Law, Democracy
& Development
Law, Democracy
& Development
JOURNAL OF THE FACULTY OF LAW | UNIVERSITY OF THE WESTERN CAPE | ISSN: 2077-4907JOURNAL OF THE FACULTY OF LAW, UWC | ISSN: 2077-4907
Author/s: Du Toit, Darcy
Author/s: Waterhouse, Samantha
Author/s: Du Toit, Darcy
Author/s: Du Toit, Darcy
Author/s: Chenwi, Lilian
Parliaments are guardians of human rights due to their role of representing the people in the management of public affairs. The activities of parliaments cover the entire spectrum of human rights and have an immediate impact on the enjoyment, protection and promotion of rights. In South Africa, the Constitution requires parliament to scrutinise and oversee government actions, thus providing it with the opportunity to promote human rights. In addition, a number of principles guide the South African parliament in carrying out its mandate. These include advancement of human rights, human dignity, equality, social justice, accountability, responsiveness and openness. This article considers the (potential) role of the South African parliament in promoting constitutional rights through ensuring compliance with IHRL. A key obligation in various IHRL treaties is the obligation to adopt laws and other measures to give effect to the rights in the treaties. As the legislative arm of government, parliament has a significant role to play in ensuring compliance with this obligation.
Author/s: Marumahoko, Sylvester and Fessha, Yonatan Tesfaye
There is a growing realisation that urbanisation has overstretched the ability and efforts of central governments to serve from the centre, giving rise to the search for a robust decentralisation policy that vests urban local government with some level of autonomy. However, efforts to capacitate urban councils through the process of decentralisation are futile if urban local government lacks the financial means to fulfil their responsibilities. This article takes up the issue of financial autonomy of urban councils in Zimbabwe. The nature and extent of fiscal autonomy enjoyed by these councils is often contested. The article seeks to determine the extent to which the current system of decentralisation entrenches the financial autonomy of urban councils. Analysing the provisions pertaining to local government financing in the Urban Councils Act of 1996, it argues that the decentralisation of major functions in Zimbabwe has not been followed by sufficient decentralisation of fiscal powers. The 1996 Act does not guarantee the financial autonomy of urban councils. There is a need to develop robust and clearly defined constitutional and legal provisions to support the fiscal autonomy of urban local governments. An enabling environment for fiscal decentralisation should begin with constitutional or legal mandates for some minimum level of autonomy for urban local authorities. The constitution-making process currently underway in Zimbabwe provides an opportune platform to constitutionally entrench the fiscal powers of urban councils.
Author/s: Mezmur, Tewodros and Koen, Raymond
The Ethiopian FEACC is a dedicated anti-corruption agency, invested with expansive powers to combat corruption in the country. It was established in 2001 in the context of the accelerated internationalisation of anti-corruption law. The mandate of the FEACC is wide, spanning the prevention, investigation and prosecution of all forms of corruption in Ethiopia. This article seeks to evaluate critically the performance of the FEACC in the execution of its mandate during the first decade of its existence. To this end it situates the creation and design of the FEACC within the global context of anti-corruption agencies, and seeks to assess its performance against generally accepted criteria, such as independence and accountability. The article seeks also to identify legal, political and institutional impediments to the success of the FEACC and proposes possible routes to overcoming such impediments. The FEACC's first decade has been a mixed one, with some notable successes offset against a number of inadequacies in need of significant and urgent attention.
Author/s: Ayele, Zemelak
Historically, local authorities in Ethiopia enjoyed wide political, administrative, judicial, and financial autonomy. However, from the 1850s a process of territorial expansion and centralisation was initiated in the country. The centralisation process reached its zenith under the rule of Colonel Mengistu in the 1980s. This centralisation gradually diminished the autonomy of local authorities which incrementally became structures of control of the central government. Local authorities were used to actively suppress resistance against the central government, extract revenue in the form of tax and tribute, mobilise free labour, and even act as agents to conscript for the army. This policy and practice continued until Colonel Mengistu was ousted by the Ethiopian People's Revolutionary Democratic Front (EPRDF) in 1991. Soon after seizing power, the EPRDF declared its intention to reverse the century-long centralised rule and introduced a semi-federal structure in the country in 1991. Ethiopia officially became a federal country in 1995 following the promulgation of a new Constitution. In 2001 a local level decentralisation programme was initiated. The decentralisation programme included the establishment of elected local government structures and the devolution of certain political, administrative and financial powers to local government. This paper seeks to demonstrate how local authorities were used as a means of control in the past. While a decentralised system of governance has formally been introduced in Ethiopia, this paper argues that local authorities still remain instruments of political control by the central government. In so doing it highlights the factors that continue the trend of central control of local government despite extensive formal decentralisation.
