Sunday, March 30, 2008





Summary of the Applicant’s allegations and submissions
1. The admissibility of the application
The Applicant submits that the decision as to the admissibility of the application rests with the African Court. The Applicant prays that the Court find the application to be admissible.

2. Corruption within the public health service
The Applicant alleges that the Respondent, by failing to prosecute nurses allegedly guilty of corruption, violated the complainant’s right to development, and failed to observe its concomitant obligations

3. The lack of a comprehensive HIV/AIDS treatment programme
The Applicant alleges that the ongoing failure of the Respondent State to provide a comprehensive HIV/AIDS treatment program, which necessarily includes the free provision of anti-retroviral (ARV) medication, constitutes a failure on the part of the Respondent State to comply with its obligations in respect of the rights of that portion of its population presently infected with the disease.

4. The customary rule of primogeniture
The Applicant alleges that the operation of the customary rule of primogeniture involved discrimination against the complainant on the grounds of gender or sex and, furthermore, that the continued recognition afforded to the rule by the Respondent constitutes a breach by the Respondent of its concomitant obligations towards the complainant.

5. Admission to a state orphanage / child care institution
The Applicant alleges that the Respondent’s refusal to admit the complainant to a state orphanage or child care institution constitutes a violation of her rights and non-compliance on the part of the Respondent state with its concomitant obligations.

1.1 The Court’s power to rule on admissibility
1.1.1 In the light of Article 6(1) of the Protocol establishing the Court,[1] the Court has the primary responsibility to rule on admissibility. While the relationship between the Court and the Commission is one of “complementarity,” burdening the Commission with the responsibility of deciding on the admissibility of disputes[2] submitted directly to the Court in terms of Article 34(6) of the Protocol would hamper the efficient and timely resolution of disputes. Furthermore, it is critical to the success and effectiveness of the Court for it to be perceived as independent from the Commission.[3]
1.1.2 It is thus submitted that the Court should exercise the discretion conferred upon it in terms of Rule 81(a).

1.2. The admissibility of the matter
1.2.1 The Applicant NGO is entitled to bring an application to the Court on behalf of an individual complainant.[4]
1.2.2 The Court has subject-matter jurisdiction over the matter as its jurisdiction extends to actions brought before it in terms of any instrument, including international human rights treaties, which have been ratified by the state party concerned (ie the Respondent).[5]
1.2.3 The Applicant NGO has observer status before the Commission.[6]
1.2.4 The Respondent state has made the declaration, required in Article 34(6), accepting the competence of the Court to receive cases under Article 5(3).
1.2.5 Article 6(2) of the Protocol provides that “[t]he Court shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter,” of which only Articles 56(2), (5) and (7) need be discussed.[7]
- Sub-article (2) refers to both substantive and formal compatibility.[8] The substantive compatibility of an application to the Commission is judged according to its merits.[9] According to the Commission’s Guidelines,[10] a communication is admissible where it alleges a violation of one or more of the rights enshrined in the Charter. It is submitted that the present application complies with this requirement.
- The Applicant has exhausted all available local remedies by taking its dispute to Kibunia’s Constitutional Court, its highest court.
- The application complies with sub-article (7) as the Applicants only relied on the Kibunian Constitution in the Kibunian Constitutional Court.
1.2.6 In light of the word “may” in Article 5(3), the Court may refuse an NGO or an individual direct access to the Court even if the above requirements are satisfied.[11] While one of the important purposes of international adjudicatory bodies is to provide justice to individuals,[12] this should not be regarded as the primary function of the African Court,[13] which should only hear those cases which would allow it to expound on the African Charter and thus guide the development of the domestic law and policy of African nations.[14] It is submitted that the Applicant’s case will allow the Court to comply with its proper mandate in this regard.


2.1 Admissibility
As corruption is a serious problem facing the Continent, the consideration of this issue by the Court will be of importance to African states. It is thus prayed that the Court entitle the Applicant to present argument on this issue.[15]

2.2 The alleged corruption
The alleged corruption consists in the refusal on the part of certain nurses employed at state-run health centres and clinics to provide anti-retroviral medication to expectant mothers free of charge, as required in terms of official government policy, and/or the acceptance by such nurses of payment for such medication. It is submitted that these acts are classifiable as instances of corruption in terms of Article 4(1)(a), (c) or (g) of the AU Convention on the Prevention and Combating of Corruption.[16]

