LCP4807 PORTFOLIO MEMO - MAY/JUNE 2024 - SEMESTER 1 - UNISA - DUE DATE :- 31 MAY 2024 (DETAILED ANSWERS WITH FOOTNOTES AND BIBLIOGRAPHY - DISTINCTION GUARANTEED!)

LCP4807 PORTFOLIO MEMO - MAY/JUNE 2024 - SEMESTER 1 - UNISA - DUE DATE :- 31 MAY 2024 (DETAILED ANSWERS WITH FOOTNOTES AND BIBLIOGRAPHY - DISTINCTION GUARANTEED!) QUESTION 1 1.1. Critically discuss the enforcement of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and its Optional Protocol. In your answer also indicate whether the CEDAW provides for individual complaints processes. (25) 1.2. “South Africa has a constitution that has been described, correctly, as an ‘international law-friendly’ constitution. In the landmark decision in S v Makwanyane, the Constitutional Court went to great lengths to show the court’s openness to international law by, inter alia, declaring that the Constitution’s reference to international law included both binding and non-binding international law……. But are South African courts able to use techniques, tools and methodology of international law to give content to it?” [Tladi Dire Interpretation and international law in South African courts: The Supreme Court of Appeal and the Al Bashir saga. Afr. hum. rights law j. [2016, vol.16, n.2] With reference to the South African Constitution and case law explain the ways in which International Human Rights Law may be used to champion human rights in the adjudication of disputes before domestic courts in South Africa. (20) 1.3 Critically discuss the principles of “sovereignty” and “subsidiarity” in the application of International Human Rights Law at the national level. In your answer, indicate the extent if any, to which norms of international law can be invoked as part of domestic/national legal systems. (15) [60] QUESTION 2 2.1. The Republic of Kabomo is a Western African country with a constitution which is a replica of the Universal Declaration of Human Rights (1948) adopted in 2004. Kabomo has ratified the major United Nations (UN) human rights instruments such as the UDHR, ICCPR (including the two optional protocols), ICESCR, CEDAW (including its optional Protocols). Kabomo has also ratified the African Union (AU) instruments such as the African Charter on Human and Peoples’ Rights; The Protocol Establishing the African Court on Human and Peoples’ Rights (with a special declaration in terms of article 34(6)); the Protocol to the African Charter on the Rights of Women and the African Charter on the Rights and Welfare of the Child. Kabomo adopted the New Family Code in 2020. There are two main contentious issues from the New Family Code regarding marriage and inheritance upon death. In terms of the new code, Section 7(a) of the Family code prescribes that the legal age of marriage for boys is eighteen (18) years and for girls is sixteen (16) years. Section 7(b) further gives special exemption for marriage as from fifteen (15) years, with the father's or mother’s consent for the boy, and only the father's consent, for the girl. Kabomo argues that the new law is in line with Islamic and other traditions and that it is also in harmony with socio-cultural realities of the country. Section 8 of the Code states that there is no marriage when there is no consent but does not prescribe that consent be given orally and in person or the verification of the consent before the person performing the marriage. Section 9 of the Family Code provides that the marriage consists in the two families exchanging marriage gifts in the presence of a Cultural Specialist and when these marriages are performed the presence of women is not required. The Organisation for Women and Children’s Rights (OWCR) is an international organisation with Observer Status before the African Commission on Human and Peoples' Rights and aims to promote, protect and defend violations of the rights of women and children in Africa. It also provides legal representation, assistance and shelter for women and children who are victims of various abuses. It has offices in several African countries including Kabomo. In 2021 OWCR took the matter to the Constitutional Court which is the highest court in Kabomo. Their main argument is that the New Family Code of 2020 in Kabomo as promulgated violates several provisions of the constitution, the UN and AU international human rights instruments ratified by the Respondent State. The Constitutional Court rejected the merits of the case and dismissed the matter. It found that the New Family Code of 2020 was consistent with the Constitution and the laws of Kabomo as well as all other UN and AU Conventions ratified by the country. OWCR would like to take the matter to the African Court on Human and Peoples’ Rights. They approach you as an expert in international human rights law for advice. Using the African Charter on Human and Peoples’ Rights and other relevant AU conventions advise OWCR. In your legal opinion reflect on whether OWCR can take the case to the African Court and use authority to justify your answers. Highlight the following points : • Procedural issues; • Individuals/organisations’ rights to approach the African Court; • Merits of the case including the specific rights which have allegedly been infringed in terms of the constitution, the African charter and other relevant conventions; • Remedies. (40) TOTAL: {100}