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: Mujuzi, Jamil
Author/s: Fokala, Elvis
The inappropriate social status generally attributed to women in most African communities has directly affected their autonomy regarding their right to sexual and reproductive health. Also, this status and their subsequent lack of sexual autonomy has not only increased their risk of sexual health problems, but has also decreased their ability to obtain treatment and support when sexual and reproductive health concerns arise. The absence of explicit legislative protection of women's right to sexual and reproductive health may have aggravated the situation. However, in 2003, the African Union became the first human rights body to expressly provide women's sexual and reproductive health rights in the Protocol to the African Charter on the Rights of Women in Africa, arguably as a direct response to this plight. With this legislative gap now filled, this article attempts to analyse the relevance of interpreting this crucial women's right from a multidisciplinary, rather than a purely legalistic, interpretative approach which has, over the years, characterised most protected women's rights.
Author/s: Brand, Danie; De Beer, Stephan; De Villiers, Isolde; and Van Marle, Karin
In this exploratory article the authors focus on a tendency in discourses on poverty to reduce poverty to a practical problem, and efforts to find solutions to poverty to practical, instrumentalist (social) scientific thinking. Working from a theoretical position informed by, among others, Constable, Bergowitz, Foucault, De Certeau, Friedman and the liberation theology of Boff & Boff and Gutierrez they argue for the reconfiguring of poverty as an injustice and the re-insertion of politics in debates about poverty that this will entail. From different disciplines and from different perspectives within disciplines, they engage in a multi-disciplinary exploration of, and reflection on, the prevalence of poverty.
Author/s: Badejogbin, Oluwatoyin
From small reclusive beginnings steeped in pietistic Salafism, Boko Haram has evolved into a real threat to national security in Nigeria. A factor that cannot be overlooked in the sect's emergence and transformation is the regrettable history of ethno-religious differences that are now perhaps at an all-time high in the country. Such differences have always threatened political stability in Nigeria, but no less disturbing have been Nigeria's lack of resolve to deal with the differences, and the perennial tendencies of the political class to exploit them for partisan advantage. This article enquires into Boko Haram's origins and the factors that sustain its deadly campaign of terror, and how these have been helped by Nigeria's lack of attention to the actual root causes of the kind of threat that Boko Haram represents today. It examines Nigeria's aggressive counterterrorism efforts, and contends that it has been politicised in a way that enhances the sect's threat. It has deepened ethno-religious rifts and provided fodder for political mudslinging. The article argues for a counterterrorism response that deemphasises military aggression and invests political will in resolving the underlying tensions that enhanced the sect's emergence.
Author/s: De Visser, Jaap and Mapuva, Jephias
Local governance in Zimbabwe has a chequered history. Despite high hopes for democratic local governance on the attainment of political independence in 1980, it has often defied democratic practice and is yet to bring tangible benefits to communities. Attempts at democratising local governance through the amendment of local government legislation have not yet brought about vibrant democratic practices. This article explores section 4A of the Urban Councils Act, which provides that the Minister of Local Government may appoint special interest councillors onto urban councils. It examines the extent to which this has enhanced or inhibited democratic local governance. It then proceeds to examine this phenomenon against regional instruments on local democracy and finally assesses whether it can stand the test of the freshly promulgated Constitution.
Author/s: Vawda, Yousuf A and Mtshali, Mangaliso
This article examines whether the recently established Independent Police Investigative Directorate (IPID) has the potential to be an effective oversight mechanism to ensure accountability in respect of SAPS. Recent events have again turned the public spotlight on the conduct of police officers in the execution of their duties. The public display of violence and brutality against a Mozambican taxi driver, Mido Marcia, by members of the South African Police Service (SAPS) in Daveyton, exposed the brazen abuse of power by some elements within SAPS. In this context, it can be asked whether the institutions established in terms of legislation are capable of executing the task of investigating police misconduct. This article examines whether the recently established Independent Police Investigative Directorate (IPID) has the potential to be an effective oversight mechanism to ensure accountability in respect of SAPS. It examines, in particular, the IPID's mandate to investigate corruption matters within SAPS, and whether -in its current form and capacity it is effectively fulfilling its mandate. It is concluded that while much progress has been made since the time of the largely ineffectual Independent Complaints Directorate (ICD), the predecessor of IPID, there remain significant risks to the efficient, effective and independent execution of IPID's mandate.
