Kenya: “JMM” decision: Abortion legal after rape; Restore training guidelines

reprohealthlaw blog

Many thanks to Benson Chakaya, a D.Phil Candidate and M.Phil Graduate in the LL.M./M.Phil (Sexual & Reproductive Rights in Africa) degree program at the Centre for Human Rights, Faculty of Law, University of Pretoria. He also serves as National Coordinator for Right Here Right Now Kenya ​hosted by the ​Family Health Options Kenya and formerly worked with the Network of African National Human Rights Institutions. His full case summary and comment has been added to the online update of Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts.

We also thank Bernard Dickens, Professor Emeritus of Health Law and Policy at the University of Toronto, co-editor and author of Abortion Law in Transnational Perspective: Cases and Controversies (2014), who provided a concise overview of this important decision:

Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General& 2 others [2019] eKLR, Petition No…

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Making policy changes on the domestic level: a critical exposition of the Convention of the Rights of Persons with Disabilities (CRPD)

Author: Oludayo Olufowobi
Law student, University of Lagos

Fifteen percent of the world population experience some form of disability, with between 110 million and 190 million people experiencing significant disabilities. Persons with disabilities are more susceptible to experiencing more adverse socio-economic or living conditions compared to others. The Convention on the Rights of Persons with Disabilities (CRPD) aims to bridge this gap. At the domestic level, persons with disabilities are most times subjected to live as second-class citizens. Discriminatory practices in our society and deficits in inclusive infrastructure exacerbate this problem. It is against this premise that this article seeks to explore the peculiarities of the Nigerian landscape, taking into account its plaguing insecurity, infrastructural deficits, and lapses in the protection of the human rights of persons with disabilities. There is a focus on the Discrimination Against Persons with Disabilities (Prohibition Act) 2018 vis-a-vis the government’s quest to realise the objectives of the CRPD.

Disability is an encapsulating term for impairments, activity limitations, and participation restrictions, referring to negative aspects of the interaction between an individual (with a health condition) and that individual’s contextual factors (environmental and personal factors). Disability is a part of the human condition. There are predictions that everyone would experience at least both temporary or permanent impairment in life, and those who survive until old age would have trouble in functioning. There has been debate on the best approach to dealing with persons with disabilities. The CRPD established a human rights-based approach upon its adoption on 13 December 2006 and entering into force on 3 May 2008. This was a replacement for the charity approach, following a forceful call by persons with disabilities around the world to have their human rights respected, protected, and fulfilled on an equal basis with others. This instrument accentuates the human diversity and human dignity of all persons, persons with disabilities inclusive.

The introduction of the Sustainable Development Goals (SDGs) marked a turning point in recognising the challenges faced by persons with disabilities and further bolstered the achievement of the objectives of the CRPD. It effectively covered the lapses in the Millennium Development Goals, because it opened the floodgate for mainstream participation of persons with disabilities as stakeholders in government. In leaving no one behind, the SDGs include persons with disabilities: seven targets and eleven indicators of the 17 goals have an explicit reference to persons with disabilities and the need for their consultation by the governments, the UN system, civil society, and stakeholders.

The CRPD is the first international instrument, which explicitly makes provisions for the rights of persons with disability and contains robust provisions towards this end. Article 3 of the Convention proclaims the principle of respect for the individual autonomy of persons with disabilities and the freedom to make their own choices.  Article 12 of CRPD recognises the equal rights to enjoy legal capacity in all areas of life, such as deciding where to live and whether to accept medical treatment. The drafters of this instrument did not fail to recognise precedence in other instruments including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. For instance, Article 15 of the Convention posits that PWDs have the right to be free from torture, or cruel, inhuman or degrading treatment or punishment, in particular, to scientific or medical experimentation.

In contrast, the legislation in Nigeria for persons with disabilities has lacunae. It does not fare well compared to other African jurisdictions like South Africa that have specific legislation on disability and guidelines for implementation. Although the introduction of the Discrimination against Persons with Disabilities (Prohibition) Act, 2019 is a step in the right direction there can still be improvements.

There is an inextricable link between poverty and disability. However, the Act fails to address this sufficiently. This is because although proscribing discrimination against persons with disabilities by employers, there is no real enforcement mechanism put in place. In addition, it is necessary that the government consider bolstering this effort with skill development schemes and other inclusive social protection schemes that are inclusive of women and girl children because of their vulnerability. This is against the background of the high unemployment rate ravaging the nation; this type of initiative affords persons with disability a level playing field for economic empowerment.

The legislation like others in time past, has failed to cater for political participation of persons with disability. Although in the previous elections, there were provisions to aid persons with disability exercise their franchise, there is room for improvement in terms of those covered. In addition, there is no provision for their participation as candidates for political positions through, for instance affirmative action. The government should consider a quota system to ensure their participation. This is because it would foster their ability to implement policies that will better serve their needs as a group.

To achieve full implementation of this legislation, the Nigerian government should consider using the Washington Group questions. The Washington Group developed these questions as a United Nations Statistical Commission City Group. It aims at promoting and coordinating international cooperation in generating statistics on disability suitable for censuses and national surveys, to provide basic information on disability that is comparable worldwide. The Nigerian government can leverage these questions on disability status in national census or surveys to facilitate data disaggregation into national policies on education, health, disaster risk reduction

Bearing in mind the insecurity in Nigeria, especially the Northern areas, and statistics that reveal that in crisis-affected communities, persons with disabilities are the most marginalised with 80% living in poverty as a result of persecution, conflict, and human rights violation, the legislation should seek to improve inclusive humanitarian response. In providing these humanitarian actions, the government should adopt a twin-track approach. This is such that on one hand, it strengthens the participation of persons with disabilities through the delivery of disability-specific services, capacity development and advocacy; to ensure that persons with disabilities and their representative organisations can equally access and contribute to humanitarian responses. On the other hand, the government should ensure that the relevant authorities and stakeholders have clear knowledge of the needs of persons with disabilities during a humanitarian response such as rehabilitation services, reasonable accommodation, and accessible information in Braille amongst others.

About the Author:

Oludayo Olufowobi is a fourth-year law student at the University of Lagos. He has interests in intersections between law, finance, and technology and is deeply concerned about the welfare of persons with disabilities. He is an avid researcher and writer. He is currently the Deputy Editor-in-Chief for UNILAG Law Review and the Under-Secretary-General (Research) for the Lagos Model United Nations 2021.

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Some reflections on the harmonisation of business law in Francophone Africa and constitutionalism

Author: Balingene Kahombo
Professor of Public Law and African International Relations, Faculty of Law, University of Goma (Democratic Republic of Congo)
Author: Trésor M. Makunya
Doctoral Candidate & Academic Associate, Centre for Human Rights, Faculty of Law, University of Pretoria (South Africa)


The Organisation for the Harmonisation of Business Law in Africa (OHADA) a supranational organisation established by the Treaty of Port-Louis of 17 October 1993 to standardise business legislation and regulation in Africa. It was believed that the creation of OHADA will attract foreign investors because its norms increase legal and judicial security and certainty. The imperfection, disparity and inaccessibility of existing business-related legal rules and judicial institutions were identified as major problems to address. The OHADA sought to combat the ‘backwardness’ of African business law by adopting legislation regulating different aspects of business, such as company law, simplified recovery procedures and enforcement measures, and labour law. These laws are known as uniform acts.

