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: Fuo, Oliver and Du Plessis, Anel
This article advances an alternative perspective on the inception of the concept of a minimum core content for socio-economic rights in the South African context. The authors reason that despite judicial resistance to adopt, develop and use the idea of a minimum core content in the courts' evaluation of State measures to realise the socio-economic rights entrenched in the Bill of Rights of the Constitution of the Republic of South Africa, 1996, the legislative and executive authority of local government may be put to valuable use. The introductory sections of this article are concentrated on the international, regional and domestic status quo as far as acknowledgment and adoption of the minimum core concept in general are concerned. The authors subsequently turn from a focus on the courts to the legislative and executive authority of 'developmental local government' against the backdrop of the rationale behind the principle of subsidiarity, to question local government as an alternative route for the actualisation of the concept of a minimum core in the State's realisation of a number of specific socio-economic rights.
Author/s: Barasa, Noela and Fernandez, Lovell
This article studies the mixed movement of Somalis and Ethiopians to Kenya. It examines the modalities related to the smuggling of migrants and discusses economic exploitation of migrants by organised criminal networks, including corrupt Kenyan border officials. The criminalisation of migrants who are illegally present in Kenya is assessed against the background of the international legal framework, mainly the Protocol against the Smuggling of Migrants by Land, Sea and Air and the United Nations Convention against Transnational Organised Crime. The article analyses Kenya's revised immigration law and other recently enacted laws to address economic criminality. Finally, it recommends a set of national measures necessary to enhance legal protection for migrants within the mixed movement and stem the flow southwards through the eastern migration corridor.
Author/s: Lutchman, Salona
This article argues that the state is in breach of article 27 of the Constitution, specifically the right to access health care services, in that it has failed to provide sufficient free substance abuse treatment centres and facilities in South Africa for abusers of illicit drugs. It is argued that as a result of this breach, the state has inadvertently aggravated another social ill, illicit drug abuse during pregnancy and consequent harm to the foetus.
Author/s: Tshivhase, Aifheli Enos
Military justice systems are facing some difficult questions in many parts of the world. South Africa is not an exception. The biggest challenge probably relates to the judicial independence of military courts. This article advances the idea of institutionalisation of a military judicial office. It reviews some global trends in the areas of the appointment and tenure of military judges, and weighs up the different options available to the South African military justice system on the question of tenure. It recommends a path which should be followed by South Africa.
Author/s: Chitimira, Howard
Cross-border trading in securities has caused a great number of challenges for various national regulators, especially with regard to the enforcement of market abuse laws. Accordingly, the need for strong co-operation and co-ordination between such regulators became crucial and inevitable for the purpose of combatting market abuse in the European Union and other jurisdictions, such as, South Africa. It is against this background that some selected national regulators and/or role players in the enforcement of the prohibition of market abuse in South Africa, such as, the Financial Services Board, the Directorate of Market Abuse, and the Enforcement Committee, as well as the European Union's Committee of the Wise Men, the Forum of European Securities Commissions, the Committee of European Securities Commissions Regulators, the European Securities and Markets Authority, the Lamfalussy Process and the European Union's Action Plan for Financial Services, will be discussed. This is mainly done to isolate and expose selected challenges and/or flaws in the enforcement of market abuse laws in both the European Union and South Africa in order to recommend, where applicable, possible anti-market abuse measures that could be employed to enhance the curbing of market abuse activities in their respective jurisdictions.
Author/s: Singiza, Douglas Karekona and De Visser, Jaap
Local democracy has great potential to promote co-operation and respect across the political spectrum. By its very design, local democracy may produce different results in different jurisdictions, resulting in political diversification. After elections, local political leaders, irrespective of their political or ethnic inclination, must work together under the broad umbrella of the nation state and in the pursuit of service delivery and development. In that sense, multiparty democracy can be learned through practising local democracy. The Constitution of Uganda, with its elaborate provisions on decentralisation and local democracy, is alive to this democratic potential. This article examines whether the re-introduction, in 2005, of political pluralism in Uganda's district elections, and particularly the constitutional and statutory design surrounding local democracy, are responding to the above ideals. The key question is whether the re-introduction of multiparty democracy fosters and accommodates the right to public participation of ethnic minorities in district councils. The article analyses the key legislative instruments, such as, the Local Governments Act (1997) and the Political Parties and Organisations Act of 2005, and assesses whether they encourage or hinder the realisation of the overall constitutional objective of political inclusiveness. It examines the impact of the outright prohibition of any expression of political differences in the form of ethnic identity on the realisation of the ideals of inclusive local government, and concludes that this impedes local government's pursuit of inclusiveness. The view of this article is that there is a latent but benign neglect of ethnic minority political participation in local politics under the multiparty political dispensation in Uganda. The article finds no justification for the criminalisation of the use of ethnicity during the nomination of, and campaigns by, candidates in district council elections, and argues that government and political parties should pay specific attention to including minority ethnic groups within mainstream local politics.
