Theses and Dissertations (Centre for Human Rights)

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A rights-based analysis of the impact of public health emergencies on adolescent pregnancy in Busoga region, Uganda
(University of Pretoria, 2024-10) Durojaye, Ebenezer; Mahadew, Amar Roopanand; jowerymulondo@gmail.com; Namulondo, Joweri
Public health emergencies such as COVID-19 or epidemics such as Ebola and HIV epidemics have been linked to increased vulnerability of adolescent girls to early and unintended pregnancies in the Busoga region of Eastern Uganda. This vulnerability is exacerbated by government response and containment measures that birth disruptions on adolescents’ access to essential sexual and reproductive health and rights (SRHR) services and information including on contraception hence perpetuating risks for poor outcomes and increased violations of SRHR. The Ugandan government is obliged by both domestic and international law to take precautionary measures during emergencies to ensure public safety and maintain public order. However, national governments do not waive their mandate of respecting, protecting and fulfilling SRHR of adolescents even during emergencies. The study examines government responses to public health emergencies and their compliance with Uganda’s international human rights obligations. It also explores how intersectional factors such as age, gender, socio-economic status, residence, education status compound the risks faced by adolescent girls. By providing a critical feminist perspective through the reproductive justice lens, the research underscores the need for adolescent-responsive policies to safeguard SRHR during future public health crises. During COVID-19, adolescent pregnancy rates increased significantly in the region and at the national level, with the region's rates remaining higher than the national average. It is impossible to overlook the causal and consequential link between HIV and Ebola in adolescent pregnancy, and more research is recommended. Uganda has policy gaps specifically on protecting, safeguarding and fulfilling adolescent SRHR during public health emergencies. National policy frameworks do not have specific normative provisions on ASRHR during health crises and therefore one has to use an interpretive approach to inscribe SRHR for adolescents during public health emergencies. Although the Ugandan government's restrictions on individual rights is permitted for public safety, their implementation is flawed due to being stringent, prolonged, and generally applied to all people, with limited consideration for the varying needs of intersectional groups. The state failed in the principle of proportionality between public safety and individual rights, which compromised the state obligation to safeguard ASRHR during public health emergencies. Intersectional factors, including gender, location, and socio-economic status, greatly influenced the impact on adolescent pregnancy in the Busoga region. Adolescent girls from rural and economically vulnerable communities were disproportionately affected by COVID-19 restrictions and adolescent pregnancy, as evidenced by high rates of adolescent pregnancies in rural districts compared to urban districts.
Human rights in South Africa’s foreign policy under President Cyril Ramaphosa (2019-2024) : a case study of Ukraine
(University of Pretoria, 2024-10) Mutton, Jan F.; robert.shivambu@icloud.com; Shivambu, Robert H.
Russia’s invasion of Ukraine in February 2022, and its subsequent full-blown war of aggression against the country, received widespread condemnation internationally for violating human rights in general, and the Charter of the United Nations (UN) in particular for taking up arms against a sovereign nation. The war has violated a number of international human rights instruments. South Africa, under President Cyril Ramaphosa’s presidency, was one of the first countries around the world to come out boldly and condemn Russia’s action, and called for the Kremlin to withdraw its troops from Ukraine and respect the country’s territorial integrity. However, South Africa quickly reversed its position, choosing to take what it calls a ‘non-aligned’ position. This contradicted the country’s foreign policy which has been on the side of human rights historically, including under President Cyril Ramaphosa’s presidency. He has promised to protect the human rights of people who are suffering injustice, including the people of Gaza and the Western Sahara. However, South Africa has chosen to be non-aligned in a situation of injustice in Ukraine, which amounts to taking Russia’s side, in total contradiction with its foreign policy and its support of constitutional democracy. As the war continues, Pretoria has repeatedly refused to condemn Russia, and has abstained or voted against UN resolutions for such condemnation. South Africa certainly has the sovereign right to follow a foreign policy of neutrality, e.g. where the underlying causes of conflict are concerned etc., and offer its good services in mediation and conflict resolution. It can, however, not invoke such neutrality to remain silent with respect to invasion and aggression in violation of the UN Charter and be hesitant to express itself on the violations of human rights as a result thereof. This mini-dissertation offers a multidisciplinary analysis of human rights in South Africa’s foreign policy under President Cyril Ramaphosa’s administration between 2019 and mid-2024. The research concludes that South Africa’s failure to condemn Russia for human rights violations in Ukraine, and its purported ‘non-aligned’ position, raises questions about the country’s commitment to human rights through its foreign policy. It calls for the decentralisation of foreign policy decision-making from the President and Minister of International Relations to a non-partisan structure, operating like an American Congressional Committee, which can scrutinize foreign policy decision-making, including examining South Africa’s bilateral relationships, to strengthen foreign policy.