Author/s: Naluwairo, Ronald
This article appraises the jurisprudence of Uganda's civil courts on selected issues concerning the administration of military justice. In the last two decades, Uganda's civil courts have pronounced themselves on a number of issues concerning the administration of military justice in the country. These issues range from the status and jurisdiction of military courts in Uganda's justice system to their independence and impartiality. This article appraises the jurisprudence of Uganda's civil courts on selected issues concerning the administration of military justice. The article appraises jurisprudence on the purpose of military law and military courts; the status of military courts and the jurisdiction of military courts. It also evaluates the decisions on the application of the Constitution and human rights in the administration of military justice and the major cases that have dealt with the question of independence and impartiality of Uganda's military courts. From this jurisprudence, Uganda's civil courts have clarified many issues and established certain principles critical for the proper administration of military justice. For instance, they have clarified that military courts are courts of judicature and subordinate courts within the meaning of the Constitution. They have also emphasised that except where the Constitution states otherwise, it is binding on military courts just like the civil courts. In the administration of military justice, military courts like their civilian counterparts must also respect and uphold the accused persons' guaranteed rights and freedoms.
Author/s: Ali, Abdi Jibril
Although the African Charter on Human and Peoples' Rights does not include a derogation clause, most States parties' constitutions contain derogation clauses. It is argued that these constitutions, to the extent that they contain derogation clauses, do not comply with the African Charter on Human and Peoples' Rights. The African Charter on Human and Peoples' Rights does not contain a derogation clause. In several communications, the African Commission on Human and Peoples' Rights held that suspension of human rights cannot be justified under the Charter. The Charter and the Commission have been subject to criticisms in this regards. The critics, however, fail to consider the functions of derogation clauses in human rights treaties and the context in which the African Charter was adopted. Although a derogation clause helps in the conclusion of human rights treaties, it does not contribute to realisation of human rights. The use of emergency law as instruments of colonial control, the tendency of abusing derogation, and the unreasonable division of rights into derogable and non-derogable may further justify absence of a derogation clause from the Charter. Most States parties' constitutions contain a derogation clause and as such they do not comply with the African Charter. States rely on their constitutions to derogate from constitutional rights and subsequently suspend the application of human rights instruments including the African Charter. States' failure to bring their constitutions in conformity with human rights instruments and their reliance on their constitutions to suspend bill of rights are in contravention of international human rights law.
Author/s: Van der Merwe, Hermanus
The 2013 judgment of the Supreme Court of Appeal in Humphreys v The State has provided a measure of clarity as regards the application of the principles of dolus eventualis, particularly the volitional component thereof in the context of dangerous or irresponsible driving. The 2013 judgment of the Supreme Court of Appeal in Humphreys v The State has provided a measure of clarity as regards the application of the principles of dolus eventualis, particularly the volitional component thereof in the context of dangerous or irresponsible driving. The court held that references to 'recklessness' on the part of the accused should be approached with caution so as not to conflate the test for dolus eventualis with that for aggravated (or 'conscious') negligence. In more general terms, the judgment also provides guidance as to what constitutes appropriate charges in response to dangerous or irresponsible driving that results in death or serious injury to innocent persons. It is submitted that, in general, the more aggressive prosecutorial strategy of the National Prosecuting Authority towards irresponsible and reckless driving, under which such drivers are now more likely to be charged with murder and/or attempted murder, remains justified (and necessary) notwithstanding the outcome of the Humphreys case. However, through the use of a hypothetical example substantially similar to the Humphreys case, it is argued that, in future, the NPA's prosecutorial efforts in such cases must be guided by the interpretation of the legal principles of dolus eventualis in Humphreys and by the specific facts of the relevant case.
