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Refereed articles

A comparative analysis of the United Nations Convention on the Rights of Persons with Disability and the African Draft Protocol on the Rights of Persons with Disabilities – pg. 153.

The article uses four different types of rights that are identified in the United Nations Convention on the Rights of Persons with Disability (CRPD) to test the extent to which the Draft Protocol of the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities (AfDP) matches that of the UN standard. The conclusion after the comparative analysis is that the content of the AfDP relates closely to that of the CRPD. However, at the same time, the article identifies in the AfDP some innovative clauses as well as new “rights” that are lacking in the CRPD. The opposite is also true with respect to some other clauses found in the CRPD which are not featured in the AfDP. This article comes up with other findings, such as how the CRPD mixes up civil and political rights with economic, social and cultural rights to create “new rights.”  In addition, it observes that all the rights recognised in the International Covenant on Economic, Social and Cultural Rights (ICESCR) are captured in both instruments – unlike the International Covenant on Civil and Political Rights. This finding affirms the overwhelming importance that the CRPD and the AfDP attach to the economic, social and cultural rights model which places a duty (to fulfil) on States to operationalise the enjoyment of rights for marginalised entities in general and persons with disability in particular.

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Academic freedom, institutional autonomy and the University of Malawi: An analysis of some trends and prospects – pg. 127.

The University of Malawi is the oldest and, arguably, the most prestigious university in Malawi. It was established immediately after the country became independent and has gone on to train a multitude of prominent Malawians in various disciplines. This article’s focus is on academic freedom and institutional autonomy in this University, especially in the period after 1994 when Malawi made the transition from a dictatorship to a multiparty democracy. This article adopts the position that institutional autonomy is necessary for a university to function properly, but that it remains seriously compromised in the University of Malawi. To illustrate this argument, the article focuses on the following: the manner in which the university has managed its undergraduate admission policy; the government’s approach to funding the University; the University’s management of disputes pertaining to increments in students’ financial contributions; the University’s handling of disputes in relation to academic freedom; and also the position of the President as the Chancellor of the University. In all the aforementioned areas, the article establishes that the practice in Malawi has routinely emasculated the lawful decision makers within the University thereby creating space for political leaders to either unduly influence decisions of, or actually make decisions for, the University which in turn compromises academic freedom and denudes the University of its autonomy.

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An evaluation of Kenya’s parallel legal regime on refugees, and the courts’ guarantee of their rights – pg. 42.

This article evaluates the existence of a parallel refugee regime in Kenya. The Executive decides on policies and oversees the enactment of laws to regulate the inflow of refugees under the encampment policy. The Judiciary hands down decisions that ensure that only policies and laws, which uphold human rights and constitutional standards, are used. This article argues that the existence of this parallel regime has fundamentally affected the refugees’ enjoyment of human rights in Kenya, despite the courts’ resilient position. To illustrate this regime, the article explores the policy directives of the Executive and the corresponding decisions of the courts between 2012 and 2014. It evaluates the decisions of the courts to illustrate the parallel regime.

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Between separation of powers and justiciability: Rationalising the Constitutional Court’s judgement in the Gauteng E-tolling litigation in South Africa – pg. 1.

Although the question in both National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) (SANRAL 1) and Magidiwana and another v President of the Republic of South Africa and others 2013 (11) BCLR 1251 (CC) (Marikana 1) was whether the apex court could make the orders sought, and the legal principles thereby enunciated were to similar effect, it was in SANRAL 1 that the Constitutional Court’s reasoning was based essentially on separation of powers grounds and, by implication, the non-justiciability of the subject matter of the dispute. By demonstrating unwillingness to entertain an appeal on interim relief, abstaining from making an order that would be tantamount to unwarranted intrusion into the formulation or implementation of government policy, or frustrating executive authority, the Court clearly deferred to the executive branch as the organ of State responsible for formulation and implementation of government policies. Having critically evaluated the Court’s non-interference with budgetary, policy and polycentric issues of the State, it becomes apparent from this study that the Court had subtly deployed the principle of non-justiciability of matters that were potentially political in nature. Thus, it is concluded that separation of powers and non-justiciability as principles of constitutional jurisprudence do not only serve as grounds for judicial review of legislation and executive conduct; they also operate as restraints upon the Court’s exercise of its judicial review powers.