The land governance architecture and securing women's land rights in Uganda
(University of Pretoria, 2024-12-18) Killander, Magnus; Nakayi, Rose; skitui@gmail.com; Kitui, Barbara
This thesis examines the land governance architecture in a bid to secure women’s land rights in Uganda. It specifically scrutinises parliament, the judiciary and implementing institutions of the executive arm of government within the context of land governance. The thesis first reflects on the historical and socio-legal context relating to women’s land rights in Uganda. An analysis is made of precolonial, colonial and postcolonial societal perspectives on women and land in Uganda. It reviews global, regional, sub regional and domestic legislation in relation to women’s land rights. It also engages on the women movement post 1986. This lays the foundation for an assessment of the opportunities that may be harnessed through subsidiary legislation to secure women’s land rights in Uganda. The study analyses Uganda’s land governance architecture to unearth whether special attention is given to engendering processes related to securing women’s land rights. The study assumes that the state wields a lot of power and can conclusively resolve most land governance concerns to strengthen women’s land rights in Uganda. It assesses the statutory and non-statutory entities and evolving concerns. It then reflects on the emerging opportunities to galvanise women’s land rights in Uganda. This thesis analyses the impact of customs and cultures on women’s land rights in Uganda. It reflects on the paradoxical nature of cultures and customs. Deliberation is made on legal pluralism and its influence on women’s land rights. The thesis discusses selected spheres of influence cultures and customs manifest comprising marriage, divorce, succession and refugees and the extent to which they deliver on women’s land rights. Subsequently, the study introduces a theoretical perspective of lifting or piercing the cultural veil as an equitable remedy and the procedure for lifting the cultural veil to address negative customs and cultures to protect women’s land rights. Lifting the veil entails administrative, adjudicative and self-test procedures. Administratively the veil can be lifted within the respective government ministries departments and agencies by a concerned party, an aggrieved party or the respective government entity. The adjudicative procedure is through the ordinary courts of law. Additionally, the veil can be lifted through a self-test phone assessment e-justice solution to enable parties assess their complexity in relation to cultures or customs and the law. Finally, the thesis concludes with recommendations on how the land governance architecture, customs and legislation can be used to secure women’s land rights in Uganda. More specifically as regards legislation, it suggests that subsidiary legislation is harnessed by including an explicit co-ownership provision within the landforms and smoothening the intersection between customary law and formal laws so that the entire society is safeguarded. Regarding the land governance architecture, it is proposed that non-statutorily established entities are disbanded and harmonised within the statutorily established institutions to deliver on the mandate. The study also recommends that cultural institutions are on boarded as pivotal entities in addressing land rights gaps for women especially where customs and formal laws clash. It also recommends government to release sufficient funds so that institutions can implement their mandate and uphold women’s land rights. Lastly, regarding customs and cultures, it is the proposition of this study that customary laws and formal laws are integrated and interconnected to arrive at human rights-based centred land law solutions within the various government entities. It is also proposed that women’s voices are amplified through creating avenues to influence policy and legislation so that negative cultures and customs are eroded.
