For the application of value judgments to result in legal certainty, a certain theoretical consistency of approach is required. Such consistency can only derive from a sound jurisprudential (ie legal-theoretical) basis. The tentative reflections contained in this article are an attempt to contribute towards the establishment of such a jurisprudential basis. The subject-matter of the application of value judgments, with particular reference to section 35, could furthermore only be properly addressed against the background of certain general characteristics of constitutional interpretation in general, and Chapter 3 in particular.
The 1990s has seen a transformation of the constitutional order in southern Africa with new constitutions in Namibia (1990), Zambia (1991), Lesotho (1993), South Africa (1994) and Malawi (1994) which all provide for the protection and promotion of fundamental rights and the rule of law; multiparty politics and the establishment of democratic institutions. Whilst this is encouraging, the question remains whether, given the chequered history of constitutionalism in Africa, these 'new constitutions of southern Africa' (NCSA) are equipped to counter executive attempts to undermine their operation and effectiveness. This article seeks to provide at least a partial answer by examining the NCSA in three key areas: amending the constitution; use of the presidential pardon; and use of emergency powers. In doing so it will compare and contrast the experience of Zimbabwe where executive action in these areas has arguably led to the 'undermining of the constitution by constitutional means'.
Ethnic minorities play an important role in the struggle against discrimination in the Netherlands. They are the legacy of colonialism and of the phenomenon of Gastarbeid and their numbers have increased drastically during the last decennia. Vulnerable as the result of an inferior level of education and easily identifiable by appearance, these groups are in danger of sliding into an underclass. Racial discrimination is regarded as one of the causes of the low socio-economic position of these groups. The waves of racist violence which periodically sweep large parts of Europe underline the role of law as one of the principal means of combating racial discrimination and curbing propaganda, organisations or practices based on racist ideas which encourage racial hatred or violence. This article will provide a brief survey of the manner in which the Dutch legal system has handled the transformation of the principle of equality into the right to equality. It will concentrate on the negative content of this right, i.e. on the prohibition of discrimination.
The following two orders deal with a request for the indication of provisional measures and a further request for the indication of provisional measures~ respectively. They were brought before the International Court of Justice by the applicant, Bosnia and Herzegovina, following allegations of genocide committed by Yugoslavia (Serbia and Montenegro) in the Republic of Bosnia and Herzegovina. The author examines the court's power to indicate provisional measures in terms of article 41 of its Statute and as developed through subsequent case law. Particular attention is paid to the jurisdiction of the court, which is a necessary pre-condition to the exercise of its powers under article 41, and the way the court determined its jurisdiction in these two orders. In reaching its decision, the court followed the same reasoning in both cases. As the second case reaffirms the findings in the first, closer attention is paid to the Order of 8 April 1993. The value of the second order lies in the court's response to a request for further provisional measures (as provided by article 76 of the Rules of Court); the submission by the additional bases of jurisdiction; and the addition of several weighty separate opinions.
This contribution reports an analysis of prosecution, sentencing, and execution data for the Republic of South Africa during the late 1980s. The data are of special interest for three reasons. First, we document the operation of a judicial system that was administering a death sentence statute that was essentially a mandatory model in cases of murder. Second, the statistics show a pattern of selectivity depending on the race of a homicide victim that is as extreme as any to be found in the world literature on the death sentence. Finally, the outcome seriously challenges the constitutionality not only of the death sentence dispensation that was the focus of the study, but even more pertinently of the present South African death sentence dispensation with its wider discretion.
Agreements between the country of nationality and the host country must be concluded in terms of which amnesty granted to refugees is fully guaranteed. Their personal safety from harassment and intimidation must also be assured. In all such programmes, there must be clear acceptance of the role of the UNHCR which is to offer international assistance and protection to refugees in their country of origin. In the Namibian voluntary repatriation programme, the involvement of the UNHCR as an integral part of Un tag was envisaged right from the outset. On the other hand, the question of repatriation of South African exiles was initially the subject of bilateral negotiations between the South African government and the ANC. Agreement was reached between them and certain guidelines for the repatriation of refugees were adopted and implemented in respect of a number of repatriating South African refugees. In terms of the possible problems in the field of human needs which the potential repatriatriating Mozambicans are likely to face, a future repatriation programme can draw many lessons from both the Namibian and South African programmes.
In this contribution the current legal developments in Lesotho, Namibia, South Africa, Swaziland, Zambia and Zimbabwe with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.