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: The Editors
Author/s: Mujuzi, Jamil Ddamulira
Jamil Ddamulira Mujuzi notes that, at the time of ratifying the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa ('the Protocol'), South Africa made several reservations and interpretive declarations. The reservations related to the imposition of the death penalty on pregnant and nursing mothers, the registration of customary marriages (article 6(d)) and the nationality or citizenship of children born of alien parents. The interpretive declarations related to article 1(f), which defines 'discrimination against women', and article 31, dealing with the question whether the South African Constitution offers more favourable human rights protection than the Protocol. Against the background of a general discussion of reservations and interpretive declarations in international law, the author considers the legal implications of South Africa's reservations and interpretative declarations. The reservation to article 6(d), he suggests, is in conflict with South Africa's international treaty obligations under the Protocol with regard to the marriage of girl children and the interpretive declaration to article 1(f) is vague. However, the article highlights that the other reservations and interpretive declaration further the protection of women's rights in South Africa. Several recommendations are made on how South Africa can better comply with its obligations under the Protocol.
Author/s: Lumina, Cephas
Cephas Lumina critically examines the role of the World Trade Organization (WTO). In recent years, it is noted, the organisation's agenda of trade liberalisation, its perceived lack of accountability and insensitivity to human rights have attracted intense criticism. It has been asserted that provisions of WTO agreements concerning agricultural trade and intellectual property directly affect the ability of governments to fulfil their human rights obligations. Conversely, supporters of the WTO argue that by expanding global trade the organisation assists in raising living standards. While it is generally acknowledged that trade has an important role in improving livelihoods, studies indicate that trade liberalisation has not necessarily achieved this result for many WTO members. The author assesses these claims from a human rights perspective and explores the relationship between trade, human rights and development. The article sketches the history and functions of the WTO, discusses the linkages between trade liberalisation, human rights and development, and assesses the human rights obligations of the WTO. It notes that most WTO Member States have assumed legal obligations through ratification of universal human rights treaties and concludes that the WTO's trade liberalisation agenda should be more responsive to human rights.
Author/s: Idowu, Amos
Amos Adeoye Idowu reflects on a highly controversial cultural practice which continues to have a deep impact on women's right to equality, physical integrity, dignity and privacy: female genital mutilation (FGM). One of the greatest paradoxes in many nations, he argues, is the increasing contrast between achievements in struggles against human rights violations and insistence on conservative socio-cultural identities. Focusing on Nigeria, he notes the refusal of people of various ethnic groups to disengage from different forms of FGM, a practice which continues despite campaigns opposing it on account of its health hazards as well as international conventions and domestic laws criminalising it. The article analyses factors responsible for its persistence and appraises its effects on the fundamental rights of women and female children. Weighing up the various arguments, it concludes that the law must not only impose penalties but must be accompanied by education of all those concerned. '[I]t may be necessary', it is argued, 'to consider the underlying factors that make some people so protective of their culture that they would attempt to preserve it in its original form even if it means the death of fellow human beings.'
Author/s: Nyati, Linda
n Inqaku lokuqala le-LDD lesiXhosa, uLinda Nyati uphonononga umsebenzi wokuququzelela intatho nxaxheba yoluntu kwiinkqubo zomthetho ngokwecandelo 59(1) (a), 72(1) (a) nele-118(1) (a) loMgaqo-siseko. Eli nqaku, eli nqaku libonisa, libaluleke kakhulu kubemi ekulweni nomsebenzi wangaphakathi wolawulo lwentando yesininzi. Umbhali uphonononga kuyo ngendlela yohlalutyo oluqatha lwesigwebo seNkundla yoMgaqo-siseko 'kwiQonga leMida yeMerafong & nabanye v UMongameli weRiphabhliki yoMzantsi Afrika '2008 (10) BCLR 968 (2008 (5) SA 171) CC.) Emva kokuqwalasela imiba yokumelwa kunye nentatho-nxaxheba yedemokhrasi yethu yomgaqo-siseko, inqaku liqwalasela ukuba imigangatho ebekwe ziinkundla iyasebenza na ekuqinisekiseni ukuba amaqumrhu owiso-mthetho awenza ngokupheleleyo umsebenzi wawo wokuququzelela intatho-nxaxheba enentsingiselo yabo bonke abemi. 'Indlela ephantsi yothatho-nxaxheba loluntu' eyamkelwe yinkundla kulo mba, iqukumbela, 'idale umsantsa obanzi ngokwaneleyo ukuvumela umthetho obalulekileyo oneempembelelo ezibalulekileyo kuluntu ukuba uwiswe ngokufanelekileyo. Ukubeka imigangatho ephantsi ngolo hlobo kuthetha ukuba ukuphononongwa kwenkundla kwamanye amasebe karhulumente akusebenzi.'