Irregular migration to Europe : a case study of the Gambia and Senegal
(University of Pretoria, 2024-10-24) Killander, Magnus; Diallo, Papa Fara; ajifagaye@gmail.com; Gaye, Fatou
The smuggling of migrants from The Gambia and Senegal to Europe has become a pressing issue, reflecting broader patterns of irregular migration driven by economic, social, and political factors. This phenomenon involves complex networks that exploit vulnerable individuals seeking better opportunities abroad. Migrants often undertake perilous journeys through diverse routes, facing significant risks including violence, exploitation, and even death. The porous land borders between The Gambia and Senegal facilitate the movement of people, complicating efforts to combat smuggling. Despite international legal frameworks such as the Protocol Against the Smuggling of Migrants, enforcement remains challenging due to limited resources, inadequate border management systems, and the lack of a robust monitoring mechanism to assess the implementation of the Protocol. Effective responses require comprehensive strategies that enhance border control, improve cooperation between states, and address the root causes of migration. Establishing mechanisms for monitoring implementation, fostering community engagement, and providing support for vulnerable migrants are essential steps. By addressing these challenges, both The Gambia and Senegal can better manage migration flows and protect the rights of individuals caught in smuggling networks while contributing to broader regional and international efforts to combat this issue.
The responsiveness of the South African juvenile justice system in protecting stateless children against sexual violence
(University of Pretoria, 2024-10) Fokala, Elvis; zmabaso@hotmail.com; Mabaso, Zanele
South Africa is party to regional and international children’s rights instruments that obligate the country to ensure the safety, protection and justice for all children who live within its boundaries. These laws give expression to the constitutional rights to equality, human dignity, life and freedom, and security of children. However, stateless children living in South Africa are still disproportionately affected. To attain its objective, the study employs a qualitative legal research method, utilising the children’s rights-based approach to address childhood statelessness guided by the principle of the best interest of the child. The statelessness in childhood is based on children’s vulnerabilities and South Africa’s obligation(s) in protecting stateless children under international, regional and domestic, South African child law. Though important, the study does not comprehensively analyse the vulnerability of stateless children, nor does it study the merits of the effects of childhood statelessness and the impact it has on children intimately. However, it provides an in-depth analysis of the extent of responsiveness of the South African juvenile justice system in protecting stateless and undocumented children against sexual violence. Put succinctly, this study therefore, highlights the responsibilities of the State in safeguarding and promoting holistic child protection at the domestic level, as an essential element of protecting the rights of stateless children. It then interrogates the sufficiency of South Africa’s domestic child laws and critiques the responsiveness of the juvenile justice system in ensuring access to justice services and child protection mechanisms to prevent, mitigate and eliminate childhood statelessness.
A human rights analysis of informed consent to psychotropic medication : significance for protecting the sexual rights of women living with depression in Nigeria
(University of Pretoria, 2025) Ngwena, Charles; angelyinkore@gmail.com; Yinkore, Peace-Angel
This thesis explores the intersection of informed consent, sexual rights, and human rights within the context of women with psychosocial disabilities, specifically focusing on Nigerian women with depression. The study critiques the lack of comprehensive informed consent, particularly in relation to the sexual side effects of psychotropic medications commonly prescribed for depression. Through a human rights-based approach grounded in the Convention on the Rights of Persons with Disabilities (CRPD) and bioethical principles of autonomy, beneficence, and non-maleficence, the research highlights the ethical and legal failures in Nigerian healthcare systems. It advocates for reforms that align medical practices with international human rights standards to ensure that women with disabilities are adequately informed about their treatment options, particularly regarding sexual health. This thesis argues that a rights-based framework is essential to protect the autonomy and dignity of vulnerable women, emphasizing the importance of supported decision-making and holistic informed consent to safeguard sexual and reproductive rights.
