Journal of Commonwealth Law and Legal Education

ENCOURAGING HUMAN RIGHTS TEACHING IN THE COMMONWEALTH AND OTHERCOMMON LAW COUNTRIESMeera MathweLLM StudentIndian Law Institute, New Delhi, India Human rights, as universally accepted rights, create accountability against all kinds of dejure and de facto discrimination. The human development and prosperity are possible onlywhen rights are given its due significance. History shows that the development of humanrights is a compromised outcome of the demands of peoples. Therefore, under thecircumstance of deficient resources in the society, protection on human rights will reduce.In order to attain the human rights protection, States should abide by the fundamentalhuman rights principles. The common wealth countries are predominantly the former British colonies that followcommon law system. The major personal liberties preserved in its constitutions are, to anextent, derived from common law principles developed in Britain. Therefore some writersand jurists are of the view that the protection of human rights by way of common law rightsis guaranteed by the national conscience itself. On the contrary, other jurists’ analysis is thatthere would be a far reaching difficulty if human rights are not incorporated by way ofstatutes since the human rights have no common standard like Common laws. However, the generic view is that mere incorporation of legislation is not a reason for statesto neglect inhuman practices. It should strive to wipe out barbarism and ensure the fulldevelopment of the human personality so as to strengthen the respect for marginalizedvictims and their fundamental freedoms. A dynamic and self-determining civil society is tobe moulded for that so as to enable other fellow beings to become agent of change. Most ofthe countries have failed to fulfil the international human rights norms though they aresignatories. Therefore, it can be feasible only by making and developing human rightstraining and educational resources, such as handbooks for teachers in primary andsecondary schools. Journal of Commonwealth Law and Legal Education 36EFFECTIVE CHANGES IN HUMAN RIGHTS: EXPOSING THE REALITY OF HUMAN RIGHTSWHEN TEACHING IN COMMONWEALTH AND COMMON LAW COUNTRIESNikhiel DeeplalLLB StudentUniversity of KwaZulu-Natal, South Africa Human rights are and have always been a global phenomenon, with many countries beingaffected by armed conflicts in areas like Africa and the Middle East. It has become moreimportant to ensure that the teachings of human rights become effective not onlytheoretically but practically given the current challenges faced by the world. There is a dutyto ensure that these teachings translate across the world in order to overcome such crisisthat is faced by many of the countries that are still in armed conflict. This paper exploresthree ideas that make teaching human rights more effective and also a fundamental part ofany law students’ degree. The first idea that the paper explores is of human rights beingmore than just a legal theory that is taught in law school. Academics and students need tofirst understand and be taught that human rights are a reality that is too often taken forgranted as a pure theoretical subject. In this way we enhance the ability of students tocomprehend the study of human rights as being a very important reality. A reality that isthreatened, abused and violated every second in every part of the world. Secondly thepaper explores developing an interest in the study of human rights through direct andindirect exposure to human rights violation and the threats societies face. Students need tobe exposed to how human right violations have a direct effect on them and how theseviolations are taking place right under their noses’ without anyone knowing about them. Weneed to show students where and how human rights are an issue in order for them to beable to apply themselves in changing those situations. Lastly the paper explores howstudents need to be taught practical application of the law in order to protect human rights.The aim would be that by the end of a human rights module, students will be able toactually go out and make a valuable contribution in the field rather than being left withmany unanswered questions. Commonwealth Legal Education Association 2013 Student Conference: Abstracts 37CRITICAL PUBLIC UNDERSTANDING OF SEXUAL IDENTITY: CHALLENGING ANTI-HOMOSEXUALITY LAWS IN THE COMMONWEALTHNtsika S GogwanaLaw StudentUniversity of London, United Kingdom This article offers an analysis of the possibilities of achieving critical popular understandingof sexual and gender diversity through legal and policy reform campaigns in Commonwealthcountries. I review a sample of pronouncements on, and the applications of, laws derivedfrom colonial penal codification criminalising male homosexuality. I examine contemporarypublic advocacy against sodomy laws in contexts where homophobic Common Lawprinciples have solidified into social values. Three jurisdictions are considered: activismagainst the Anti-Homosexuality Bill (2009) in Uganda where non-governmentalorganisations "promoting homosexuality" and "undermining the national culture" arebanned; public response to President Joyce Banda's pronouncement of her government'sintention to repeal laws criminalising homosexuals subsequent to the conviction of a couplefor "unnatural offenses" and "indecent practices between males" contrary to the MalawiPenal Code; and the role of the United Kingdom-based