2.3 The right to development and the problem of corruption.
2.3.1 The right to development[17] is the inalienable human right, vested in the individual, to social, cultural, economic and political development.[18] States are under a duty to ensure the exercise of the right[19] and to implement national policies which give effect to the right to development and are to ensure, inter alia, equal access for all to basic resources and health care.[20] State Parties to the Convention on Corruption are bound to promote social justice to ensure balanced socio-economic development, and to condemn and reject acts of corruption.[21]
2.3.2 It is thus submitted that the existence of corruption within the public health service of Kibunia constitutes a violation of the complainant’s right to development, as it undermines the progressive social, economic and political development of her country. The Respondent has thus failed in its obligation to the complainant to ensure the progressive development of the country and “the exercise of the right to development,” and to implement measures designed to eliminate corruption. The criminalisation of acts of corruption, in itself, is not enough to ensure compliance with the duty imposed upon States. If the Kibunian police are unable to prosecute offenders, a dedicated anti-corruption agency should be tasked with the problem, as contemplated by Article 5(3) of the above Convention.


3.1 Admissibility
Anybody, or any NGO, either acting on their own behalf or on behalf of someone else, and thus regardless of whether they are the direct victim of the complaint, may submit an application to the Court.[22] While petitions to the Inter-American Commission on Human Rights must mention “concrete, individually identified and distinguished victims,”[23] petitions on behalf of groups of victims have been admitted when the group was “specific and defined and the individuals composing it could be identified,” as, for example, in the case of members of a defined community.[24] It is submitted that there is nothing preventing the African Court from admitting class actions brought in the abstract, and that this is in accordance with its proper function and mandate. Alternatively, it is submitted that the group on whose behalf the action is brought is sufficiently identified, its existence is beyond doubt, and the identities of particular members of the group can easily be established.

3.2 The Respondent state’s obligations
3.2.1 Article 16(1) of the African Charter provides that “Every individual shall have the right to enjoy the best attainable state of physical and mental health,” while Article 16(2) imposes a positive obligation on the Respondent to “take the necessary measures to protect the health of [its] people and to ensure that they receive medical attention when they are sick.”
3.2.2 In accordance with the African Court’s intended role, Article 16 of the Charter must be interpreted so as to allow for:
- the direct enforcement of the right enshrined in Article 16(1), and for
- the evaluation of the measures undertaken by states to give effect to such right, as contemplated in Article 16(2).
3.2.3 In the light of the South African Constitutional Court’s judgement in Government of the Republic of South Africa v Grootboom,[25] in which it was held that the reasonableness of legislative and other measures adopted by the state in discharging its obligations can be evaluated by a court,[26] the key to the justiciability of socio-economic rights is the standard of reasonableness. Furthermore, the state is only obliged to take steps, within its available resources, to achieve the progressive realisation of the right; thus in Soobramoney v Minister of Health (KwaZulu-Natal),[27] the Constitutional Court held that an unqualified obligation to realise the socio-economic rights contained in ss26 and 27 of the Constitution would not, in the light of the state’s lack of resources, be capable of being fulfilled.[28] In Minister of Health v Treatment Action Campaign[29] the Constitutional Court emphasised that s27(1) of the Constitution, which enshrines the right to health,[30] cannot be read in isolation from s27(2), and does not give rise to a self-standing and independent right enforceable irrespective of the considerations mentioned in the latter section. It should be noted that the jurisprudence of the South African Constitutional Court is of considerable persuasive authority to the African Court.[31]
3.2.4 Thus, it must be determined whether the Respondent’s ongoing failure to provide ARV medication to its AIDS-affected population is unreasonable bearing in mind its available resources and the imperative that the right to the best attainable state of health be progressively realised.

3.3 International intellectual property law and the ability of developing countries to obtain generic ARV medication
Under the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), WTO members have to provide patent protection for pharmaceuticals, and are thus not permitted to allow the manufacture, within their countries, of cheaper generic drugs.[32] However, Article 31 of TRIPS provides for the issuing of compulsory licences which allow the manufacture of a patented product without the consent of the patent holder, provided the conditions set out in sub-articles (a) to (l) are met. At the Doha Ministerial Conference in November 2001, WTO member governments issued the Declaration on the TRIPS Agreement and Public Health,[33] in which it was recognised that Article 31(f) of TRIPS, by limiting use of a product manufactured under compulsory licence to the domestic market of the government which has issued the licence, prevents countries capable of manufacturing a generic pharmaceutical under compulsory licence from exporting it to developing countries unable to manufacture it for themselves, such as Kibunia.[34] However, exporting countries’[35] obligations in this regard have subsequently been waived in terms of the Decision of the General Council of 30 August 2003,[36] and thus these countries are now able to manufacture generic drugs under compulsory licence and export them to an “eligible importing member,” provided that both countries have issued compulsory licences.[37] Furthermore, the importing country’s obligation[38] to pay the patentee for the issue of the compulsory licence is also waived.