Enhancing workplace inclusion for persons with disabilities in South Africa
(University of Pretoria, 2024-09) Msipa, Dianah; Nkhata, C.M.; maymoona.chouglay@gmail.com; Chouglay, Maymoona
The mini dissertation explores the barriers and facilitators to workforce participation for persons with disabilities in South Africa, evaluating how policies and initiatives compare to global and regional standards. The research highlights the systemic challenges faced by persons with disabilities, including societal stigma, educational inequities, and workplace discrimination. Despite legal frameworks like the Employment Equity Act (EEA) and the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), implementation gaps persist, limiting the practical impact of these laws. The study underscores the importance of fostering inclusive workplaces that not only offer physical accommodations but also promote a culture of inclusion. Using a desktop research methodology, the dissertation critically analyses South Africa's policies against international benchmarks such as the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the African Disability Protocol. The study identifies weaknesses in enforcement, employer awareness, and resource allocation. It also calls for more comprehensive data collection, targeted sector-specific interventions, and the integration of intersectionality to address overlapping discriminations based on race, gender, and socioeconomic status. The dissertation concludes with recommendations for strengthening legislative enforcement, increasing employer training, and promoting best practices through collaboration between government, civil society, and the private sector. The ultimate goal is to bridge the gap between policy and practice to create more equitable employment opportunities for persons with disabilities in South Africa.
Promoting access to healthcare for trans and gender diverse persons in Zimbabwe in the context of HIV
(University of Pretoria, 2024-10) Ngwena, Charles; unozibat@gmail.com; Tenga, Unoziba
Zimbabwe has significantly curbed its HIV epidemic, but there are still gaps in coverage for certain groups, particularly transgender and gender diverse (TGD) persons. TGD persons face high rates of HIV infection, limited epidemiological data, and societal and legal factors that hinder their access to healthcare. Using the Human Rights Based Approach (HRBA) as the main theoretical approach, the research examines the legal and policy frameworks in Zimbabwe, that impact on HIV healthcare access for TGD persons. The research being qualitative in nature, analyses international human rights instruments, policies, health guidelines, national laws, and strategies, and draws lessons from South Africa, Kenya, Malta, and Argentina for recommendations in improving access to healthcare for TGD persons in Zimbabwe. The findings show that despite TGD persons recognition as priority groups in HIV interventions in Zimbabwe, there are gaps in the law and constitution of the country which lead to systemic healthcare disparities. These mainly involve stigma and discrimination at health facilities, lack of comprehensive information for both TGD persons and the health practitioner and economic challenges faced by TGD persons. A key barrier to access to services has been the criminalisation and legal gender recognition for TGD person which further pushes them to the margins of society. Key recommendations include legal reform that place emphasis on equality and non-discrimination. Legal reform should include decriminalisation of sexual and gender diverse persons, having gender laws that explicitly recognise TGD persons and provide constitutional protections for sexual and gender minorities. There is need to strengthen advocacy for TGD persons’ rights on international and national platforms, through opening the space for civil society engagement. Directly linked to access to HIV services, there is need for a revision and update of national policies, guidelines, and HIV strategies to include the needs of TGD persons and the provision of gender affirming health services.
The constitution, parents and comprehensive sex and sexuality education in South Africa
(University of Pretoria, 2024-10) Fokala, Elvis; banathinkehli99@gmail.com; Nkehli, Banathi
The Basic Education Laws Amendment Bill (BELA Bill) announced in the government gazette on 6 December 2021 has caused a great degree of controversy in the basic education sector and controversy around the proposed amendments to the minister’s powers in making regulations. The latest in a series of amendments to the South African Schools Act 84 of 1996(the Schools Act), enacted to: “redress past injustices in the education system… to effect the transformation of society to combat racism and sexism and all other forms of discrimination…” In terms of section 61 of the Schools Act, the minister may make regulations concerning a national curriculum applicable to public and independent schools. In terms of section 41 of the BELA Bill the minister of education has additional powers in terms of the Minister’s authority to create regulations on the management of leaner pregnancy as well as the creation of a national education information system and provides for the imprisonment of anyone who contravenes provisions of regulations created under section 61. The controversy concerning the BELA bill is that South Africans have received the Bill as promoting comprehensive sex education in schools which they find inappropriate. From the above, the Bill does not speak directly to sexual education, there is room for the interpretation of the Bill to be interpreted to include sexual education in the authority of the Minister to promulgate regulations. The addition, of being liable to imprisonment opens the door for teachers who wish not to teach a comprehensive sexual education curriculum raises some validity to the concerns raised. In addition, it places a competing interest on what is it that parents wish for their kids to know and understand about sex and sexuality, juxtaposed against what is it that a responsive education curriculum would require their children to understand about sexuality and sex.
