Perspectives on the right to development

Carol C Ngang, Serges Djoyou Kamga, Vusi Gumede

Description

The last couple of decades has not only witnessed an increased convergence between human rights and development but also a significant shift towards rights-based approaches to development, including especially responsiveness to the fact that development in itself is a human right guaranteed to be enjoyed by all peoples. This edited volume of peer-reviewed papers constitutes the first product resulting from the annual international conference series on the right to development, organised by the Centre for Human Rights, University of Pretoria, and the Thabo Mbeki African Leadership Institute at the University of South Africa. It explores the complex nature of the right to development from a diversified perspective, including from a conceptual, thematic, country and regional points of view. Conceived with the purpose to overshadow dominant economic growth approaches to development, the perspectives on the right to development articulated in this publication seek to locate the developmentalist discourse within the framework of accountability and people-centred development programming, necessitating appropriate policy formulation to ensure the constant improvement in human well-being. The book is written with the aim to reach out to researchers, academics, practitioners and policy makers who desire an in-depth understanding of the right to development as it applies universally.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2018
• Nombre de lectures: 3
• EAN13: 9781920538842
• Langue: English
• Poids de l'ouvrage: 7 Mo

Extrait

The last couple of decades has not only witnessed an increased convergence between human rights and development but also a signiIcant shift towards rights-based approaches to development, including especially responsiveness to the fact that development in itself is a human right guaranteed to be enjoyed by all peoples. This edited volume of peer-reviewed papers constitutes the Irst product resulting from the annual international conference series on the right to development, organised by the Centre for Human Rights, University of Pretoria, and the Thabo Mbeki African Leadership Institute at the University of South Africa. It explores the complex nature of the right to development from a diversiIed perspective, including from a conceptual, thematic, country and regional points of view. Conceived with the purpose to overshadow dominant economic growth approaches to development, the perspectives on the right to development articulated in this publication seek to locate the developmentalist discourse within the framework of accountability and people-centred develop- ment programming, necessitating appropriate policy formulation to ensure the constant improvement in human well-being. The book is written with the aim to reach out to researchers, academics, practitioners and policy makers who desire an in-depth understanding of the right to development as it applies universally.

Pretoria University Law Press PULP www.pulp.up.ac.za

ISBN: 978-1-920538-84-2

Perspectives on the

right to development

Perspectives on the right to development

Serges Djoyou Kamga Carol C Ngang Vusi Gumede

PULP

Edited by Carol C Ngang Serges Djoyou Kamga Vusi Gumede

Edited by Carol C Ngang Serges Djoyou Kamga Vusi Gumede

2018

Perspectives on the right to development

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: Pinetown Printers, Durban

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: DN Ikpo, Centre for Human Rights, University of Pretoria

ISBN: 978-1-920538-84-2

© 2018

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TABLE OF CONTENTS

Acknowledgments Preface Contributors

Introduction: The right to development in broad perspective Carol C Ngang, Serges Djoyou Kamga & Vusi Gumede

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PART I: CONCEPTUAL PERSPECTIVES ‘Marianne’ – the symbol of freedom: A critical 2 analysis in the light of the right to development12 Clotaire Nengou Saah The right to development under the African Charter: 3 Is there an extraterritorial reach?34 Romola Adeola Access to justice as a mechanism for the 4 enforcement of the right to development in Africa47 Ebenezer Durojaye, Oluwafunmilola Adeniyi & Carol C Ngang

PART II: THEMATIC PERSPECTIVES The impact of corruption on the right to 5 development in Africa70 Anzanilifuno Munyai & Avitus A Agbor The right to development: An African feminist 6 view97 Rhoda Asikia Ige & Carol C Ngang The right to sustainable development for women 7 in Africa: A corollary of the right to peace120 Paidamwoyo Mukumbiri Reflections on the right to development for 8 indigenous peoples in Cameroon138 Esther E Njieassam & MLM Mbao Land and the right to development in Africa161 9 Robert K Home

PART III: COUNTRY PERSPECTIVES ‘O Cameroon, though cradle of our fathers, … : 10 Land of promise’ and the right to development182 Carol C Ngang & Serges Djoyou Kamga

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The right to development in Uganda: myth or reality?203 Ginamia Melody Ngwatu

