Charles Ngwena
Biographic Data
| ID | 4275043 |
|---|---|
| NAME | Charles Ngwena |
| GIVEN NAMES | Charles |
| FAMILY NAME | Ngwena |
| SIGNATURE | NGWENA C |
| AFFILIATIONS | University of Pretoria |
| ORCID | 0000-0002-4482-6707 |
| VERIFIED | Yes |
| TOTAL WORKS | 22 |
| TOTAL CITATIONS | 6 |
| AUTHOR COUNT | 22 |
| EDITOR COUNT | 0 |
| FIRST PUBLICATION YEAR | 1992 |
| LATEST PUBLICATION YEAR | 2024 |
| H-INDEX | 2 |
Decolonizing African Mental Health Laws
The aim of this article is to use a decolonial approach to interrogate Kenya's laws and policies that compel the admission and treatment of persons with psychosocial disabilities. Against the backdrop of the colonization of Africa, the article appraises the historical development of Kenyan mental health laws. It critically analyses domestic policies, legislation, court decisions and the Constitution as they apply to admission to healthcare facili…
Applying the intersection between defence of the inherent requirements of the job and the duty to provide reasonable accommodation for persons with disabilities in the workplace
In Damons v City of Cape Town (2022), by a majority, the Constitutional Court held that the inherent requirements of the job defence in s 6(2)(b) of the Employment Equity Act is a complete defence to a charge of unfair discrimination in respect of an employee who has no capacity to perform the job in question due to a disability that cannot be rehabilitated or reasonably accommodated. By contrast, in a sole dissent, Pillay AJ held that s 6(2)(b) …
Advancing Sexual and Reproductive Health and Rights in Africa
Botswana has seen a steady rise in progressive decisions on the rights of LGBTI \npersons. Most markedly, in a unanimous decision poised to set the pace for \njuridical recognition of LGBTI rights in Africa, the Botswana High Court \ndecriminalized same-sex sexual practices between consenting adults in private.1 \nThe Court in Letsweletse Motshidiemang v Attorney General, determined that the \n‘regulation of conduct deemed indecent, done in priva…
Advancing Sexual and Reproductive Health and Rights in Africa
Taking Women's Rights Seriously
This article is constructed around the premise that women's rights to safe abortion give rise to obligations that the state has a positive duty to implement. Using Uganda as a case study, it frames failure by a state to implement its abortion laws in ways that render the rights tangible and accessible to women as a violation of human rights. The article develops a normative human rights framework for imposing on a state the obligation to take pos…
Conscientious Objection to Abortion and Accommodating Women's Reproductive Health Rights
If applied in isolation from the fundamental rights of women seeking abortion services, the right to conscientious objection can render any given rights to abortion illusory, including the rights to health, life, equality and dignity that are attendant to abortion. A transformative understanding of human rights requires that the right to conscientious objection to abortion be construed in a manner that is subject to the correlative duties which a…
Developing Juridical Method for Overcoming Status Subordination in Disablism
The article contributes towards the development of a disability-conscious jurisprudence of equality that, in Nancy Fraser's parlance, speaks to overcoming the 'status subordination' of disabled people. It uses transformative epistemologies of disability found in the social model of disability and feminism as synergic philosophical resources for imagining an expansive and democratic juridical domain of equality. Ultimately, it appropriates the epi…
Special Issue on Disability
The inspiration for this SAJHR Special Issue can be found in two significant developments which are historically parallel and complement each another in the sphere of equality jurisprudence. The first is the development of a jurisprudence of substantive and transformative equality under the South African Constitution by the Constitutional Court in the post-apartheid era. The hallmark of substantive equality has been its departure from formal equa…
A Commentary on LC v Peru
In LC v Peru , the Committee on the Elimination of Discrimination against Women held that Peru was in breach of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women when it denied a 13 year old girl emergency surgery as well as an abortion. This commentary discusses the human rights significance of LC v Peru , especially in relation to the advancement of abortion jurisprudence in the African region.…
Developing Regional Abortion Jurisprudence
This article is constructed around an appraisal of the decision of the European Court of Human Rights in A, B and C v. Ireland. It seeks to extrapolate comparative lessons for African Charter organs for the development of regional jurisprudence on abortion. It is argued that the A, B and C decision offers positive as well as negative lessons. The positive lessons lie in the holding of the European Court that at a procedural level, domestic aborti…
Human Right to Inclusive Education