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Development and regulation of tourism for mutual benefit in the Southern African Development Community (SADC) – Pg. 84.

The growing significance of tourism in the global economy and its capacity to create jobs for thousands of unskilled workers has earned it a reputation as an effective means of alleviating poverty and generating economic growth for developing countries. In the Southern African Development Community (SADC) region, however, efforts to tap into tourism’s potential to improve the lives of poor people and to bring about economic development have not yielded the desired results despite numerous attempts to this end.  It is argued in this article that the failure by SADC member countries to unite in their approach to tourism development, coupled with their slow and inconsistent implementation of regional tourism agreements, have allowed unhealthy competition to endure and weaken the region’s tourism strategy. It is further argued that harmonisation of tourism laws and other forms of co-operation among SADC member countries would enhance the prospects of the tourism sector in the region fulfilling its full potential. The article also warns that neglecting to address the negative effects of tourism such as environmental degradation and exploitation of women and children, would further derail the SADC’s efforts to develop a vibrant tourism industry.

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Fundamental rights and democratic contestation: reflections on freedom of assembly in an unequal society – pg. 221.

In this article, I argue that the impoverished conception of freedom of assembly displayed in legislation and case law, and its neglect in academic literature, has to do with a set of dominant understandings of democracy. These understandings are structured in terms of certain hierarchical oppositions: between institutional and extra-institutional politics; between representative and direct democracy; between rational deliberation and political antagonism; between reason and affect; and between speech and action. I argue that these understandings, together with the narratives which help to sustain them, are problematic for a number of reasons: first, they do not pay sufficient attention to forms of power that are deeply ingrained in societal structures; secondly, they underestimate the constitutive role of conflict and antagonism in political life; and thirdly, they underplay the role of affects and passions in democratic struggles. Through my critique of these assumptions and understandings, I attempt to develop a more adequate understanding of the relationship between democracy and the right to assemble and demonstrate.

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Higher education access in South Africa for students with criminal records – pg. 25.

Research shows that education is an important resource in lowering recidivism and increasing life opportunities for previously incarcerated individuals. Therefore, access to higher education is essential for re-integration into communities. This article explores the mechanisms that South African universities have in place to encourage access for students with criminal records. This is done by analysing the application forms of 16 South African universities to assess whether these institutions require potential students to provide information about their criminal records, any reasons provided for requiring such information, and any indication of how the information is stored, accessed and shared. The findings reveal that some institutions require such information but that there is a lack of clarity at most institutions on the reasons for requesting such information. Evidence from those institutions which require such information shows the importance of the process in order to be able to provide correct advice to students when choosing programmes. Further, also being aware of student challenges means that the correct assistance can be availed for the student to adapt to university life. A re-evaluation of institutional policies to improve access for students with criminal records is proposed, and a research agenda is provided to inform such changes. It is acknowledged that these findings are limited by relying on the application forms of only16 South African universities as the sole source of data.

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Judicial review of administrative and executive decisions: Overreach, activism or pragmatism? – pg. 201.

The right to administrative action that is lawful, reasonable and procedurally fair is guaranteed under the South African Constitution (section 33). The Promotion of Administrative Justice Act (PAJA) was promulgated to give effect to this constitutional right. Its provisions, however, do not apply to executive decisions. Rather, executive decisions are subjected to a constitutional review in terms of the rule of law and its related principle of legality, which is traditionally accepted as a much less exacting standard than that imposed by PAJA. The rationale for this exclusion of executive decisions from administrative review, it is surmised, is to give effect to the doctrine of separation of powers which is implicit in the Constitution. This doctrine recognises that the State must be afforded sufficient power to govern effectively while at the same time a system of checks and balances ensures that abuse of power by any one organ of government is avoided. It is argued in this article, through an analysis of relevant case law, that the application of two standards of judicial review for administrative action on the one hand and executive decisions on the other, is inappropriate within the South African constitutional dispensation. Without derogating from the importance of maintaining and respecting the doctrine of separation of powers it appears that the courts apply a greater number of PAJA review principles to the review of executive decisions, thus diluting the distinction between the two standards of review. Although the judiciary has been frequently criticised for allegedly overreaching its powers and stepping into the terrain of the executive, it is argued that the reasoning of the courts is indicative of the respect that the judiciary is able to maintain for the doctrine of separation of powers without losing sight of the oversight role they it is meant to play.