‘Towards a happy, prosperous and fulfilling life’: Recognising the right to development in the Zimbabwean Constitution233 Kucaca Ivumile Phulu & Serges Djoyou Kamga

Implementing the right to development at the domestic level: A critique of the Zimbabwean Constitution of 2013255 Khulekani Moyo

The right to development in Africa: Lessons from China273 Phoebe Oyugi

PART IV: REGIONAL PERSPECTIVES Critical reflections on the prospects and 15 challenges of the right to development in the ASEAN human rights system298 Bright Nkrumah Imagining Caribbean development: The right to 16 development and the reparations nexus314 Ramona Biholar Opportunities and challenges in the 17 implementation of rights-based approaches to development: An overview of the right to development in Africa346 Thandiwe Matthews & Kwanele Pakati The right to development and poverty 18 eradication in Africa364 Hesphina Rukato

Bibliography

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ACKNOWLEDGMENTS

This book is the product of the Conference on Regional Perspectives on the Right to Development that took place from 28 to 29 September 2017 at the Centre for Human Rights, University of Pretoria. The financial support of the Thabo Mbeki African Leadership Institute (TMALI), University of South Africa and the Centre for Human Rights, University of Pretoria in bringing together leading and emerging researchers to create the forum for discourse on the right to development, is greatly appreciated.

We are thankful to all the participants who presented a paper at the conference and thus stimulated the debates, which we acknowledge, influenced in one way or another the few contributions that eventually got selected to constitute the chapters of this book. We are also particularly indebted to the anonymous peer-reviewers for their insightful comments and recommendations, which contributed enormously in the selection of the chapters for this book. Our gratitude also goes to the PULP Editors and administrative staff for their contribution in making this publication possible.

Pretoria, South Africa October 2018

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PREFACE

The Centre for Human Rights, University of Pretoria (Centre), proudly associates itself with this publication, which brings together the reworked versions of papers initially presented at the first International Conference on Regional Perspectives on the Right to Development. The papers were reworked in the light of comments by fellow participants, and subsequent comments by independent peer reviewers. This conference, which was co- organised by the Centre and the Thabo Mbeki African Leadership Institute, University of South Africa, took place in September 2017 at the Centre. A second conference with a similar focus was held in August 2018.

The contributions in the book advance a human rights-based approach to development, and underscore that human rights and development are not mutually exclusive, but mutually reinforcing imperatives.

We live in an era in which the human rights paradigm is increasingly being eclipsed by development-focused approaches. While the first five decades since the adoption of the Universal Declaration of Human Rights (1948 to 1998) have witnessed the growth and rise of human rights, the last two decades (1998 to 2018) have seen a definite shift towards framing those issues previously viewed through a human rights lens, as issues of development.

‘Development’ is one of most pervasive concepts of our time. Countries are ranked according to their levels of economic ‘development’, and categorised as ‘least developed’, ‘developing’ and ‘developed’ countries. ‘Human development’ is measured with reference to indicators such as health care, education and gender empowerment. Global aspirations for human progress were captured in terms of ‘development’, in the MillenniumDevelopmentGoals (singed in 2000, with a target date of 2015), which later made room for the SustainableDevelopmentGoals (adopted in 2015, with a set of transformative goals to be achieved by 2030).

To improve the lot of human beings, it is necessary to both ensure their ‘development’ and the protection of their rights. Clearly, each of the developmental gaols serves to attain an underlying human right. However, the danger of focusing on development outside the human rights framework is that our collective obsession for programmatic and indicator- based improvements shifts the focus from the foundational reality that those whose development is at stake and are made the subject of measurement are alsorights holders, and that the state primarily responsible for this development are alsoduty bearers. Maintaining a human rights perspective locates the developmentalist discourse within the framework of accountability, thus allowing for the interpretation of the right to development on the basis of actual disputes, giving rise to possibilities of redress including adjustment of policies, practices and laws. One of the most important attributes of this collection of essays is that it aims to establish and interrogate the bridge between the discursive frameworks of development and human rights.

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This is an African book. Its editors and most of its contributors are prominent and emerging African scholars. It is no coincidence that the focus falls on Africa. The contributors write with an acute awareness that the topic is of crucial interest to the continent and its peoples. It is an African thinker, Keba M’baye, who elevated the right to development into a subject of scholarly debate, and it is in the regional human rights treaty of this continent (the African Charter on Human and Peoples’ Rights) that this right was first recognised as legally binding. It is the quasi-judicial body with the mandate to supervise state adherence to the Charter, the African Commission on Human and Peoples’ Rights, that became the first international tribunal to adjudicate on the right to development in a contentious case. The African Court on Human and Peoples’ Rights subsequently followed suit. It is published by an African-based publishing house (Pretoria University Law Press).