The sufficiency of the legal framework in Cameroon to combat gender-based violence
(University of Pretoria, 2024-10) Fokala, Elvis ; lauranfomi@gmail.com; Nfomi, Laura Berka
In Cameroon, the persistent issue of gender-based violence (GBV), exacerbated by the Anglophone Crisis, severely impacts women's sexual and reproductive health and rights (SRHR). This research assesses the effectiveness of legal frameworks in addressing GBV while promoting SRHR, utilising a legal dogmatic approach to analyse legal texts and doctrines. Through a feminist lens, it highlights the barriers women face in seeking justice. It emphasises the urgent need for systemic reforms aligned with international human rights standards to protect and empower female survivors. The study evaluates the efficacy of existing national laws, including international treaties, in prohibiting GBV and analyses their interpretation and enforcement within the judicial system. Findings reveal significant gaps in laws, implementation and systemic barriers that obstruct survivors' access to justice, indicating that current legal and institutional frameworks are inadequate, especially in the Anglophone regions, where humanitarian challenges further complicate survivors' difficulties. The research underscores the urgent need for comprehensive interventions and policy recommendations to strengthen Cameroon's legal framework and enhance access to justice for GBV survivors. Engaging diverse stakeholders, including government agencies and NGOs, is essential for promoting informed policy formulation. The study advocates for a comprehensive Violence Against Women and Girls Act that adopts a feminist, intersectional, and rights-based approach, aligning with international and regional treaties. It emphasises the importance of robust support services for survivors, continuous judicial training, and public awareness initiatives to foster a culture of respect and protection for women and girls in Cameroon. This work is vital for advancing legal and ethical discourses surrounding GBV eradication and women’s and girls’ sexual and reproductive rights (SRRA). It significantly contributes to the broader struggle to eradicate gender-based violence and achieve gender equality. The time to act is now in a context where the stakes are high.
International solidarity and the refugee crisis : a comparative study of Syria and Venezuela
(University of Pretoria, 2024-11) Killander, Magnus; u19121459@tuks.co.za; Mudanalwo, Adivhaho Londani Marcia
This paper seeks to compare international solidarity across different regions in relation to the refugee crisis. The concept of international solidarity in refugee crises, is rooted in the idea of responsibility or burden sharing. This paper examines the international community's response to the refugee influx, with a comparison between Venezuela and Syria. Despite both countries being the leading refugee producers, the global response has been both similar and distinct. This paper finds that the international community has been less responsive to the Venezuelan crisis, viewing it as a regional issue due to the unique causes behind it. In contrast, Syria has received more assistance despite the motive behind such aid, many states still show resistance. However, Venezuela has proven to have a regional system in place to address the crisis, which has proven successful. Syria on the other hand does not have any regional system to address the crisis, which intensifies the crisis. While the situations in Venezuela and Syria differ, both highlight a lack of solidarity and indifference from the international community, with responses largely driven by geopolitical concerns. Consequently, this has led to insufficient funding, the closure of legal pathways, and resistance to refugee resettlement. Solidarity from states, through aid or resettlement, could alleviate the burden on neighboring countries. Without solidarity, the refugee crisis will remain unresolved.
