitarian Law, International Criminal Law, and International Human Rights Law. Ethiopia is a party to the Convention on the Elimination of Discrimination against Women (CEDAW). Article 1 of CEDAW defines discrimination against women to include gender-based violence that is violence directed against a woman because she is a woman, or because it affects women excessively. In the context of this definition, rape during conflict is discrimination against women directed at them because of their gender.

CEDAW does not allow States to derogate from the Convention’s obligations even during periods of armed conflict or public emergency. State obligations linger during such periods, including due diligence obligations to prevent, investigate, punish and ensure remedy for violations of the rights of women. Under the convention, state parties are also required to control the activities of domestic non-State actors within their jurisdiction. On the other hand, when a state is in direct hostility with a non-state actor that deprives women and girls of their human rights, it is indulged to protect women and girls from right violations.

Under Article 2 of CEDAW, state parties are required to address all aspects of their legal obligation under the Convention to “respect, protect and fulfill” women’s rights. The obligation to protect extends the state’s obligation to defend women and girls from right violations by third parties including non-state actors. States also have an obligation to regulate non-State actors under the duty to protect, so they exercise due diligence to prevent, investigate, punish and ensure reparation for the acts of non-state actors. By depriving women of these protections, all actors to the conflict: Ethiopia’s Defense Forces, Eritrean Defense Forces, Tigray Special Forces and Tigrayan militia groups on the other and Amhara Special Forces (ASF) and Amhara militia groups/Fano committed war crimes.

In elaborating on article 2 of CEDAW, General Recommendation 30 clarifies the application of the Convention to situations of armed conflict including to complex peacebuilding and post-conflict reconstruction processes. It outlines the content of the obligations assumed by state parties and further highlights obligations of non-State actors such as the Tigray People Liberation Front and allied militia and that of Amhara Special Forces (ASF) and Amhara militia groups/Fano. Although non-state actors cannot become parties to women’s rights instruments in general, in the context they exist in Ethiopia, they have an identifiable political structure and exercised significant control over territory and population during the conflict. Hence, they are indebted to respect international human rights laws.

Under human rights law, it is increasingly acknowledged that, at minimum, armed non-state actors who take government-like actions or ‘de facto control’ over territory and people must adhere and safeguard the human rights of individuals and groups. Some special procedures and investigative mechanisms of the Human Rights Council have further recommended that armed groups have human rights obligations, for example, derived from their abilities. It is in this scenario that actors not affiliated with states can be included as subjects of international human rights law, without putting them in the same position as states.

On top of the obligations discussed above,  as it relates to  article 12 of CEDAW, General Recommendation 30 states that parties have an obligation to ensure psychosocial support; family planning services, including emergency contraception; maternal health services, including antenatal care, skilled delivery services, prevention of vertical transmission and emergency obstetric care; safe abortion services; post-abortion care; prevention and treatment of HIV/AIDS and other sexually transmitted infections, post-exposure prophylaxis including care to treat injuries such as fistula. Under the International Covenant on Economic Social and Cultural Rights (ICESCR), which Ethiopia ratified in 1993, pregnant women have the right to health and essential health services that are free when necessary as part of their right to the highest attainable standard of health. The documented limitations on access to essential health care services in conflict affected regions of Ethiopia tantamount to violation of both the CEDAW and the ICESCR.

The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (The Maputo Protocol) that was ratified by Ethiopia on July 18, 2018 elaborates on the right of women to security. The Maputo Protocol protects women from the violation of their human rights both in times of peace and conflict. The protocol also calls on states to protect women seeking asylum and refugee status in their territory. Even though under international law states primarily apply territorial jurisdiction, this obligation also applies equally to both citizens and non-citizens, including refugees, asylum-seekers, migrant workers and stateless persons, within their jurisdiction or active control.

In the context of the conflict in Ethiopia, Eritrean refugee women’s right was violated when members of Eritrea’s Defense Forces and Tigray Special Forces and Tigrayan militia groups subjected them to sexual violence. As a result, their right to be protected from sexual violence was violated. Through these actions, they were deprived of the rights they have under the 1951 refugee convention which Ethiopia acceded to in 1969. Ethiopia also ratified the Kampala Convention in February 2020.