3.4 The Respondent’s breach of its obligations in the light of the present lack of a comprehensive treatment programme
3.4.1 While the Respondent state would, prior to the above Decision, have been bound by Article 31(h) and thus would have been unable to import generics even from developing countries not bound by TRIPS, such as India or Brazil, it is submitted that it is now open to the Respondent to:
- immediately grant a compulsory licence for the use of the generic ARVs by the government in an HIV/AIDS treatment programme, in accordance with Article 31(b) of TRIPS;
- make a notification to the Council for TRIPS of its intention to use the above system as an importer, containing the information specified in Para 2(a)(i-iii) of the above Decision;
- enter into an arrangement with an eligible exporting member to secure the importation of the required quantities of the medication.
3.4.2 While it may be unlikely that the Respondent will be able to import the drugs for free, bearing in mind the fact that the exporting country’s obligations under Article 31(h) are not waived, the Respondent state has acted unreasonably in failing to at least take the preliminary steps above.
3.4.3 While the establishment of adequate health care delivery infrastructure is obviously vital to the establishment of a truly comprehensive treatment program, and is also important in preventing the development of viral drug resistance, the development of such infrastructure must be progressive, proceeding in conjunction with the progressive and phased roll-out of ARVs, and in this way will proceed within the limits of the Respondent’s resources. It should also be recognised that the need to provide developing countries with funds to develop their health care systems has been recognised by the World Bank, amongst others.[39] The apparent inaction of the Respondent in even attempting to obtain such funding constitutes a violation of its obligations as detailed above. Furthermore, the WHO has stated that the minimisation of drug resistance (which is the inevitable result of any treatment programme) will not be promoted by stalling the introduction of ARVs in developing countries,[40] and that combined-dose ARV treatments remain effective despite the development of drug resistance.[41]


4.1 Admissibility
While this aspect of the application is framed as the individual complaint of an individual victim, the complainant’s situation is representative of the vast majority of women and girls throughout the continent who are subject to the customary practice of primogeniture. Hearing this matter would thus allow the Court to fulfil its proper function as described above.[42]

4.2 The rule of primogeniture
In terms of the principle of primogeniture, women and girls are not entitled to inherit, as heirs are only sought amongst the male descendants of the deceased, failing which they are sought amongst his other male relatives.

4.3 The right to equality and the prohibition of discrimination
4.3.1 The rule of primogeniture, by discriminating between potential heirs on the grounds of sex or gender, violates the complainant’s right to equality.[43] Furthermore, the practice violates the complainant’s right to inherit an equitable share of her parent’s property.[44]
4.3.2 It is thus submitted that the Respondent is in breach of the following obligations:
- The obligation to ensure the elimination of all forms of discrimination against women;[45] “women” being defined to include girls.[46] It is submitted that the practice of primogeniture constitutes “discrimination against women” as defined in CEDAW and the African Women’s Protocol.[47]
- The obligation to “modify the social and cultural patterns of conduct of women and men” with a view to eliminating harmful and prejudicial traditional practices,[48] and the obligation to prohibit, condemn, and to take all necessary legislative and other measures to eliminate harmful practices.[49] It is submitted that the practice of primogeniture qualifies as a “harmful practice” in terms of the African Women’s Protocol.[50]
- The obligation to recognise the particular problems faced by, and to eliminate discrimination against, women living in rural settings.[51]
- The obligation to take all appropriate measures to eliminate discrimination against women in the context of marriage, and, in particular, to ensure the same rights and responsibilities for men and women during marriage and at its dissolution[52] and in respect of property.[53]
4.3.3 It has been argued that the discrimination resulting from the practice is justified by the fact that the heir only acquires the rights of control and administration of the property of the deceased subject to obligations as head of the family, which include the duties of maintenance and support. However, with the decay of the extended family system, a weakening of such obligations becomes inevitable.[54] Where the heir no longer observes these obligations, there can be no justification for the existence of the practice, as expressly pointed out by the High Court of South Africa in Mthembu v Letsela [55]

