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AHRLJ 2 2020.Indb Editors International editorial advisory board Frans Viljoen Jean Allain Editor-in-chief; Professor of Human Rights Law Professor of Public International Law, Monash and Director, Centre for Human Rights, University, Australia University of Pretoria, South Africa Fareda Banda Usang Maria Assim Professor in the Laws of Africa, School of Senior researcher, Children’s Rights Project, Oriental and African Studies, University of Dullah Omar Institute, University of the Western London Cape, South Africa Gina Bekker Solomon Ebobrah Lecturer, Faculty of Law, Monash University, Extraordinary Lecturer, Centre for Human Australia Rights, University of Pretoria; Professor of Law, Niger Delta University, Nigeria Victor Dankwa Professor of Law, University of Ghana Magnus Killander Professor, Centre for Human Rights, University of John Dugard Pretoria Member, International Law Commission; Extraordinary professor, Centre for Human Annelize Nienaber Rights, University of Pretoria Professor, Faculty of Law, University of Pretoria Christof Heyns Publication manager Chair of the international editorial advisory board; Director: Institute for International and Isabeau de Meyer Comparative Law in Africa, University of Pretoria Assisted by Edward Kwakwa Legal Counsel, World Intellectual Property Ashwanee Budoo-Scholtz Organisation, Geneva, Switzerland Programme Manager: LLM/MPhil, Centre for Sandy Liebenberg Human Rights, University of Pretoria HF Oppenheimer Chair in Human Rights Law, Michael Nyarko University of Stellenbosch, South Africa Doctoral candidate, Centre for Human Rights, Tiyanjana Maluwa University of Pretoria Professor of Law, Dickinson School of Law, Pennsylvania State University, USA Joe Oloka-Onyango Professor of Law, Faculty of Law, Makerere University, Uganda Kate O’Regan Former Justice, Constitutional Court of South Africa Fatsah Ouguergouz Former Judge, African Court on Human and Peoples’ Rights Michael Reisman Myres S McDougal Professor of International Law, Yale Law School, USA Geraldine van Bueren Professor of International Human Rights Law at Queen Mary, University of London THIS JOURNAL SHOULD BE CITED AS (2020) 20 AHRLJ The African Human Rights Law Journal publishes contributions dealing with human rights, with a special focus on topics of relevance to Africa, Africans and scholars of Africa. The Journal appears twice a year, in June and December. The Journal is an open access online publication; see www.ahrlj.up.ac.za The Journal is included in the International Bibliography of the Social Sciences (IBSS) and is accredited by the South African Department of Higher Education and Training. AFRICAN HUMAN RIGHTS LAW JOURNAL Volume 20 No 2 2020 2020 African Human Rights Law Journal Volume 20 No 2 2020 Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher, based in Africa, launched and managed by the Centre for Human Rights and the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a number of journals, series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. For more information on PULP, see: www.pulp.up.ac.za To order, contact: Centre for Human Rights Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 86 610 6668 [email protected] www.pulp.up.ac.za Printed and bound by: Minit Print, Hatfield, Pretoria Cover design: Lizette Hermann, Centre for Human Rights, University of Pretoria ISSN: 1609-073X EISSN: 1996-2096 The financial assistance of the European Union and the Konrad Adenauer Stiftung is gratefully acknowledged. Contents Editorial ..................................................................................v Special focus: Assessing the implications of COVID-19 pandemic regulations for human rights and the rule of law in Eastern and Southern Africa Editorial introduction by Charles Fombad ............................................................ 368 Comparative overview of the constitutional framework for controlling the exercise of emergency powers in Africa by Charles Manga Fombad & Lukman Adebisi Abdulrauf .... 376 Eswatini’s legislative response to COVID-19: Whither human rights? by Musa Njabulo Shongwe................................................. 412 Saving the soul of an African constitution: Learning from Kenya’s experience with constitutionalism during COVID-19 by Nkatha Kabira & Robert Kibugi ...................................... 436 Implications of Lesotho’s COVID-19 response framework for the rule of law by Itumeleng Shale ............................................................ 468 Constitutional rights and their limitations: A critical appraisal of the COVID-19 lockdown in South Africa by Martin van Staden ........................................................ 