Human Dignity Trust's challenge ofthe OAPA (1864) in the Jamaican Criminal Code at the Inter-American Commission ofHuman Rights on Jamaican Prime Minister Portia Simpson's announcement that "no oneshould be discriminated against because of their sexual orientation". Eighty percent ofCommonwealth countries punish 'homosexual acts' with severe jail terms and customarilydeath. These laws are supported by widespread conceptions of non-heterosexual identity asa set of behaviours contrary to normative moral values and therefore, subject to legitimatediscrimination. I conclude that wholesale statutory repeal of sodomy laws across mostCommonwealth countries is not expected soon and advocacy campaigns for LGBTI rights arelikely to continue to attract hostility and violence. However, public education campaigns onlegal developments on LGBTI rights articulated within postcolonial theory narratives, ratherthan liberal human rights ideological frameworks, can contribute toward acute publicunderstanding of sexual diversity and discourage political leaders from deploying these lawsas reference to deviant sexuality. Journal of Commonwealth Law and Legal Education 38STUDY OF INTERNATIONAL LAW IN SOUTH ASIA: A SUCCESS STORY FOR TWAILNizamuddin Ahmad SiddiquiAndVinayak PandeyLLM StudentsSouth Asian University, New Delhi, India International Law education in South Asia is hampered on many counts. The currentcurricula of graduate programmes in South Asia continue to cater to the traditional'concerns' of international law; neglecting on a larger plane, the emerging facets of thecontemporary world. There are very less number of specialized courses in international law.Further, the teaching methods followed in most of the universities are unable to sustain theinterest of the students in the subject. Law teachers too lack enthusiasm owing to the highlytechnical design of the syllabuses. The resultant effect is that the students unconsciouslystart taking international law in highly technical sense and without paying much attention tothe differing policy, practice and concerns of states from this region of the world. The ThirdWorld Approaches to International Law (TWAIL) did inspire some progressive ideas towardsthis line of thought, but that too has remained beyond the reach of the graduate students.The present situation being that the study is often altogether neglected in many traditionaluniversities of the region. The author tries to look into all these situational difficultiesparalyzing international law scholarship while also seeing a hope that institutions like theSouth Asian University would help in solving some of the existing gaps. It is also hoped thatthe students from the region who graduate from the university would carry the scholarshipbackwards (in their own states) and then forward. That would produce a more diversifiedand deeply rooted scholarship; the best possible way to keep the flames of TWAIL burning. Commonwealth Legal Education Association 2013 Student Conference: Abstracts 39ENCOURAGING LAW STUDENTS TO REFLECT ON HOW ANTI-CORRUPTION MEASURES CANBE TAUGHT IN COMMONWEALTH AND OTHER COMMON LAW COUNTRY LAW SCHOOLS:VOTE LEGAL EDUCATION FOR ANTI-CORRUPTIONMupure NgonidzasheLLB studentUniversity of KwaZulu-Natal, Durban The legal academic forum forms the backdrop upon which the ‘cancer of corruption’ can bediagnosed and practically challenged in commonwealth and other common law countries.Law students and teachers play a pivotal role in what happens in the ‘bigger picture’. Sincethe latter is responsible for equipping the former to be an integral part of the bigger picture,this would require effectively educating the student on anti-corruption at grass roots level.Law students become actively involved in public administrative offices and related fieldsthat deal with issues of corruption. The methodology that captures this would be the incorporation of courses that deal withanti-corruption measures into the School of Law curriculum either as an integral part of thealready existing modules or as an independent module. Another innovation would be thecreation of Student Legal societies that focus on anti-corruption activism. These forums arecapable of empowering the student at ‘grass roots level’. This paper shall trace the roots ofcorruption using the Root Cause Analysis (RCA) and its negative impact upon the society andfocus on how the ‘Grass-roots Level Approach’ (GLA) can address this situation. This approach is based on the rationale that schools are the microcosm of the macrocosm,namely public offices where corruption is rife. In light of this, legal education on anti-corruption measures and creation of anti-corruption activist societies at a school levelharbour part of the solution to scourge of corruption. Journal of Commonwealth Law and Legal Education 40ACCESS TO JUSTICE: NOT YET UHURUNjabulo MazibukoChairperson, Students of Law for Social JusticeUniversity of KwaZulu-Natal, Durban During the marginalisation of the majority natives Africa endured, society was characterisedby racial hatred and discrimination, deep inequality, poverty and strife which were rootedin, and enforced through the laws and policies of the colonialists and erstwhile apartheidgovernment. Oppression was entrenched in every fabric of society and was manifestlyinherent in the political life, economy, religion, sports, business, employment, residence,education including access to institution such as universities. The fruits of colonialism andapartheid