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Browsing School of Law by Author "Jegede, A. O."
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Item Open Access An analysis of States’ obligations towards climate displaced persons under the African Human Rights System(2022-07-15) Simango, Victor; Jegede, A. O.Climate change poses the most menacing threat to the environment today. The effects of climate change are experienced globally, and Africa in particular is one of the most vulnerable regions. One of the main consequences of changes in climate is the displacement of populations, mostly internally. Those who are forced to leave their places of residence due to the effects of climate change are often not specifically protected by both the United Nations Framework Convention on Climate Change (UNFCCC) and the subsequent instruments such as the Kyoto Protocol to the United Nations Convention on Climate Change and the Paris Agreement. However, under the African Human Rights System (AHRS), the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) which entered force is novel in its provision in article 5(4) on the obligation of State Parties towards persons displaced by climate change. While it is clear under international human rights law that states have the obligation to respect, protect and fulfil rights, whether these obligations apply, and if so, what the nature of their application means for climate displaced persons under the African Human Rights System is not clear. The study interrogates the basis and how obligations to respect, protect, and fulfil rights apply to climate induced persons in Africa.Item Open Access Children of asylum seekers and the realisation of social security rights in South Africa(2016) Lubisi, Tivoneleni Edmond; Jegede, A. O.; Letuka, P. P.The Constitution of the Republic of South Africa shows a clear and unambiguous undertaking by the state to develop a comprehensive social security system. In terms of Section 27 of the Constitution, it is provided that everyone has the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. The section also obliges the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. Parts of the social assistance are, inter alia, child related social grants in terms of the Social Assistance Act. This research considers the question of statutory exclusion of children of asylum seekers from accessing and exercising their social security rights, in particular, social assistance grants relevant to the needs, assistance and protection of children. Such grants are already provided for by the law to the South African citizen, permanent resident and refugee children. The question which this study seeks to address is whether South African government is in compliance with its constitutional and international obligations in respect of the social security rights and social assistance for children of asylum seekers in South Africa. This would be carried out by reviewing and exploring relevant International, regional and national human rights instruments relevant and applicable to the social security rights and assistance to the children of asylum seekers.Item Open Access Climate change regulatory framework and the protection of cultural rights in South Africa(2022-11-10) Maiwashe, Dzivhuluwani Rueben; Jegede, A. O.Climate change's severe consequences on cultural rights represent a clear threat to South Africa's development and progress. South Africa is affected by climate change, which is currently the world's greatest challenge. The link between culture and the negative effects of climate change has been proven in the literature, but the link between these and cultural rights, as well as the appropriateness of the climate change regulatory framework to handle this, has not been studied. The study looked at the negative effects of climate change on culture and evaluated whether South Africa's current climate change regulatory framework can help or impede the safeguarding of culture in the face of climate change's negative effects. The study also considered whether the climate change regulatory system in South Africa was enough for dealing with the negative effects of climate change on culture. To do so, the study used a desktop research method to assess and analyse current literature, legal framework, policies, and institutional activity on human rights, as well as the negative effects of climate change on the right to culture. It reviewed relevant legislation, national guidance documents and international and national studies about culture and aspects of climate change. Findings from this study show that South Africa has an elaborate legislative framework for addressing the detrimental effects of climate change but policy inconsistency, lack disjointment in application of policy at local level still affect the effective implementation of the legislative frameworks. The study unravelled the spatial application of law as one of the challenge hindering the protection of cultural rights. Moreover, court cases have demonstrated that the judiciary is an important avenue for solving matters that have to do with cultural rights as stated in the International Conventions on Climate Change. South Africa has a responsibility to integrate multiple knowledge systems, practices, and innovations in the design and implementation of international and national initiatives, programs, and policies in a way that respects and supports local communities and indigenous peoples' culture.Item Embargo Constitutional protection of animal “rights” in South Africa and India: A legal comparison(2024-09-06) Mmbadi, Mbavhalelo Gerson; Jegede, A. O.; Lansink, A.The human-animal relationship has several inconsistencies. This is because of the contradictions on how human beings treat animals. In certain instances, human beings have shown love and affection towards animals, while in some instances, there has been a highest level of cruelty towards animals. Animal cruelty has long been a concern; however, society has occasionally accepted this behaviour as usual. This is because humans have power over animals and view them as property. A number of anti-cruelty Acts have been passed in South Africa in response to the current trend in the plight of animals. However, South Africa's anti-cruelty laws are insufficient, incoherent, and disjointed. Their anthropocentric as opposed to the ecocentric nature raises ethical and legal concern relating to the adequacy of legal protection of animals. Yet, ecocentric focus has emerged as a feature of legal protection in several legal systems; including India, which has used progressive interpretation of its Constitution for legal protection of animals. Using a doctrinal