Author/s: Hamman, Abraham
This article explores the situation where money was fraudulently transferred out of the account of an attorney via a phishing scam and then laundered through the trust account of a well-known firm of attorneys. The legal profession has become a target for money launderers to clean their ill-gotten gains. Especially attorneys' trust accounts are vulnerable to being transformed into instruments of crime. This article explores the situation where money was fraudulently transferred out of the account of an attorney via a phishing scam and then laundered through the trust account of a well-known firm of attorneys. The trust account of an attorney has a certain credibility which attaches to it and it is thus easy for criminals to launder the money whilst the process enjoys the protection of such a trust account. Legal practitioners utilise the internet to shift money through cyberspace and execute their financial transactions on-line in matters, such as, conveyancing and other commercial transactions. They should therefore be vigilant that this type of technology can be exploited by criminals as occurred in Roestof v Cliffe Dekker Hofmeyr Inc. Attorneys' firms must be cautious when they operate their trust accounts and should try to put mechanisms and safeguards in place with regard to electronic transactions. Attorneys also have the added responsibility to be on the lookout for suspicious and unusual transactions in terms of the Financial Intelligence Centre Act.
Author/s: Durojaye, Ebenezer and Mirugi-Mukundi, Gladys
This paper examines the decision of the Kenyan High Court in 'P.A.O and others v Attorney General and another' in relation to the nature of states' obligations to ensure access to medicines for their people. Recently a Kenyan High court in 'P.A.O and others v Attorney General and another' (hereinafter P.A.O) handed down a judgment in relation to sections 2, 32, and 34 of the Anti-Counterfeit Act 13 of 2008 vis-a-vis Kenya's obligations under international human rights law and the Constitution. For many Africans, access to medicines has remained a great challenge not least because of high prices mainly due to patent on these medicines. Although recent developments across Africa have shown that modest progress has been made in realising access to medicines for people living with HIV, a great percentage of those in need of these medicines are not receiving them. One of the major obstacles to access to medicines in Africa is patent enjoyed by pharmaceutical companies on essential medicines such as antiretroviral drugs. This paper examines the decision of the Kenyan High Court in 'P.A.O and others v Attorney General and another' in relation to the nature of states' obligations to ensure access to medicines for their people. After highlighting the facts of the case, the authors critically evaluate the decision of the court based on three important issues - access to medicines as a human right, patent versus human rights and nature of states' obligations in relation to access to medicines.
Author/s: Du Plessis, Meryl
This article considers the contribution of the social model of disability and rights discourse to the advancement of education to persons classified as having severe or profound intellectual impairments. It is argued that while the rhetorical significance of both the social model and rights discourse are not to be discounted, the applicable disability and education policies refer to both the former and latter in abstract terms. The history of the social model means that it was formulated in opposition to the hegemonic individual, medical model. As a result, its value to policy formulation should not be overestimated, especially if it is articulated in ways that emphasise formal equality rather than substantive equality. Similarly, rights may either be used to mask inequalities or to challenge domination. If used for the latter purpose, rights have to be framed from the perspective of struggle. The applicable policies do not use rights in that manner and the rights discourse hides the fact that difference is still perceived through the lens of an unstated 'ideal'. The insufficient engagement with whether detailed processes are consistent with the central tenets of the social model or progressive articulations of rights is arguably responsible for the government's responses in the matter of Western Cape Forum for Intellectual Disability v Government of the Republic of SA. The case reflects the difficulties of overcoming deep-seated negative assumptions about persons with intellectual impairments and the need for the normative choices that underpin both the social model and rights to be articulated, reflected and examined critically in the implementation of policies and concomitant practices.