Article 11(2) of the Maputo Protocol further underlines that women in whatever ethnic group they belong to in a conflict should be provided civilian protection. Despite this, women belonging to diverse ethnic groups: Tegaru, Erob, Amhara, Afari, Eritreans were subjected to sexual violence. Ethiopian National Defense Force, Eritrean National Defense Force, Tigray Special Forces and Tigrayan militia groups, Amhara Special Forces (ASF) and Amhara militia groups/Fano violated the right of each individual woman to be recognized as a civilian and be provided with such protection.

Impacts of the conflict on women and girls

In addition to the widely reported sexual violence, restricted humanitarian aid, food, and communication blackout particularly in Tigray negatively affected survivors of sexual violence. The lack of medical supplies and trauma kits further characterize the dire situation in all regions where the conflict took place. As investigation indicate, in all places the conflict took place, women who were raped have reportedly experienced mental health problems. A significant number of girls were also forced to leave their schools early. Access to lifesaving aid including treatment for HIV and STD transmission, contraception, post-exposure prophylaxis as well as psychosocial programs continue to be limited in Tigray. These problems spread widely to Afar and Amhara regions of Ethiopia after the conflict reached these places. Women’s livelihood and sources of income were highly impacted due to the conflict as many women were forced to abandon them.  Research discussing justice for women impacted by conflicts underline that women who survive rape experience trauma and are usually stigmatized by their own communities. As a result, many women could be reluctant to report rape. Limited safe spaces for women and girls also added misery to the negative experience they had to go through as a result of the conflict.

Tigrayan women who were subjected to sexual violence also fled to Sudan, where the conditions of women particularly in Darfur, the Nuba Mountains and along the Blue Nile are still impacted by the prolonged civil war and ongoing governance challenges. An increase in the number of women who migrated to Sudan was documented after the conflict expanded its reach to Amhara and Afar.

Calls to actions

As it stands now, Ethiopia’s priority should be women and girls caught in the conflict whose plights can only be addressed through broader efforts including a sit down with all concerned actors, an effective law enforcement, and criminal prosecution. It is also important that Ethiopia’s post conflict-justice priorities for women and girls focus not only on Civil and Political rights but also on Economic, Social, and Cultural rights.

In the short term, the following critical actions need to be taken:

  1. End the pain and suffering of women, and girls through pledging for unconditional ceasefire, and arms embargo; design effective disarmament, demobilization and reintegration processes and ban arms proliferation in the different regions of Ethiopia;
  2. Take appropriate legal and institutional measures to protect women and girls at risk of sexual violence, including internally displaced and refugee women belonging to affected ethnic groups;
  3. Take appropriate legal, institutional, and financial measures to ensure the provision of comprehensive services for survivors of sexual violence including but not limited to medical, psychological, and social services necessary for their rehabilitation and reintegration with their community;
  4. Establish multipurpose community centers that link immediate assistance to economic and social empowerment and reintegration, and mobile clinics in places where the conflict ensued;
  5. Mitigate the costs of the war on women and girls through collaboration with civil society.
  6. Avail women’s rights defenders and experts working with survivors of sexual violence with counseling services and on job trainings to help them cope with stress and trauma.

In the long term, the following actions need urgent attention:

  1. Collaborate with local and international fact-finding missions to ensure that all perpetrators of sexual and other violence against women during the conflict are properly identified and prosecuted. This task includes designing prosecutorial strategies and policies that help in identifying particularly those who face greater responsibility;
  2. Build the capacity of the judiciary in Ethiopia including in the context of transitional justice mechanisms, to ensure its independence, impartiality and integrity including through technical cooperation with experts and key stakeholders;
  3. When possible, constitute a separate court that can adjudicate cases of sexual violence, and design non-judicial remedies such as truth commissions and reparations. Despite the long-standing challenges within the Judiciary, Ethiopia never had special courts to investigate and prosecute human rights violations;
  4. Protect women’s rights defenders from state or non-state attacks that undermine their equal and meaningful participation in political and public space;
  5. Ensure that legislative, executive, administrative and other regulatory instruments do not restrict women’s participation in the prevention, management and resolution of the conflict. Increase the number and ethnic composition of women commissioners under the newly established Commission for National Dialogue;
  6. To promote inclusion and transparency under the National Dialogue Commission, the government must constitute an advisory committee for the newly established Commission for National Dialogue and include survivors of sexual violence in the discussions;
  7. Plan specific interventions to contribute to opportunities for women’s economic empowerment including through promoting their right to education.

About the Author:

Dunia Mekonnen Tegegn is a human rights lawyer who has been working with the American Bar Association’s Center for Human Rights where she coordinated the Center’s work on Ethiopia through close collaboration with Ethiopia’s Democracy and Human Rights CSOs to ensure human rights are prioritised and protected within the criminal justice system.  She has previously worked with Amnesty International USA as an Almami Cyllah Fellow, the UN OHCHR East Africa Regional Office, the United Nations Agency for Gender Equality and Women’s Empowerment and the United Nations Children’s Fund. Dunia also taught law at Haramaya University Law School other universities in Ethiopia. In 2016, she was named as the first Ethiopian/African woman to receive a National Security LLM with distinction from Georgetown University’s Women’s Law and Public Policy Program.  She holds a Bachelor of Laws degree from Bahir dar University, Ethiopia and a Master’s degree in Human Rights from Addis Ababa University. Dunia also co-manages an NGO called EmpowergirlsNow that focuses on raising awareness on FGM in Sub-Saharan Africa.

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Making sense of Africa’s massive abstentions during the adoption of the UNGA resolution on the Aggression Against Ukraine

Author: Sâ Benjamin Traoré
Assistant Professor of Law at the Faculty of Governance, Economics and Social Sciences of the Mohammed VI Polytechnic University, Rabat (Morocco).

Introduction

The ongoing Ukrainian crisis has shown profound divisions among African countries. The UN General Assembly’s voting on 2 March perfectly captures such a division. Resolution A/RES/ES-11/1, titled “Aggression against Ukraine”, was adopted by a vote of 141 in favour and 5 against, with 35 abstentions. Of these 35 abstentions, 17 were African states including Algeria, Angola, Central African Republic, Congo, Equatorial, Mali, South Africa, Tanzania, and Zimbabwe. This figure represents almost half of the abstaining states. Eight African countries did not even submit their votes (including Burkina Faso, Cameroon, Ethiopia, Morocco, and Togo) and Eritrea voted against the resolution. All in all, almost half of the African states did not vote in favour of the United Nations General Assembly (UNGA) resolution. The split between African states in the voting also reflects the divide in public opinion about the Ukrainian crisis across African countries. While the West has shown unfailing support for Ukraine, Africa and the rest of the world have adopted a more ambivalent position. The significant number of African abstentions has raised international concerns, especially in the West. This voting attitude of African states abstaining remained almost the same during the adoption of the UNGA resolution on humanitarian assistance to Ukraine on 24 March. South Africa had proposed a rival resolution that was not eventually discussed by the UNGA. On 7 April, more African countries abstained and many other voted against the resolution suspending Russia from the Human Rights Council. It is also well-known now that African countries have not adopted sanctions against Russia despite the avalanche of sanctions adopted by western countries.

About the Author:
Sâ Benjamin Traoré is an Assistant Professor of Law at the Faculty of Governance, Economics and Social Sciences of the Mohammed VI Polytechnic University, Rabat (Morocco). He holds a Doctorate in Law from the University of Neuchâtel and an LLM from the Geneva Academy of International Humanitarian Law and Human Rights. His academic works cover various subjects ranging from Public international law, the law of international organizations, the use of force in international law, human rights, international humanitarian law and Business and human rights. He is the author of a book on The Interpretation of United Nations Security Council Resolutions (Helbing, Basel, 2020).