484 Livelihoods and legal struggles amidst a pandemic: The human rights implications of the measures adopted to prevent, contain and manage COVID-19 in Malawi by Mwiza Jo Nkhata & Anganile Willie Mwenifumbo ........... 512 Assessing the implications of digital contact tracing for COVID-19 for human rights and the rule of law in South Africa by Woojin Lim .................................................................... 540 COVID-19 and the inclusion of learners with disabilities in basic education in South Africa: A critical analysis by Serges Djoyou Kamga .................................................... 558 Exacerbated inequalities: Implications of COVID-19 for the socio-economic rights of women and children in South Sudan by Joseph Geng Akech ........................................................ 584 When guns govern public health: Examining the implications of the militarised COVID-19 pandemic response for democratisation and human rights in Uganda by James Nkuubi ................................................................ 607 Special focus: The African Children’s Charter at 30: Reflections on its past and future contribution to the rights of children in Africa Editorial by Nkatha Murungi ........................................................... 640 Child protection, safeguarding and the role of the African Charter on the Rights and Welfare of the Child: Looking back and looking ahead by Afrooz Kaviani Johnson & Julia Sloth-Nielsen .................. 643 Age or maturity? African children’s right to participate in medical decision-making processes by Elvis Fokala & Annika Rudman ....................................... 667 Childhood sexuality in Africa: A child rights perspective by Godfrey Dalitso Kangaude, Deevia Bhana & Ann Skelton ....................................................................... 688 The applicability of the best interests principle to children of imprisoned mothers in contemporary Africa: Between hard and soft law by Alina Miamingi .............................................................. 713 Articles Res interpretata principle: Giving domestic effect to the judgments of the African Court on Human and Peoples’ Rights by Obonye Jonas ................................................................ 736 A missed opportunity? Derogation and the African Court on Human and Peoples’ Rights case of APDF and IHRDA v Mali by Brenda K Kombo ............................................................ 756 Vulnerability as a human rights variable: African and European developments by Mikaela Heikkilä & Maija Mustaniemi-Laakso ................ 777 Standing to litigate in the public interest in Lesotho: The case for a liberal approach by Hoolo ‘Nyane & Tekane Maqakachane .......................... 799 The 2017 military coup in Zimbabwe: Implications for human rights and the rule of law by Mkhululi Nyathi & Matshobana Ncube .......................... 825 The Children’s Bill of Mauritius: A critical assessment of key aspects by Roopanand Mahadew ................................................... 852 Please note that the editors will only consider submissions that have not already been submitted for publication or published elsewhere. Submissions should be no longer than 10 000 words (footnotes included). For further information, see ‘Guidelines for Contributors’ after the last contribution in this Journal. Also see http://www1.chr.up.ac.za/ index.php/ahrlj-contributors-guide.html for detailed style guidelines. AFRICAN HUMAN RIGHTS LAW JOURNAL Editorial Marking 20 years of the AHRLJ In 2020, the African Human Rights Law Journal (AHRLJ or Journal) celebrates 20 years since it first was published. The AHRLJ is the only peer-reviewed journal focused on human rights-related topics of relevance to Africa, Africans and scholars of Africa. It is a time for celebration. Since 2001, two issues of the AHRLJ have appeared every year. Initially published by Juta, in Cape Town, South Africa, in 2013 it became as an open-access journal published by the Pretoria University Law Press (PULP). PULP is a non-profit open-access publisher focused on advancing African scholarship. The AHRLJ contains peer-reviewed articles and ‘recent developments’, discussing the latest court decisions and legal developments in the African Union (AU) and regional economic communities. It contains brief discussions of recently-published books. With a total of 517 contributions in 40 issues (436 articles and 81 ‘recent developments’; not counting ‘book reviews’), on average the AHRLJ contains around 13 contributions
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