were the denial of justice. Justice was a commodity which was accessible only tothe privileged, the powerful and the rich, to the detriment of poor, the marginalised and theweak. Today, statistics released by Statistics SA show that 52% of the people in rural areas areunemployed and 32,2% of households in these areas depend on government grants as theirmain source of income. Many of these people cannot deal with the enormous difficultiesthey face without access to the legal justice system. Even today, in the second decade ofdemocracy, access to justice remains something that the majority of South Africans cannoteven dream about. The reasons include the high level of poverty and associatedmarginalisation, particularly in the rural areas, lack of infrastructure and State capacity, thescarcity of legal skills in impoverished areas, illiteracy and ignorance of what the Bill ofRights and the Constitution entitles people to. While injustice is the historic past that we seek to change, justice as its opposite is the idealsociety that we seek to build, underpinned by non-racism, non-sexism, equality, unity,prosperity for all and democracy. For as long as there is injustice, invariably that will implyaccess to justice is inadequate or somehow denied. Commonwealth Legal Education Association 2013 Student Conference: Abstracts 41LEGAL EDUCATION IN COMMONWEALTH COUNTRIES: PROBLEMS AND SOLUTIONSOlukowi Ololade TinuolaLLB StudentUniversity of Lagos, Nigeria This paper examines the process of Legal Education in Commonwealth countries usingNigeria as a case study. It highlights the problem plaguing this process and proffers solutionsto them. Legal Education in Nigeria is not a perfect system; while some Universities stilladhere to the traditional teaching method, some have switched to the new clinical LegalEducation method. In the traditional method the lecturers are the main actors, they teachthe students, give notes and other materials. The clinical method on the other hand, has thestudents as its major actors; it encourages the students to do the research while thelecturers guide the interaction of the students in the lecture rooms. One way or another haseither of these methods succeeded in actualization of ideal and effective legal Education.The questions posed and addressed in this paper include: Is the traditional teaching methodin Nigeria effective? Has clinical Legal Education brought about desired changes? What arethe problems still affecting the Legal Education process? What are the solutions to theseproblems? This paper through qualitative and quantitative research would address thesequestions in 4 sections i) Legal Education in Nigeria: Traditional and Clinical Methods ii)Problems of the Traditional Method and effect of the Clinical Method iii) Issues affecting theClinical Method iv) Solutions and Recommendations. Journal of Commonwealth Law and Legal Education 42LEGAL EDUCATION AND REGIONAL COOPERATION IN THE COMMONWEALTH AND OTHERCOMMON LAW COUNTRIESSenzo NzamaLLB studentUniversity of KwaZulu-Natal, Durban There has been an increasing popularity and importance of regional integration of legalservices in Southern Africa and such development calls for regional co-operation of legaleducation in the Commonwealth and other Common Law countries. It has appeared that asubstantial number of Law students who come from the SADC region find difficultypracticing elsewhere within the region after getting the LLB degree. The main issue is notwhether the legal education attained in the LLB course is inadequate (where it is, only a fewdifferences exist). Rather it is when one wants to make use of such legal education withinthe region. This paper looks at the importance of Regional Co-operation through legal education withinthe commonwealth nations. The jurisdictions of the research will be the Southern AfricanDevelopment Community (SADC) countries. The paper will draw its information fromcredible internet resources, Law journals around the SADC region, statutes (in particularSouth African ones), personal views and perceptions of foreign students within theUniversities of South Africa and the Deans of the Law schools. The paper will also look at theLaws and reasons in place for making it difficult to use the legal education you have attainedfrom one country within the region. It also assesses the compatibility of the legal education(LLB) within the SADC countries. Publications by Nora Dihel, Ana M. Fernandes and Aaditya Mattoo have shown a great needfor a regional integration of professional services in Southern Africa which points to theimportance of allowing legal education to be used within the nations of the region. Thepaper gives examples of how such difficulties have been handled in the past. It goes on toidentify any regulation that may allow legal practitioners to use their legal education withinthe region. Commonwealth Legal Education Association 2013 Student Conference: Abstracts 43LEGAL EDUCATION, COMPETITION CULTURE & SUICIDES: A CAUTION OF NOTENivedita NairLLB Law StudentAmity Law School, New Delhi, India Around the globe, study of medicine and law has one thing in common, rigorous and hardacademic study modules followed by a lifelong responsibility of being responsible andsensible in the profession. With the wave of globalization and the ushered economicreforms, there had been calls for new reforms in the legal education, thereby markingpedagogical reforms, curriculum over-hauling, increased modules, stiff course