Article 24 of the Convention on the Rights of Persons with Disabilities is a human rights milestone in the recognition of the right of disabled learners to inclusive education. This article explores domestic commitment towards the obligation of the State to provide inclusive education under Article 24 of the Convention. It uses South Africa as a case study. More specifically, the article uses the decision of the Western Cape High Court in Western…
Access to Safe Abortion as a Human Right in the African Region
(2013). Access to Safe Abortion as a Human Right in the African Region: Lessons from Emerging Jurisprudence of un Treatymonitoring Bodies. South African Journal on Human Rights: Vol. 29, No. 2, pp. 399-428
Substantive Equality for Disabled Learners in State Provision of Basic Education
Disabled learners are a protected group with rights to equality and basic education under the Constitution. Taking substantive equality and the right to basic education seriously requires the state, especially, to commit significant resources and take positive measures to ensure that the education system adequately accommodates the needs of disabled learners. However, the historical exclusion and marginalisation of disabled people from the educat…
A human rights response to cervical cancer in Africa
This article examines the prevalence and impacts of human papilomavirus (HPV) transmission among women in Africa. It then examines the relevance of a rights-based approach to health-related challenges such as cervical cancer. In particular, the article argues that ensuring access to comprehensive programmes for the prevalence and impact of cervical cancer in Africa is a human rights issue which demands the urgent attention of African governments.…
Hiv/Aids, Pregnancy and Reproductive Autonomy
Deconstructing the Definition of ‘Disability’ Under the Employment Equity Act
Deconstructing the Definition of ‘Disability’ Under the Employment Equity Act
The Employment Equity Act 55 of 1998 lists 'disability' as one of the grounds of unfair discrimination. In Chapter III of the Act, 'people with disabilities' are one of the designated groups and, thus, beneficiaries of affirmative action measures. This is the first part of a two-part article that seeks to contribute to the understanding of the definitional aspects of disability status under the Employment Equity Act. Using, in part, the decision …
Constitutional Values and HIV/Aids in the Workplace
South Africa is experiencing an HIV/AIDS epidemic of enormous proportions. The workplace, like all the other sectors, is adversely affected. The tendency of a significant proportion of employers has been to discriminate against employees and job applicants living with HIV/AIDS through use of HIV testing to exclude those that are HIV‐positive. In the case of Hoffmann v South African Airways, the Constitutional Court was asked to determine the cons…
The Recognition of Access to Health Care as a Human Right in South Africa
A right of access to health care services is among the economic and social rights guaranteed by the Constitution of South Africa. Given the jurisprudential novelty of such a right and its dependence on economic resources, however, its realization is likely to be difficult to secure. The article discusses the scope and limitations of the right of access to health care in South Africa. Though the country's courts have yet to develop clear principle…
HIV in the Workplace
The article examines whether the 1996 Constitution is sufficiently relevant and comprehensive to protect rights to equality and privacy of people living with HIV-AIDS in the workplace. It focuses on the safeguards against HIV-related discrimination and unlawful HIV testing by employers. It is argued that, at a general level, the Constitution offers appropriate and adequate safeguards against discrimination and testing. However, more concrete safe…
The human genome project, predictive testing and insurance contracts
The development of a normative standard in counselling for genetic disease
The article critically examines the ethical and legal obligation of the genetic counsellor with particular emphasis on the giving of advice to, and the protection of the reproductive autonomy of, the counsellee. It is submitted that neutrality or non-directiveness in the counselling process is fundamental to the protection of reproductive autonomy and is a widely accepted professional ethic. However, it is suggested that, because there is an inhe…
Substantive Equality for Disabled Learners in State Provision of Basic Education
Disabled learners are a protected group with rights to equality and basic education under the Constitution. Taking substantive equality and the right to basic education seriously requires the state, especially, to commit significant resources and take positive measures to ensure that the education system adequately accommodates the needs of disabled learners. However, the historical exclusion and marginalisation of disabled people from the educat…
The Recognition of Access to Health Care as a Human Right in South Africa
