Constitutionalism and Human Rights

This channel aggregates information on constitutionalism, constitution-making, constitutional reform, human rights and democracy issues in Africa. We curate and feature legal developments, caselaw and legislation, scholarly commentary, blogs, and columns.

Current contributors

Carmel Rickard

Legal Columnist.
Editor in Chief of the Newsletter of the Judicial Institute for Africa at UCT

Since she began working as a journalist in 1981, Carmel Rickard has specialised in writing about legal affairs. She has won widespread recognition (local and international) as well as a number of awards for her work, and in 1992/3 was awarded a Nieman Fellowship to Harvard.

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Africa's women struggle to gain abortion rights; USA women struggle to keep them

Most African states still struggle over the right to an early, safe, legal abortion and as a result the number of women dying from illegal terminations continues to increase at an alarming rate. However, in the United States, where women thought that this right had been established decades ago, it is now under serious threat, with the principle established in Roe v Wade under systematic attack in the courts and the states' legislatures. Just last week the Supreme Court heard argument in the latest state bid to undermine that right.

Read transcript of argument in US Supreme Court hearing: June Medical Services v Russo

Read Roe v Wade 

Indian widow’s plight ‘shocks conscience of the court’

In Africa, as in India, land rights, access to and ownership of land are a major concern. It is often the most poor and vulnerable that suffer the worst when these rights are not respected. And if you are an unlettered woman, on your own, you could find yourself and your rights disappearing altogether. Take the case of Vidya Devi who lives in India’s Himachal Pradesh state. More than half a century ago, the state took her land away from her for a road – but to this day she has been paid not a cent for it, even though the state was legally obliged to pay compensation.

Read judgment

This is a story that could have come from almost anywhere in Africa. The fact that it concerns a woman in India shows how widespread the problem is: governments in many parts of the world are among those who trample on the rights of vulnerable especially elderly women.

Eritrea 'slave labourers' - Canada's highest court allows claim to be heard in Canada

In a widely-hailed new decision, Canada’s supreme court has ruled that Eritrean workers, allegedly forced by the state to provide slave labour to a Canadian-owned mine in Eritrea, may sue the mining company in the Canadian courts. Vancouver-based company, Nevsun, has been operating a mining outfit in Eritrea, using local workers. In terms of the new supreme court decision, these miners may now sue Nevsun, in Canada and under Canadian law, for the conditions under which they say they were made to work.

'Inescapable conclusion': Malawi polls fatally flawed, say concourt judges

Malawi’s constitutional court has found the May 2019 national elections awarding presidential victory to Peter Mutharika, invalid. One of the most interesting aspects of this landmark judgment is the sense of judicial confidence that comes through in each of the well over 400 pages. There is no tentative digging in corners to find possible technical infringements.

Top judge given human rights award in Zambia

Zambian Supreme Court Judge, Mumba Malila, has been honoured for his human rights work. Earlier this week, Justice Malila was the 2019 recipient of the Zambian Human Rights Commission Award, given in recognition of his contribution to the field of human rights both in Zambia and, more broadly, across Africa.

The Zambian judiciary announced this week that one of its members, Supreme Court Justice Mumba Malila, had been given the 2019 Zambian Human Rights Commission Award for his contribution to human rights in Zambia and in Africa.

Citing outdated colonial attitudes, Zambia's Con Court dumps laws on chiefs

Contemporary Zambian laws allowing the President to regulate traditional chiefly appointments have been declared unconstitutional. The laws, based on colonial-era ordinances, were tested when a prominent traditional leader disputed the President’s power to legitimise a chief’s appointment through ‘recognition’. The court found that these presidential powers infringed the amended constitution saying ‘no law’ could allow anyone the right to ‘recognise or withdraw the recognition of a chief’.

Read judgment on ZambiaLII

Is it possible for the institution of chieftaincy and its associated traditions to fit comfortably under a system of democratic constitutionalism? Many African countries are working out how the two can coexist. One of the most recent examples comes from Zambia where three judges of the constitutional court have just had to resolve something of a conundrum.

How judges can help court reporters - plea from 2019 Judicial Dialogue

Unesco’s invitation to speak at an event associated with the Judicial Dialogue in Uganda last month included a request for practical ways in which the judiciary could ‘make life easier’ for members of the media who write about the courts. Here are some of the suggestions put to senior judges, and that made for interesting discussion.

Judicial accountability takes on an additional dimension in an era of online access. Sure, judges are held accountable through the judgments they write. But in an era of online access those judgments need to be available and in the public domain as soon as possible.

No more child brides says Tanzania's highest court

Children’s rights and the rights of girls in particular took a major step forward in Tanzania this week: The Court of Appeal has delivered a judgment upholding a 2016 landmark high court decision holding that neither girls and boys may marry before 18. The appeal court also agreed that provisions to the contrary in the Law of Marriage Act were unconstitutional. It is a particularly important step for the courts as the number of child brides in Tanzania is among the highest in the world. 

Read judgment on TanzLII

When the high court delivered its 2016 judgment finding that children could not marry before the age of 18, child and women’s rights’ activists rejoiced. Sections of Tanzania’s Law of Marriage Act that allowed girls to be married while still under age were declared unconstitutional, and the legislature was put on terms to change the law so that it conformed with the constitution.

‘Neglect, dereliction of duty’ by prosecution – and father convicted of child rape goes free

Three judges of Zambia’s supreme court have set free a father who was convicted of raping his young daughter and sentenced to 35 years with hard labour. How did it happen that what appeared a secure conviction was set aside? How will the three judges feel about their decision which, setting the father free, could place the daughter at risk again?

Society ‘crying out for miracle’ to end brutality against women - judge

Over the last fortnight, the media in South Africa has been filled with particularly terrible crimes involving gender-based violence. In one response, an enormous crowd of women and men, dressed in black, protested outside the parliament buildings, demanding they be addressed by the President. Many were urging that a state of emergency be declared because of on-going femicide and rape. But the problem is endemic in the whole SADC region. And occasionally even the courts are moved to speak strongly on the issue.

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