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 Lecturer, Faculty of Law, Monash University, Magnus Killander Australia Professor, Centre for Human Rights, University of Pretoria Victor Dankwa Professor of Law, University of Ghana Annelize Nienaber Professor, Faculty of Law, University of Pretoria John Dugard Member, International Law Commission; Publication manager Extraordinary professor, Centre for Human Rights, University of Pretoria Isabeau de Meyer Christof Heyns Assisted by Chair of the international editorial advisory board; Director: Institute for International and Foluso Adegalu Comparative Law in Africa, University of Pretoria Project officer, Centre for Human Rights, Edward Kwakwa University of Pretoria Legal Counsel, World Intellectual Property Janet Gbam Organisation, Geneva, Switzerland Research assistant, Centre for Human Rights, Sandy Liebenberg University of Pretoria HF Oppenheimer Chair in Human Rights Law, Larissa Heüer University of Stellenbosch, South Africa Doctoral candidate, Centre for Human Rights, Tiyanjana Maluwa University of Pretoria Professor of Law, Dickinson School of Law, Susan Mutambasere Pennsylvania State University, USA Tutor; doctoral candidate, Centre for Human Joe Oloka-Onyango Rights, University of Pretoria Professor of Law, Faculty of Law, Makerere Marystella Simiyu University, Uganda Doctoral candidate, Centre for Human Rights, Kate O’Regan University of Pretoria Former Justice, Constitutional Court of South Ayo Sogunro Africa Doctoral candidate, Centre for Human Rights, Fatsah Ouguergouz University of Pretoria 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 (2019) 19 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 19 No 2 2019 2019 African Human Rights Law Journal Volume 19 No 2 2019 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............................................................................ vii Articles Eliminating harmful practices against women in Zimbabwe: Implementing article 5 of the African Women’s Protocol by Linet Sithole and Cowen Dziva..................................... 568 The impact of the African Union Convention on the Protection and Assistance of Internally Displaced Persons in Africa by Romola Adeola ............................................................ 591 Protecting the rights of victims in transitional justice: An interrogation of amnesty by Uti Ojah Egbai and Jonathan O Chimakonam.............. 608 ‘He beat me, and the state did nothing about it’: An African perspective on the due diligence standard and state responsibility for domestic violence in international law by Maame Efua Addadzi-Koom......................................... 624 The right of palliative care for the most vulnerable in Africa is everyone’s responsibility by Emmanuel Kamonyo Sibomana, Desia Colgan and Nicola GunnClark............................................................. 653 Recognition of minority groups as a prerequisite for the protection of human rights: The case of Anglophone Cameroon by Valerie Muguoh Chiatoh .............................................. 675 Pharmaceutical trade policies and access to medicines in Kenya by Paul O Ogendi............................................................. 698 A predisposed view: State violence, human rights organisations and the invisibility of the poor in Nairobi by Catrine Christiansen, Steffen Jensen and Tobias Kelly.... 721 Abolition of criminal defamation and retention of scandalum magnatum in Lesotho by Hoolo ‘Nyane .............................................................. 743 iii iv (2019) 19 AFRICAN HUMAN RIGHTS LAW JOURNAL Public-private partnership and the right to property in Nigeria by Augustine Arimoro ....................................................... 763 Decongestion of Nigerian prisons: An examination of the role of the Nigerian police in the application of the holding-charge procedure in relation to pre-trial- detainees by Aliyu Ibrahim ............................................................... 779 The illegal eviction of undocumented foreigners from South Africa by Emma Alimohammadi and Gustav Muller..................... 793 Decriminalisation of cannabis for personal use in South Africa by Emma Charlene Lubaale and Simangele Daisy Mavundla 819 Recent developments Decriminalisation of consensual same-sex sexual acts and the Botswana Constitution: Letsweletse Motshidiemang v The Attorney-General (LEGABIBO as amicus curiae) by Tashwill Esterhuizen ..................................................... 843 Please note that the editors will only consider submissions that clearly indicate that the submission has 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 Contributions to this edition of the African Human Rights Law Journal may be classed into two overarching categories: articles dealing with issues from a continental perspective; and articles that focus on the domestic level. The first two contributions which are part of the first category interrogate the impact of two relatively new treaties adopted under the ambit of the African Union (AU): the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol), adopted in 2003, and the African Union Convention on the Protection and Assistance of Internally Displaced Persons in Africa (IDP or Kampala Convention), adopted in 2009. Sithole and Dziva trace the effect of article 5 of the African Women’s Protocol (dealing with the elimination of harmful practices) in Zimbabwe. Adeola’s contribution covers important ground concerning the impact of the Kampala Convention – a topic of particular relevance in the year that the AU devoted to the theme ‘The year of refugees, returnees and internally displaced persons: Towards durable solutions to forced displacement in Africa’. These contributions complement the burgeoning scholarship on the topic of implementation/compliance/impact by providing detailed analyses in a specific and more general African context. The next three contributions deal with a variety of thematic concerns of relevance to Africa as a whole: amnesty in the context of the rights of victims in transitional justice (Egbai and Chimakonam); the due diligence standard and state responsibility for domestic violence in international law (Addadzi-Koom); and the right to palliative care for the most vulnerable (Sibomana, Colgan and GunnClark). Articles addressing issues of particular concern at the domestic level target five countries: Cameroon, Kenya, Lesotho, Nigeria and South Africa. In respect of Cameroon, Chiatoh discusses the burning issue of the denial of minority rights in pluralist societies, and argues that the denial of the rights of Anglophone Cameroonians is at the root of the current unresolved conflict in that country. In respect of Kenya, Ogendi takes a critical look at pharmaceutical trade policies in the context of access to medicines; and Christiansen, Jensen and Kelly introduce a much-neglected topic by linking state violence, human rights