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Download This Issue As a Full-Text Editors International editorial advisory board Frans Viljoen Jean Allain Editor-in-chief; Professor of Human Rights Law Professor of Public International Law, Queen's and Director, Centre for Human Rights, University of Belfast, Northern Ireland 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; Co-ordinator, London Department of Jurisprudence and Public Law, Niger Delta University, Nigeria Gina Bekker Lecturer, School of Law, University of Ulster, Magnus Killander Northern Ireland Associate 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 Associate Professor, Faculty of Law, University of Pretoria Christof Heyns Chair of the international editorial advisory Publication manager board; Director: Institute for International and Comparative Law in Africa, University of Pretoria Isabeau de Meyer Edward Kwakwa Programme manager, Centre for Human Rights, Legal Counsel, World Intellectual Property University of Pretoria Organisation, Geneva, Switzerland Assisted by Sandy Liebenberg HF Oppenheimer Chair in Human Rights Law, Basiru Bah University of Stellenbosch, South Africa Teaching assistant, Faculty of Law, University of The Gambia Tiyanjana Maluwa Professor of Law, Dickinson School of Law, Ashwanee Budoo Pennsylvania State University, USA Tutor; doctoral candidate, Centre for Human Rights, University of Pretoria Joe Oloka-Onyango Associate Professor of Law, Faculty of Law, Alex Ekeke Makerere University, Uganda Doctoral candidate, Centre for Human Rights, University of Pretoria Kate O'Regan Former Justice, Constitutional Court of South Joelon Fincher Africa Researcher, Centre for Human Rights, University of Pretoria Fatsah Ouguergouz Judge, African Court on Human and Peoples’ Nora Ho Tu Nam Rights Tutor; doctoral candidate, Centre for Human Rights, University of Pretoria Michael Reisman Myres S McDougal Professor of International Michael Nyarko Law, Yale Law School, USA Tutor; doctoral candidate, Centre for Human Rights, University of Pretoria Geraldine van Bueren Professor of International Human Rights Law at Chairman Okoloise Queen Mary, University of London Tutor; doctoral candidate, Centre for Human Rights, University of Pretoria THIS JOURNAL SHOULD BE CITED AS (2016) 16 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 16 No 1 2016 2016 African Human Rights Law Journal Volume 16 No 1 2016 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 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 12 362 5125 [email protected] www.pulp.up.ac.za Printed and bound by: BusinessPrint, 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............................................................................ iii Articles Incompatibility of national law with the African Charter on Human and Peoples’ Rights: Does the African Court on Human and Peoples’ Rights have the final say? by Amos O Enabulele ....................................................... 1 Peoples’ rights, indigenous rights and interpretative ambiguities in decisions of the African Commission on Human and Peoples’ Rights by Felix M Ndahinda ........................................................ 29 Rights away from home: Climate-induced displacement of indigenous peoples and the extraterritorial application of the Kampala Convention by Ademola Oluborode Jegede.......................................... 58 The right not to be arbitrarily displaced under the United Nations Guiding Principles on Internal Displacement by Romola Adeola ............................................................ 83 The legacy of the Kenyatta case: Trials in absentia at the International Criminal Court and their compatibility with human rights by Alexander Schwarz ...................................................... 99 Children’s rights, domestic alternative care frameworks and judicial responses to restrictions on inter-country adoption: A case study of Malawi and Uganda by Danwood M Chirwa .................................................... 117 A family home, five sisters and the rule of ultimogeniture: Judicial approaches to customary law in South Africa and Botswana by Christa Rautenbach ..................................................... 145 The court record and the right to a fair trial: Botswana and Uganda by Catherine S Namakula................................................. 175 Interpreting the human right to water as a means to advance its enforcement in Uganda by Phiona Muhwezi Mpanga............................................ 204 i ii (2016) 16 AFRICAN HUMAN RIGHTS LAW JOURNAL A South African reflection on the nature of human rights by Auwais Rafudeen.......................................................... 225 The importance and relevance of amicus curiae participation in litigating on the customary law of marriage by Amanda Spies.............................................................. 247 Recent developments The King can do no wrong: The impact of The Law Society of Swaziland v Simelane NO & Others on constitutionalism by Angelo Dube and Sibusiso Nhlabatsi ............................ 265 Legal formalism and the new Constitution: An analysis of the recent Zimbabwe Supreme Court decision in Nyamande & Another v Zuva Petroleum by Manson G Gwanyanya ................................................ 283 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. 2016 Subscriptions Subscription enquiries and orders to: Pretoria University Law Press (PULP) E-mail: [email protected] Fax: +27 12 362 5125 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 appears in a year during which human rights enjoy particular prominence globally, in Africa and at the domestic level. In the United Nations (UN) system, a landmark has been reached: 50 years have passed since the adoption on 16 December 1966 of the two pillars of the UN human rights treaty architecture – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It is also 15 years since the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance was held in Durban, South Africa (where the Durban Declaration and Programme of Action was adopted). Marking 30 years since the entry into force of the African Charter on Human and Peoples’ Rights (African Charter), on 21 October 1986, the year 2016 is being celebrated as the African Union (AU) Year of Human Rights. Ten years have also passed since the African Court on Human and Peoples’ Rights (African Court) started functioning. At the domestic level in Africa, South Africa joins the circle of celebrations as well: It looks back at the adoption on 8 May 1996 of its current Constitution (the Constitution of the Republic of South Africa, 1996). Located in South Africa, as part of the Faculty of Law at the University of Pretoria, the Centre for Human Rights, where this Journal is edited and administered, similarly marks a milestone. It is 30 years since its establishment, in May 1986. Articles in this issue cover a wide range of topics. The common denominator between these contributions is that they all locate their thematic concerns firmly in African soil. The first three articles in this issue critically analyse elements of the African regional human rights system. Enabulele zooms in on the question of the hierarchy between regional human rights treaties and national constitutions. Earlier this year, in April, the Russian Constitutional Court ruled that
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