In a contribution we presented at the Seventh Stellenbosch Annual Seminars on Constitutionalism in Africa (September 2019), we challenged the claim that the OHADA legal and institutional arrangements serve economic interests of Francophone African countries and citizens. The analysis was conducted through two lenses; the extent to which the OHADA embodies Pan-African ideals and constitutional issues which it raises within its member states.

This article discusses two basic arguments. First, Pan-Africanism generally viewed as the ideological driver of the African unity and the fight against colonialism and neo-colonialism forms part of the post-1990 Francophone Africa’s constitutionalism. Most Francophone Africa’s constitutions commit, under preambles and substantive provisions, to seek African unity through cooperation, association or by entering into community organisations. OHADA is an economic integration project imposed on its member states, most of them being former French colonies. It promotes a neo-colonial agenda of the former coloniser. This poses serious challenges to African constitutionalism. Second, the coming into being of the OHADA Treaty and the adoption of uniform acts resulted in promoting interests of big businesses and foreign companies at the expense of local entrepreneurs. This is despite the fact that most constitutions in Francophone Africa proclaim that their states are ‘social state or Republic’ and recognise the right to free enterprise or private initiative to either citizens/or everyone, which may entail an obligation to protect local entrepreneur’s rights.

Origin of the OHADA

The decision to create OHADA was made during the meeting of Ministers of Finance of Franc Zone in Paris (France 1991) and approved by Heads of State in 1992 in Libreville (Gabon). The organisation intended to harmonise business laws in former French colonies to reduce and eliminate differences in national business laws. It also intended to attract foreign investments, to further economic integration in Africa and enhance judicial and legal security. OHADA made three transformations within the African business regulation landscape. The adoption of legislation directly enforceable in member states, including by domestic courts. The establishment of a Council of Ministers. The Council is tasked with adopting uniform acts without direct participation of national parliaments. Chief among the transformations is the establishment of an apex Court based in Abidjan, the Common Court of Justice and Arbitration. Some authors have noted that this Court of last instance in business matters is located far from ordinary litigants. While big businesses may have financial resources to litigate cases before it in Abidjan, this might not be the case of those located in remote areas, like in the Democratic Republic of Congo.

OHADA and Pan-Africanism

Under the auspices of the Organisation of African Unity/African Union, the African Economic Community was established through the Abuja Treaty to enhance economic integration in Africa. Regional Economic Communities (RECs) established under Pan-African instruments reinforce the community. Contrary to OHADA, existing RECs operate within the Pan-African/African Union ambits. They were not created under the guises of former colonial powers, their creation is largely not based on a shared colonial legacy and consider the diversity of legal traditions in Africa. OHADA lacks direct links with the African Union (AU) and its organs, for instance the Assembly of Heads of States, Executive Council and the Pan African Parliament. Uniform acts it adopts are generally drafted by French and African experts through the financial support of foreign donors including the French government.

At the substantive level, most of these acts are based on French business laws. The level of participation of national parliaments (to give more legitimacy and ensure that national specific issues are considered) is very low. As Salvatore Mancuso has pointed out, the OHADA regime remains based on western ideas of business and services that may, and have, overlooked indigenous practices. Charles Fombad has argued that the OHADA regime paid ‘more attention to regulating transactions involving big businesses and multinational corporations than it does to regulating transactions involving smaller businesses or even the informal economy, which is the driving force of African economies in the region’.  ‘Informal contracts’ as a practice largely widespread had been eschewed in the Uniform Act on General Commercial Law, probably because its drafting was chiefly based on the Convention on Contracts for the International Sale of Goods.

In relation to membership, Article 53 of its founding treaty opens the organisation to the accession of any member state of the OAU/AU and of any non-OAU/AU member state, which may be invited to accede to it, by common agreement of the member states. One may think that the expression ‘any non-OAU member state’ necessarily refers to an African state. This might not be entirely the case. If the intent was to limit the membership of OHADA to African states, the logical wording should have been ‘any other African state’. Yet, the epithet ‘African’ was avoided in this provision, which makes the accession of non-African states possible. This is moreover the most plausible hypothesis because all African states are destined to be members of the OAU/AU. There would be no other African country outside the latter to adhere to OHADA. Such a broad opening of membership does not exist in any other Pan-African international organisations where the status of African state is a peremptory criterion for becoming a member.

Free enterprise and private initiative

Most Francophone Africa constitutions adopt a liberal approach to regional integration and legal harmonisation. Under the Benin, Burkina Faso or DRC constitutions, ‘states may enter into cooperation or association with others provide that principles of equality, mutual respect of sovereignty, reciprocal advantages and national dignity’ are preserved. They do not require prior assessment and identification of national economic interests which may be affected by economic integration. They also do not require legal harmonisation to be preceded by wide domestic consultations. Although constitutions of Benin and Burkina Faso have provisions that may foster popular consultation, their formulation suggests that this is not compulsory. Under Article 58 of the Benin Constitution, the President of the Republic ‘may’ submit a question on sub-regional or regional integration to referendum. The provision is faulty because submitting such a matter to referendum is not mandatory. The President of the Republic can also avoid referendum and merely consults the Speaker of the National Assembly and the President of the Constitutional Court.

We argue that this constitutional weakness could have been resolved by Constitutional Courts which had the duty to control whether the OHADA Treaty was consistent with constitutions before the executive could ratify it. Unfortunately, the analysis of their decisions demonstrated that the control they performed remained formalistic in nature and substantive issues were not dealt with.

As a consequence, the manner in which the new legal regime will positively and negatively affect the rights of local entrepreneurs to free enterprise and private initiative was never assessed. The rights of local entrepreneurs are being undermined by the fact that big businesses are mostly allowed to conduct economic activities in areas which, before the advent of OHADA, were the preserve of small scale businesses. A 2018 French Ministry of Economy and Finances report noted that the Uniform Act on Commercial Companies and Economic Interest Groups positively impacted the creation of private limited liability companies, the bulk of which were foreign companies. This may have rendered local businesses less lucrative, some of which could be forced to close down. Although the new regulations do not specifically preclude any person from undertaking the type of trade they wish to conduct, laws and regulations may indirectly discourage them from doing so. The South African Constitutional Court once ruled that ‘one may also conceive of legislative provisions that, while not explicitly ruling out a group of persons from choosing a particular trade, does so in effect, by making the practice of that trade or profession so undesirable, difficult or unprofitable that the choice to enter into it is in fact limited’.

Two ways to deliver OHADA’s sins

One way to cure the OHADA sins is to enable national parliaments to participate in the drafting and the adoption of uniform acts. Another way can be to ensure that the OHADA Council of Ministers adopt model laws to be approved/adjusted by parliaments to local realities. Further, the OHADA can be incorporated within the African Union economic architecture. In this instance, the drafting and adoption of uniform acts could be conducted by an African Union organ or specialised agency through an inclusive and participative process.


About the Authors:

Balingene Kahombo is an Associate professor of Public Law and African International Relations at the University of Goma (Democratic Republic of Congo). He is a Member of the Center for Research and Studies on the Rule of Law in Africa (Centre de Recherches et d’Etudes sur l’Etat de Droit en Afrique–CREEDA).