materials,exposures to clinical education, moot courts and various extra-curricular activities. Thereforms are focused upon the development of global students with honed analytical skills.Students as an outcome are exposed to public law, transactional work, international law,and interdisciplinary understandings of law and legal problems. They are asked to undergovarious workshops, seminars and conferences to expand their understanding of law and todevelop wider range of skills. However, the authorities fail to appreciate the fact that in thename of creating “culture of competition”, simultaneously, a “culture of frustration” is beingimplanted amongst the students. There had been more than two suicides and dozens ofattempted suicides in India by law students in the last year. Suicides in other law schools ofthe commonwealth nations and common law nations are not an alien concept. Studies haveshown that students from even the best American law schools, which are known for theirrigorous standards, are more prone to psychiatric stress than students from any otherdiscipline. In the light of above discussion, the paper will highlight the reasons for thepsychiatric stress and the suicides and the role played by the legal education reforms. It willalso suggest for establishment of centre for stress management for law students. Journal of Commonwealth Law and Legal Education 44THE IMPERATIVE OF STUDENT HUMAN RIGHTS ACTIVISMSimbarashe TemboLLB studentUniversity of KwaZulu-Natal, Durban Education is the most viable empowerment tool. In order to produce effective human rightsdefenders, it does not have to be just an education. Human rights education is the mostviable tool. In this respect, there has to be a move from the traditional human rightseducation to one that is specifically designed for law students. The traditional models ofhuman rights education have had limited success. Therefore, one that concentrates onadvancing law students appreciation of the nature and skills required to be effective humanrights defenders is needed. Mandatory human rights student’s organisations are imperativeto have an effective human rights activism in the regional common wealth countries.Southern Africa is one of the regions where politically motivated human rights abuses arebecoming a major concern. Student activism does not have to be confined to politics only,but also needs to be spread to the field of human rights. It is evident, in Southern Africa,that it is the youth that are used as machinery for oppression and intimidation of theelectorate especially before elections. It is therefore important to have human rightsdefenders who are fully equipped with the knowledge and skill. This may be an effectiveway to address human rights challenges in common wealth countries. This paper seeks tosuggest the formation of Human Rights Students’ Organisation in order to foster a humanrights culture at university level. Commonwealth Legal Education Association 2013 Student Conference: Abstracts 45HARMONISED HUMAN RIGHTS EDUCATION IN LAW SCHOOLS: TOWARDS UNIVERSALITYOF HUMAN RIGHTS PRACTICE IN THE COMMONWEALTH AND COMMON LAWJURISDICTIONSMusa KikaLLB studentUniversity of KwaZulu-Natal, Durban Human rights has become a fundamental and internationally acclaimed benchmark for goodgovernance, good human-centred corporate practice and sound contemporary legalsystems across the globe. Even civil society has taken this to heart and is increasinglycentralising human rights in its work. In all this the legal profession takes centre stage – withattorneys, advocates, judges, prosecutors, and many in the legal system being tasked morethan anyone else with ensuring that our legal systems become human rights based. Itbecomes imperative therefore, to look at the teaching of human rights in law schools.Human rights education is a pre-requisite for the effective application of internationalhuman rights law, and the education thereof starts with those who are central in the legalfield. Using global best practices in human rights education as a barometer, this paperexamines the teaching of human rights in the law schools of the Commonwealth and othercommon law countries. Of all professionals, lawyers carry the greatest burden in the protection of human rights andin safeguarding constitutional dictates, which are usually human rights-conscious. Thereforedue regard should be given to the subject which should be a core subject within the lawschool curriculum rather than an elective. The paper makes a case for the infusion of humanrights components wherever it is possible in other areas of law, both public and private.Furthermore, it argues that a shift is needed from studying human rights purely theoreticallyto studying the application of human rights both in the domestic jurisdiction for practicalitypurposes, and in foreign jurisdictions for comparative purposes. As human rights arepremised on nothing more save our shared humanity, the teaching and application ofhuman rights calls for sharing of best practices for the purposes of harmonisation. Theforward linkage of this is that harmonised human rights practice in turn impacts on legaluniformity, which in turn establishes common ground and becomes a catalyst for regionalcooperation within the commonwealth. Commonwealth Legal Education Association 2013 Conference:LEGAL EDUCATION AND REGIONAL COOPERATION IN THE COMMONWEALTHAND OTHER COMMON LAW JURISDICTIONSThe School of Law, University of Kwazulu-Natal, South Africa12-14 APRIL 2013