Author/s: Ngobeni, Lawrence and Fagbayibo, Babatunde
As a critical element of enhancing the investment climate in Southern Africa, the Southern African Development Community (SADC) Protocol on Finance and Investment (FIP) requires Member States to harmonise their investment policies, laws and practices with its provisions, with the objective of creating a SADC investment zone. The FIP was signed on 18 August 2006, and came into effect on 16 April 2010. A key issue is the extent of progress that has been made by SADC Member States towards the harmonisation of their policies, laws, and practices in accordance with the FIP. At present, there exist major differences between the investment policies, laws and practices of SADC Member States. A case in point is the resolution of investment disputes, in respect of which the Protocol provides for the mandatory international arbitration of investment disputes after the exhaustion of local remedies. In 2012, the SADC introduced the Model Bilateral Investment Treaty Template (the Model BIT), with a view to further foster the harmonisation of investment laws and practice. However, the FIP and the Model BIT differ significantly, with major implications for harmonisation. Probably due to this and other reasons, the FIP is in the process of being amended, although details around this are not yet final or public. It is against this background that this article intends to examine, and make policy proposals on, the prospects of the harmonisation of the investment policies, laws and practices of SADC Member States in accordance with the FIP, in so far as they relate to the Investor-State Dispute Resolution Forum.
Author/s: Durojaye, Ebenezer
In this contribution, the author reviews the book, Socioeconomic Rights in South Africa: Symbols or Substance? Edited by Malcom Langford, Ben Cousins, Jackie Dugard and Tshepo Madingozi and published in 2014 by Cambridge University Press.
Author/s: Tenza, Mlungisi
The incidence of violence during strikes has become a problem not only for employers but also for the economy. It remains difficult to address the issue of violent strikes in South Africa using the existing labour law. The bargaining system does not make provision for mechanisms that can be used to deal with the issue of strike related violence. The eruption of violence during a strike affects members of society who are in no way part of the dispute between the employer and the union. It seems that the system somehow fails the people of South Africa when it comes to strikes and consequential violence. The question this article considers is whether and how the law may be used to address violence during strike action.
Author/s: Oloka-Onyango, Joe
While it took over 20 years of ferocious street action, post-election violence and several abortive efforts at enactment, the arrival of Kenya's 2010 Constitution was well worth the long and conflicted wait. A number of major changes introduced stand out for consideration, the first being the amendments to the power and independence of the courts of law in accordance with the doctrine of 'transformational constitutionalism' and the second concerning the entrenchment of a slew of economic, social and cultural rights as part and parcel of the Bill of Rights. Both have been buttressed by reformulated provisions on marginalised groups, especially women, indigenous peoples and people with disabilities. Since its enactment, Kenyans have been reaping the benefits of entrenched rights to housing, education, and water and against various forms of discrimination. While there are setbacks in that some courts are yet to internalise what constitutional 'entrenchment' and justiciability actually mean, and the Executive and Legislature are still reluctant partners in endorsing this change, the general movement is in a positive direction. Lessons in this respect can be learnt those countries which are near such as Kenya's East African neighbours and those still grappling with how to find ways in which to ensure that this category of rights enjoy the same substantive status as their counterpart civil and political rights.
Author/s: Shumba, Tapiwa
Internationally, there is agreement that conflicts and divergences arising from the laws of different States in matters relating to international trade constitute obstacles to the development of world trade. In southern Africa, diverse, fragmented, archaic and at times inaccessible, laws are major barriers to the free flow of goods in the region and therefore affecting both intra-regional and international trade as well as the attraction of foreign investment; yet few steps have been taken to address these challenges. This article analyses the Southern African Development Community's (SADC) objectives focussing particularly on whether legal harmonisation is achievable under the current SADC Treaty framework. Some scholars have argued that there is adequate scope for the harmonisation of laws in the SADC. However, looking at other examples of regional integration schemes and the character and history of the SADC, this article concludes that legal harmonisation is not simply being ignored but rather that there is no adequate legal framework for its implementation. To address this lacuna and to ensure that the national laws of SADC Member States can be harmonised under the SADC Treaty, the article proposes the amendment of the SADC Treaty.
Author/s: Chiduza, Lovemore
In order to ensure the domestic protection of human rights, the Constitution of Zimbabwe establishes the Zimbabwe Human Rights Commission (ZHRC). In accordance with the Principles Relating to the Status of National Institutions (The Paris Principles) the Constitution mandates the ZHRC with a primary role of promoting and protecting human rights at all levels of society. The aim of this article is to look at the prospects and challenges of the ZHRC in its quest to promoting and protecting human rights.
Author/s: Kavuro, Callixte
This article demonstrates that the employment of those who are seeking or granted asylum in South Africa is very challenging. The challenges range from ill-sentiment towards non-citizens to legal and procedural barriers, such as, measures that are taken by different role players to protect citizens with regards to accessing the labour market.
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