methodology, this study interrogates the various ethical and legal approaches that support the protection of animal rights. It then determines whether the legal protections for animals under South African law are adequate, and whether there are any lessons to be learned from India's constitutional protection of animals. It was found that Courts in South Africa prefer anthropocentric arguments to protect animals, while Courts in India prefer ecocentric viewpoints. Various provisions in the South African Constitution have been used to protect animals. There are, however, some constitutional provisions that can be used to protect animals, taking into account lessons in India, where Courts have readily extended constitutional provisions that protect humans to cover animals as well.Item Open Access The Human Rights Implications of the Application of the Death Penalty in Zimbabwe(2018-05-18) Moyo, Octavia Litshani; van der Walt, T.; Jegede, A. O.Capital punishment has been widely applied by countries since time immemorial. The concept, however, is highly controversial. That is, on the one hand, the anti-abolitionist states argue that it is an effective form of punishment, on the other side; the abolitionist states contend that it is an unjustifiable infringement of people’s fundamental right to life. There have been calls, both regionally and globally, for a moratorium on the death penalty. The Second Optional Protocol to the International Covenant on Civil and Political Rights was promulgated as a move towards the abolition of the death penalty in all countries and states in the world. Article 1 (2) of the instrument states that, “Each state party shall take all necessary measures to abolish the death penalty within its jurisdiction”. At regional level, Article 4 of the African Charter on Human and Peoples’ Rights provides that all human beings are inviolable and entitled to the respect and integrity of their person. As such, no one may be deprived arbitrarily of this right. In addition, Article 1 of the Protocol to the African Charter provides that the death penalty shall not be applied by state parties in their territories or any person within their jurisdiction. Despite the current global and regional trends towards the abolition of the death penalty and its inherent controversy, Zimbabwe remains anti-abolitionist, and entrenched the death penalty in section 48 (2) of its 2013 Constitution. Adopting a doctrinal research methodology, the study critically analyses section 48 (2) (d) of Zimbabwe’s Constitution, and examines how it affects key fundamental rights as well as the way forward in the light of the international human rights standards on the death penalty.Item Open Access Philanthropic corporate social responsibility as a tool for achieving socio-economic rights in South Africa(2017-05-18) Obisanya, Temitope Ayomikum; Jegede, A. O.; Letuka, P. P.Scholarship on the subject of Corporate Social Responsibility (CSR) highlights its four components: economic, legal, ethical and philanthropic responsibility. In South Africa, while the economic, legal and ethical components of CSR are regulated and attract punitive measures for erring corporations who fail to adhere to such demands, the application of the philanthropic aspect of CSR is problematic. The application of philanthropic responsibility suffers normative, institutional and accountability deficiencies in South Africa. Hence, corporations do not conscientiously direct philanthropic responsibility towards achieving core socio-economic needs of their host communities. In the light of international human rights standards relevant to CSR, this research attempts to examine domestic laws which regulate the practice of CSR in South Africa and advance how the philanthropic aspect of CSR can be developed to achieve the realisation of socio-economic rights, in particular, the rights to access to health care, water and social security, education, housing and clean environment. The argument is made that through the formulation and application of an appropriate legal framework, philanthropic CSR can play a contributory role to the realisation of socio-economic rights recognised under the 1996 South African constitution. The implications are that in appropriate cases socio-economic rights do not only bind the state and consequently apply to the "vertical" relationship between individuals and the state, but could also apply "horizontally", in respect of the relationship between private entities. This is a controversial issue and its full implications have not yet been resolved.Item Open Access Realisation of the right of water of rural communities through affirmative action on water service delivery in South Africa(2017-05-18) Shikwambane, Pumzile; Jegede, A. O.; Choma, H. J.Historically, there were enormous differences and inequalities with regard to service delivery in South Africa. Traceable to the apartheid period, these inequalities included, inter alia, supply of inadequate and safe drinking water for black communities in particular those at rural areas. Yet, water is an essential necessity for human beings, regardless of race, disability and social status. As a legislative measure to redress the injustices of the apartheid regime, the right to have access to sufficient water is entrenched in Section 27(1) (b) of the South African Constitution of 1996. Also, several legal instruments such as the National Water Act of 1998 and the Water Service Act of 1997 were enacted to uphold the human right to water. The Constitution bestowed the responsibility of water supply and management to the national, provincial and the local government. Despite its inadequacy, the South African government is addressing the water needs of the most impoverished communities by guaranteeing each household a free minimum quantity of potable water of 25 litres per person per day or 6 kiloliters per household per month. Any person who needs more will come under privatisation model which key provisions on the existing law favors. About 38.4% of the population of South Africa who reside in rural communities are poor and mostly affected by inadequate water service delivery in that they cannot afford payment for water in excess of the minimum for which no fees is charged. As a concept, affirmative action is generally used in the context of work places to ensure that qualified marginalized groups have equal opportunities to get a job, but it is not yet investigated in the context of water service delivery. This study assessed laws governing water service delivery and explored how affirmative action can be used as an instrument to ensure the delivery of potable water to rural population in South Africa.