Trésor Makunya is an Advocate of the Court of Appeal of North-Kivu (DRC), a Visiting Lecturer at the Notre Dame University of Tanganyika (DRC). He is a Doctoral Candidate and the Publications Coordinator at the Centre for Human Rights, Faculty of Law, University of Pretoria.

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Addressing gender-based violence against women and children in Africa

Author: Kwasi Asiedu Abrokwah
Operational Supervisor, Prime Legacy Construction Pty; Communications Director, The Great People of South Africa


Gender-based violence (GBV) is defined as violence that is directed against a person on the basis of their gender or sex, including acts that inflict physical, mental, or sexual harm (intimate partner violence or non-intimate partner violence), suffering threats of such acts, coercion and deprivations of liberty. According to the United Nations Women’s Organisation (UNWomen), it is estimated that 35 percent of women worldwide have experienced either physical or sexual violence at some point in their lives. In the West African region, Liberia, Cote d´Ivoire and Sierra Leone are examples of countries where GBV were used as weapons of war. GBV has been a huge problem in Africa where women and children are violated by men. GBV occurs in various forms, including femicide, female genital mutilation (FGM), child marriage, intimate partner violence, sexual harassment, sexual violence and kidnapping. It may also occur in the form of socio-economic violence, including discrimination and denial of opportunities or services on the basis of sex, gender, sexual orientation.

African Heads of States have failed to put measures in place to address GBV among women and children, which has become a concern to women’s rights groups and civil society organisations across the continent. In South Africa, gender-based violence has been a major concern, as women and children are assaulted, kidnapped and killed. Civil society organisations and women groups are making their voices heard through protesting for their rights and for harsher sentences for the perpetrators. Inefficient criminal justice system means that many perpetrators are left off the hook.

Causes of GBV

There are a number of factors that increases the exposure of women and children to GBV in African, including the lack of physical security owing to the break-down of law and order, presence of armed forces or armed groups (such as the Boko Haram abduction of girls in Nigeria) and the collapse of family, social or community structures. Women and girls are especially vulnerable when leaving their communities in search of work, food or shelter, which makes poverty one of the risk factors. That is, lack of education and livelihood opportunities, and inadequate access to shelter, food, water and income generation can increase exposure to GBV, including forced prostitution or survival sex.

Another root cause of GBV is social or political factors – discriminatory social or religious laws, norms or practice that marginalises women and girls and fail to respect their rights. Others include lack of confidence or trust in social or public institutions, including law enforcement and justice institutions that discourages victims or survivors from seeking redress. Furthermore, there are inadequacies in mechanisms and avenues for protection and redress. Judicial barriers and lack access of justice institutions and mechanism, results in a culture of impunity for violence and abuse. Lack of adequate and affordable legal representation and advice, lack of adequate protection for victims or survivors and witnesses pose a further challenge to fighting GBV. There are also inadequate legal frameworks, including national, traditional, customary, religious laws, that discriminate against women and girls and fail to guarantee their rights, or exposes them to further harm and abuse.

Effects of GBV

Gender-based violence can have long term and life–threating consequences or effects for the victim or survivor. Theses can range from permanent disability or death to a variety of physical, psychosocial and health related problems that often destroy the survivor´s self-worth and quality of life, and exposes her to further abuse. There are emotional and psychological effects of GBV, which includes depression, mental illness, shame, self-hate, self-blame, and post-traumatic stress disorder. Reproductive health challenges such as unwanted pregnancy, fistulas, miscarriage, unsafe abortion, fistulas, sexually transmitted infections (including HIV/AIDS), sexual disorders, menstrual disorders are also effects of GBV. Other effects of GBV include loss of role in the society, social stigma, rejection and isolation, increased gender inequalities and loss of livelihood and economic dependency.

Ways of addressing GBV

Target 5.2 of the SDGs aim at the elimination of all forms of violence against women and girls in both public and private spheres. This requires all stakeholders in the Africa region to improve and work towards eliminating violence against women and children. One of the measures necessary in addressing GBV is the responsibility of the state, which includes taking all necessary legislative, administrative, judicial and other measures to prevent, investigate, and punish acts of GBV. To that effect, states for example, must criminalise all acts of GBV and ensure that national laws, policies and practices are adequately respected and protect human rights without discrimination of any kind, including grounds of gender. States should investigate allegations of GBV thoroughly and effectively, prosecute and punish those responsible, and provide enough protection, care, treatment and support for victims/survivors, including access to legal aid, psychosocial support, rehabilitation and compensation for the harm suffered. Furthermore, states must take measures to eliminate all forms of beliefs and practices that discriminate against women and take action to empower women to strengthen their personal, legal, social, and economic independence. Another way to address GBV is the role civil society organisations, which entails organising workshops and seminars about GBV, educating women and men, providing support for women who have suffered from GBV, and holding states accountable for failure to take appropriate measures.

In conclusion, GBV is a serious cancer that requires a concerted effort from all stakeholders, including state actors, international human rights monitoring mechanisms, and civil society groups. Victims/survivors should be given maximum care and support, violations must be properly investigated, offenders prosecuted and sentenced to serve as deterrence.

About the Author:

Kwasi Asiedu Abrokwah is Ghanaian resident in Cape Town where he works as the Operational Supervisor at Prime Legacy Construction Pty in South Africa. He is also the Communications Director for The Great People of South Africa, a non-profit organisation in Cape Town, South Africa. Kwasi is passionate about human rights and gender issues. He holds a Diploma in Aviation Studies from the International Air Transport Association(IATA) and a certificate in Understanding Human Rights from Young African Leaders Initiative.

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When policy isn’t enough: Examining accessibility of sexual and reproductive health rights for displaced populations in South Africa

Author: Lidya Stamper
Research Fellow, Centre of Human Rights, University of Pretoria

The right to sexual and reproductive health services (SRHS) is a fundamental human right for all, guaranteed under international human rights law. Legal protections outlining these rights have been recognised in South Africa through international, regional and domestic instruments. More specifically, these protections are highlighted and specified in documents such as the ‘Convention on the Elimination of all Forms of Discrimination Against Women’ (CEDAW), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), and the 1996 Constitution of the Republic of South Africa. Despite the presence of these legal frameworks, outlining equality and non-discrimination, persistent inequalities continue to act as barriers to exercising SRHS. Legislative and policy advances in SRH have been undermined by a lack of successful implementation and improvements in service delivery, service accessibility, and service availability. Implementation challenges combined with a fragmented health sector have resulted in various obstacles including a lack of standardised care, gaps in the dissemination of information, overburdened health facilities, and provider opposition. Social conditions such as gender inequality, poor access to health services, and provider attitudes continue to reinforce these barriers, undermining many of the intended outcomes of the existing legislative and policy advances in the SRH realm.

