Doctoral Degrees (Public and International Law)
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Item Legal harmonisation of non-tariff barriers of regional economic communities as a catalyst to the realisation of the African continental free trade area.(2023) Achancho Etagha Epse Abia, Elizabeth.; Mnyongani, Freddy Duncan.; Stevens, Clydenia Edwina.Legal harmonisation is an integral aspect of regional integration and the desire to promote regional and sub-regional economic integration in Africa is exemplified by the establishment of the African Continental Free Trade Area (AfCFTA) in 2018. The 2012 decision of the AU to create the CFTA by 2017 was reiterated in Aspiration two of Agenda 2063. The legal harmonisation of non-tariff barriers has been a vital instrument in the achievement of EU economic integration and the Organisation for the Harmonisation of Business Laws in Africa (OHADA). The study seeks to critically examine the theoretical and conceptual underpinnings of regional integration and legal harmonisation of non-tariff barriers by the AU and RECs. It also analyses the current political, economic, and legal reinforcements to regionalism in Africa and practices needed to advance intra-regional trade within the framework of Agenda 2063. This was done by evaluating the key legal frameworks of the AU (the Abuja Treaty, the Constitutive Act of AU, 2007 Protocol on relations between AU and RECs and Agenda 2063) with the aim of identifying best practices, gaps and impediments pertinent to strengthening Agenda 2063 CFTA. At the end of the study, the abilities of three selected RECs (SADC, COMESA and EAC) were assessed to drive home the AfCFTA. This was done by identifying flaws in existing treaties of RECs, while advancing a model of legal harmonisation of NTBs between them. It was found out that the AU and RECs have not vigorously considered the significance of legal harmonisation in their integration agendas. This resulted in the lack of unambiguous and concrete provisions for the legal harmonisation of NTBs in their guiding policies. Where some attempts are evident, such as in the EAC, they have been implemented unsatisfactorily with lack of a compliance mechanism. This study contended that if legal barriers to free trade are not eliminated, even if all other barriers were to be removed, the effective realisation of the AfCFTA would still be hindered. Hence, this study recommends the principles of direct applicability and direct effects of regional laws to addressing the legal harmonisation challenge underscored.Item Battered, dejected, ejected and rejected: the rights of HIV positive women to be protected from violence in Eswatini.(2020) Mavundla, Simangele Daisy.; Strode, Ann Elaine.; Essack, Zaynab.Eswatini has, as of 2018, the highest prevalence of HIV and AIDS in the world. The prevalence has continued to rise, climbing from 21 per cent of the population in 2016 to over 27 per cent in 2018. Violence against women (VAW) is also on the increase, attributed to the prevalence of gender inequality in the country. Research has shown a viable link between HIV and VAW. This is because women are most often powerless and have no voice, agency or control over their lives and bodies. Due to gender inequality, women may be unable to negotiate condom use with their husbands or partners. Women's refusal of males' sexual advances often leads to their violation, underscoring the link between VAW and HIV and AIDS. However, in Eswatini, the implications of this link have not been adequately investigated; hence, the need to investigate women's experiences of VAW to find out how well the legal and policy frameworks of Eswatini respond to VAW. The study answers the following essential questions: What are the experiences of women living with HIV (WLH) regarding violence? Is the Eswatini legal and policy framework cognisant of the nexus between VAW and HIV? How does the legal framework protect HIV positive women from VAW and its consequences in light of international law? This study found that violence against HIV positive women was multifaceted and involved a wide range of perpetrators. As such, WLH experienced many forms of violence, including stigma and discrimination. Perpetrators of violence against WLH originated from the home front – (private sphere) and then were found in the public sphere. Intimate partners, and family members, as well as community members and healthcare workers, were implicated in violating WLH in one way or another. The findings of this study confirmed that violence and HIV were inextricably interconnected at many levels and that legal remedies were inadequate, to the extent that women did not generally rely on them. Some of the inadequacies included the fact that the laws on marital and cohabiting relationships offered little protection in conflict with the provision in the Constitution provides that 'women have the right to equal treatment with men'. This study argues that Eswatini's social context provides fertile ground for HIV and VAW and their interaction to thrive. It further contends that violence against WLH is a public health concern requiring a public health response. It concludes that violence against WLH is indeed a human rights violation, which requires a human rights response.Item Cultural practices and reproductive health rights of women : a comparative study of South Africa and Nigeria.(2017) Eniola, Bolanle Oluwakemi.; Mubangizi, John Cantius.This study involved a critical comparison of cultural practices and the reproductive health rights of women in South Africa and Nigeria. The two countries are characterised by cultural diversity. They have assented to some international instruments on the protection of the reproductive health rights of women, but have different frameworks aimed at the protection of the reproductive health rights of women. The notable difference in the approach of the two countries to the promotion and protection of the reproductive health rights of women is that South Africa has a more developed constitutional approach channelled towards the protection of women‟s reproductive autonomy. Apart from being signatories to international treaties on the protection of women‟s reproductive health, South Africa and Nigeria have different frameworks for the protection of women‟s reproductive autonomy. While South Africa has muster political will to domesticate these treaties, the case is different in Nigeria as it finds it difficult to domesticate these international instruments. However, despite South Africa‟s domestication of the international instruments and Nigeria‟s ratification of the instruments, coupled with their legal and legislative frameworks on women‟s reproductive health rights of women, women in these countries are constrained by various cultural norms from realising these rights. Desktop research was conducted to gain a robust understanding of cultural practices and the reproductive health rights of women in South Africa and Nigeria. The study relied on primary and secondary sources of information. It reviewed the existing literatures on cultural practices and the reproductive health rights of women in both countries. As well as the various international and regional instruments on the promotion and protection of women‟s reproductive health right. The information gathered from these sources was subjected to content analysis. The study revealed that that despite the frameworks adopted by the two countries on the protection of the reproductive health rights of women, reproductive health rights of women in both countries are still violated through some cultural practices. The cultural practices are so entrenched in the various communities in both South Africa and Nigeria that it is difficult to adopt laws to protect the reproductive health rights of women. According to the study, women themselves contribute to the furtherance of the cultural practices. This is because most of the instruments protecting these rights are ineffective. The study further revealed that the laws of some countries do not promote the enforcement of international instruments in their domestic courts – unless such instruments are domesticated. According to the study, while South Africa has demonstrated political will to protect women‟s reproductive health rights, Nigeria lacks the political will to domesticate the international instruments. Furthermore, in Nigeria, the pluralist legal system also affects the realisation of the reproductive health rights of women as the system creates geographical disparities in the realisation of these rights. It is recommended that the Nigerian government demonstrate commitment to domesticating the various treaties on women‟s reproductive health rights to which the country has assented. Furthermore, both countries should provide human rights education to enlighten both men and women on the need to protect these rights. Finally, to fully enjoy these rights, where there is a conflict between the various cultural practices and women‟s reproductive health rights, in line with international norms and standards on the protection of women‟s rights, women‟s reproductive health rights should take precedence.