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Ukuthwala, ‘Forced Marriage’ and the South African Children’S Act by Lea Mwambene and Julia Sloth-Nielsen AFRICAN HUMAN RIGHTS LAW JOURNAL Volume 11 No 1 2011 ahrlj-2011-1-prelims.indd 1 6/13/11 9:21:23 AM The financial assistance of the European Union is gratefully acknowledged. © JUTA Law First Floor Sunclare Building 21 Dreyer Street Claremont 7708 South Africa This journal is copyright under the Berne Convention. In terms of the Copyright Act 98 of 1978 no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the Publisher. ISSN 1609-073X Cover design: Colette Alves Typeset in 10 on 12 pt Stone Sans by ANdtp Services, Cape Town Printed and bound by Shumani Printers ahrlj-2011-1-prelims.indd 2 6/13/11 9:21:23 AM CONTENTS Editorial ................................................................................... v Articles Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act by Lea Mwambene and Julia Sloth-Nielsen ............................. 1 Revisiting corporate violations of human rights in Nigeria’s Niger Delta region: Canvassing the potential role of the International Criminal Court by Martin-Joe Ezeudu ............................................................ 23 Disentangling illness, crime and morality: Towards a rights- based approach to HIV prevention in Africa by Marius Pieterse ................................................................. 57 The penalty of life imprisonment under international criminal law by Esther Gumboh ................................................................. 75 Social protection for Malawian migrants in Johannesburg: Access, exclusion and survival strategies by Redson Edward Kapindu ................................................... 93 The utility of environmental rights to sustainable development in Zimbabwe: A contribution to the constitutional reform debate by Tumai Murombo ............................................................... 120 Local government and human rights: Building institutional links for the effective protection and realisation of human rights in Africa by Conrad Mugoya Bosire ...................................................... 147 Realising the right to primary education in Cameroon by Serges Alain Djoyou Kamga ............................................... 171 The Inter-American human rights protection system: Structure, functioning and effectiveness in Brazilian law by Valerio de Oliveira Mazzuoli .............................................. 194 Recent developments Human rights developments in African sub-regional economic communities during 2010 by Solomon T Ebobrah .......................................................... 216 iii ahrlj-2011-1-prelims.indd 3 6/13/11 9:21:23 AM iv (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL Developments in international criminal justice in Africa during 2010 by Wambui Mwangi .............................................................. 251 The right to water in Botswana: A review of the Matsipane Mosetlhanyane case by Bonolo Ramadi Dinokopila ............................................... 282 Making sense of the Rwandan Law Relating to Serving Life Imprisonment with Special Provisions by Jamil Ddamulira Mujuzi .................................................... 296 ahrlj-2011-1-prelims.indd 4 6/13/11 9:21:23 AM AFRICAN HUMAN RIGHTS LAW JOURNAL Editorial This is a year of significant celebration for human rights on the Afri- can landscape: It is 30 years since the adoption of the African Charter on Human and Peoples’ Rights on 27 June 1981, and 25 years have passed since its entry into force on 21 October 1986. A conference on ‘Thirty years of the Charter: Looking forward while looking back’ is held on 11 July 2011 in Pretoria, hosted by the Centre for Human Rights, University of Pretoria, and the African Commission on Human and Peoples’ Rights (African Commission), as part of the annual African Human Rights Moot Court Competition. It is envisaged that a selection of conference papers will be published in the November 2011 issue of the Journal. Since its first issue in 2001, the Journal has focused on the accom- plishments and challenges of the African human rights system. Although the system has by no means reached perfection, there is much to celebrate, including the progressive interpretation of the Afri- can Charter adopted by the African Commission, the establishment and the accomplishments of various special mechanisms, as well as the procedural improvements in the examination of state reports and in their follow-up, as reflected in the Commission’s new Rules of Procedure (adopted in 2010). As well, the potential benefit of the supplementary role of the African Court has recently been illustrated when the Court, responding to