Analysing Zimbabwe’s legal position on traditional birthing practices as a tool to improve maternal health outcomes
(University of Pretoria, 24-10-24) Maziwisa, Michelle Rufaro; mutogom@gmail.com; Mutogo, Michelle Ruvimbo
This dissertation explores the intersection of traditional birthing practices and formal healthcare in Zimbabwe, focusing on the role of Traditional Birth Attendants (TBAs) in maternal health. It analyzes Zimbabwe's legal position on these practices, assesses the regulation of TBAs, and evaluates whether, and if so, how, integrating traditional mechanisms into the formal healthcare system could improve maternal health outcomes. Traditional birthing practices remain prevalent, particularly in rural areas, due to cultural significance, economic constraints, and inadequate access to formal healthcare services. However, the lack of a clear regulatory framework for TBAs in Zimbabwe has created risks for maternal and infant health, such as unregulated and inconsistent practices. This study also draws on international and regional human rights frameworks, including the right to health and reproductive rights to argue that the integration of TBAs could enhance maternal health outcomes if properly regulated. Comparisons with jurisdictions such as Kenya, Ghana, Zambia, and South Africa are used to illustrate how similar contexts have addressed the regulation of TBAs, revealing best practices and challenges. The research highlights the importance of legal recognition, training, certification, and ongoing monitoring of TBAs to ensure that they complement the formal healthcare system without compromising the quality of care. The dissertation concludes with recommendations for Zimbabwe to formalize the role of TBAs within its healthcare framework by enacting clear regulations, implementing structured training programs, and improving healthcare infrastructure to bridge the gap between traditional and formal maternal healthcare as a way to improve maternal health outcomes in Zimbabwe. Ultimately, this study underscores the need for a balanced approach that respects cultural practices while safeguarding the health and well-being of mothers and infants.
The right to inclusive education : an assessment of the Mozambique Basic Education Policy
(University of Pretoria, 2024-10) Killander, Magnus; Franco, V.F.; jvembane@gmail.com; Vembane, Joao Arnaldo
This research investigates how Mozambique's basic education policies align with international human rights standards set by the Convention on the Rights of Persons with Disabilities, and the Protocol to the African Charter on Human and Peoples Rights on the Rights of Persons with Disabilities. It utilizes primary approaches from these treaties, along with a critical examination of Mozambique policies, including key constitutional articles and national education laws to assess integration of international norms into its education system. The research proposes that while Mozambique has made significant strides in adopting inclusive educational policies overtime, there remains hesitation from abandoning the special education approach, and gaps remain in implementation, particularly in resource allocation, teacher training, infrastructure development, and community engagement, crucial for an effective inclusive education. The analysis contributes to understand the intersection between international human rights obligations and national educational policies and practices, in the context of Africa, and Mozambique particularly.
Assessing South Africa’s rape laws against due diligence criteria
(University of Pretoria, 2024-08-29) Killander, Magnus; u27287752@tuks.co.za; Mosese, Rethabile Mapokeli
This dissertation critically examines the ‘mistaken belief in consent’ defence within South Africa’s rape laws, employing African feminist theory and international due diligence standards as analytical frameworks. The research explores the enduring influence of patriarchal biases in the South African judicial system and their disproportionate impact on female rape survivors, particularly those from historically disadvantaged communities. The primary research question investigates how the ‘mistaken belief in consent’ defence aligns with South Africa’s international human rights obligations to prevent and prosecute sexual and gender-based violence (SGBV). By analysing the implementation of these international obligations and the effects of this defence on survivors; experiences, the study identifies significant gaps between legal reforms and their practical outcomes, revealing systemic barriers that hinder justice for survivors. In response, the dissertation proposes complementary feminist strategies that enhance existing legal frameworks by prioritising social justice, advocating for community-driven justice approaches, and promoting legal empowerment. These strategies aim to align South Africa’s legal framework more closely with international human rights standards, addressing the challenges posed by the ‘mistaken belief in consent’ defence. The findings offer practical insights for civil society organisations, informing the development of culturally sensitive interventions that enhance public awareness, support services, and legal training programs, ultimately aiming to create a more effective and survivor-centred approach to SGBV.
