3. Electronic Theses and Dissertations (ETDs) - All submissions

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    Duties, rights and afro-communitarian societies
    (2019) Nyirenda, Nitumbiko
    Human rights are at the center of most world societies today. The traditional assumption has been that they are necessary and universal. However, in light of their universality, there are variations with regard to a conception of human rights that each society has. That is, even if most societies acknowledge existence of human rights, how each society thinks about human rights, in terms of justification and application for example, may be different. In this paper, while presenting various African conceptions of human rights, I argue for a conception of human rights from the stand point of duties. I argue that human rights in Afro-communitarian societies are implicit within the language of duty. To understand the implicit nature of rights, I argue for rights as needs. I take human rights (as needs), to be the basic conditions for living a decent life in a society.
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    Domestic implementation of international human rights standards against torture in Lesotho
    (2017) Shale, Itumeleng Mamokhali
    Absolute prohibition of torture is a peremptory norm of international customary law that all states must comply with. Obligations to prevent and prohibit torture, to punish its perpetrators and to provide adequate redress to victims of torture, as well as to report on measures taken against torture are contained in several international human rights instruments to which Lesotho is a party. A key obligation contained in these instruments is for state parties to harmonise their national legal systems, as well as practices with standards contained in each instrument. Thus, the main question, which this thesis investigates, is the extent to which international human rights standards against torture are effectively implemented in Lesotho’s domestic legal regime. In order to respond to this question, the thesis seeks to answer four sub-questions aimed at identifying international human rights standards and states’ obligations against torture, to determine the relationship between international law and the legal system of Lesotho, to evaluate Lesotho’s legal and institutional frameworks against the international human rights standards identified and lastly, to extract from Lesotho’s political history the extent to which torture is practised in Lesotho, factors, which influence its commission, as well as those, which inhibit effective implementation of the international standards against it. In Chapter 1 of the thesis, the research is introduced, a definition of torture under both international human rights and international criminal law is provided and the structure of the thesis is set out. In Chapter 2, the history of international prohibition of torture is first discussed so as to provide the context in which the international standards against torture were adopted, and then the obligations against torture, which each international human rights instrument adopted by the United Nations (UN) and African Union imposes on state parties to them, are extrapolated. The overall states’ obligations in these instruments are: the obligation to prevent and prohibit torture, to prosecute and punish its perpetrators and to provide redress to victims of torture, as well as to report on measures taken against torture. In Chapter 2, the specific ways in which states are mandated to implement these obligations are also discussed. In Chapter 3, the extent of implementation of these obligations in Lesotho’s legal and institutional frameworks are assessed, and in Chapter 4, their practical implementation by Lesotho’s three law enforcement institutions, the Lesotho Mounted Police Service (LMPS), the Lesotho Defence Force (LDF) and the Lesotho Correctional Service (LCS) are evaluated. An analysis of Lesotho’s legal system in Chapter 3 reveals that the legal system is receptive of international law and that judicial activism has led to the application of international human rights instruments by the courts of Lesotho without probing into their domestication. Therefore, similar arguments may be used to apply Lesotho’s international human rights obligations against torture in the legal system of Lesotho. A further review of the legal and institutional frameworks against torture in Chapter 3, as well as the practice of torture in Chapter 4, leads to a conclusion that the legal and institutional frameworks are weakened by both political instability and failure to implement international human rights standards. Failure to prohibit torture as a distinct crime and the granting of immunity and amnesty for politically motivated torture have resulted in the continued practice of torture, impunity for perpetrators and a lack of adequate redress to victims of torture. In the thesis, a multi-pronged approach to addressing these challenges is recommended. Firstly, the national legal framework must be reformed and harmonised with the international human rights standards against torture. A specific anti-torture legislation must be enacted. The existing laws must be reviewed and amended to incorporate Lesotho’s obligations under the relevant international human rights instruments, such as the UN and African regional levels. Laws, which are in conflict with the international standards, must be repealed and those not yet enacted, such as the Amnesty Bill, 2016 must not be enacted. Secondly, Lesotho’s institutions and offices, such as the LMPS, the Police Complaints Authority, the Director of Public Prosecutions, the Office of the Ombudsman and the Judiciary must be capacitated through training and alignment of their mandates with international standards in order for them to effectively investigate allegations of torture, to prosecute perpetrators, to impose appropriate penalties on those convicted and to award reparative remedies to victims of torture. Because of the link between the prevalence of torture and the involvement of the military in Lesotho’s political instability, the dissolution of the LDF as a torture prevention measure is further recommended.
