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Everyone’s human rights

A series of debates on human rights in Africa

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Part 1: “Improving access to child friendly justice systems in Africa”

Dr. Joan Nyanyuki

On Thursday, the 13th August 2020 we started with the first debate of our series “Everyone’s human rights – A series of debates on human rights in Africa”. The special guest was Dr. Joan Nyanyuki, Executive Director of African Child Policy Forum and advocate for protection and promotion of human rights. Originally, she began her career as a medical doctor, providing clinical care to patients in the public and private health sectors in Kenya and working with survivors of torture and sexual violence. 

After a short welcome and opening of Prof. Thoko Kaime, and an introduction of Dr. Joan Nyanyuki, she talked about “Improving access to child friendly justice systems in Africa”.

Her very interesting and instructive presentation highlighted some of the challenges children in Africa are currently faced with. 

The African Child Policy Forum is already in existence for 18 years and tries to support children that are involved in civil, criminal, administrative or customary law procedures.

During her speech, Dr. Joan Nyanyuki underlined that many national legislations do not adequately support children during such matters. She therefore showcased approaches on how to improve access to child friendly justice. 

Children statutes have already been established in 35 African countries. However, the harmonisation of laws that affect children as well as laws and policies that provide a framework for implementation are still needed. More precisely, child friendliness must be finally applied in civil justice, administrative procedures, customary and traditional courts or other informal alternatives. This will narrow the existing gap between the legal framework and the practice. In general, child friendly justice has the potential to influence the future course of children’s lives not only in Africa.

The possible actions towards a more child friendly justice system are numerous according to Dr. Nyanyuki. Some include establishing safeguards during trial for children while others focus on reintegration efforts. This could potentially be achieved by raising the minimum age of criminal responsibility, which still is at below 14 years in 38 countries in Africa. Additionally, Dr. Nyanyuki stressed that a stronger focus on laws relating to child offenders and all children in need of care and protection is necessary. This would then have to be accompanied by an increased focus on child victims and witnesses as well as an overarching system securing accountability at all levels. With these and other measures, the law would be more adequately able to give effect to human rights norms and standards. At the same time however, prevention plans are needed in order to reach all children through holistic child protection and social systems.

After that first instructive presentation, a fruitful debate between Dr. Nyanyuki and the participants about child friendly justice systems in Africa enfolded. The in-depth questions covered a wide-ranging field of topics and once again showed the various challenges as well as possible actions to promote child friendly justice systems.

In conclusion, it was a wonderful opportunity getting to know such a personality and hearing her long-lasting experience.

If you could not join the first debate yet, you are very welcome to watch the recorded video here.

We cannot wait for our next debate on Wednesday, 2 September at 6.30 pm (German time) about “The principle of human dignity in constitutional adjudication in Malawian Courts” with our guest Justice Professor Redson Kapindu, Judge of the High Court of the Republic of Malawi and Professor of Law at the University of Johannesburg

Report by Ligia Link and Max Zuber

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Part 2 "The principle of human dignity in constitutional adjudication in Malawian courts"

Justice Professor Redson Kapindu

“Fighting for the rights step by step always helps to move a little bit forward”

On Wednesday, the 2nd September 2020, our special guest at our “Everyone’s human rights” series of debates was Justice Professor Redson Kapindu, Judge of the High Court of the Republic of Malawi and Professor of Law at the University of Johannesburg.

Since 2013 Redson Kapindu is judge at the High Court of Malawi and works as Associate Professor of Law at the University of Malawi and the University of Johannesburg. His research and litigation interests focus on human rights law, with a special emphasis on socio-economic rights, and international law. He absolved his LL.B. and LL.M at the University of Malawi and the University of Pretoria. Besides, he holds a Diploma in international human rights from Lund University in Sweden and a PhD in human rights law from the University of the Witwatersrand in South Africa.

Human Dignity and the African Concept “Ubuntu”

His very interesting and instructive presentation about “The principle of human dignity in constitutional adjudication in Malawian Courts” was always accompanied by the key note problem of the definition of human dignity. There is no clear definition of human dignity. In general, it is necessary to promote individuality, personal development, equality and all other human rights to guarantee human dignity for every human being, especially minorities.

The conception of human rights in Malawi derives from the African concept “Ubuntu” which term meaning can be translated into “humanity”. Hence to that, the principle of human dignity represents an idea of African philosophy and the African way of life realizing the protection of human dignity also regarding to precolonial African or Native American people.

The Malawian Constitution of 1994 highlights the concept that guarantees fundamental principles of each human being. Even minorities have rights and the fullest protection in the Malawian constitution. Chapter III of the Constitution outlines the constitutional principles highlighting the inherent dignity and worth of each human being requiring that the State and all persons shall recognize and protect human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities.