An analysis of Ghana's obligation to progressively realise the right to health
(University of Pretoria, 2024-11) Durojaye, Ebenezer; Ruhweza, Daniel Ronald; dorcas21ameonu@gmail.com; Ameonu, Dorcas Eli
The background of this research stemmed from concerns about the realisation of socio-economic rights in Ghana. Article 2(1) of the International Covenant on Economic, Social, and Cultural Rights mandates that ‘state parties undertake to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures’. This study demonstrates that the real test for the implementation of all human rights is not limited to legislative measures but includes the commitment of governments to put in place mechanisms to achieve the progressive realisation of human rights. These mechanisms may take the form of legal policies, executive actions or economic policies. The proposition of this study is that after thirty-one years of stable democratic governance in the Republic of Ghana, the judiciary and successive governments have demonstrated their commitment to the realisation of civil and political rights within Chapter 5 of the 1992 Constitution by declaring them to be directly justiciable and ordering state apparatus to commit financial resources towards their realisation, such as the right to vote. However, much is left to be desired within the branch of socio-economic rights, such as the right to adequate housing and the right to health. Regarding the right to health, successive governments have admitted to issues of adequate funding to expand universal healthcare coverage in Ghana as well as allocate continuous expenditure towards the health sector. It is for this reason that this study seeks to assess the progressive realisation of the right to health particularly within the areas of justiciability (legislative measures) and domestic expenditure (economic policies) towards the health sector. This is to evaluate Ghana’s compliance to utilise its available resources in a manner that ensures that healthcare is available, accessible, of high quality and acceptable to every Ghanaian and individual living in Ghana.
African jurisprudence on LGBT and possible reforms for Malawi
(University of Pretoria, 2024-11) Durojaye, Ebenezer; tawongakayira@yahoo.co.uk; Kayira, Tawonga
Despite the world being pluralistic in sexuality, sexual minorities are often not recognized both in epistemology of the LGBT law and in court due to heteronormativity. Heteronormativity is grounded in a mythical epistemology that is not based on science of law. This has created a reverse-discourse which is non-conformist. Against this background, queer theory offers decolonial methodologies that expose the world as it is; queer. The extent to which the fiction in the law and jurisprudence has been condemned, and named illegal, has been missing out in scholarship. The sodomy law ultra vires the Constitution. The study brings attention to this undertheorized area and calls for elimination of such illegality which cannot be left out to common law’s pick-and-choose in setting legal precedent. Such false epistemology must not co-exist with scientific one. It exacerbates retrogressive jurisprudence. This is the situation in Malawi. The country has failed to leverage on the emerging jurisprudence from the African Commission and other African countries with progressive jurisprudence which offers possible reforms for Malawi’s LGBT law. In contributing to the discourse, I propose a model that uses anthropological and historical approaches to identify scientific queer epistemology that would create queer jurisprudence through legal reasoning, sovereignty as responsibility, Constitutional morality and international human rights law, offering both epistemological shift and jurisprudential shift towards the eradication of the myths and promotion of science hence legality of the law.
The right to sexual and reproductive health : a scoping review of the experiences of persons with disabilities in South Africa
(University of Pretoria, 2024-10) Killander, Magnus; desireegovender19@gmail.com; Govender, Desiree
The 2030 Sustainable Development Agenda and its 17 Sustainable Development Goals promise to uphold the principle of inclusivity by ensuring that no one, including persons with disabilities, is left behind. However, societal and cultural beliefs have created stigmas and biases about persons with disabilities' sexuality and sexual and reproductive health, affecting their ability to realise their sexual and reproductive health and rights, which includes access to services, comprehensive sexuality education, and autonomy to make informed decisions. Sexual and reproductive health and rights policies and programmes overlook the needs of persons with disabilities in South Africa. Using the Arksey and O'Malley framework, a scoping review was conducted to explore the experiences of persons with disabilities as they access sexual and reproductive health services in public healthcare facilities in South Africa. The scoping review has shown that persons with disabilities experience structural, system and rights explicit barriers to accessing sexual and reproductive health services at public health facilities in South Africa. Structural and system barriers include the lack of trained healthcare providers in sign language, the unavailability of sign language interpreters, geographic constraints of health facilities, disability unfriendly infrastructure, and lack of adaptable equipment. The rights explicit barriers include stigma and discrimination, deprivation of sexual and reproductive health information, lack of respect for agency and autonomy. The inadequacy of disability-friendly infrastructure and accessible equipment underscores the failure to meet the reasonable accommodation and universal design requirements established by the Convention on the Rights of Persons with Disabilities, thereby hindering the promotion of disability inclusiveness in healthcare facilities that provide sexual and reproductive health services. This failure to address sexual and reproductive health and rights creates barriers to access. This study demonstrates that realising the right to sexual and reproductive health is intricately linked to the experience of accessing sexual and reproductive health services.
