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Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History SJD Dissertations Academics 5-1-2018 Legal Pluralism and the Implementation of International Human Rights Law in Africa: The Case of the Convention of the Rights of Persons with Disability (CRPD) in Ghana Christine Buamah [email protected] Follow this and additional works at: https://ir.lawnet.fordham.edu/sjd Recommended Citation Buamah, Christine, "Legal Pluralism and the Implementation of International Human Rights Law in Africa: The Case of the Convention of the Rights of Persons with Disability (CRPD) in Ghana" (2018). SJD Dissertations. 11. https://ir.lawnet.fordham.edu/sjd/11 This Dissertation is brought to you for free and open access by the Academics at FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in SJD Dissertations by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. LEGAL PLURALISM AND THE IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS LAW IN AFRICA: THE CASE OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITY (CRPD) IN GHANA A DISSERTATION SUBMITTED BY BY CHRISTINE NANA TIWAA BUAMAH TO The International and Non-J.D. Programs in Partial Fulfillment of the Requirements for the Degree of Doctor of Juridical Science (SJD) In the School of Law of Fordham University May 2018 FORDHAM UNIVERSITY FORDHAM SCHOOL OF LAW INTERNATIONAL AND NON-J.D. PROGRAM Christine Nana Tiwaa Buamah We, the dissertation Committee for the above candidate for the Doctor of Juridical Science (SJD) Degree, hereby recommend acceptance of this dissertation …………………………………………………………………………. Ethan J. Leib John D. Calamari Distinguished Professor of Law Fordham School of Law …………………………………………………………………………. Chi A. Mgbako Clinical Professor of Law Director, Leitner International Human Rights Clinic Fordham School of Law ………………………………………………………………………… Raymond A. Atuguba Professor of Law University of Ghana School of Law This dissertation is accepted by the Graduate Committee ………………………………………. 2 LEGAL PLURALISM AND THE IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS LAW IN AFRICA: THE CASE OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITY (CRPD) IN GHANA ABSTRACT Most African states are legally pluralistic. As a result, the universalism and cultural relativism approaches to the implementation of international human rights norms in African domestic settings are largely unsuccessful because they do not factor in legal pluralism. A better approach appears to be the cultural pluralism approach. This approach has fared well in Ghana’s implementation of the international convention on the rights of the child. A thorough examination of this case study reveals that the cultural pluralism approach requires an additional step to make it more effective in domesticating international human rights norms. This dissertation identifies this third step: the creation of an interface between state and non-state law for international law and customary law to meet; examines its robustness, and tests it against the implementation of disability rights in Ghana as a measure to improve those set of rights in Ghana. 3 FIELDS OF STUDY AND FIELD SUPERVISORS Law and Organizing Ethan J. Leib John D. Calamari Distinguished Professor of Law Fordham School of Law Fordham University International human rights Chi A. Mgbako Clinical Professor of Law Director, Leitner International Human Rights Clinic Fordham School of Law Fordham University International law and conflict of laws Raymond A. Atuguba Professor of Law University of Ghana School of Law 4 DEDICATION To the DAM (Dominic, Anthony and Marie.) Thank you for letting mom be a student. 5 ACKNOWLEDGEMENTS This research project was conceived, nurtured and carried through my work with the Constitution Review Commission of Ghana as Counsel and Associate Researcher. I therefore wish to thank Professor Emeritus Albert Kodzo Fiadjoe, Chairman of the Constitution Review Commission and the members of the Commission for the opportunity to serve my nation in that honorable position. I also thank members of the research team of the Commission for the countless hours we spent brainstorming on the Constitution of Ghana. Those debates helped develop my research ideas. Next I will like to express my gratitude to the Ghana Education Trust Fund for sponsoring my graduate studies and to the Ministry of Gender, children and Social Protection (Ghana), for research support. I wish to thank my main supervisor Professor Ethan Leib. You read my countless pieces and helped shape my research idea through your invaluable comments. You made various arrangements, which facilitated the research process