Browsing by Author "Nyamutata, Conrad"

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    Article 18: Protection of the family
    (Pretoria University Law Press, 2024-12-06) Nyamutata, Conrad
    The African Charter on the Rights and Welfare of the Child (African Children’s Charter) emphasises the importance of protecting the family, particularly in the context of children’s rights. However, it does not provide a definition of the ‘family’, and its composition. Nonetheless, the criticality of the family as fundamental in African society is indubitable. Relationships leading to marriage and children were invariably cherished among African peoples. The African concept of human rights enforces the notion that children are a valuable part of society as traditional African culture recognises the worth of children and the need to protect them. It thus is not surprising that for a charter dedicated to children, the ‘family’, however conceptualised, forms a significant part of its social fundaments. The Preamble recognises that the child holds ‘a unique and privileged position in the African society’ and that for the child to fully develop their personality, the child must grow up in a ‘family environment that promotes love, happiness and understanding’. This chapter offers an analysis of article 18 of the African Children’s Charter. Overall, the Charter shows the quintessence of African values that recognise the importance of the family to African children’s upbringings. The Preamble presupposes that parties to the Charter considered ‘the virtues of their cultural heritage, historical background and the values of the African civilisation which should inspire and characterise their reflection on the concept of the rights and welfare of the child’. Therefore, the family and its protection need to be viewed within the broader context of the African values
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    Childhood in the digital age: a socio-cultural and legal analysis of the UK’s proposed virtual legal duty of care
    (Oxford University Press, 2019-12-19) Nyamutata, Conrad
    In 2019, the UK government issued an ambitious White Paper as a precursor to the regulation of ‘online harms’. This article adopts a socio-cultural and legal approach to analysing the proposed law in the context of children. How childhood is conceptualized influences public policy and legal interventions, including on the digital space. This remains a contested terrain with different conclusions on the effects of the cyberspace. The biggest challenge with legal interventions on the digital realm is the need to achieve a balance between protection and participation rights of children. The dominant conception of childhood as a period of vulnerability has meant ‘protection’ often overrides participation rights. However, such focus is the subject of challenge, with some suggesting that regulation is the product of moral panic. A further strand is the potential of disproportionate punitive measures against Internet companies against the backdrop of human rights obligations. The UK proposition is discussed within these socio-cultural and legal contexts with the objective of highlighting challenges and legal pitfalls. This article argues that Internet governance ought to give serious consideration to the new sociology of childhood
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    Critically-ill children and the international human rights system: assessing the status and role of the UNCRPD in the case of Archie Battersbee
    (Brill, 2024-01-10) Nyamutata, Conrad
    Over the past few years, some parents and clinicians in the UK have argued about decisions on the fate of critically-ill children, with the cases ending in protracted and emotionally-sapping legal disputes. The long -running legal conflicts have played out in the public eye, eliciting conflicting opinions. At the core of the disputes is whether parents or clinicians should determine the appropriate course of action. In the event of the disagreements, the domestic court intervenes guided by the ‘best interests’ principle. A corpus of scholarship, falling on either side of the debate, has captured the contradictions. Until recently, the discourse had focused on the common recourses to domestic courts and the European Court of Human Rights. However, in the recent case of incapacitated 12-year-old Archie Battersbee, his parents sought redress from the international human rights system through the Committee on the Rights of People with Disabilities to stop termination of his life support. The courts barred the involvement of the Committee on the basis that the UK had not incorporated the treaty which birthed the Committee. The case brought into sharp focus the relationship between international law and domestic law. First, this paper asserts that the weight (not) given to international law by the domestic courts was inconsistent with its treatment of international obligations in other cases. Secondly, the position that unincorporated treaties do not have legal effect in domestic proceedings is ambiguous. Finally, the treaty body appeared ill-suited to handle a case of a critically-ill child in the face of the impatient demands of local justice
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    The Decolonisation of Children’s Rights and the Colonial Contours of the Convention on the Rights of the Child
    (Brill, 2020-03-10) Nyamutata, Conrad; Faulkner, Elizabeth
    The United Nations Convention on the Rights of the Child (UNCRC) 1989 has been celebrated for its universal acceptance. However, questions still arise around its provenance and representation. In particular, the Convention is deemed to enshrine Western notions of childhood upon which its rights were constructed. However, the legacy of the colonial contours of the new world order are often excluded within the context of children’s rights. It has been suggested that the new imperialism brandished under the guise of ‘children’s rights’ serves as an effective tool to ‘beat’ the Global South, deflecting from the continued Western dominance within the field of children’s rights. This paper interrogates the power dynamics and colonial legacy upon which views of children are formed, centralising the multitude of issues in the arena of children’s rights in the wake of what can be identified as Hokusai’s wave.