4.4 The right to human dignity
The practice of primogeniture violates the complainant’s right to human dignity,[56] by implying that women and children are incapable of administering private property. Thus, the Respondent is in breach of its obligation to implement measures to prohibit the “degradation” of women[57] and to ensure the protection of women’s rights to respect for their dignity.[58]

4.5 The right to cultural life and cultural practices
While the Respondent is under an obligation to promote and protect the community’s morals and traditional values,[59] the complainant has the right to cultural development,[60] which would involve the progressive realisation of equality in her culture. Thus, the African Women’s Protocol, in making provision for the right to sustainable development, obliges State Parties to, inter alia, promote women’s access to productive resources and guarantee their right to property.[61] The recognition afforded to the practice of primogeniture by the Respondent violates the complainant’s “right to live in a positive cultural context” and to participate in the “determination of cultural policies”[62] and the State is thus in breach of its obligations to ensure such participation.[63]

4.6 The rights of the child
Primogeniture violates the guiding principle that in all actions concerning the child, the best interests of the child shall be “the” or “a” primary consideration,[64] as the practice results in a person unknown to the child being, at least in theory, responsible for such child. It is clear that having ownership of the house and cattle would give Caroline and her sister far greater security. Studies have shown that orphans are often left with nowhere to stay after their parents’ property is appropriated by their fathers’ relatives and they are told to leave.[65] In this way the practice also violates her rights to enjoy the highest attainable standard of health[66] and to education.[67]

4.7 The legal validity of primogeniture in terms of the South African Constitution
In the matter of Bhe and others v The Magistrate, Khayelitsha and others[68], the Cape Provincial Division of the High Court made an order[69] on 25 September 2003 declaring certain legislative provisions recognising the principle of primogeniture to be constitutionally invalid. It appears from the Applicants’ heads of argument[70] that the matter was decided with reference to the same rights discussed above. The Constitutional Court’s decision whether to confirm the CPD’s order of invalidity is still pending.[71]

4.8 The competence of the African Court to make the declaration sought
It has been argued that it is not within the proper competency of a court to inquire into the acceptability of a customary practice such as primogeniture, as any proposed reform of the customary law is best undertaken by the legislature after public consultation.[72] While this argument may be valid in respect of national courts, the African Court stands in a different relationship to the legislatures of the countries subject to its jurisdiction; as a supra-national court, it is not subject to the doctrine of separation of powers between the executive and the judiciary.


5.1 Admissibility
It is submitted that this aspect of the application should be regarded as admissible, bearing in mind the significance of the decision of the court for the formulation and implementation of national policy relating to AIDS orphans.

5.2 Relevant observations concerning the position of the complainant
This argument must proceed on the basis that Caroline, if refused admission to a state orphanage, and thus if made to return to her extended family, is likely to run away to the city again, where she will be forced to resort to either prostitution[73] (and thus be exposed to the risk of contracting HIV) or theft in order to survive. Studies have shown that orphans (and especially orphans who have lost their parents to AIDS) are often neglected, abused or left with nowhere to stay after their parents’ property is appropriated by their fathers’ relatives, or are forced to engage in hazardous labour to earn their keep. Furthermore, it has been shown that even where orphans are supported by a guardian, there is the possibility that he will abuse them or force them to engage in hazardous labour in order to earn their keep. [74]

5.3 The “best interests” principle and the Respondent’s obligations
In all actions concerning the child, the child’s best interests are “the” or “a” primary consideration.[75] The child has a right to have his or her best interests taken into consideration.[76] In determining the child’s best interests, the child’s own views must be taken into consideration.[77] While this does not mean that the child’s own views are necessarily decisive,[78] it should not be forgotten that children are in the best position to tell those responsible for their care what is most important to them.[79] Caroline’s obvious refusal to live with her extended “family” indicates that she has been deprived of the family environment of happiness, love and understanding to which she is entitled. While parents, guardians or “other persons responsible for the child” have the primary responsibility to care for the child,[80] the State is under an obligation to ensure that the child receives such care[81] and is furthermore under an obligation to care for children who have been deprived of a family environment.[82] Furthermore, she is entitled to “special care and assistance”[83] and “alternative family care,” which includes “placement in suitable institutions for the care of children.”[84]

The Applicant prays for a declaratory order upholding the above allegations; alternatively, the Applicant prays for an order granting such relief as the Court may deem appropriate.[85]

African Charter on Human and Peoples’ Rights

African Charter on the Rights and Welfare of the Child

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

AU Convention on the Prevention and Combating of Corruption

Constitution of the Republic of South Africa Act 108 of 1996

Convention on the Elimination of All Forms of Discrimination Against Women

Convention on the Rights of the Child

Decision of the General Council of the WTO of 30 August 2003 concerning the Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health