Author/s: Madu, C Jonathan
A society's ability to define and, within a broad system of the rule of law, establish institutions that can enforce property rights to natural assets has been found to be a critical precondition for social and economic development. The Nigerian Land Use Act of 1978 was meant to usher in a new land reform for the benefit of all, but it became a clog in the wheel of development over the years. Moreover, there has been a gender gap in the system which, in actual practice, leaves women more vulnerable in acquiring land rights, causing more conflicts and undermining the development process. With the advancement of civilization and intervention of non-governmental organisations, women's discrimination and marginalisation with regard to land property rights have abated in the urban cities, but they still exist in most rural areas due to cultural and traditional practices in those areas. Hence, creating a framework for inclusive participation to generate ideas for equity and effective land policy in rural communities is necessary. This article studies the problem of gender inequality in securing land rights in rural communities of South-Eastern Nigeria to proffer useful policy recommendations. It makes use of the data from four focus group discussions and two problem solving workshops of the author's doctoral field research.
Author/s: Saurombe, Amos
The Southern African Development Community (SADC) copied the European Union (EU) model of integration. The creation of many regional integration initiatives in Eastern and Southern Africa has been based on the EU model and the SADC's admiration for this format of integration is undisputed. First, this paper gives a brief history of both the EU and the SADC. The second part looks at the importance of institutions in an organisation and how the EU has managed to use institutionalism in enhancing deeper integration. The discussion will be enhanced by a comparison of a selected institutional structure and framework of both organisations. The article will not consider all the institutions in both organisations since such an exercise will not be feasible within its limited length. The gaps and shortcomings identified in the comparative analysis will lead to the proposal of a set of recommendations that the SADC could find instructive.
Author/s: Simbo, Chiedza
Whilst adjudicating socio-economic cases brought before it, the Constitutional Court has stated more than once that the minimum core concept devised by international law is not applicable when interpreting socio-economic rights in the South African Constitution. Based on the qualified nature of the rights previously interpreted by the Constitutional Court, this article accepts and views as correct the previous denial of the minimum core concept. However, it proceeds to argue that when interpreting socio-economic rights provided by the South African constitution, the minimum core concept ought to be regarded as applicable only when interpreting section 29 and section 29 (1) (a) ought to be regarded as a minimum core standard of the right to education. By accepting, in the 'Juma musjid' case, that basic education is an unqualified right with immediate enforceability unlike other socio-economic rights previously brought before it, the Constitutional Court also accepted that section 29 (1) (a) is the minimum fulfilment of the right to education. This article argues that section 29 (1) (a) is government's immediate obligation, a right that can be claimed immediately, a level to which the government should endeavour to go up to, and therefore a minimum fulfilment of section 29.
Author/s: Maris, Cees
This article analyses the developments in Dutch law regarding sexual morality, in particular pornography, in view of the diverse positions in the philosophical debate on the relation between law and sexual morality. This article analyses the developments in Dutch law regarding sexual morality, in particular pornography, in view of the diverse positions in the philosophical debate on the relation between law and sexual morality. The Penal Code of 1886 prohibited texts and pictures that were 'offensive to public morality', which phrase was only meant to prevent involuntary exposure to obscene pictures and to slander. This approach coincides with the liberal harm and offence principles. The revision of the law in 1911 was inspired by Christian perfectionism. 'Offensive to public morality' was now taken to refer to the eternal Christian truth, forbidding all sexual manifestations that did not match monogamous marriage. Under the influence of the sexual revolution of the 1960s, the Dutch Supreme Court turned to a sociological reading of 'offensive to public morality': pornography was not allowed when a large majority found it offensive. In this approach, one may recognise the communitarian extension Devlin gave to the liberal harm principle: society may be harmed by actions that undermine its traditional values. However, Dutch majority opinion turned ever more liberal. In 1984 the lawgiver returned to the liberal approach of 1886, explicitly adopting the harm and offence principles as guidelines. Feminist critics argue that pornography causes harm to women by inciting rape and discrimination. The Dutch experience does not support this claim. Since the electronic revolution of the 1990s, pornography has been integrated into mainstream culture. Porn is widely available on-line, yet this has not corrupted Dutch youth. Enjoying much more freedom than previous generations, most Dutch youngsters are searching for a 'just balance', a balance between a desire for sex and a longing for intimacy. In doing so, they develop a subtle self-discipline that enables them to engage in intimate relationships on an equal footing.
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