AFRICAN HUMAN RIGHTS LAW JOURNAL Volume 18No22018 JOURNALVolume AFRICAN HUMANRIGHTSLAW AFRICAN HUMAN RIGHTS LAW JOURNAL Pretoria University Law Press PULP ISSN: 1609-073X 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 Solomon Ebobrah Professor in the Laws of Africa, School of Extraordinary Lecturer, Centre for Human Oriental and African Studies, University of Rights, University of Pretoria; Professor of Law, London Niger Delta University, Nigeria, Senior Legal Advisor, ICJ Africa Programme Gina Bekker Teaching Associate, Monash University, Magnus Killander Australia Professor, Centre for Human Rights, University of Pretoria Victor Dankwa Professor of Law, University of Ghana Tshepo Madlingozi Senior Lecturer, Faculty of Law, 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 Niyi Abe Organisation, Geneva, Switzerland Programme Manager/Academic Advisor, Sandy Liebenberg International Development Law Unit, University of Pretoria HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch, South Africa Foluso Adegalu Tiyanjana Maluwa Doctoral candidate, Centre for Human Rights, University of Pretoria Professor of Law, Dickinson School of Law, Pennsylvania State University, USA Abiy Ashenafi Joe Oloka-Onyango Doctoral candidate, Centre for Human Rights, University of Pretoria Associate Professor of Law, Faculty of Law, Makerere University, Uganda Michael Nyarko Kate O’Regan Tutor; doctoral candidate, Centre for Human Rights, University of Pretoria Former Justice, Constitutional Court of South Africa Fatsah Ouguergouz 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 (2018) 18 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 18 No 2 2018 2018 African Human Rights Law Journal Volume 18 No 2 2018 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 is gratefully acknowledged. CONTENTS Editorial............................................................................ iv Implications of the African Union’s stance on immunity for leaders on conflict resolution in Africa: The case of South Sudan and lessons from Habré’s case by Ndubisi Christian Ani................................................... 438 The domestic impact of the decisions of the East African Court of Justice by Victor Lando................................................................ 463 Challenges when drafting legal aid legislation to ensure access to justice in African and other developing countries with small numbers of lawyers: Overcoming obstacles to including the use of non-lawyers to assist persons in conflict with the law by David McQuoid-Mason................................................ 486 Survival rights for children: What are the national and global barriers? Bernadette Ann-Marie O’Hare, Eva Maria Mfutso Bengo, Delan Devakumar and Joseph Mfutso Bengo ................... 508 Recent legal responses to child marriage in Southern Africa: The case of Zimbabwe, South Africa and Malawi by Lea Mwambene........................................................... 527 Onuoha Kalu v The State and flaws in Nigeria’s death penalty jurisprudence by Oluwatoyin Badejogbin................................................ 551 The implications of Isaiah Berlin’s radical conception of liberty for sexual minority rights protection in Nigeria by Agada Akogwu ............................................................ 579 The concept of surrogacy in Nigeria: Issues, prospects and challenges by Olanike Adelakun ........................................................ 605 Cultural values as a source of law: Emerging trends of ubuntu jurisprudence in South Africa by Serges Djoyou Kamga.................................................. 625 i ii (2018) 18 AFRICAN HUMAN RIGHTS LAW JOURNAL Special focus: Dignity takings and dignity restorations Editorial by Penelope Andrews ........................................................ 650 From reparations to dignity restoration: The story of the Popela community by Bernadette Atuahene and Sanele Sibanda .................... 654 From disgust to dignity: Criminalisation of same-sex conduct as a dignity taking and the grassroots battle to achieve dignity restoration by Ari Shaw ...................................................................... 684 The shadow of legal pluralism in matrimonial property division outside the courts in Southern Nigeria by Anthony C Diala .......................................................... 706 Recent developments Human rights developments in the African Union (January 2017-September 2018) by Magnus Killander and Michael Gyan Nyarko ................ 732 In default: African Commission on Human and Peoples’ Rights v Libya by Oliver Windridge .......................................................... 758 iii 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). Also see http://www1.chr.up.ac.za/index.php/ahrlj-contributors-guide.html for detailed style guidelines. 2018 Subscriptions Subscription enquiries and orders to: Pretoria University Law Press (PULP) E-mail: [email protected] Fax: +27 86 610 6668 2 x issues ZAR645-00 (excluding postage, postage is charged per issue) This Journal is an open access free online journal and is available for searching and free download at: http://www.ahrlj.up.ac.za AFRICAN HUMAN RIGHTS LAW JOURNAL Editorial This issue of the African Human Rights Journal appears at the end of year two of the Human and Peoples’ Rights Decade in Africa (2017- 2026) of the African Union (AU), which the AU declared in 2016. You would be forgiven for not having noticed. Africa’s people could be forgiven if they question the extent to which African states and the African Commission on Human and Peoples’ Rights (African Commission) have over this period acted as the protectors of their human rights. As far as human rights are concerned, the rhetoric of AU member states has little to do with reality. When it declared the Human Rights Decade in June 2016, the AU Assembly pledged its ‘unflinching determination to promote and protect human and peoples’ rights in Africa and the need for the full implementation of human and peoples’ rights instruments and decisions and recommendations made by the AU organs with a human rights mandate’.1 More than that, the Assembly also called on the AU Commission ‘to ensure the independence and integrity of AU organs with human rights mandate by shielding them from undue external influence’.2 Regrettably, it turned out that it was not the threat of ‘undue external influence’ by donors and non-governmental organisations (NGOs) from outside Africa, but undue influence by the AU policy organs themselves (culminating in Decision 1015 by the AU Executive Council in June 2018) that undermined the independence and integrity of the African Commission. Decision 1015 was adopted following a ‘retreat’ between the African Commission and the AU Permanent Representatives’ Committee (PRC), at which a stand-off between the AU policy organs and the African Commission was the main agenda point. This deadlock arose because the Commission refused to cave in to mounting political pressure to withdraw the observer status it had granted to the non-governmental organisation