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    Global commerce and human rights: towards an African legal framework for corporate human rights responsibility and accountability
    (2016-01-29) Osuntogun, Abiodun Jacob
    Since the 1970s, when third world countries challenged the market-dominated international trade regime, the United Nations (UN) has been engaging without relent on how to fill the gap in business and human rights governance. The gap exists in countries with relaxed domestic regulatory regimes, where multinational corporations commit human rights violations without regional and institutional mechanisms to hold them accountable. From the draft codes, to the Global Compacts and the UN Draft Norms, the search failed to yield the desired result. In 2005, another move was made that produced a compendium of UN Guiding Principles on Business and Human Rights (UNGP) which was unanimously endorsed by the UN Human Rights Council (UNHRC) in May 2011. Although it has been argued that the endorsement fills the gap that has been missing in the quest for global corporate accountability, the search continues unabated at the UN forum albeit without the support of some powerful nations for a ‘binding international legal instrument’ that will regulate the activities of corporations with regard to human rights. However, while awaiting the outcome of the recent interrogation on the issue, the UNHRC passed a resolution that the implementation of the UNGP should commence. Since Africa is one of the continents greatly affected by this problem, this thesis considers how the African Union (AU) can develop a framework for corporate human rights responsibility and accountability in line with the UNGP. To this end this thesis proposes a mechanism that will engender a proper implementation of the UNGP; it argues that a new treaty process and implementation of the UNGP are simply different sides of the same coin and that they serve the same purpose. The thesis also considers the adequacy of the existing regulatory framework for corporate human rights accountability in Africa and explores the creation of an appropriate forum for the implementation of the UNGP. Choosing the AU as the suitable forum, this thesis endeavours to examine how some legal and policy-making institutions in the AU can be rejuvenated, overhauled and re-positioned in order to perform effective corporate accountability oversight to support the domestic and sub-regional systems. Furthermore, it attempts to provide possible remedies to victims of corporate human rights violations in Africa.
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    Policing gender dissidence: a study on the increase of institutionalized gender repression- the 2014 anti-homosexuality bills of Uganda and Nigeria
    (2015-08-21) Morobane, Farai
    In the first two months of 2014, LGBTI rights were dealt heavy blows in two African countries. On 7 January, Nigerian President Goodluck Jonathan signed into law a bill that criminalises same-sex unions, with prison sentences of up to fourteen years. This same law sentences any person or organisation that funds in any way the registration and operation of gay organisations, clubs, or societies to a prison sentence of ten years. A month later, the president of Uganda, Yoweri Museveni, officially assented to a more draconian bill which imposes penalties as high as life imprisonment for people engaging in consensual same-sex sexual activity. There has been a stark increase in the passing of repressive gender laws on the continent in the last decade. This is a qualitative inductive study that sets out to research the factors causing the increase of gender repressive law making in African states between 2009 and 2014. The study sets out to dissect the 2014 Anti-homosexuality bills of 2014 in Uganda and Nigeria as case studies. Using a multi-layered analysis approach the study tests out the influences leading to the increase of LGBTI intolerant laws categorised into national, regional and international impacts. I argue that strategic national interests are central in explaining the frequency, urgency and intensity of anti-homosexuality vitriol in some African states.
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    Human rights, human development, and peace: inseparable ingredients in Africa's quest for prosperity
    (2009-03-27T08:40:48Z) Eno, Robert W.