While access inequality has become a recognised problem amongst all individuals, the right to care continues to disproportionately impact displaced populations in the country, whose numbers have dramatically increased in the past 20 years.[1] Within South Africa, and specifically within Johannesburg, critics have argued that large-scale development projects reflect one of the largest reasons for internal displacement in the post-apartheid era. These massive evictions often create situations of arbitrary displacement, in which individuals are torn from their homes, communities, original habitats, sources of work, and access to adequate health facilities. Displacement often places individuals a distance away from their regular point of access to health services, often leading to an infringement on their right to freely and fully access SRHS. As this year marks the 20th anniversary of the UN Guiding Principles on Internal Displacement, it is now more important than ever to advance and protect internally displaced persons (IDP) by ensuring equitable access to fundamental human rights services.

Due to the chaotic nature of the public health sector, many non-governmental organisations (NGOs) have undertaken reproductive service initiatives in areas with a weak or non-existent capacity to provide these services. This past year, I sat down with over 30 international, regional, and national organisations with the goal of identifying key variables that may impact rights-based SRHS intervention programming for IDP populations within the country.

My research findings reveal that providers play a critical role in determining access to, and quality of, SRHS outcomes. Participants explained that rights-based reproductive health frameworks and policies have little impact on everyday services when providers are not included in the creation and implementation of these initiatives. Organisations working specifically with community-based health clinics repeatedly referenced “moral policing,” “stigma” and “discriminatory attitudes” as some of the biggest barriers to accessing care. Gaps in sensitisation training and rights literacy as well as community-based beliefs around SRHS has made the baseline for accessing care extremely difficult. When individuals hold reservations about the judgmental and disapproving attitudes of their service providers in public sector facilities, they are more likely to seek alternative abortion options outside of the formal health sector. As noted by one of the interviewees:

“Individuals become overwhelmed with all the barriers from community partners, staff, friends, family etc…so much so that they stop accessing services because nobody’s going to go where they’re not wanted.”

The top-down policy process purportedly characterising the health system not only has led to a substantial gap in communication between policy makers and health care workers, but has reportedly exacerbated pre-existing challenges in health facilities such as overcrowding and staff shortages. Organisations working specifically with displaced populations not only re-echoed these challenges but spoke to the unique ways in which migrant populations have been impacted by these attitudes. Medical xenophobia in the form of delayed waiting periods, slower staff response times, and/or being turned away from treatment continue to disproportionately impact individuals on the move within the country. Intergovernmental establishments such as the International Organisation for Migration (IOM) further reference documentation or a lack thereof, as well as language barriers as indicators of service inaccessibility within migrant populations in South Africa.

For many, the context in which they live in determines access. Outside of sociocultural obstacles, economic circumstances and structural environments were considered the largest indicators of SRHS inaccessibility, with one participant explaining that:

“Clearly, everything we do as human rights activists is affected by people’s socioeconomic circumstances…personal finance mitigates any problem in terms of human rights access.”

For those reliant on public health facilities for SRHS, clinic availability and proximity become significant indicators of accessibility. High levels of poverty and unemployment within the country leaves individuals with little to no money to access transportation to the clinics as well as services. However, once an individual physically arrives at a clinic, findings reveal that service access remains challenging. Underfunded clinics with staff shortages often characterise facilities providing SRHS. Stock-outs and shortages were reportedly extremely common leaving the individual with only one contraceptive option, which undermines an individual’s ability to make autonomous decisions about their health. Barriers such as inconsistent hours, location, wait times, and underdeveloped facilities continue to impede access to SRH rights-based frameworks.

While these challenges impact everyone’s reliance on the public health system, populations on the move reportedly experience these barriers at higher rates, due to the inconsistent nature of service accessibility. Participants explain that the challenges facing vulnerable communities become exacerbated amongst populations on the move, as economic, physical, and structural insecurity are found to be more prevalent within displaced and migrant populations.

“When you have no fixed address or your address is constantly changing because of displacement, maintaining the details needed by service providers becomes extremely difficult, how can you provide contact details with no address?”

Barriers to accessing SRHS are multiple and often interdependent, with poverty, discrimination, gender inequality, resource and capacity constraints, and adverse political and legal environments working to undermine an individual’s ability to make autonomous and fully informed decisions regarding their sexual and reproductive health. My findings reveal implementation failures have shown that SRHS interventions cannot be founded on strictly biological, demographic, or qualitative rationales. While policies within South Africa are progressive in nature and work to advance the right to access SRHS, gaps between national and provincial implementation standards continue to act as a barrier.  Effective interventions require a contextual analysis of the service delivery environment using intersecting instruments of analysis including subjectivity, culture, politics, economy, social relations, and ethic and/or religious values. Understanding the role of power and politics in the development of health systems as well as analysing implementation frameworks at the service delivery level remain critical in creating effective interventions.

[1] Starrs, A. M., Ezeh, A. C., Barker, G., Basu, A., Bertrand, J. T., Blum, R., Coll-Seck, A. M., Grover, A., Laski, L., Roa, M., Sathar, Z. A., Say, L., Serour, G. I., Singh, S., Stenberg, K., Temmerman, M., Biddlecom, A., Popinchalk, A., Summers, C., & Ashford, L. S. (2018). Accelerate progress—sexual and reproductive health and rights for all: Report of the Guttmacher–Lancet Commission. The Lancet, 391(10140), 2642–2692.


About the Author:

Lidya Stamper served as a 2019-2020 Fulbright Research Fellow with the Centre of Human Rights at the University of Pretoria. She has spent significant time working within women’s rights spaces and is interested in understanding the broader implications of policy paradigms. Her research is focused on the ways in which policy agendas account for social, economic, and political contexts. She plans to expand on her work around sexual and reproductive health access for vulnerable communities in 2021 as a Research Fellow with the Research in Color Foundation, as well through her master’s program with the London School of Economics

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Accelerating efforts to combat the rise of sexual and gender-based violence in Kenya

Author: Juliet Nyamao
Human Rights Attorney, Kenyan Bar

16 Days of Activism against Gender-Based Violence is an international campaign that runs yearly from 25 November, the International Day for the Elimination of Violence against Women, to 10 December, International Human Rights Day. The period is observed in many African countries including Kenya, culminating in a colorful thematic event on the last day of the campaign. During this period, governments may reevaluate their national policies and action plans to completely eradicate practices that discriminately affect women in the community. This campaign provides an opportune moment to create awareness, on a worldwide scale, of the prevalence of sexual and gender-based violence (SGBV) and to galvanise support to curtail its escalation to pandemic proportions. 

Over the years, the determination to curb the rise of SGBV has gained momentum globally due to the efforts of dedicated human rights activists, which has led to ground breaking women’s rights movements: #Orange the World, #HearMeToo, #MeToo, and #Times Up. These movements have had a rippling effect on the global fight for gender equality and bringing the perpetrators of sexual and gender-based violence to full accountability.

Additionally, relentless efforts by civil society organisations and stakeholders to combat SGBV globally, has led to the adoption of international instruments and national laws to combat the vice. The adoption of the Beijing Declaration and Plan of Action 25 years ago laid a solid foundation for gender equality and women’s empowerment efforts. Kenya has made great progress in the advancement of women’s rights issues over the years. However, the fight for equality in Kenya is far from over. Despite enactment of national laws, strategies, and policies on sexual and gender-based violence, Kenya is still grappling with increased cases of violence against women at catastrophic levels.