Author/s: Singiza, Douglas Karekona and De Visser, Jaap
As is the case in many other developing countries, Uganda's decentralisation programme is designed to promote grassroots democracy and participatory development. However, it is argued in this paper that it is also meant to accommodate Uganda's diverse identities and culture. Uganda has undergone a process of decentralisation in which the district was chosen as the basic unit of local government to which powers and functions are devolved. Since the commencement of the decentralisation programme numerous new districts have been created. After laying the ground for the constitutional articulation of districts as the main pillars of local governance, the article questions the practice of creating units of lower government that may not be economically sustainable. The article assesses what resources will be at the disposal of the districts and concludes that creating too many districts may disrupt the realisation of socio-economic rights. The process of creating new districts is not only open to manipulation, but also runs counter to the intended objectives of the decentralisation programme. The article makes a proposal for the establishment of an independent boundary demarcation body that should be responsible for changing district boundaries.
Author/s: Van der Poll, Letetia and Booley, Ashraf
Although not generally accorded primary consideration during armed conflict, a vast number of provisions aimed at protecting the natural environment in times of war exist under international law. This article critically and comprehensively examines the challenges presented in terms of liability and redress for damage caused to the natural environment during armed conflict. In particular, the effectiveness of the various principles and rules that grant general, specific and indirect protection to the natural environment during warfare, coupled with the liability regimes established under the applicable international instruments, are scrutinised critically. The article argues that most international instruments dealing specifically with the means and methods of warfare, reveal serious inadequacies, and that some establish no liability regime whatsoever. Those instruments that do, however, contain a liability regime, reveal serious flaws to the degree that not all categories of armed conflict are attended to and only criminal sanctions (with no civil liability) are envisaged, coupled with the significant failure to extend liability to States Parties. Some international instruments fail to provide adequate mechanisms for legal redress or in instances where redress is provided, the mechanisms are flawed. The problem is exacerbated by the fact that customary international law has not yet developed to the degree that both adequate and comprehensive protection is available to protect the natural environment during armed conflict, irrespective of the nature of the conflict. This article therefore considers critically the adoption of an entirely new convention expressly intended to address all instances of environmental damage during (or as a consequence of) armed conflict, and concludes that such a step is preferred to the mere amendment of existing provisions or possibly even the drafting of yet another protocol to the four Geneva Conventions.
Author/s: Arendse, Lorette
South Africa in reality harbours two separate education systems in its public school domain: one consisting of the former white schools, which is adequately resourced, and the other constituting the township and rural schools entrenched in abject poverty. The current school funding system perpetuates this state of inequality. On the one hand, former white schools are sustaining their position of privilege by levying high school fees which enable them to operate on budgets far exceeding those of poor schools. On the other hand, former black schools are struggling to keep afloat despite government's laudable but ineffective policy to provide free education in disadvantaged schools. This has resulted in unfair discrimination against marginalised learners who are denied access to the same type and standard of education as received by their more privileged counterparts. Because of past patterns of racial privilege, unfair discrimination takes place on the basis of race. However, an increasing number of black learners are attending former white schools. The economic status of parents has thus become a determining factor in which school a learner attends. Discrimination therefore also occurs on the basis of socio-economic status.
Author/s: Hirschsohn, Philip
The South African labour movement's strength has often been attributed to the vitality of local democratic structures and institutionalised mechanisms of worker control that govern unions affiliated to the Congress of South African Trade Unions (COSATU). Workers and shop-stewards continue to participate actively in local union activities and sustain democratic processes but, in an apparent contradiction, the arrival of political democracy has been associated with a decline in the intensity and vitality of local union democracy. As a result the model of union democracy is shifting from participatory to representative. This article draws on the results of the fourth leg of a longitudinal survey of COSATU members and shop-stewards and compares these results with surveys conducted in 1994, 1998 and 2003. The article explores the functioning of union democracy at the workplace and compares the attitudes of ordinary members and their elected representatives. At issue is whether this decline in the intensity of shop-floor democracy has resulted in a growing representation gap between workers and their elected representatives. The article concludes by examining the implications for union democracy of the recruitment of a large proportion of shop stewards into the South African Communist Party.