Doha Declaration on the TRIPS Agreement and public health

UN Declaration on the Right to Development (UN General Assembly Resolution 41/128)

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Bowman, Cynthia Grant and Kuenyehia, Akua Women and Law in Sub-Saharan Africa. Accra: Sedco Publishing, 2003

Collins, Tara and Pearson, Senator Landon “What does the “best interests of the child” mean?” Discussion Paper of the Senate of Canada, Office of the Personal Representative of the Prime Minister to the UN Special Session on Children. Committee-e/Tara-ABestInterests.pdf

De Waal J, Currie I and Erasmus, G The Bill of Rights Handbook Landsdowne: Juta, 2001

“Guidelines for Submission of Communications” Information Sheet 2, Published by the Secretariat of the African Commission; inf. sheet no.2.doc

Harrington, Julia “The African Court on Human and Peoples’ Rights” In Evans, Malcolm, and Murray, Rachel, eds. The African Charter on Human and Peoples’ Rights: The System in Practice, 1986-2000. Cambridge: CUP, 2002

Human Rights Watch “In the Shadow of Death: HIV/AIDS and Children’s Rights in Kenya.” (2001) Human Rights Watch, Children’s Division June 2001, Vol. 13, No. 4(A) report available from

“Joint statement issued regarding principles for fixed-dose combination drug products.”

Mutua, Makau “The African Human Rights System: A Critical Evaluation” 28. UN Development Program:

Piron, Laure-Hélène “The Right to Development: A Review of the Current State of the Debate for the Department for International Development – Annexes.”\papers_reports\dfid\issues\rights\right_to_dev_Annex.pdf

Sengupta, Arjun “Development Cooperation and the Right to Development.” (2003) . Paper prepared for the François-Xavier Bagnoud Center for Health and Human Rights, Harvard School of Public Health..

South African Law Commission Discussion Paper 93.

Summary of Discussion Paper 93, Project 90, August 2000;

Summary of a meeting of international HIV/AIDS experts convened by the World Health Organisation and the Global HIV/AIDS Program of the World Bank held in June 2003. Available online at

“Surmounting Challenges: Procurement of Antiretroviral Medicines in Low- and Middle-Income Countries. The Experience of Medecins Sans Frontires.” Medecins Sans Frontieres, World Health Organization and the UNAIDS Secretariat 2003.

Thomas, Nigel & O’Kane, Claire “When children’s wishes and feelings clash with their ‘best interests.’” In The International Journal of Children’s Rights 6: 137-154, 1998, p. 137.

Udombana, Nsongurua J. “The African Regional Human Rights Court: Modelling its Rules of Procedure” (2002) 107 udombana_-_african_human_rights_court.pdf

Bhe and others v The Magistrate, Khayelitsha and others; unreported judgement of the CPD. Case 9489/02

Eprahim v Pastory, High Court of Tanzania at Mwanza, (PC) Civil Appeal No 70 of 1989

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC)

Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC)

Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC)

Mthembu v Letsela 1997 (2) SA 936 (T)

Sir Dawda K. Jawara v. The Gambia Communication 147/95 and 149/96.

Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC)

IACHR, Case 12.404. Report Nº 51/02 (Peru)

IACHR Petition 453/01 Report Nº 92/03 (Venezuela)