for me, and I am very grateful to you. I also wish to thank the other members of my dissertation committee; Professor Chi Mgbako, for her very constructive feedback, and Professor Raymond Atuguba for his unwavering support throughout my graduate studies. I am equally indebted to the Faculty at Fordham School of Law especially Professor 6 Thomas Lee, Professor Clare Huntington, Professor Paolo Galizzi and Professor Jennifer Gordon for being always ready to offer helpful comments and guidance. My deep and sincere gratitude goes to Professor Toni Fine, Director of the International and Non-J.D. Programs, for her kindness and very prompt responses to my requests. I am profoundly grateful to my LL.M Long Paper supervisor—Professor Gerald Neuman of Harvard Law School. Your guidance during my sojourn at Harvard Law School encouraged me to pursue the SJD degree. To my colleague SJD candidates, I am very grateful for your comments on my work and for your warm friendship. To my husband Yaw, and my children Kwame (Dominic), Kwabena (Anthony) and Akua (Marie), thank you so much for bearing with me. You gave meaning to the process. I am exceptionally grateful to my visionary parents Dr. and Mrs. Buamah for making unusual investments in my education from a very early age. My immense gratitude to my brothers and sisters: Leonard, Thomas, Joan, Ivana, Chief and Adwoa Serwaa. I have called them up to provide me with different types of assistance during the period of my studies: from paying fees to baby sitting my children. I could not have made it without their support. 7 LIST OF ABBREVIATIONS AFCHR African Charter on Human and Peoples’ Rights CAT Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment CEDAW Convention on the Elimination of All Forms of Discrimination against women CPED International Convention for the Protection of All Persons from Enforced Disappearance CRC Convention on the Rights of the Child CRPD Convention on the rights of Persons with Disability CWD Child(ren) with Disability GFD Ghana Federation for the Disabled ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ICMW International Convention on Migrant Workers 8 and Members of their Families PWD Person(s) with Disability MP Member of Parliament NGO Non-Governmental Organization OHCHR United Nations Office of the High Commissioner UDHR Universal Declaration of Human Rights UN United Nations US United States of America 9 ABSTRACT FIELDS OF STUDY AND FIELD SUPERVISORS DEDICATION ACKNOWLEDGEMENTS LIST OF ABBREVIATIONS TABLE OF CONTENTS INTRODUCTION 1 CHAPTER ONE: 29 APPROACHES TO IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS TREATIES 29 1.1 INTRODUCTION 29 1.2 INTERNATIONAL HUMAN RIGHTS TREATIES AND STATES OBLIGATIONS 29 1.3 INTRODUCTION TO UNIVERSALISM, CULTURAL RELATIVISM AND CULTURAL PLURALISM 32 1.3.1 What Is Universalism 35 1.3.2 What is Cultural Relativism 36 1.3.3 What is Cultural Pluralism 38 1.4 DIFFERENCES BETWEEN UNIVERSALISM, CULTURAL RELATIVISM AND CULTURAL PLURALISM 40 1.5 CONCLUSION 42 2 CHAPTER TWO: 10 LEGAL PLURALISM AND ITS OPERATION IN AFRICA 44 2.1 INTRODUCTION 44 2.2 WHAT IS LEGAL PLURLAISM 45 2.2.1 History of Legal Pluralism 45 2.2.2 Definition of Legal Pluralism 47 2.3 LEGAL PLURALISM IN AFRICA 53 2.3.1 How Africa’s colonial history engenders Legal Pluralism 53 2.3.2 The Distinctiveness of Legal Pluralism in Africa 57 2.4 FACTORS PROMOTING LEGAL PLURALISM IN AFRICA 64 2.4.1 Colonization created two streams of law within the state 64 2.4.2 The desire to maintain the African identity 65 2.4.3 Presence of alternative systems 66 2.4.4 Lack of Formal Education 67 2.4.5 Economic factors 67 2.5 FACTORS OBSTRUCTING LEGAL PLURALISM IN AFRICA 69 2.5.1 Decentralization 69 2.5.2 Education 70 2.5.3 Consolidation of State power 71 11 2.5.4 Cost of maintaining plural legal systems within the state 72 2.5.5 Conflicting value systems within the same social field 72 2.6 POSITIVES OF LEGAL PLURALISM IN THE LEGAL SYSTEMS OF AFRICAN POLITIES 73 2.6.1 Legal pluralism helps protect cultural identity 73 2.6.2 Legal Pluralism teaches history to future generations 74 2.6.3 Legal pluralism makes indigenous systems of governance relevant in modern African states 75 2.6.4 Legal pluralism offers alternatives to individuals 77 2.6.5 Legal pluralism has the potential to make implementation of international human rights more effective 78 2.7 NEGATIVES OF LEGAL PLURALISM IN THE LEGAL SYSTEMS OF AFRICAN POLITIES 79 2.7.1 Uncertainty whether to obey state laws or non- state laws 79 2.7.2 It makes the implementation of state law more difficult 80 2.7.3 Applicability of a subgroup’s law to a particular
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