Historically, both women and children have borne the brunt of repugnant socio-economic and cultural ideas and practices that perpetuate sexual and gender-based violence. Gender inequality also accelerates sexual and gender-based violence against women. Gender-defined roles, such as childcare and domestic chores, continue to hinder women’s economic prospects owing to substantial time constraints. The persistent gender gap in economic undertakings is restricting Kenya’s attainment of its full economic potential averaging loss of billions annually. Kenya must accelerate women’s empowerment through all spheres of society, which includes political participation, access to healthcare, educational fulfillment, and employment. Whereas significant progress has been made in Kenya, gender equality for women and girls is still far from satisfactory.

In recent years, a rise in sexual and gender-based violence in Kenya has resulted in about 45% of women between the ages of 15 and 49 experiencing physical or sexual violence and 14% of women and 6% of men between the ages of 15 and 49 reported having experienced sexual violence at least once in their lifetimes. Gender-based violence has dire economic consequences, costing an estimated 1.2%-3.7% of GDP in some countries due to lost productivity, equivalent to the average spending of low and middle-income countries on primary education. According to the World Health Organisation report, Violence and Health 2002, SGBV is a persistent human rights challenge, with devastating consequences on women’s physical, psychological, sexual and reproductive health at all stages of their life. Despite this reality, it remains largely unreported due to the impunity, silence, stigma, and shame surrounding it, coupled with the lack of commitment and goodwill by the government.

According to a 2015 UN- Women Report, many victims of gender-based violence were unwilling to pursue justice; only 5% of the survivors seen in facilities were willing to go to court. Poverty, illiteracy, insensitivity of law enforcers, and several other barriers greatly deter women from reporting incidences of violence occurring in their communities. The underlying gender inequality in distribution of socio-economic opportunities, also greatly impedes the realisation of human rights for survivors of gender-based violence, majority of whom are women.

The case of the 160 girls was a step in the right direction on the fight against SGBV in Kenya. In 2013, the High Court in Meru delivered a landmark constitutional decision in the case of 160 girls project. The petition successfully challenged the Kenyan government’s failure to act on sexual violence cases against children in the region.  The respondents, the police, were held accountable for the trauma occasioned to the petitioners by failure to conduct speedy and efficient investigations into their complaints of sexual violence and abuse. Remarkably, the court acknowledged the Kenyan government’s responsibility and accountability for systemic violence, failure to guarantee appropriate, efficient, effective investigation and prosecution of sexual offence cases created an environment of lawlessness for perpetration of such offences.  For the first time, the Kenyan government was sued for failure to protect rights in relation to sexual violence. However, seven years after this landmark ruling, statistics on SGBV against women and girls in Kenya remains shockingly high.

Over the past few years, women reportedly killed by their most trusted partners has drastically increased. Many of these supposed “crimes of passion” are still pending in court, and many more do not have any perpetrators linked to them. Surprisingly, several accused persons are prominent members of the society holding high positions in government agencies, who are perceived as role models or defenders of vulnerable members of the society. The number of women dying under mysterious circumstances in Kenya is appalling. On a weekly basis, at least one case is reported by the mainstream media on atrocities committed against women at home, workplace or even on the streets. SGBV is slowly becoming a norm in Kenya, a menace that needs to be uprooted rapidly.

To combat sexual and gender-based violence, Kenya has made tremendous legal reforms. The Constitution of Kenya (2010) advocates for the elimination of discrimination against women and for equal protection before the law. Additionally, the Constitution prohibits any form of torture whether physical or psychological or cruel, inhumane, or degrading treatment. Although the laws are progressive, a majority of women continue to suffer violations at the hands of trusted partners, friends and even relatives, with inadequate protection or access to appropriate resources. Legislation is essential for a successful response to violence against women. Kenya has clear-cut obligations under international law to enact, implement and monitor legislation addressing all forms of violence against women. However, significant gaps remain that render it impossible to combat the problem completely. Although the government has passed legislation to protect women from violence, it is often inadequate in coverage, or is not enforced. Victims are often unable to access the much-required services and resources to pursue justice.

Regional instruments such as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) addresses state obligation to eliminate violence against women. The Maputo Protocol demands the eradication of all forms of gender-based violence pegged on the rights to life, integrity, and security of the person with additional stipulations highlighting state obligation to end gender-based violence. Kenya ratified the Maputo Protocol in 2010.

Whereas Kenya has made methodical strides to address gender discrimination and inequality through the adoption of various legislations that seek to promote women’s rights, substantial disparities hinder full implementation of the Protocol. For example, some aspects of national laws contravene provisions of the Maputo Protocol. Kenya entered a reservation to Article 14 (2) (c) of the protocol on sexual and reproductive rights.  So far, Kenya has not enacted any specific legislation that legalises abortion. The Kenyan Constitution provides that life begins at conception (Article 26(2)) and “abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.” Therefore, abortion in any other circumstances is criminal and illegal; victims of sexual abuse cannot legally terminate a pregnancy. The Kenyan Penal Code creates  an offence of seeking or performing an abortion or providing materials that might be used to procure an abortion. The penalties remain severe: seven (7) to fourteen (14) years imprisonment for performing or procuring an abortion; and 3 years imprisonment for supporting or aiding an abortion procedure. Although, the government has enacted laws to protect women from all forms of violence and discrimination, nevertheless, no further efforts have been executed to efficiently implement these laws.  There are minimal to limited, structures, resources, procedures, and reporting mechanisms with regards to implementation.

In a recent meeting in Niamey, Niger, the African Commission of Human and People’s Rights during its 60th Ordinary Session adopted the Guidelines on Combating Sexual Violence and Its Consequences in Africa. These guidelines are aimed at promoting, protecting and ensuring member states are committed to combating gender-based violence. The guidelines direct member states including Kenya, to adopt measures to ensure victims of violence are protected and have access to any assistance they can get including access to justice.

When a state party fails to comply with regional obligations, victims may file complaints with the African Commission. The Kenyan government has an obligation under international and regional treaties it has ratified to prevent and protect women from violence. Kenya has an obligation as a member state to the African Union and the United Nations to combat all forms of violence against women. Other than creation of laws and regulations to punish the perpetrator, Kenya should endeavor to create processes that ensure women report incidences of violence and are provided with adequate support, including shelter, medical and psychological support and legal aid services. It is also paramount to have long term solutions to combat violence against women besides short-term relief.

In order to monitor progress and identify further programmatic directions, Kenya needs to invest in systematic and well-funded research on violence against women.  It is clear that sexual and gender-based violence in Kenya has generally been a neglected area of research. Evidence suggests that it is a public health problem of substantial proportions, hence much more needs to be done both to understand its occurrence and ways to prevent it. Insufficient data describing the nature and extent of the problem has contributed to its lack of visibility on the agenda of policymakers and donors. Therefore, additional, and substantial research on almost every aspect of sexual and gender-based violence is required. The United States Strategy to Prevent and Respond to Gender-based Violence Globally stresses the importance of proper collection, analysis, and use of data and research to enhance gender-based violence prevention and response efforts.

Financial resources are also a critical factor and necessary tool for change. Adequate funding will enable Kenya to integrate creative gender-based violence prevention and response interventions into its current programs. It is unfortunate that many programs in Kenya seeking to protect survivors of gender-based violence depend entirely on donor funding from development partners. Therefore, the national and county governments must allocate adequate resources to SGBV programs to combat the scourge.