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Sexual harassment in higher education institutions: the law and the practice

Author: Kebkab Sirgew Gelaw
International Human Rights Lawyer

Sexual harassment has been a fact of life ever since humans inhabited the earth.[1] Despite its existence, it has been ignored and the tradition has made women keep quite concerning the act as if nothing went wrong. It is hard to unthink what you know, but there was a time when the facts that amount to sexual harassment did not amount to sexual harassment, the facts amounting to the harm did not socially “exist,” had no shape, no cognitive coherence; far less did they state a legal claim.[2]

Sexual harassment is a manifestation of the male domination and has clearly indicated that the domination extended socially, economically, and politically. Women were socially expected to be passive about many activities, which the society believed to be challenging, and those challenges were passed on to men to be handled.

About the Author:
Kebkab Sirgew Gelaw (LL.B, MA, LL.M) is a senior legal researcher with more than 10 years of work experience in the field of law and International Human Rights. Kebkab has served in various Executive and Leadership positions. She also worked as a part time lecturer at the School of Law and Governance Studies at Addis Ababa University and others.

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War, global health and human rights: drawing inspiration from the Russia-Ukraine crisis

Author: Abasiodiong Ubong Udoakpan
Data Protection Advisor, Researcher and a Human Rights Lawyer

Introduction

The first principle of health is life and war is a direct threat to life. For millions of people worldwide, avoiding and not only surviving war is the predominant objective in their daily existence. Sadly, the situation in Eastern Europe creates a global crisis for public health, therefore, ending the war would be a major step towards the promotion of the health and well-being of persons in this region. The challenge presented by this ongoing regional conflict also marks a crucial opportunity to prioritize human rights and public health concerns in ongoing foreign policy and diplomatic efforts by concerned nation-states. Ergo, this article seeks to explore the human rights threats that are associated with the Russia-Ukraine conflict especially as it relates to public health.

Destruction/Lack of Access to Health Care Facilities and Displacement

The devastating effects of war can be very grievous to health care. The harsh realities of war range from damages to the health infrastructure to the displacement of citizens. During this crisis, Russian forces have begun indiscriminately bombing civilian targets, including in a missile strike that destroyed the Pavlusenko maternity hospital, killing at least two people.[1] This carnage puts more pressure on the health care system in Ukraine, which faces a possibility of total collapse if the war rages on. It is worthy of note that attacks on healthcare facilities and workers amount to a breach of medical neutrality and it is also a clear violation of International Humanitarian Law. We are also not left in doubt that access to health care will be extremely difficult in these times.

Globally, the latest figures from the UN estimate that around 70 million people are currently displaced due to war. However, as at 9 March 2022, about 2 million people have now fled Ukraine due to the Russian invasion, according to the United Nations. At this rate, the situation looks set to become Europe’s largest refugee crisis this century, and UNHCR is mobilizing resources to respond as quickly and effectively as possible.

This displacement can be incredibly detrimental to health, with no safe and consistent place to sleep, wash, and shelter from the elements. It also removes a regular source of food and proper nutrition. As well as impacting physical health, war adversely affects the mental health of both those actively involved in conflict and civilians. Forced migration creates further physical and mental health problems during transit, in an enforced encampment, and because of restricted entitlement to health care in countries hosting refugees.

Access to Food, Water and Sanitation

War inevitably reduces access to clean water, food, and sanitation which are critical for a country. According to a UN report on the conflict, Ukraine’s citizens have the most difficulty with accessing improved water sources, uninterrupted water access and materials for water purification. Additional issues that households experience include immediate access to trucked-in water and bottled water in kiosks and shops.[2] Of particular concern is the unhygienic storage of water, such as in bath tubs and containers without lids, which create additional health concerns. This could further increase the risk of contracting communicable diseases.

