Editorial

No Abstrac

Editorial

No Abstrac

‘Transferring sentenced persons (offenders) to the United Kingdom: highlighting some of the human rights issues courts have had to deal with'

As at 30 September 2013 13 per cent of the prison population in England and Wales were foreign national offenders. Convicted UK nationals are also serving prison sentences in foreign jurisdictions. The UK government has taken measures such as the enactment of domestic legislation and the ratification of bilateral and multilateral agreements with other States for the specific purpose of facilitating the return of its citizens to serve their sentences at home. Many offenders have been transferred to the UK to serve their sentences. This article highlights and examines some of the human rights issues that have exercised UK courts in this endeavour

The African Commission on Human and Peoples' Rights and the promotion and protection of refugees' rights

African countries have been host to and have produced refugees for decades. These refugees have fled their countries for various reasons, including political and religious reasons. Many African countries are party to the 1951 United Nations Convention Relating to the Status of Refugees and its additional Protocol of 1967. In 1969, the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, the major instrument that deals with the rights and duties of refugees in Africa, was adopted to address, as the name suggests, the specific aspects of refugee problems in Africa which were not addressed by the 1951 UN Refugee Convention. The African Commission on Human and Peoples' Rights has put in place various measures to promote and protect the rights of refugees in Africa. These measures include the organisation of seminars, seminar paper presentations by commissioners, the appointment of a Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons in Africa, and adopting resolutions on the rights of refugees. The African Commission has also allied itself with various international human rights and humanitarian law organisations to protect the rights of refugees in Africa. It has protected the rights of refugees through its visits to different countries and through its decisions on individual communications. This article observes, inter alia, that, although the African Commission has entertained various communications dealing with the rights of refugees in Africa, the arguments of the parties to those communications as well as the decisions of the Commission have largely focused on the African Charter on Human and Peoples' Rights and not on the 1969 OAU Convention on Refugees. The author recommends that, in matters relating to refugee' rights, the African Commission should always invoke the provisions of the 1969 OAU Refugee Convention in addition to the African Charter and, where need be, reference should be made to other refugee-related instruments.International Bibliography of the Social Science

Releasing terminally ill prisoners on medical parole in South Africa

The release on medical parole of a prominent and influential South African businessman, Mr Schabir Shaik, who served less than 3 years of his 15-year prison term, put the issue of medical parole under the spotlight with several newspaper articles, radio stations and television channels expressing different views regarding his release. There were also allegations that the medical officers who had recommended his release had acted unprofessionally – until they were vindicated by the Health Professions Council of South Africa. Thisarticle discusses the law relating to medical parole in South Africa and cases where courts have released offenders on medical parole, and gives statistics of offenders who have been released on medical parole since 1996. It also highlights some of the contentious issues relating to medical parole

Obtaining redress (damages) for torture committed outside South Africa: A comment on Van Rensburg v Obiang (21748/2014) [2021] ZAWCHC 128 (18 JUNE 2021)

In Van Rensburg v Obiang, the High Court (Western Cape Division) awarded the plaintiff damages for the torture, unlawful arrest, and detention to which the plaintiff was subjected by the respondent’s subordinates in Equatorial Guinea. However, the court does not clearly explain how the respondent was responsible for the applicant’s torture and the legal basis on which it made the order for damages. In this article, the author argues that the court’s order is debatable for the following reasons. The evidence before the court did not prove that the defendant had committed torture within the meaning of art. 1 of the UN Convention against Torture and sec. 3 of the Prevention and Combating of Torture of Persons Act; some of the acts attributed to the defendant as torture did not amount to torture; there was no legal basis on which the court based its order to award damages to the plaintiff for the torture committed abroad

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa: South Africa’s reservations and interpretative declarations

Jamil Ddamulira Mujuzi notes that, at the time of ratifying the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (“the Protocol”), South Africa made several reservations and interpretive declarations. The reservations related to the imposition of the death penalty on pregnant and nursing mothers, the registration of customary marriages (article 6(d)) and the nationality or citizenship of children born of alien parents. The interpretive declarations related to Article 1(f), which defines “discrimination against women”, and Article 31, dealing with the question whether the South African Constitution offers more favourable human rights protection than the Protocol. Against the background of a general discussion of reservations and interpretive declarations in international law, the author considers the legal implications of South Africa’s reservations and interpretative declarations. The reservation to article 6(d), he suggests, is in conflict with South Africa’s international treaty obligations under the Protocol with regard to the marriage of girl children and the interpretive declaration to Article 1(f) is vague. However, the article highlights that the other reservations and interpretive declaration further the protection of women’s rights in South Africa. Several recommendations are made on how South Africa can better comply with its obligations under the Protocol

Legal pluralism and the right to family life and the transfer of offenders who are nationals of African countries, within Africa to Africa

Globalisation has been accompanied by, inter alia, the movement of people from their countries of nationality or citizenship to other countries in search of better opportunities. Some of these people have been convicted of offences and sentenced to imprisonment in countries of which they are non-nationals. Because of the increase in the number of foreign nationals in prisons of different countries, initiatives have been taken at international, regional and national levels to transfer these offenders to their countries of nationality (administering countries) to serve sentences imposed by courts in a foreign country (sentencing countries). The effect is that the imposition of the sentence is governed by the laws of the sentencing country and the administration of the sentence is governed by the laws of the administering country. Therefore, the offender is governed by laws of different countries. Apart from the laws of the sentencing and the administering states, there are cases where these offenders are also governed by international law and in particular international human rights law. Although the rights of foreign offenders are increasingly receiving attention in the transfer discourse, one right that appears not to have been emphasised in Africa and other parts of the world is the right to family life and how seriously it should be taken by those responsible for transferring offenders before they make a decision. The purpose of this article is to argue that the right to family life should be taken seriously in deciding whether or not an offender should be transferred if the transferred offender is to be rehabilitated and ultimately reintegrated into society.Department of HE and Training approved lis

Editorial

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Private prosecutions and discrimination against juristic persons in South Africa: A comment on National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & Another

Unlike countries such as the United Kingdom, Kenya, Zimbabwe and Australia, in South Africa companies and associations are not permitted to institute private prosecutions although natural persons have a right to institute private prosecutions. In National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & Another, the applicant argued that the law which permitted natural persons to institute private prosecutions and prevented companies and associations from doing so violated section 9 of the Constitution which protects the right to equality. The court held that the discrimination in question was not unfair. In this note, the author assesses the court's reasoning and recommends that there may be a need to empower companies to institute private prosecutions in South Africa.International Bibliography of the Social Science