    Despite decades of foreign aid, abundance of natural and human resources, and numerous development initiatives, the African continent remains largely underdeveloped, marginalised and excluded from major decision-making processes that shape today’s world. The purpose of this research is to examine the reasons for the continuous underdevelopment and marginalisation of the African continent and to advance pragmatic measures to be put in place to reverse the situation. The thesis demonstrates that Africa’s underdevelopment and marginalisation cannot be divorced from the effects of centuries of exploitation, domination, and exclusion through the slave trade, colonialism, and neo-colonialism on the one hand, and decades of poor socio-economic and political governance that have characterised the continent since independence, on the other. One of the main findings of the research is that, over the years, African leaders have consciously or unconsciously failed to recognise the fundamental link between human rights, human development, and peace as a foundation for development, and this failure has resulted in their inability to craft sustainable development initiatives for the continent. Given the prominent place human rights, good governance, democracy, peace and stability occupy in both the Constitutive Act of the African Union (CA-AU)1 and the New Partnership for Africa’s Development2 (referred throughout this thesis as the NEPAD Document), the thesis further demonstrates that there is an intrinsic relationship between human rights, human development, and peace which is necessary for development. It analyses the extent to which this relationship has been taken into account in 1 The Constitutive Act of the African Union, OAU Doc. CAB/LEG/23.15, was adopted 11 July 2000 in Lomé, Togo and entered into force May 26, 2001. 2 The New Partnership for Africa's Development (NEPAD or the NEPAD Document) 2001. The NEPAD is an economic development program of the African Union. The NEPAD was adopted at the 37th Session of the Assembly of Heads of State and Government in July 2001 in Lusaka, Zambia. PhD Thesis Human Rights, Human Development and Peace – inseparable ingredients in Africa’s quest for prosperity xvi the conception, formulation, and implementation of the objectives of both the AU and the NEPAD; and concludes that the NEPAD and the AU initiatives provide a strong foundation and offer an excellent opportunity for Africans to begin to reverse centuries of exploitation, domination, and decades of socioeconomic and political exclusion, as well as re-orientate the governance and development strategy of the continent. The thesis is premised on the realisation that respect for human rights, the promotion of human development, and the consolidation of peace, coupled with good political and economic governance are conditions sine qua non for any meaningful development. It further reveals that respect for human rights provides a foundation upon which rests the political structures of human freedoms. The achievement of human freedom generates the will as well as the capacity for economic and social progress. The attainment of economic and social progress provides the basis for durable peace. The thesis concludes that human rights, human development, and peace are interdependent, interrelated, indivisible and mutually reinforcing, and thus inseparable ingredients in Africa’s quest for prosperity.
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    Human rights and the construction of identities in South African education
    (2007-02-16T12:08:55Z) Carrim, Nazir Hoosain
    This thesis is based on an exploration of human rights (in) South African education. In order to do so, however, it has been necessary to explore the origins of the notion of human rights in both its philosophical and legal senses. It covers the ways in which the claim of an equality of all human beings has developed historically and the ways in which they are articulated in the Universal Declaration of human rights and in the “new” South African Constitution. However, the argument in this thesis is that human rights tend to be generalised and universalised, and as such do not adequately address the ways in which human rights are experienced in specific social formations and in the contexts of particular people’s lives. In order to make human rights more specific and personal, I apply a sociology of human rights using Stuart Hall’s “theory of articulation” and demonstrate what this sociological analysis means in the context of South Africa under apartheid. In addition, to prevent reifying social categories and privileging particular types of human identity, I explore human rights under apartheid in relation to ‘race’, gender and sexual orientation. Throughout, I point to ways in which these identities and social categories interconnect with each and balance micro and macro approaches to an analysis of apartheid. Methodologically this thesis uses Sarah Lawrence-Lightfoot’s approach of “portraiture” in order to capture personal lives within a macro context and I provide accounts in this respect of Nelson Mandela and Simon Nkoli. I have also used a combination of quantitative and qualitative approaches in my investigation of experiences of human rights in South African education. Teachers’ and learners’ questionnaires were conducted in schools in the Western Cape, KwaZulu-Natal and Gauteng in South Africa between 1996 and 1998. In addition, individual interviews with Grade 9 teachers were conducted and group interviews with Grade 9 learners in these schools were also done. Classroom observations in three schools, one in each of the provinces, were also conducted, and individual interviews with two gay learners also form part of the empirical data of this study. A national survey of what human rights programmes were used by educational institutions and organisations was also conducted. The thesis also contextualises the sampled schools experiences within the post-apartheid dispensation in South Africa, providing an account of how human rights are framed in South Africa generally and in the South African educational system in particular. Approaches to human rights (in) education are also covered, as are the principles of a human rights education. The conclusions that I arrive at in this thesis are that there are interventions in regard to human rights in South African education which tend to be located within legalistic and integrated approaches. In addition, experiences of racism in the sampled schools are prevalent within an assimilationist mode. In regard to sexual orientation, sex, gender and sexuality are conflated but the provision of human rights in terms of sexual orientation has had a positive impact on the sampled gay learners in this study. Finally, I argue that the sociological approach to human rights is useful and generative and has enabled this study to access an understanding of human rights in generalised macro terms and in specific contexts of people’s experiences.
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