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    Decolonising and decriminalising child marriage in Africa
    (Wiley, 2023-08-25) Nyamutata, Conrad
    Child marriages, often attributed to culture and gender inequality, are prevalent across Africa. Several countries have moved to criminalise the practice. At the core of the criminalisation debate are the fundamental tensions between statutory (state) law on the one hand, and religious and customary law on the other. The growing momentum towards punishment, targeted almost invariably at male offenders, is meant to address the conflict between cultural practices that lead to child marriage and the protection of children's rights. However, some countries have not criminalised child marriage. Thus, the outlawry of child marriages is not universal on the continent. The agitation towards criminalisation—I describe this as ‘popular punitvism’ ‐ as a panacea, is animated by Western penological justifications, principally, deterrence. However, Western criminological and penological theories may not fully account for a phenomenon in other social and geographical spaces. The paper argues for decolonising and decriminalising child marriages in Africa but not legalising it.
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    Funerary Rites and Rights of the Dead: Jurisprudence on covid-19 Deaths in Kenya, India and Sri Lanka
    (Brill, 2023-01-12) Nyamutata, Conrad
    Pandemics are associated with exponential mortality rates, creating heavy burdens on communities. The high death rates affect how societies traditionally conduct funerary practices as governments impose regulations on the preparation of bodies and the conduct of the funerals to stem the transmission of the virus. In societies associated with deeply entrenched customary funerary practices, such limitative measures attract defiance. The tensions between public health objectives and funerary traditions have played out in a number of societies resulting in litigation. At the core of the disputes is whether the right to manifest religion or belief can be upheld, and relatedly, whether the dead have rights to dignified burials irrespective of pandemics. During the covid-19 pandemic, some courts had to grapple with these difficult questions. In this paper, I take a jurisprudential excursion on some disputes in Kenya, India and Sri Lanka to assess the adjudication of conflicts which arose from covid-19 pandemic deaths.
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    The ideological construction of Western ISIS-associated females
    (John Benjamins, 2020-05-04) Nyamutata, Conrad
    Since the outbreak of the war in Syria, some Western women and girls have travelled to the warzone to join the group known as the Islamic State of Iraq and Syria (ISIS) and marry some of the group’s fighters. However, since the collapse of the ‘caliphate’ some of the women and girls have been stranded amid reluctance to accept them back to countries of origin. The women and girls have been the subject of various descriptions and labels. This is a conceptual and theoretical study which examines the ideological construction of females who travelled from Europe and West to join ISIS. The paper uses discourse analysis to examine the use of particular labels in the Western media, drawing primarily from the British press, on the ISIS-associated females seeking return to the West. The paper finds that a naturalized and dominant discourse has developed in the ideological construction of the females
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    Lubanga, child soldiering and the philosophy of international law
    (De Montfort University, 2015) Nyamutata, Conrad
    International criminal law lacks a coherent theory suitable for its own context. This lacuna has left the International Criminal Court (ICC) – the most prominent global penal institution - without clear theoretical premise(s) to guide prosecution and punishment. In its current incarnation, international criminal draws on Western liberal modalities founded on dominant domestic penal rationales of retribution and deterrence. However, these principles appear incongruous to the crimes the ICC prosecutes. The theoretical rationales of ICC have barely been interrogated against an extant case. In 2012, Democratic Republic of Congo (DRC) rebel leader Thomas Lubanga Dyilo became the first defendant to be convicted and jailed by the ICC for the conscription, enlistment and use of child soldiers. The use of child combatants for purposes of war is a pernicious global problem outlawed in international criminal law. However, of