Mental Health

The negative impact on the mental health of both countries cannot be overemphasized. People who live through war face psychologically challenging situations, often being uprooted from their homes, facing food insecurity, and constant fear of death and injury to name a few. This inevitably causes damage to a person’s psychological well-being and can exacerbate existing problems. Sadly, protracted conflict in Ukraine could lead to negative consequences for the population’s wellbeing, and the need for mental health and psychosocial support remains paramount.

Recommendations- A Road to Peace

The Russia-Ukraine crisis is multi-faceted, however, peace may be reestablished in various ways. Negotiations between the two, with or without an intermediary, may resolve the situation. Peace may be reestablished by these negotiations or by the pressure of international diplomacy. A return to lasting peace depends not only on the cessation of hostilities but especially on a recognition of the causes that led to the conflict. In international conflicts, the solution is usually political, such as the Russia-Ukraine conflict, and the UN plays a primary role. In the longer term, the maintenance of a lasting peace will involve socioeconomic change. There is also a need for the UN to link emergency interventions to a long-term strategy based on development and rehabilitation.

It is also recommended that where the United Nations Charter and human rights are being violated such as in Ukraine, the United Nations should devote equal attention to all victims of the conflict irrespective of race. There is serious concern about the treatment given to African nationals and people of African descent at the borders of Ukraine, some of whom are not allowed to cross and move to safety. Thus, European countries should take steps to resolve this situation as all people have a right to cross international borders during times of conflict. African countries should also fast track measures to ensure that Africans who seek to return home are brought back safe and sound.

Finally, it is recommended that as international actors, including the United Nations, the donor organizations, the NGOs, and humanitarian groups weigh in on the situation in Ukraine, they should be preoccupied with peacemaking with sincerity of purpose and the rehabilitation of war-torn Ukraine. Measures should also be put in place to rehabilitate and also facilitate the reconstruction and development of Ukraine in the long run.

[1] Brian Till: ‘Is Russia targeting Ukraine’s Hospitals?’ https://newrepublic.com/article/165565/russia-bombs-ukraine-hospitals accessed 4 March 2022.

[2] Ukraine- Situation Reports, https://reports.unocha.org/en/country/ukraine/card/49C1na6B2J/ accessed 5 March 2022.

About the Author:
Abasiodiong Udoakpan is a Data Protection Advisor, Researcher and a Human Rights Lawyer with an LL.M in International Human Rights. His research blueprint centers on the intersection of International Law, Human Rights and Global Health & Policy with interests in Mental Health, Climate Change, Food & Drug.

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Questions at the Interface Between Automated Decision Making, Administrative Law and Socio‑Economic Rights: The Example of Access to Affordable Housing in Kenya

Author: Alexander Beyleveld
Senior Researcher at the Mandela Institute, University of the Witwatersrand

A number of African governments have begun to integrate automated decision-making (ADM) into processes that give effect to fundamental rights, which has given rise to a number of interesting questions about the manner in which different areas of law interact in ADM contexts.  ADM has thus far been most directly regulated by data protection legislation, such as the Kenya Data Protection Act (KDPA).  Automated decisions, however, also implicate administrative law, and constitutionally enshrined rights related to administrative action.  An additional layer of complexity is added in situations where automated decisions form part of the process governments have elected to use to give effect to fundamental rights, especially when a number of different rights are implicated.  Understanding the interface between ADM, data protection laws, administrative law and constitutional law, then, will only continue to grow in importance in assessing the extent to which governments are giving effect to certain fundamental rights – as well as for assessing the extent to which governments and individuals are actually reaping the potential benefits of ADM technologies in the first place.

About the Author:
Alexander Beyleveld is a legal, economics and policy professional with experience in the public, international public, private, NGO and academic sectors. Alex holds a PhD from the Graduate School of Economic Globalisation and Integration at the World Trade Institute, University of Bern, is an admitted legal practitioner of the High Court of South Africa (enrolled as an attorney) and is currently a senior researcher at the Mandela Institute (Wits Law School). Alex predominantly works on issues of economic law (international trade, competition and taxation for the most part), technology and public policy, with a particular focus on economic development, inequality and inclusion.

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