Counties have an opportune moment to revisit their policies, laws, strategies to ensure they comply to international standards and women are accorded the protection they deserve as citizens of Kenya. Ultimately, breaking the silence requires strong commitment and involvement of the government and civil society together with a coordinated response across a range of sectors to end violence against women. Therefore, in order to enjoy the commitments of the Beijing Declaration 25 years on, both the national and county governments must invest and prioritise the wellbeing of women in Kenya, through; allocation of funds for research, legal aid activities, shelters and monitoring implementation of the Constitution of Kenya 2010, and all other acts of Parliament enacted to protect and prevent sexual and gender-based violence. The government of Kenya must reignite its accountability efforts to the people of Kenya to combat the rise in sexual and gender-based violence.

About the Author:

Juliet Nyamao is a human rights attorney admitted to the Kenyan bar. She received her LLB from Moi University School of Law (Kenya) and LLM from Georgetown University Law Centre (USA). Juliet completed her fellowship in Leadership and Advocacy for Women in Africa at Georgetown University Law Center. She is currently a consultant and gender expert.

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‘Why you say negro?’ Racism in football: the PSG v Basaksehir incident, an all-time low for football?

Author: Foluso Adegalu
Centre for Human Rights, University of Pretoria

For football lovers, the Union of Eurpean Football Associations (UEFA) Champions League is arguably the biggest football competition. While there are divided opinions as to whether the tournament is bigger than the FIFA World Cup, it is undisputedly the biggest competition at the club level. Following some disruptions to the competition due to the COVID-19 pandemic, the group stage of the 2020-21 season commenced on 20 October 2020. The final round of matches for the group stage were scheduled for 8-9 December. One of the group stage matches scheduled for 8 December was the Group H tie between Paris Saint-Germain (PSG) of France and Istanbul Başakşehir F.K. (Başakşehir) of Turkey. The match was scheduled to be played at Parc des Princes, the home ground of the French club.

Barely 13 minutes into the game, Kipempe, a Paris Saint German player was judged to have wrongly tackled a Basaksehir player. There was a bit of reaction by the Basksehir players about the intensity of the tackle and whether Kipempe should be awarded a yellow card by the referee. But the biggest scene of the night was gaining momentum off the pitch. Pierre Wobe, the Assistant Coach of Basaksehir, was engrossed in a heated debate, off the pitch with the fourth official, Sebastian Coltescu. The incident initially seems like the usual football scenarios where coaching staff lose their cool about football decisions and talk themselves into trouble on the sideline, and the on-field official quickly dismissed Wobe with a red card. However, the card was not enough to cover up the root cause of Wobe’s argument with the fourth official. Thanks to the nearly empty stadium in Parc des Princes, the word uttered by Pierre Wobe can clearly be heard on camera. He was vehemently querying the fourth official- “why you say negro? why you say negro?……you can’t say negro…”

Things escalated quickly from this point, the Başakşehir players expressed their grievances about the incident and surrounded the on-field referee. The referee tried to calm things down but the Başakşehir players weren’t having any of that. Demba Ba, a Başakşehir player who was a substitute for the match was very vocal in his exchange with the officials, “when you mention a white guy, you never say a white guy, you say this guy….why when you mention a black guy, you have to say this black guy?” The on-field referee finding himself in a very difficult position tried to have a dialogue with the players, the Başakşehir players in solidarity with their assistant coach told the on-field referee in clear terms “..we have to respect each other…this is not football..” The Başakşehir players refused to continue the game and walked down the tunnel. They were followed suit by the PSG players. An anticipated beautiful night of football was ruined by racism.

Football grounds with as much capacity as over 100,000 people has frequently been utilised as a viable ground to openly display racism. Issues of racism are well documented in football. Eric Cantona, a gifted and talented footballer who played for elite football clubs like Manchester United is ironically more remembered for his infamous kung fu kick against a spectator who racially abused him for being French. Former Arsenal and French Midfield star, Patrick Viera also made headlines for spitting at West Ham’s Neil Ruddock after being sent off. In his defense, Viera accused Ruddock of pushing him over and referring to him as a French Prat. Violence is certainly an unacceptable behavior in football. However, so also is racism. In recent times, the English national team faced racist abuses from fans during European championship qualifiers in Montenegro and Bulgaria. Chelsea’s defender, Antonio Rudiger, complained of racist chants from Tottenham Hotspurs fans during a London derby match. The Manchester derby has also been tainted by apparent monkey chants by Manchester City fans. Raheem Sterling, a Manchester City player, was racially abused by Chelsea fans, and the North London derby between Arsenal and Tottenham Hotspurs in December 2018 is infamously more remembered for the banana skin thrown at Gabonese born Arsenal striker, Pierre-Emerick Aubameyang. From the above examples, racism in football has usually occurred as an anti-social fan behavior. In the most extreme cases, it has been a question of professionalism amongst football players, when a player displays acts of racism against another player. There have also been allegations of institutionalised racism through the underrepresentation of black people in football administration. Some victims of football racism have also described incidents of racism by their fellow teammates and managers.

The PSG v Basaksehir incident is however significant for two reasons. The refusal of Başakşehir players and crucially PSG players to continue the match is a demonstration of an overwhelming support from footballers and a signal that the tolerance for racism in football is becoming extremely unacceptable. It is anticipated that other footballers will take a cue from this incident and discontinue a match where there are serious and credible allegations or display of racism. One of the major complaints of victims of racism in football over the years is the lack of support from fellow footballers. On the flipside of the coin, the allegation of racist statements by a supposedly UEFA “neutral umpire” is also devastating. Beyond the human rights and moral implications arising from racism, it also brings the integrity of the game into disrepute. It is unimaginable that a racist official will conduct himself as a “neutral umpire” in the discharge of his duties during football matches. If the allegation against Sebastian Coltescu is true, then it would be an all-time low for the beautiful round-leather game.

As at the time of writing, the allegation of racism against Sebastian Coltescu has not been confirmed. UEFA has promised to open a thorough investigation into the incident immediately. Turkey President, Recep Tayyip Erdogan, has expressed his belief that the football body will take the necessary steps. What amounts to necessary steps in this instance is open for debate, but the author hopes for the sake of football, that the governing body will conduct a proper investigation to get into the root of the matter. If the allegations are true, the football body should adopt punitive measures against the individuals that are found culpable in the incident and also embark on institutional reforms such as anti-discrimination training for its members and official to combat racism in football.

About the Author

Foluso Adegalu is a Doctoral Researcher at the Centre for Human Rights, University of Pretoria. His area of research includes human rights monitoring, civic rights and disability rights.

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The future of technology: a human rights perspective

Author: Tatiana Makunike
Freelance writer

From a constructive perspective, technology has the potential to significantly contribute to the progress of the human rights agenda, especially in Africa. Healthcare, education, emerging laws that restrict freedom of speech, and abuses by armed groups are some of the Human rights issues that technology could positively impact. Technology is increasingly becoming the backbone of most infrastructures and playing an important role in modern humanity; so automatically, its necessity as a tool for human rights has also increased.

