Domestic violence is an appropriate base to evaluate the impact of African regional human rights instruments on kinship penal regime because when a duty is imposed on kinship bodies to apply human rights norms, the outcome is a truncated version of rights that leans towards protection of the group.
Paper long abstract:
Despite the enactment of primary legislation in Africa to punish perpetrators of domestic violence, at the localised level, cases of domestic violence continue to be handled by kinship bodies that form part of what is referred to in legal parlance as 'traditional courts'. The legal reality is that the African regional human rights instruments place a positive duty on traditional courts to protect and enforce human rights within their settings. The process of negotiation and the use of ritual penalties in kinship justice make important study because of the complexity of transferring international human rights norms to praxis. When human rights law does not speak to kinship practices and when human rights instruments place a duty on kinship bodies to apply human rights norms, the outcome is a truncated version of rights that leans towards protection of the group.
Domestic violence is an appropriate base from which the application of human rights standards in kinship settings can be assessed. This is because the penal regime of kinship courts that handle domestic violence remains under researched. As a result, the localised interpretation of human rights law on the negotiation process and ritual penalties is relatively unknown. This article therefore seeks to put into perspective the overall impact that the African regional human rights instruments could have on the penal regime of kinship units.