Author/s: Heleba, Siyambonga
It has become internationally recognised that the right of access to water is fundamental to life and health. Furthermore, it is indispensable for leading a life of human dignity. The South African Constitution expressly recognises this right. This paper examines to what extent the South African government has met its obligation to provide access to sufficient water fit for human consumption. It also looks at recent judicial decisions on the right of access to water, where courts have not only found that the minimum quantity of water prescribed by national legislation is insufficient but, controversially, have prescribed what a minimum quantity of water should be. It concludes by suggesting what should be done in South Africa in order to ensure access to sufficient water for everyone.
Author/s: Ndlovu, Lonius
This paper analyses the recent Southern African Development Community (SADC) Tribunal 'Campbell 'case from a trade and investment protection perspective. In the 'Campbell' case the issue of the forcible expropriation of farm land without compensation by the Zimbabwean government was raised before the Tribunal in a human rights context. By revisiting the dispute and analysing it from an investment protection perspective, the author controversially seeks to advance the thesis that the dispute had more to do with investment protection than the protection of human rights. This is done by isolating the specific issues the SADC Tribunal adjudicated upon and contextualising them in relation to investment protection rather than land and agrarian reform. To drive the point further home, a brief comparative analysis of the pertinent investment provisions of the North American Free Trade Agreement (NAFTA) and SADC is made. From the analysis, important lessons for SADC investment protection are extracted and highlighted. Despite the fact that the NAFTA provisions do not directly apply to SADC disputes, this paper concludes that NAFTA jurisprudence offers useful insights which the SADC can tap into, to the advantage of its nascent jurisprudence on investment protection.
Author/s: Juma, Laurence
Efforts to establish regulatory frameworks for private military/security companies (PMSCs), driven by public security concerns as well as private interests of the companies themselves, have yielded a number of soft law instruments. Unfortunately, most of these instruments are conditioned by the underlying interests of their promulgators and have therefore failed to establish universally acceptable regulatory standards. And because they do not constitute regimes of binding law and lack the goodwill of states, their enforceability has been seriously undermined. To address the apparent lacunae in PMSC regulation, the UN Working Group on the Use of Mercenaries as a Means of Violating and Impeding the Exercise of Rights of Peoples to Self-Determination has prepared a Draft International Convention on the Regulation, Oversight and Monitoring of Private Military and Security Companies, which it is now calling on states to endorse. This article assesses the strengths and weaknesses of this draft law. It critically evaluates how the proposed law deals with key issues which have been at the centre of the regulation debate concerning PMSCs such as state responsibility, human rights protection, the contractual rights and obligations of parties, operative standards and modes of enforcement. The article contends that despite the problems which it identifies, the draft law still offers the best promise for regulating PMSCs compared to all the soft law mechanisms that are currently in place.
Author/s: Zhang, Zezhong
The Forum on China-African Cooperation (FOCAC) has entered its second decade. Though the political driving force remains vital, development towards a more mature, long-term stable and effective cooperation mechanism and organisation has become unavoidable. The article argues that suitable forms of institutionalisation include establishing a joint FOCAC Council of Ministers, a Joint Secretariat, a Committee of Ambassadors and a Joint Consultative Assembly with sub-commissions. It also proposes the need for entering into a basic cooperation agreement with legal force and strengthening the development of Sino-African NGOs.
Author/s: Kollapen, Jody
The author argues that, when one turns to the subject of South Africa's state reporting in relation to international human rights law, three issues consistently come to light: delays in the submission of reports; problems with their content; and lack of consultation in their development. To address these issues the author supports the establishment of a governmental-civil society forum to 'provide the basis both for constructive dialogue and greater coordination in how civil society engages with the international and regional human rights system'.
Author/s: Du Toit, Darcy
Author/s: Du Toit, Darcy
Author/s: Waterhouse, Samantha
Author/s: Olowu, Dejo
In time past, developmental efforts tended to focus on either men or women but seldom on both. For decades, therefore, development assistance often took the form of providing technologies, loans and training to men. Starting in the early 1970s, however, analysts pointed out the need to pay more attention to women as agents of development. The initial focus was to direct more resources to women and, later, focus attention more broadly on gender dynamics and inequalities. The global movement for gender equality itself has undergone a similar shift over the course of time, from an early emphasis on women alone to the recognition of the need to engage men in the process.
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