a referral by the Commission, ordered provisional measures against Libya. One of the weaknesses in the system has been the neglect of the African Commission’s Secretariat. Over the years the Secretariat has acquired a reputation of inefficiency, due mainly to it being underfunded and understaffed. The Secretariat remains terminally understaffed, with the vacancies of two legal officers remaining unfilled. In the post- celebration period, improvements to the Secretariat should therefore be one of the priorities of the African Union organs, including the AU Commission, and the African Commission. In this issue, a number of contemporary human rights issues are covered, including HIV, forced migration, the right to primary educa- tion and the right to water of indigenous communities. Issues related to broader concerns that may be termed ‘democratisation’ are also included, such as the importance of local government. As has become customary, this first of theJournal ’s two annual issues provides an over- v ahrlj-2011-1-prelims.indd 5 6/13/11 9:21:23 AM vi (2011) 11 AFRICAN HUMAN RIGHTS LAW JOURNAL view of developments during 2010 in international criminal justice and human rights at the sub-regional level. We acknowledge with appreciation and sincerely thank the independent reviewers who gave their time and talents to ensure the consistent quality of the Journal: Atangcho Akonumbo, Abiola Ayinla, Bernard Bekink, Christo Botha, Liz Coyne, Lee Anne de la Hunt, John Dugard, Loreta Feris, Idi Gaparayi, Waruguru Kaguongo, Cecilia Nilsson Kleffner, Berita Kopolo, Remember Miamingi, Jamil Mujuzi, Chacha Bhoke Murungu, Chinedu Nwagu, Enyinna Nwauche, Benson Olugbuo, Steve Ouma, Emmanuel Quansah, Werner Scholtz, Ann Skelton, Melodie Slabbert, Olufemi Soyeju, Bret Thiele, Karin van Marle and Dunia Prince Zongwe. ahrlj-2011-1-prelims.indd 6 6/13/11 9:21:24 AM Editors Jean Allain Frans Viljoen Reader in Public International Law, Queen’s Editor-in-chief; Professor of Human Rights University of Belfast, Northern Ireland Law and Director, Centre for Human Rights, Fareda Banda University of Pretoria, South Africa Professor in the Laws of Africa, School of Solomon Ebobrah Oriental and African Studies, University of Post-doctoral fellow, Centre for Human London Rights, University of Pretoria Victor Dankwa Magnus Killander Professor of Law, University of Ghana Head of research, Centre for Human Rights, Erika de Wet University of Pretoria Co-director: Institute for International and Tshepo Madlingozi Comparative Law in Africa, University Senior lecturer, Faculty of Law, University of of Pretoria; Professor of International Pretoria Constitutional Law, University of Amsterdam, The Netherlands Annelize Nienaber Associate professor, Faculty of Law, John Dugard University of Pretoria Member, International Law Commission; Extraordinary professor, Centre for Human Publication manager Rights, University of Pretoria Isabeau de Meyer Abdul G Koroma Programme manager, Centre for Judge, International Court of Justice Human Rights, University of Pretoria Edward Kwakwa Assisted by Legal Counsel, World Intellectual Property Adem Abebe Organisation, Tutor, Centre for Human Rights, University Geneva, Switzerland of Pretoria Pius Langa Melhik Bekele Former Chief Justice, Constitutional Court of Tutor, Centre for Human Rights, University South Africa of Pretoria Sandy Liebenberg AJ Beredugo HF Oppenheimer Chair in Human Rights Doctoral candidate, Centre for Human Law, University of Stellenbosch, South Africa Rights, University of Pretoria Tiyanjana Maluwa Sukoluhle Joy Chilongo Professor of Law, Dickinson School of Law, Administrative assistant, Centre for Human Pennsylvania State University, USA Rights, University of Pretoria Joe Oloka-Onyango Eric Lwanga Associate Professor of Law, Faculty of Law, Administrative assistant, Centre for Human Makerere University, Uganda Rights, University of Pretoria Kate O’Regan Chacha Bhoke Murungu Former Justice, Constitutional Court of Tutor, Centre for Human Rights, University South Africa of Pretoria Fatsah Ouguergouz Jehoshaphat Njau Judge, African Court on Human and Academic associate, Centre for Human Peoples’ Rights Rights, University of Pretoria Michael Reisman International editorial advisory board Myres S McDougal Professor of Christof Heyns International Law, Yale Law School, USA Chair of the international editorial Geraldine van Bueren advisory board; Co-director: Institute for Professor of International Human International and Comparative Law in Rights Law at Queen Mary, University of Africa, University of Pretoria London THIS JOURNAL SHOULD BE CITED AS (2011) 11 AHRLJ The African Human Rights Law Journal publishes contributions dealing with human rights, with a
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