This book is a landmark on an issue of global concern to which African voices have much to contribute towards informing and shaping global debates and discussions.

Frans Viljoen Director; Centre for Human Rights, Faculty of Law, University of Pretoria

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CONTRIBUTORS

Avitus A Agbor is a Research Professor at the Faculty of Law, North- West University. He holds a PhD from the University of the Witwatersrand, a Master of Laws (LLM) from the University of Notre Dame, USA and a Bachelor of Laws (LLB) from the University of Buea, Cameroon. Prior to becoming a Research Professor, he was a Senior Lecturer at the same institution. He has authored papers on international criminal law and international human rights law.

Bright Nkrumaha Postdoctoral Research Fellow to the NRF/British is Academy Chair in Political Theory, Department of Political Studies, University of the Witwatersrand. He holds a DPhil and MPhil from the University of Pretoria and BA (Hons) from the University of Ghana. He served previously as a researcher at the South African Human Rights Commission. His research interests include constitutionalism, socio- economic rights, peace and security, good governance, resistance, freedom and democratisation.

Carol C Ngangis a Researcher at the Centre for Human Rights, University of Pretoria. He holds a Bachelor of Laws (LLB) from the University of Yaoundé II, Cameroon; a postgraduate Certificate in Sustainable Development and International Human Rights Law (SUSTLAW) from the University of Antwerp, Belgium; an International Diploma in Humanitarian Assistance (IDHA) from Fordham University, New York; a Master of Laws (LLM) and Doctor of Laws (LLD) both from the University of Pretoria. He has published in local and international journals. His research interests include human rights and development, with focus on the right to development and socio-economic rights.

Clotaire Saah Nengouis Assistant Professor of Comparative Literature and Semiology. He teaches Applied Linguistics in the Department of Foreign Languages, Obafemi Awolowo University, Ifè, Nigeria. He has published numerous papers in reputable French, Francophone and English journals in the field of literary semiotics, symbolism and colour semiotics. The latest of his publications is: ‘Semiosis of Barack Obama: Black President in the Black House?’ published in New York.

Ebenezer Durojaye is Associate Professor of Law and Head of Socio- Economic Rights Project at the Dullah Omar Institute, University of the Western Cape. His research interest includes socio-economic rights with focus on the rights to health, housing and food. He is one of the Independent Experts of the African Commission on Human and Peoples’ Rights for the Committee on the Protection of the Rights of People Living with HIV and those at Risk, Vulnerable to and Affected by HIV.

Ginamia Melody Ngwatua Doctoral candidate at the Centre for is Human Rights, University of Pretoria. She holds a Master of Laws (LLM) in Human Rights and Democratisation in Africa from the University of Pretoria and a Bachelor of Laws (LLB) from Makerere University. She is also a Principal Legal Officer at the Uganda Judicial Service Commission, a constitutional body that is mandated to recruit and discipline judicial

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officers and conduct education programmes on the law and the administration of justice. Ginamia has worked previously with the Uganda Human Rights Commission.

Hesphina Rukatois a Development Consultant and Associate Lecturer on Good Governance in Africa at the Thabo Mbeki Leadership Institute, University of South Africa. She holds a PhD in Environmental Management Standards, University of Witwatersrand, MSc in Environmental Policy and Planning, and BSc (Hons) in Politics and Administration, University of Zimbabwe. She is a board member of Great Dyke Investments and National Parks and Wildlife Authority in Zimbabwe and a Technical Committee Member for the Tana Forum on Peace and Security in Africa. Hesphina Rukato worked as Deputy Chief of Staff in the Bureau of the AU Commission Chairperson from 2012-2014. She has previously also worked as a consultant to the AU Commission and the Institute of Peace and Security Studies. From 2005-2009 she worked with NEPAD as Deputy Chief Executive Officer prior to her role as Advisor on Environment and Tourism. She has worked for the South African Government as Director for the World Summit on Sustainable Development and also for the Zimbabwe Government and the NGO sector. Her expertise is in governance and development, politics and peace and security.