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South Africa’s water crisis: The idea of property as both a cause and solution – pg. 176.

It is approaching 20 years since South Africa’s legal transformation of its water regulatory framework. With the legal transformation, the traditional exclusive private law ownership-object approach to water resources evolved into a rights based approach. This transformation affected the property rights regime of South Africa whereby water resources are managed by elevating the public interest above any private interests in the resource, and defining the national government’s claim to the resource as fiduciary. This article seeks to determine whether or not the idea of ‘property in water resources’ may have contributed to the water crisis of the country; and to determine whether the transformed property regime in terms of the National Water Act offers solutions for some of the country’s persistent water problems.

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State obligations in international law related to the right to an adequate standard of living for persons with disabilities - pg. 68.

The issue of the right to an adequate standard of living has received renewed scrutiny in recent years. Further, the rights of persons with disabilities have become the focus of a number of international instruments in an attempt to improve the living conditions of persons with disabilities. The intersection of these two areas of international law is vital in the quest to improve the socio-economic circumstances of persons with disabilities by individual states.  This article provides a contextualised understanding of the concept of an adequate standard of living specific to persons with disabilities.

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Sustainable Development of Oil Sands Projects in Sub-Saharan Africa: Lessons from the Governance Regime for the Alberta Oil Sands – pg. 97.

This article examines the governance regime for oil sands development in the Canadian province of Alberta with a view to highlighting what lessons Sub-Saharan African countries with oil sands deposits may draw from it for the sustainable development of their oil sands. Although investments in oil sands projects have diminished since the 2014 oil price drop, prices are slowly rising and technological advances may lower production costs, which may renew interest in investment. This would mean much for Sub-Saharan Africa where even relatively minor profits could have significant positive economic impacts. However, the unconventional nature of oil sands development comes with enormous sustainable development challenges, which are likely to be very significant for Sub-Saharan Africa, given that it is still struggling to grapple with the challenges posed by conventional oil development despite several decades of experience. Sub-Saharan Africa must strive to put its governance houses in order before embarking on actual exploitation of its oil sands. Given its decades of experience in oil sands development, Alberta provides an excellent governance case study for Sub-Saharan Africa to consider for relevant lessons, and this article discusses key features of the Alberta governance regime that can be taken as lessons for Sub-Saharan Africa. Although the Alberta governance regime cannot be easily transplanted to Sub-Saharan Africa given the contextual differences between both jurisdictions, legal transplant theory informs us that it is possible for a successful transplant to occur despite any contextual differences. The critical factor is the willingness of the transplanting jurisdiction to identify what would be relevant to it and to adapt the transplanted rule to its own local conditions.

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The readiness of South African law and policy for the pursuit of Sustainable Development Goal 11 – pg. 239.

This article notionally questions the readiness of existing South African law and policy for the country’s pursuit of “sustainable cities” as per Goal 11 of the Sustainable Development Goals (SDGs). The expectations created by SDG 11 are discussed and subsequently compared with the scope and focus of current law and policy in South Africa. In three parts, the article critically explores (a) the general compatibility of existing law and policy with the sustainable city objective in SDG 11; (b) areas emphasized in SDG 11 that are underplayed or overstated in the existing law and policy framework; and (c) how best to charter some of the expected challenges in meeting the SDGs’ 2030 deadline.  The article concludes that in South Africa, as elsewhere, a sub-national scale of intervention by co-global governors (our cities) is necessary - intervention that requires spatially targeted planning (eg at city level) as well as various other actions across the three spheres of government. South African cities are fortunate to have, for the most part, an enabling law and policy framework, but this framework may not yet adequately provide for tangible, concrete and measurable national targets for sustainable urbanism.

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