A right of access to health care services is among the economic and social rights guaranteed by the Constitution of South Africa. Given the jurisprudential novelty of such a right and its dependence on economic resources, however, its realization is likely to be difficult to secure. The article discusses the scope and limitations of the right of access to health care in South Africa. Though the country's courts have yet to develop clear principle…
The development of a normative standard in counselling for genetic disease
The article critically examines the ethical and legal obligation of the genetic counsellor with particular emphasis on the giving of advice to, and the protection of the reproductive autonomy of, the counsellee. It is submitted that neutrality or non-directiveness in the counselling process is fundamental to the protection of reproductive autonomy and is a widely accepted professional ethic. However, it is suggested that, because there is an inhe…
The development of a normative standard in counselling for genetic disease
The article critically examines the ethical and legal obligation of the genetic counsellor with particular emphasis on the giving of advice to, and the protection of the reproductive autonomy of, the counsellee. It is submitted that neutrality or non-directiveness in the counselling process is fundamental to the protection of reproductive autonomy and is a widely accepted professional ethic. However, it is suggested that, because there is an inhe…
The human genome project, predictive testing and insurance contracts
HIV in the Workplace
The article examines whether the 1996 Constitution is sufficiently relevant and comprehensive to protect rights to equality and privacy of people living with HIV-AIDS in the workplace. It focuses on the safeguards against HIV-related discrimination and unlawful HIV testing by employers. It is argued that, at a general level, the Constitution offers appropriate and adequate safeguards against discrimination and testing. However, more concrete safe…
The Recognition of Access to Health Care as a Human Right in South Africa
A right of access to health care services is among the economic and social rights guaranteed by the Constitution of South Africa. Given the jurisprudential novelty of such a right and its dependence on economic resources, however, its realization is likely to be difficult to secure. The article discusses the scope and limitations of the right of access to health care in South Africa. Though the country's courts have yet to develop clear principle…
Constitutional Values and HIV/Aids in the Workplace
South Africa is experiencing an HIV/AIDS epidemic of enormous proportions. The workplace, like all the other sectors, is adversely affected. The tendency of a significant proportion of employers has been to discriminate against employees and job applicants living with HIV/AIDS through use of HIV testing to exclude those that are HIV‐positive. In the case of Hoffmann v South African Airways, the Constitutional Court was asked to determine the cons…
Deconstructing the Definition of ‘Disability’ Under the Employment Equity Act
The Employment Equity Act 55 of 1998 lists 'disability' as one of the grounds of unfair discrimination. In Chapter III of the Act, 'people with disabilities' are one of the designated groups and, thus, beneficiaries of affirmative action measures. This is the first part of a two-part article that seeks to contribute to the understanding of the definitional aspects of disability status under the Employment Equity Act. Using, in part, the decision …
Deconstructing the Definition of ‘Disability’ Under the Employment Equity Act
Hiv/Aids, Pregnancy and Reproductive Autonomy
A human rights response to cervical cancer in Africa
This article examines the prevalence and impacts of human papilomavirus (HPV) transmission among women in Africa. It then examines the relevance of a rights-based approach to health-related challenges such as cervical cancer. In particular, the article argues that ensuring access to comprehensive programmes for the prevalence and impact of cervical cancer in Africa is a human rights issue which demands the urgent attention of African governments.…
Substantive Equality for Disabled Learners in State Provision of Basic Education
Disabled learners are a protected group with rights to equality and basic education under the Constitution. Taking substantive equality and the right to basic education seriously requires the state, especially, to commit significant resources and take positive measures to ensure that the education system adequately accommodates the needs of disabled learners. However, the historical exclusion and marginalisation of disabled people from the educat…
A Commentary on LC v Peru
In LC v Peru , the Committee on the Elimination of Discrimination against Women held that Peru was in breach of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women when it denied a 13 year old girl emergency surgery as well as an abortion. This commentary discusses the human rights significance of LC v Peru , especially in relation to the advancement of abortion jurisprudence in the African region.…
Developing Regional Abortion Jurisprudence