In my opinion, Justice Redson Kapindu’s presentation enlightened a very up-to-date topic realizing that the implementation of the principle of human dignity is needed in Africa as well as in general in other countries. He emphasized the importance of the persistence of human rights and made me also think about the current situation in Germany.

The Human Dignity Debate and concluding remarks

Justice Redson Kapindu’s lecture was followed by a fruitful debate with the participants about the principle of human dignity not only in Malawian courts but also with a reference to the German Constitution and courts. I was impressed that the interest of the participants was so high that the actual time for the debate was extended.

In conclusion, I am very thankful again for such a wonderful experience having the chance to hear that inspiring presentation and debate. Especially, Justice Redson Kapindu’s last words after that impressive debate were very inspiring saying that “fighting for the rights step by step always helps to move a little bit forward” which shows that achieving human rights for everyone is a process.

Report by Ligia Link

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Part 3 "They are frightening, but I can sleep at night! On violence, Human rights and Security in the Postcolonial State"

Dr. Melina Kalfelis

A Moral Twilight Zone in Burkina Faso

In the third edition of the debate series on "Everyone's human rights - A series of debates on human rights in Africa" Dr. Melina Kalfelis spoke about her empirical research of the self-defense groups „Koglweogos“ and the practice of human rights in Burkina Faso. In her presentation "They are frightening, but I can sleep at night. On violence, Human rights and security in the postcolonial state", the social anthropologist with an interdisciplinary profile looks at human rights from a phenomenological approach, which enables "to think human rights as the relation between humans and what these relation demands“. It should not be disregarded that the articles in the human rights declaration are far away from the social and political reality in many African countries. For this reason, she gives insights on both: the hidden and the undisguised human rights violations in Burkina Faso.

Vigilantism as a political process

The network of Koglweogos mushroomed nation-wide in 2016 out of necessity in an constantly increasing violence in Burkina Faso, which the state alone could no longer control. Thus, the self-defense groups fight against the growing moral decay and against petty crime, which is mainly committed within communities and even within families. While on the one hand this leads to a more peaceful coexistence and to more justice, on the other hand they feed conflicts by creating a climate of denunciation and opening the space for self-justice.

In conclusion, the Koglweogos thus contribute to both the interruption and the re-production of structural violence in Burkina Faso.

Hidden Human rights violations in Burkina Faso

Dr. Melina Kalfelis furthermore explains in her lecture that a great number of human rights violations are committed by the state in Burkina Faso. However, in public, mainly the human rights violations by the Koglweogos are illuminated. The everyday life violations of the articles in the Declaration of Human Rights do not get the same attention, although in reality they are more numerous.

From this point, she draws the following hypothesis: "Human rights discourse is turning a blind eye towards structurally embedded human rights violations, those deeply rooted in the institutions of the postcolonial state". The articles in the Declaration of Human Rights seem to be not of equal value when hidden human rights violations in everyday life are not taken into account. As a way out of this dilemma, she emphasizes that new conceptual ways must be found to analytically consider and contrast the hidden and the undisguised human rights violations.

Report by Dr. Carolin Herzog

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Part 4: “Using the law as a tool to enhance social justice”

Hon. Yvonne Dausab, Minister of Justice, Republic of Namibia

Values as a legal basis to address social justice

In the 4th session of our debate series on human rights in Africa Hon. Yvonne Dausab, Minister of Justice of the Republic of Namibia, inspirationally and passionately presented her thoughts on “Using the law as a tool to enhance social justice: locating Namibia’s value system using the text of the Namibian Constitution.”

Yvonne Dausab was appointed Minister of Justice in the Namibian Cabinet in March 2020. She is an admitted legal practitioner of the High Court of Namibia since 2000 and a notary public since 2015. Before her appointment to cabinet, she was the chairperson of Namibia's Law Reform and Development Commission from 2015 to 2020 and was previously the Deputy Dean of the Faculty of Law at University of Namibia. For her impressive work in human rights, the Law Society of Namibia awarded her the 2012 Human Rights Excellence Award.

“Where do our values reflect the agendas we are thriving for like social justice?”

With the aim to enhance social justice and promote socio-economic rights, the Namibian government passed the Harambee Prosperity Plan and the National Development Plan 5. Nevertheless, the question remains how to enforce those plans best and ensure they are relevant for Namibian people. Recognizing that “legal interventions often first come in after things happened but laws can also drive an agenda that is responsive to the issues of people”, Minister Dausab highlighted that you cannot think about social justice without considering the corresponding value system.