the crimes designated as ‘egregious,’ it has historically been under-enforced and inadequately articulated as a mass crime, and allocated lesser gravity. The seminal case of Lubanga provides us with a propitious opportunity, not only to locate child soldiering, but also inquire into the theoretical underpinnings of the ICC with regards to mass crime. Mass crimes are distinct from ordinary crimes. International courts charged with adjudicating them face constraints and can only prosecute a few of the suspected perpetrators. The overarching theoretical and analytic framework for this thesis is premised on the notion that international criminal law needs a plausible theory or rationale suitable for its context and crimes it prosecutes. It is important for the ICC to premise its work on a realistic rationale for it to be purposive. A more logical analysis of international penality would draw on the conceptual underpinnings of the whole project of international law and specific features of the ICC. A good starting point is to note that international criminal justice is largely symbolic. A more plausible penal rationale would consider the inhibitions the ICC faces and the role it can still perform with regards to mass crime. The ICC symbolises contemporary standards of an ‘international community.’ It is this concept from which we can extrapolate viable rationales for ICC penology. How do the trial, conviction and punishment of Lubanga for the ‘mass crime’ of child soldiering serve the collectivist ethos of international law and society? The project that follows proposes a penal rationale that accounts for the ICC’s sui generis character, the nature of crimes it adjudicates and what the court can realistically achieve. The ultimate value of international criminal law may rest not in its functions of retribution or deterrence, but in its role in identity construction, in particular in constructing a cosmopolitan community identity. The overall argument for the thesis is that while retribution and deterrence are valid, the most plausible rationale for ICC penality is the expressive function of law (expressivism). The few cases of mass crime the ICC can prosecute can achieve primarily more realistic aims of expression of global or ‘cosmopolitan’ norms, norm internalisation and the reinforcement of collectivism international law and society. Lubanga provides an illustrative exemplar for this argument.
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    Young Terrorists or Child Soldiers? ISIS Children, International Law and Victimhood
    (Oxford University Press, 2020-01-23) Nyamutata, Conrad
    Since the Syrian conflict broke out, a significant number of Western citizens travelled to the warzone to join the Islamic State of Iraq and Syria (ISIS). By common definitions, some of the persons travelled as ‘children’. However, since the defeat of ISIS, Western countries are facing a conundrum on how to treat these young former fighters. The status of these children has been contentious. Among the Western countries, there does not seem to be a clear position or consistent approach on how such children should be treated. It would appear that the approaches towards the dilemma on these young persons have, predominantly, been dictated by the political whims of individual states. Generally, the children have been regarded as young ‘terrorists’ likely to pose danger to Western societies if repatriated back. However, the perceptions and actions towards these minors seem to depart from the normative approaches to children associated with armed conflict. The widely reported case of British teenager Shamima Begum shone the spotlight on the predicaments of children formerly associated with ISIS. This article makes a case for the treatment of ISIS-associated children to be considered as child soldiers. When analysed closely, these children deserve protections accorded to all children recruited for purposes of warfare. Recent case law seems to imply that such protection does not cease even after the age of 18 years. All considered, the denial of repatriation appears inimical to normative standards on children associated with armed conflict. Furthermore, the approaches of some of the Western countries could be vulnerable to criticism for violation of the rule of law. The arbitrary revocation of citizenship and barring of returns appear starkly in conflict with norms of natural justice. With this in mind, this article asserts that a consistent approach would require the Western approaches to treat ISIS-associated children as victims first and accord them protections recognised in international law.