Khulekani Moyo is a Senior Researcher at the Mandela Institute in the School of Law, University of the Witwatersrand. He obtained a Doctor of Laws (LLD) from Stellenbosch University, Master of Laws (LLM) from the University of Oslo, Norway and a Bachelor of Laws (LLB Hons) from the University of Zimbabwe. He also holds two diplomas in the International Protection of Human Rights and the Justiciability of Economic, Social and Cultural Rights from Åbo Akademi University, Finland. He has held the positions of Head of Research at the South African Human Rights Commission, Senior Lecturer at the Nelson Mandela School of Law, University of Fort Hare and Researcher at the Norwegian Centre for Human Rights. His research interests include international law, international human rights law; business and human rights; intellectual property law; international criminal law; constitutional law and regional integration law.

Kucaca Ivumile Phulu is a Senior Partner at Phulu & Ncube Legal Practitioners and Chairperson of Abammeli, a human rights lawyer’s organisation based in Bulawayo, Zimbabwe. He holds a Master of Laws (LLM) from Midlands State University and a Masters in Development Studies from the National University of Science and Technology in Zimbabwe. Kucaca has also been the Chairman of civil society organisations in Zimbabwe, including the Zimbabwe Human Rights Association; Bulawayo Agenda, Elections Resource Centre (ERC) and a board member of Zimbabwe Lawyers from Human Rights and Radio Dialogue.

Kwanele Pakatiis a Research Advisor at the South African Human Rights Commission and a PhD candidate, specialising in International Law at the University of Johannesburg.

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MLM Mbaoobtained a Bachelor of Laws (LLB) from the University of Zambia. He also holds an MPhil and Ph.D from Cambridge University, UK. He is currently a Professor of Public Law, Legal Philosophy and recently the Executive Dean of the Faculty of Law, North-West University, Mafikeng Campus. He has researched and published widely in the area of public law, including public international law and human Rights. His current research interests are in good governance and human rights.

Munyai Anzanilufuno holds a Bachelor of Laws (LLB) from the University of Venda and a Master of Laws (LLM) from the North-West University, Mafikeng Campus. She is a doctoral student in public law and legal philosophy at North-West University. Her doctoral research entitled ‘Overcoming the corruption conundrum in Africa: A socio-legal perspective’, identifies the difficulties in the construction of a watertight definition of corruption, examines international and national anti- corruption instruments, the need for political will and the role of foreign governments in the fight against corruption.

Esther E Njieassama Bachelor of Laws (LLB) from the obtained University of Buea, Cameroon, Master of Laws (LLM) and a PhD in Human Rights from the North-West University, Mafikeng Campus. She is currently a Post-doctoral Research Fellow at the South African Research Chair in International Law, University of Johannesburg. She has attended and presented papers at international and local conferences. Her research interests are in human rights, the protection of minorities, including children and women.

Oluwafunmilola Adeniyi is a Doctoral Researcher with the Socio- Economic Rights Project at the Dullah Omar Institute, University of the Western Cape. She holds a Bachelor of Laws (LLB) from Ahmadu Bello University and a Master of Laws (LLM) from the University of the Western Cape. Her research explores the impact of trade policies on the right to food in developing countries. Her research interests are socio economic rights with particular interest in the right to food, women’s rights and access to justice. She coordinates the Access to Food for Students Project at the Dullah Omar Institute, a national project probing food insecurity and the gendered implications in South African tertiary institutions.

Paidamwoyo Mukumbiriis a Lecturer in the Department of Public Law, Zimbabwe Ezekiel Guti University, Bindura. She holds a Bachelor of Laws (LLB) from the University of Zimbabwe, Masters of Laws (LLM) in Human Rights from the University of Pretoria and Master in Women’s Law from the University of Zimbabwe. She is currently a doctoral candidate at the Centre for Human Rights, University of Pretoria with research focus on women’s right to peace. She is also a registered legal practitioner. Paidamwoyo’s research and academic interests are in the areas of human’s rights, gender and the law. She has previously worked with Zimbabwe women lawyers Association.

Phoebe Oyugiis a Kenyan Lawyer specialised in international law. She holds a Bachelor of Laws (LLB) from the University of Nairobi and Master of laws (LLM) from Rhodes University. She is currently pursuing her

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