[1] Art. 6(1) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights [ “the Protocol Establishing the Court”], states that “The Court, when deciding on the admissibility of a case instituted under article 5 (3) of this Protocol, may request the opinion of the Commission which shall give it as soon as possible.”
[2] see Harrington (2002) 332
[3] Mutua 31
[4] The African Commission’s “Guidelines for the Submission of Communications”
[5] Article 3 of the Protocol
[6] as required by Art.5(3)
[7] For present purposes it may surely be assumed that the other subsections have been complied with.
[8] Udombana (2002) 104.
[9] Ibid., Sir Dawda K. Jawara v. The Gambia Communication 147/95 and 149/96.
[10] Fn 4 supra
[11] Mutua op cit 32
[12] Ibid.
[13] Ibid.
[14] Ibid., 33
[15] see para 1.2.4 supra
[16] hereinafter referred to as the “Convention on Corruption.”
[17] Art.22 of the African Charter
[18] UN Declaration on the Right to Development Art.1(1); Sengupta (2003) 3.
[19] African Charter Art.22(2)
[20] Arts.2(3), (3), and (8) of the Declaration
[21] Arts.3(4), (5)
[22] African Commission’s “Guidelines for the Submission of Communications,” Mutua op cit 17
[23] IACHR, Case 12.404. Report Nº 51/02 (Peru) quoted in IACHR Petition 453/01 Report Nº 92/03 (Venezuela)
[24] IACHR Petition 453/01 Report Nº 92/03 (Venezuela) para 59
[25] 2001 (1) SA 46 (CC)
[26] paras 41-42
[27] 1998 (1) SA 765 (CC)
[28] para 11
[29] 2002 (5) SA 721 (CC)
[30] see fn38 supra
[31] Mutua op cit 34
[32] Kibunia, as a member of the WTO classified as a developing country, was required to apply these (and the other) provisions of the TRIPS Agreement from 1 January 2000 (Article 65(2)); while the drug Nivirapine has been patented in Kibunia, it is unclear which other drugs have been patented. It will be assumed that all other brand-name ARVs (including fixed-dose combination ARVs) have been patented. Alternatively, all references to generic ARVs must be interpreted as references to generic Nivirapine.
[33] WT/MIN(01)/DEC/2
[34] Para6 of the Decision
[35] ie., those which are bound by TRIPS
[36] Available online :
[37] Para 2.
[38] In terms of Art.31(h) of TRIPS
[39] WHO and World Bank meeting of HIV/AIDS experts, June 2003.
[40] Ibid.
[41] Ibid.
[42] Para 1.2.4
[43] African Charter Art2; African Charter on the Rights and Welfare of the Child (ACRWC) Art3. In Eprahim v Pastory, High Court of Tanzania at Mwanza, (PC) Civil Appeal No 70 of 1989, it was held, with reference to the African Charter, CEDAW and the Universal Declaration of Human Rights, that primogeniture constituted discrimination against women and was thus inconsistent with the Tanzanian Constitution. (Bowman and Kuenyehia (2003) 167)
[44] Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the “African Women’s Protocol”) Art21(2)
[45] African Charter Art18(3); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Art 2(a) to (f); African Women’s Protocol Art. 2
[46] African Women’s Protocol Art. 1(k)
[47] Arts. 1 and 1(f) respectively
[48] CEDAW Art. 5(a); African Women’s Protocol Art 2(2).
[49] African Women’s Protocol Art.5
[50] Art. 1(g)
[51] CEDAW Art. 14
[52] CEDAW Art. 16(1)(c); African Women’s Protocol Art.6
[53] CEDAW Art. 16(1)(h); African Women’s Protocol Art 6(j). The complainant, although not vested with these particular rights, would have inherited from her mother had her mother not been prevented from inheriting by the practice.
[54] South African Law Commission Discussion Paper 93, Project 90 August 2000. p25
[55] 1997 (2) SA 936 (T) at 946D.
[56] African Charter Art5; African Women’s Protocol Art 3(1)
[57] African Women’s Protocol Art3(3)
[58] African Women’s Protocol Art3(4)
[59] African Charter 17(3)
[60] African Charter 22(1)
[61] Article 19(c)
[62] African Women’s Protocol 17(1)
[63] African Women’s Protocol 17(2)
[64] ACRWC Art.4; CRC Articles Art.3 respectively
[65] Human Rights Watch “In the Shadow of Death: HIV/AIDS and Human Rights in Kenya” 2001
[66] ACRWC, Art.14; African Charter, Art.16; CRC, Art.24
[67] African Charter, Art.17; ACRWC, Art.11; CRC, Art.28
[68] The judgement has not been reported.
[69] CPD order 307
[70] available online:
[71] CCT49/03; Hearing date 2 March 2004
[72] As supported in Mthembu (supra), and by the SALC in its Discussion Paper 93 supra.
[73] The HRW study (fn68 supra) notes examples of 9-year-old girls being forced into prostitution (p15).
[74] HRW study, p18
[75] ACRWC Art.4; CRC Articles Art.3 respectively
[76] Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC) para 17.
[77] ACRWC Art.4(2); CRC Art.12
[78] Thomas and O’Kane (1998) 137 in Collins and Pearson.
[79] Ibid., 152 in Collins and Pearson 5
[80] CRC Art.18(1), ACRWC Art.20
[81] CRC Art 3(2);
[82] CRC Art 20(1)
[83] ACRWC Art25(1); CRC Art 20
[84] ACRWC Art25(2)
[85] In terms of Art.27(1) of the Protocol

No comments: