Browsing by Author "Rudman, Annika"

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    Age or maturity? African children’s right to participate in medical decision-making processes
    (Pretoria University Law Press, 2020) Fokala, Elvis; Rudman, Annika
    This article advocates an approach to children’s participation in medical decision-making processes guided by the rationality of the best interests’ principle, a child’s evolving capacity and a child’s age. Using a human rights-based approach, rooted in the UN Convention on the Rights of the Child and the African Children’s Charter, it seeks to elucidate the contested three-way partnership between the child, its parent(s) and the assigned physician(s), which plays out in relation to most medical procedures involving children. In analysing legislation and case law, the article further aims to clarify the complex relationship between age and maturity in child participation; to facilitate a child’s involvement in the three-way partnership; and to suggest the statutory recognition of an age indicator in domestic African law in relation to medical procedures.
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    The Commission as a party before the court – reflections on the complementarity arrangement
    (North-West University, 2016-05-30) Rudman, Annika
    The African Commission on Human and Peoples' Rights has worked as the continent's watchdog, under the ACHPR, for almost 30 years. Much has changed since the time of its inception. More institutions, set to ensure the implementation of the ACHPR, have been added. As the African Court on Human and Peoples' Rights became operational, a two-tiered human rights system was created.This article explores the inter-relationship between the ACHPR, the Protocol Establishing the African Court on Human and Peoples’ Rights and the Procedural Rules of these two institutions within the specific context of the African Commission's mandate to refer communications to the African Court. The aim is to offer a purposeful interpretation of the Procedural Rules governing referrals, guided by the understanding of the principle of complementarity in the preparatory works. The author argues that an appropriate interpretation of complementarity, within the context of referrals, becomes vital in alleviating one of the long-term plagues of the African, protective, human rights system, namely the lack of resources and human capital. It is suggested that the African Commission and the African Court can only be effective if they take proper cognisance of the principle of complementarity, in referring and receiving communications.
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    Re-defining national sovereignty : the key to avoid constitutional reform? Reflections on the 2011 Green Paper on Land Reform
    (Juta Law Publishing, 2012-01) Rudman, Annika
    The results of post-apartheid land reform in South Africa have for a substantial period of time prompted scholars to ask key questions about the ability of law to achieve social change. Change in this case translating into an equal (based on race) distribution of agricultural land and in turn the role of the distribution of such land in combating poverty. With the imminence of the centenary of the notorious Native Land Act 27 of 1913, which dispossessed millions of black South Africans, issues of land reform are contentious and high on the agendas of both the government and civil society. Currently most of the deadlock in implementing and rejuvenating the existing reforms is linked to the perceived limitations within the Constitution of the Republic of South Africa, 1996 itself and the apparent difficulties in amending it. Therefore, one possible alternative way of rectifying the massive inequalities in the distribution of agricultural land is to try to fashion new discourses, which could expand the state's ability to undertake the necessary reforms. This article sets out to explore what appears to be one such (new) discourse, as introduced in the Green Paper on Land Reform of 2011, focusing on how the concept of state sovereignty can be used or misused, defined or re-defined to suit the determinations of a state, such as South Africa, in agrarian reform. This article emphasises the possible links between different theories on state sovereignty (internal and external) and agrarian reform for agricultural purposes; and the way in which the idea of state sovereignty can act as a vehicle for hard-line agrarian reform when all else appears to have failed. This article furthermore attempts to highlight some alternative avenues in constitutional interpretation to furnish new routes out of the current stalemate; focusing on remedies which currently are under explored and deserve more scholarly attention.
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    The value of the persistent objector doctrine in international human rights law
    (ASSAf, 2019-04-23) Rudman, Annika
    This article critically analyses the use of the persistent objector doctrine in unilaterally challenging the validity of Sexual Orientation and Gender Identity (SOGI) rights and the related state obligations. The persistent objector doctrine gives effect to state sovereignty and provides a mechanism through which states can object to a customary norm preventing the objecting state from incurring any legal obligations once the norm has emerged. The aim of this article is to reflect on whether the persistent objector doctrine could legitimately be used to negate state obligations that would naturally follow from the crystallisation of customary norms in the area of SOGI rights. In this sense the article is both concerned with analysing (not concluding on) current state practice in terms of understanding if and how the persistent objector doctrine is applied, and with gazing forward in terms of analysing whether, if customary law emerges to protect SOGI rights, the persistent objector doctrine could in fact be applied to limit or comprehensively shield states from SOGI-related obligations. This analysis takes place within the framework of the UNHRC Resolution 32/2, which creates an Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity, and of the responses of the seven African states that provided statements before the UNHRC in the process leading up to this resolution.