This article is constructed around an appraisal of the decision of the European Court of Human Rights in A, B and C v. Ireland. It seeks to extrapolate comparative lessons for African Charter organs for the development of regional jurisprudence on abortion. It is argued that the A, B and C decision offers positive as well as negative lessons. The positive lessons lie in the holding of the European Court that at a procedural level, domestic aborti…
Human Right to Inclusive Education
Article 24 of the Convention on the Rights of Persons with Disabilities is a human rights milestone in the recognition of the right of disabled learners to inclusive education. This article explores domestic commitment towards the obligation of the State to provide inclusive education under Article 24 of the Convention. It uses South Africa as a case study. More specifically, the article uses the decision of the Western Cape High Court in Western…
Access to Safe Abortion as a Human Right in the African Region
(2013). Access to Safe Abortion as a Human Right in the African Region: Lessons from Emerging Jurisprudence of un Treatymonitoring Bodies. South African Journal on Human Rights: Vol. 29, No. 2, pp. 399-428
Conscientious Objection to Abortion and Accommodating Women's Reproductive Health Rights
If applied in isolation from the fundamental rights of women seeking abortion services, the right to conscientious objection can render any given rights to abortion illusory, including the rights to health, life, equality and dignity that are attendant to abortion. A transformative understanding of human rights requires that the right to conscientious objection to abortion be construed in a manner that is subject to the correlative duties which a…
Developing Juridical Method for Overcoming Status Subordination in Disablism
The article contributes towards the development of a disability-conscious jurisprudence of equality that, in Nancy Fraser's parlance, speaks to overcoming the 'status subordination' of disabled people. It uses transformative epistemologies of disability found in the social model of disability and feminism as synergic philosophical resources for imagining an expansive and democratic juridical domain of equality. Ultimately, it appropriates the epi…
Special Issue on Disability
The inspiration for this SAJHR Special Issue can be found in two significant developments which are historically parallel and complement each another in the sphere of equality jurisprudence. The first is the development of a jurisprudence of substantive and transformative equality under the South African Constitution by the Constitutional Court in the post-apartheid era. The hallmark of substantive equality has been its departure from formal equa…
Taking Women's Rights Seriously
This article is constructed around the premise that women's rights to safe abortion give rise to obligations that the state has a positive duty to implement. Using Uganda as a case study, it frames failure by a state to implement its abortion laws in ways that render the rights tangible and accessible to women as a violation of human rights. The article develops a normative human rights framework for imposing on a state the obligation to take pos…
Advancing Sexual and Reproductive Health and Rights in Africa
Botswana has seen a steady rise in progressive decisions on the rights of LGBTI \npersons. Most markedly, in a unanimous decision poised to set the pace for \njuridical recognition of LGBTI rights in Africa, the Botswana High Court \ndecriminalized same-sex sexual practices between consenting adults in private.1 \nThe Court in Letsweletse Motshidiemang v Attorney General, determined that the \n‘regulation of conduct deemed indecent, done in priva…
Advancing Sexual and Reproductive Health and Rights in Africa
Applying the intersection between defence of the inherent requirements of the job and the duty to provide reasonable accommodation for persons with disabilities in the workplace
In Damons v City of Cape Town (2022), by a majority, the Constitutional Court held that the inherent requirements of the job defence in s 6(2)(b) of the Employment Equity Act is a complete defence to a charge of unfair discrimination in respect of an employee who has no capacity to perform the job in question due to a disability that cannot be rehabilitated or reasonably accommodated. By contrast, in a sole dissent, Pillay AJ held that s 6(2)(b) …
Decolonizing African Mental Health Laws
The aim of this article is to use a decolonial approach to interrogate Kenya's laws and policies that compel the admission and treatment of persons with psychosocial disabilities. Against the backdrop of the colonization of Africa, the article appraises the historical development of Kenyan mental health laws. It critically analyses domestic policies, legislation, court decisions and the Constitution as they apply to admission to healthcare facili…
Political science (21 works) · Law (20 works) · Human Rights and Development (15 works) · Sociology (13 works) · Human rights (9 works) · Legal Issues in South Africa (9 works) · Law (8 works) · International Human Rights and Reproductive Law (6 works) · Medicine (6 works) · Abortion (5 works)