The need for digital structures that improve the predictions of pressing human rights situations is evident. Fortunately, the tools for analysing the situations and strategising ideal responses exist and continue to improve. For instance, remote sensing and satellite data analysis systems now  identify patterns indicating humanitarian disasters and displaced groups which may be useful when monitoring inaccessible areas or countries such as Uganda, Sudan, and Ethiopia which are currently home to over 3 million refugees. Decentralised technologies like BlockChain are also proving valuable when it comes to eliminating labor exploitation issues in certain supply chains and forensic technology can reconstruct crime scenes.

The internet has especially been a great mobiliser regarding human rights awareness by providing opportunities to share free speech, ideas, and information beyond our immediate communities. It has also created new possibilities for work, innovations in healthcare; improved education, increased political participation and more. Artificial intelligence (which allows for machines to learn from experience, modify to new inputs and perform human-like tasks) has the potential to help boost crop growth which would help to promote food security ,and tools such as facial recognition may assist in reuniting families who have been separated from their loved ones. Improvement and accessibility of mobile phones and other recording devices has increased ‘citizen journalism’, with everyday citizens recording and posting incidents of human rights violations which increases awareness and can potentially lead to perpetrators being brought to justice.

On the other hand, technological developments also have the capacity to undermine human rights efforts. The increased use of automation and AI has disrupted global employment by replacing millions of jobs with self-service technologies which directly impacts people’s right to fair and decent work. Again, the right to privacy is invaded every day as we use internet domains that blur the lines of private and public data; Devices track our whereabouts and watch our every move as corporations target communities offering “free” services while extracting personal data and criminal hacking has become more lucrative, increasing ransomware which has resulted in situations such as unprecedented cyber-attacks on nuclear power plants and government systems, directly threatening the fundamental right to liberty, the security of person and potentially the  right to life. Even free speech on the internet can be manipulated.

As a result, it’s clear that while technology is just a tool, its effects can drastically differentiate depending on its usage and while some people can’t imagine their lives without technology, a disproportionate amount of people in Africa don’t have access to it in ways that would benefit their lives. In a research survey by Pew, out of the six sub-Saharan African countries they studied, a medium of 41% used the internet occasionally; this is less than half of the 89% of Americans who use the internet. Consequently, during the coronavirus pandemic and lock downs this further highlighted the prevalent inequalities regarding technology. Currently, biotechnology is a significant contributor in the development of the COVID-19 vaccine, but African countries with minimal technological resources are left at the mercy of developed nations; waiting for a vaccine and not participating at the rate of first-world countries.

In essence, most African countries are behind. It’s important to catch up and get to a level where they are contributors in technological developments in order not to become biased and/ or marginalised by it. Ensuring African governments should have effective digital services and regulations in place and be prepared to allow for free speech and exchange online. A great foundation to begin from would be reliable basic infrastructure, such as internet connectivity and mobile networks, as well as electricity supply.

It is safe to conclude that, while technology has been beneficial to human rights, it also has a dark side. It continues to expand rapidly while legislation regulating its use, catches up very slowly, leaving protective regulations behind. There’s a need for stakeholders in designing new technologies to remove bias from digital intelligence for it to reach the needs of marginalised communities as far as human rights are concerned.

Technology isn’t something humanity should be wary of as it becomes more intelligent, rather it’s important to ensure technology is developed with the integration of human rights and values in mind. Technology should be able to identify when it’s being used unethically and block it. This will require collaboration, and coordination from civil society, academia, government, and technology-business leaders.

About the Author

Tatiana Makunike is a writer with a focus on human rights and child rights. She has a certification in children’s rights from Harvard University and is currently a freelance writer living in Johannesburg.

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Hot water: Treasure hunters vs the law

Author: Ross Booth
LLB student, University of KwaZulu-Natal

The ocean is an enormous place. In fact, its enormity is estimated to cover an area of 361 million square metres and hold around 97% of the earth’s water. It is thus no surprise that things are sometimes lost to the gargantuan depths. However, what happens when they are found?

Modern-day treasure hunting has become a high-risk-high-reward field, but it seems that in many cases, the risk vastly outweighs the reward. Most people, infatuated by the possibility of discovering sunken fortunes, fail to realise the implications that could arise if they do. In fact, the law has made it virtually impossible to keep the entirety of one’s treasure hunting loot – if any portion at all.

Although most countries have their own laws concerning sunken treasure, as far as international law goes, the UNESCO Convention on the Protection of the Underwater Cultural Heritage is the most far-reaching legislation. Having been adopted in 2001, the Convention has been ratified by several countries (including South Africa and a number of African countries), coming into force in 2 January 2009. The Convention intends to protect and preserve sunken human property submerged for a period longer than 100 years. This includes, inter alia, shipwrecks, artefacts and art – virtually anything a treasure hunter would consider valuable. Within the Convention are guidelines for ocean site excavations and prevention techniques to guard against unlawful looting. Sadly, however, like most international conventions, it is not binding on countries that have not ratified it and may thus be futile as a means of international dispute resolution concerning valuable finds. In 2015, Spain attempted to use this Convention to obtain control over a sunken Spanish galleon, the San José, which was found off Colombia’s coast. Because Colombia is not a party to the Convention and the wreck was found in its territorial waters, Spain was unsuccessful in its efforts, and the wreck remains in place to this day. It is estimated that the gold, emeralds, and artifacts found on the ship equates to around 18 billion USD in value.

As a general rule, wrecks found in international waters belong to their respective country of origin – regardless of their age or date of wreckage. This was observed when an international treasure hunting organisation, Odyssey Marine Exploration, located the Nuestra Senora da les Mercedes – a Spanish vessel which sank in 1804 during the Battle of Cape Santa Maria. Odyssey soon found itself in hot water after the Spanish government accused it of “looting” based on the intent to profit from the wreck. Following legal proceedings that spanned five years, the treasure found in the wreck was handed over to the Spanish government on a ruling passed down by the US Court of Appeals for the 11th Circuit. Over and above this, Odyssey was further ordered to pay the Spanish government 1 million USD in legal fees.

Given the difficulty of relying on international conventions, many countries have created their own legislation concerning wrecks found in territorial waters. For example, the US employs the Shipwrecked Act of 1987 which bestows custody of any wreck to the State, provided it is within 3 miles of the shoreline. Furthermore, countries will go to great lengths to retain ownership over their wrecks – regardless of who finds them.

As for South Africa, disputes over sunken treasure are rare to the point that only a handful of related cases have gone before our courts in the past. With regards to the hundreds of wrecks that dots SA’s coasts, the government emphasises preserving them in line with the UNESCO Convention and the National Heritage Recourses Act. Wrecks protected in this regard are safe from treasure hunters, as the act of removing items from them is considered looting. However, in terms of wrecks no older than 60 years, one may be able to acquire ownership of their contents if it is clear that the previous owner intended to abandon them to the depths. According to the law of occupation, the acquirer may become the lawful owner of abandoned property if they establish physical control over the object(s) in question with the intention of becoming the owner. In line with this law, it is absolutely imperative that a wreck is confirmed to be abandoned to avoid a possible charge of theft.