Author/s: Mahao, Nqosa L
Nqosa L Mahao argues that the concept of the constitutional state has its genesis in the evolution of constitutionalism in Europe. Its basic elements, of the rule of law, separation of powers, independence of the judiciary, were born of a specific agenda of restraining the holders of political power and building a state based on liberal foundations that would play only a limited role in social affairs. During the 20th century this ideology was substantially reversed with the development of the notion of a broad social writ enabling the state to harmonise formal and substantive equality. The author argues that this trend has been the principal casualty of globalisation. Globalisation has redefined the role of the state in the developing world, weakening its mission of providing public goods and mediating social justice. In this context, it is suggested, democracy is reduced to little more than a ritual in electoral proceduralism. To combat these trends the article advocates a number of reforms, including the constitutionalisation of elements of direct public participation in certain spheres of public life and reviewing the borrowed Westminster constitutional model that has become institutionalised in many countries, to ensure effective parliamentary oversight of the executive.
Author/s: Tutu, Desmond
In the Annual Dullah Omar Memorial Lecture for 2008, Emeritus Archbishop Desmond Tutu reflects on 'The State of our Democracy'. The speech commences with a brief historical background of the past that South Africa inherited and sets the tone for the critical assessment that follows. It highlights some of the challenges inherited from the past which, if not dealt with, may 'augur ill' for the future. But the overall conclusion is that '[w]e have a wonderful land with immense potential'.
Author/s: The Editors
Author/s: Olowu, Dejo
The focus of this article is to explore the critical dimensions of Islamic legal theory pertaining to the rights of children, particularly the potential of this theory to reinforce the theoretical understanding of children's rights within the international human rights corpus. Even though there has been scholarly inertia in this field, an effort is made here to highlight Islamic legal notions in complex areas and to accentuate their capacity for deeper reflections on children's rights within the global milieu. While broadly examining the tenets of Islamic juristic thought pertaining to children's rights in general, the article evaluates Islamic legal understanding of the rights of the unborn child in considerable detail, without unnecessarily getting embroiled in the philosophical debates about whether an unborn child is a human being or not. Apart from the more renowned normative framework on children's rights, it is demonstrated, Islamic law also contains extensive provisions that can reinforce global advocacy for the promotion and protection of the status, rights and welfare of children.
Author/s: Nyati, Linda
In LDD's first Xhosa-language article, Linda Nyati explores the duty to facilitate public participation in legislative processes in terms of sections 59(1) (a), 72(1) (a) and 118(1) (a) of the Constitution. This issue, the article demonstrates, is highly pertinent to citizens in grappling with the inner working of a democratic dispensation. The author delves into it by way of a critical analysis of the Constitutional Court judgment in 'Merafong Demarcation Forum & Others v The President of the Republic of South Africa '2008 (10) BCLR 968 (2008 (5) SA 171) CC.) After considering the representative and participatory aspects of our constitutional democracy, the article considers whether the standards set by the courts are effective in ensuring that legislative bodies fully discharge their duty to facilitate meaningful participation by all citizens. The 'minimalist approach to public participation' adopted by the court in this matter, it concludes, 'has created a gap wide enough to let an important piece of legislation which has significant implications on the public to be passed as reasonable. Setting such low standards means that judicial review of the other branches of government is ineffective.'
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