Assessing the backlash and pushback to the Supreme Court of Kenya decision in NGO Coordination Board v Gitari and others
(University of Pretoria, 2024-09) Viljoen, Frans; Sipalla, Humphrey; cynthianjeri94@gmail.com; Mwangi, Cynthia Njeri
This dissertation examines the legal, political, cultural, and religious backlash and pushback following the Supreme Court of Kenya’s decision in NGO Coordination Board v Gitari & Others, which affirmed the right of LGBTQ+ individuals to form associations. The research found that while the ruling was a significant milestone for LGBTQ+ rights in Kenya, it triggered substantial resistance. Legal challenges emerged, including dissenting opinions from justices and cases filed to overturn the decision. Politically, the ruling provoked a backlash from leaders who sought to align with conservative constituents, proposing legislation that mirrored Uganda’s anti-homosexuality laws. Culturally and religiously, the backlash was pronounced, with religious leaders and communities reinforcing homophobic sentiments contributing to ongoing discrimination and violence against LGBTQ+ individuals. This study concludes that while the ruling was a step forward, the ensuing backlash underscores the complexities of advancing human rights in a context where societal norms are deeply intertwined with legal and political structures. The findings suggest a need for continued advocacy, legal reforms, and community engagement to foster an inclusive environment that respects and protects the rights of all citizens.
Litigating obstetric violence in South Africa : barriers and opportunities
(University of Pretoria, 2024-08) Durojaye, Ebenezer; basetsana.koitsioe@gmail.com; Koitsioe, Petunia Basetsana
This research identifies the barriers and opportunities regarding public interest litigation with regards to eradicating obstetric violence in South Africa, by examining best practices on interventions promoting respectful maternity care. The result is identified gaps and areas for improvement and fostering a public interest litigation response to obstetric violence in South Africa. The research looks at the challenges and opportunities of litigating obstetric violence in South Africa through a comparative study of jurisprudence from other Global South countries that share similar legal challenges. This examination filters-out lessons for South Africa and the possibilities of applying those lessons in advancing litigation of obstetric violence.
A human rights-based approach to combating corruption in Malawi
(University of Pretoria, 2024-10) Fombad, Charles Manga; Appiagyei-Atua, Kwadwo; goldarapozo@gmail.com; Rapozo, Golda Chilembwe
Since the introduction of multi-party democracy in Malawi, corruption has remained a significant challenge, undermining governance and development. Despite legal reforms, such as the Corrupt Practices Act and the establishment of the Anti-Corruption Bureau (ACB) to combat corruption, the situation has deteriorated. Corruption threatens economic growth and exacerbates human rights violations by fostering an environment where inequality and injustice flourish. Further, corruption disproportionally affects the poor in the society. Although Malawi is a state party to various international and regional treaties on human rights and anti-corruption, it has seldom adopted a human rights-based approach in its anti-corruption strategies. A human rights-based approach to combating corruption ensures citizens are actively engaged in decision-making processes, promoting greater participation and inclusion. This approach highlights the principles of accountability, rule of law, equality, and non-discrimination, which are vital in preventing corruption and addressing its consequences. By linking corruption to violations of human rights, this methodology bolsters efforts to hold duty bearers accountable for their actions. Various strategies can be adopted within this approach. Victims of corruption ought to be compensated, ensuring that those harmed by corrupt practices receive proper redress. Blacklisting companies engaged in corrupt activities may deter corporate wrongdoing. Civil Society Organisations (CSOs) and individuals should actively monitor public officials and report misconduct. Law enforcement agencies and courts must incorporate human rights considerations into their management of corruption cases, ensuring that justice is delivered fairly and effectively. Malawi can enhance its anti-corruption framework and promote a more fair and accountable society by taking a human rights-based approach.

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