Strict laws concerning wrecks accordingly create immense difficulty for treasure hunting hopefuls in South Africa. Additionally, because discoveries concerning treasure-filled wrecks are quite rare, each matter is dealt with on a case-by-case basis, in line with local and international laws and treaties.

So, if one were lucky enough to stumble across a wreck laden with treasure, it is likely they would be forced to hand it over to its original country of ownership or the country territorially associated with the waters in which it was found. At best, one may be given a finder’s fee (generally around 5% of the wreck and its contents worth) to cover the most fundamental costs associated with the find.

Accordingly, perhaps in light of the odds stacked against treasure hunters worldwide, the treasures of the deep are best left alone.

About the Author

Ross Booth is a third year LLB student at UKZN studying towards currently seeking articles of clerkship for the year of 2022 and hopes to pursue a career in Corporate and Finance Law. He is a member of the UKZN Moot Club, Golden Key Honours Society and represents his class in several academic modules. Outside university, he enjoys athletics and is currently training towards running the Two Oceans in 2021. His interests include foreign affairs, politics and cinema. He is also a huge dog lover with a soft spot for German Shepherds.

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Africa is bleeding: The Anglophone crisis in Cameroon

Author: Mary Izobo
International Human Rights Lawyer and Gender Advocate


The failure to promote the rule of law and democracy creates an environment for conflict, often exacerbated by marginalisation, discrimination,  inequality and inequity. The bitterness of citizens roused by violence is usually entrenched in lack of basic services and public infrastructure, corruption, lack of personal and economic security and lack of transparency and accountability of government to its citizens.  Thus, the greatest problem of African countries is their failure to protect the economic, political, social, and cultural concerns of its people. This year, 2020 has been marred by a series of human rights violations from Lagos to Kumba, Africa is bleeding.

On 24 October 2020, at least eight children were killed, and dozens wounded by a group of armed men at the Mother Francisca International Bilingual Academy  Kumba, in the Southwest Region of Cameroon. There has been a lot of attacks in Cameroon since 2016, however, these attacks have intensified dramatically.

Since the Anglophone crisis in Cameroon started in 2016, hundreds of people have died, over 70 villages destroyed, approximately 160, 000 people are internally displaced while 35, 000 people have sought refuge in Nigeria, Cameroon’s neighboring country. This crisis has also led to months of general strikes, innumerable days of internet shutdown and the loss of academic years. What started as a peaceful strike of teachers and lawyers in 2016, led to a conflict between the government and an armed separatist movement of the Anglophone region. This crisis is a serious threat to efforts to build national harmony and unification of Cameroon and has led to the reestablishment of strong contentions and conducts in support of secession and/or federalism by the Anglophones. This is because at the center of this conflict is the Anglophones’ wish to secede from Cameroon and form their own independent state called Ambazonia.

Many analysts contend that the current conflict is a result of the unmanageable historical animosity between Cameroon’s Anglophones and Francophones in terms of varying language, culture and identity. Thus, if the differences in identity, language and culture are the primary drivers of the conflict as these analysts contend, it is quite surprising that Cameroon, one of the most ethnically diverse countries in Africa, has to a great extent avoided conflict until 2016. This crisis goes way beyond language, culture or identity. It is a resurgence of an old problem known as the Anglophone problem. The Anglophone problem is often described as the evolution of the Anglophone’s awareness from the feeling of being marginalised, exploited and homogenised politically, economically and socially by the Francophone-dominated state and even the Francophone population in Cameroon. The Anglophone problem is driven by the marginalisation and discrimination against the Anglophones in Cameroon in decision-making nationally; the dilapidation of the region’s infrastructure; the exploitation of the region’s rich economic resources by successive Francophone administration without much beneficiation to the local communities; marginalisation in human resource development and deployment by the inundation of Anglophone regions with Francophone employees and workers; the marginalisation of the Anglophones in the allocation of economic resources by the Francophones especially by the mismanagement of the economic patrimony in the Northwest and Southwest Regions of Cameroon; the common law system and the francophonisation of the English educational system; gradual erosion of Anglophone identity; the predominance of French and Francophones in official documents and public offices respectively; as well as the second-class citizenship of the Anglophones when compared to the Francophones.

These atrocities and the killings of the innocent cannot continue and must stop. While President Paul Biya of Cameroon has made several commitments to end the conflict in Cameroon, there has to be a genuine commitment for the equal and equitable distribution of resources to the Anglophone regions as enshrined in the preamble of the Constitution of the Republic of Cameroon 1996, which stipulates that all citizens “have equal rights and obligations” and “the State shall provide all its citizens with the conditions necessary for their development” and that the state has a positive obligation to ensure that it protects the rights of the minorities. This must be upheld by the government of Cameroon.

Even if there is a commitment on the part of the Anglophones and the government of Cameroon to end the conflict and there are resources to do so, there may be an issue with the authorising environment. This is because President Paul Biya started ruling Cameroon in 1982 and is currently serving his seventh term, making him one of the longest-serving presidents in Africa and the world. This means that for an average Cameroonian, S/he has only known one president since birth. Since the early 1990s, it has been speculated that President Biya is aloof to the needs of his people and has made very few public appearances. He is termed an absentee president who regularly spends extended periods in Switzerland with the excuse from his government that he goes to Switzerland to work without being disturbed. This deficit in governance, as well as the economic apartheid of the Anglophones, are some of the reasons for the demand for a change in the system of government from autocratic to democratic rule.

The bilateral partners of Cameroon such as France, United Kingdom, United States of America and other national, regional and international organisations should put pressure on the Cameroonian government to put in place a course of action to assuage the situation, partake in a genuine national dialogue and transform the governance archetype. The government of Cameroon should allow for negotiation and mediation during the national dialogue between parties, where necessary.

The principle of territorial integrity and sovereignty may bar international actors from intervening. However, one can start from the low hanging fruits. For example, European media can call out President Biya for always spending his time and his country’s resources in Switzerland and other European countries without reasonable justification. Lastly, the African Union has a huge role to play in this crisis. Just like the Confederation of African Football (CAF) deprived Cameroon the right to host the Africa Cup of Nations in 2019, the African Union can strip Cameroon of the benefits that it enjoys from the continental body and may also place economic and political sanctions on Cameroon such as travel bans, restrictions on access to services in the international arena until it resolves the Anglophone crisis. Thus, it is imperative that the Anglophone crisis may continue to loom if the Anglophones still feel marginalized. Therefore, the government of Cameroon must make a conscious effort  to address the concerns of the Anglophones, particularly in the allocation and management of economic resources and representation in state institutions.

About the Author

Mary Izobo is a human rights lawyer with experience in the field of human rights, governance, and rule of law for development. She holds a Bachelor of Arts (BA Hons) in French Language from the University of Ibadan, Nigeria; Bachelor of Laws (LLB) from the University of Aberdeen, Scotland, United Kingdom; Barrister at Law (BL) from the Nigerian Law School, Abuja, Nigeria; a Master of Laws (LLM) in Human Rights and Democratisation in Africa from the University of Pretoria, South Africa; and a Master of Laws (LLM) in Rule of Law for Development from Loyola University Chicago, United States of America. She is currently a Doctor of Laws candidate with a focus on governance in Africa at the University of Pretoria, South Africa.

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