Looking at Namibia the aim of social justice practically translates into the reduction of poverty and the equalization of incomes. Other challenges are among others are unemployment, income inequality (a remnant of Apartheid), health coverage, affordable housing and land, gender inequality, and recently increased gender-based-violence.

Caring and redistributive in character

In her presentation, Minister Dausab emphasized that judicial texts should be supporting the values, that they relate to. Traditional values (of local language and customary practice) similar in character and practice with Ubuntu can be supported in laws to approach the goal of social justice. These Namibian values are being expressed e.g. in the preamble through the commitment to democratic society, unity and common loyalty or in the Principles of State Policy aiming for welfare, a caring state and addressing socio-economic imbalances emanating from Apartheid. She states, that in general, the Namibian Constitution is being described as “articulating and supporting a democratic, social, caring, redistributive character that is supportive of a futuristic society”. Furthermore, the Namibian constitution also provides for claims of social rights that are still missing in domestic law with the importation of ratified international law (art. 144).

Law as a tool for social justice

However, she reminds that laws should address actual problems of Namibians, therefore, public participation is important and should be facilitated throughout the law-making process. Besides the respect for law there is a number of things which are anchored in the social justice system like the functionality of a justice system, the responsiveness of the legal profession to take the opportunities and to define social rights as well as the availability of resources. Looking through her lens as the Minister of Justice, she also concludes that an intersection among various disciplines is crucial and finally the implementation rate matters.

Report by Marie Grabka

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Part 5: “Constitutions and Human Rights: Whispers from the ‘south'”

Dr. Chikosa Silungwe

The Right to Vote: Constitutions and Human Rights

In the last session of our series of debates on human rights in Africa the importance of the right to vote with a focus on the Constitution and human rights in Malawi was highlighted. In this regard, the presenter Dr. Chikosa Silungwe referred to the elections in Malawi in 2019/2020 as an example.

Dr. Silungwe, attorney general of the Republic of Malawi, holds a LL.B. degree from the University of Malawi, a PhD in Law and a master degree from the University of Warwick, United Kingdom. His special research interests are Constitutional Law and critical approaches to the Human Rights Discourse. He provides legal advice to the United Nations Missions in Liberia, UN Women, UN in Nairobi and the Government of Malawi. In the past months he was leading counsel for the State Vice President of the Republic of Malawi in the presidential election challenge.

“When you whisper you’re almost inaudible; someone has to move closer to hear or understand you what you say”

In ‘whispering’ like in silence you’ll find a much deeper content, than you think at first sight. By speaking extremely softly you may either be ignored or you may draw further attention, especially from the curious ones. In Malawi there was a long era of silence, but the situation changed with the challenge of the elections in 2019.

Peter Mutharika won the presidential election but many people, the defeated candidates and party members protested against this result and separate petitions were filed, so that in February 2020 the election was declared invalid. Serious irregularities were found in the election. After Kenya 2017, this was only the second time in African history that a nationwide election was annulled due to a court order. Malawi went on to conduct a fresh presidential election on 23 June, 2020.

In his presentation “Constitutions and Human Rights: Whispers from the ‘south’” Dr. Silungwe points out the importance of the right to vote and shares his thoughts about the principles that emerge from the presidential election case.

The importance of realization and enhancing violation of the human rights

The legal challenge before the High Court was not merely an election challenge filed by an aggrieved candidate in an election. The legal challenge transcended, in his view, the interests of a candidate and became a challenge of the nature of the right to vote itself. That affects all eligible voters in Malawi. Thus, the framing of the question before the courts as constitutional queries is very critical.

For the longest time English common law jurisdiction like in Malawi would usually answer a very mondaine and basic question. And that was basically the numbers of the results. When it came to court the question always was: “Did the irregularity affect the result?” This belongs to an English case from 1975 (Morgan v. Simpson). For the first time in African history in Kenia 2017 and then Malawi 2019 was also established that the quality of an election is equally important as the number of votes, in order to declare a winner. This was a key element: “Hence, while numbers are important, the application of the qualitative test to an election gauges the integrity of the election.”

Furthermore, another main part of the integrity of an election relates to election observer teams. The question arises, why came the observer team to the result that the election in 2019 was free and fair? When one reads both, the reports and the judgment, it seems doubtful that they represent the same event. Following, Dr. Silungwe casts a critical eye on the fact that the value addition to an election of observer team must be called into question.

Besides framing and integrity, two other aspects, namely a nascent social movement and the growth of a democratic competition are important principles that emerge from the election case in Malawi. Although courts are bound to the facts and the law, it is undeniable that in some way social movements (protests) may influence the defence of human rights. This also shows that “Human rights are not given to you on a silver plate”. You will always have to fight for them in the future, so stand up for yourself and your right to vote. And there will be some change for a better future.

Report by Julia Reiher

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