This paper comprises a study of approaches by certain African nations to the question of when, if ever, it is permissible to kill in defence of property. Arising from this study, the suggestion is made that the law should recognise a right to apply fatal force where the danger includes a combination of a threat to property and to the person. Furthermore, the law should recognise a partial defence to murder where excessive force has been used in defence of property.
The official status of private security contractors (PSCs) under international humanitarian law remains controversial. While the market for employing PSCs is growing, the international humanitarian law, has not kept abreast of these developments, thus leaving the actions of these contractors unclassified and unregulated. Moreover the outsourcing of traditionally military functions to private contractors places victims of abuse at the hands of PSCs in a difficult position since the remedies which would be available to victims against abuses at the hands of the traditional armed forces are not alway savailable when PSCs are involved. In this piece I will explore the alternatives and consequences of classifying PSCs as mercenaries, combatants, service personnel, 'persons accompanying the armed forces, 'civilians or unlawful combatants. What follows thereafter is an analysis of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts (ASR), and an exploration of the possibility that state responsibility might flow from the actions of PSCs, despite a state's deliberate attempt to evade this consequence by refusing to incorporate PSCs into their traditional armed forces.
The adoption of a Malawian child by Madonna has attracted a significant amount of media and public attention. It has been described as 'controversial', 'emotional', and 'painful'. Madonna herself said that the process has been 'as painful as giving birth'. The aim of this note is to comment on the decision of the High Court of Malawi handed down on 28 May 2008 in the matter of the Adoption of Children Act (CAP. 26 : 01) and in the matter of David Banda (a male infant). The conclusion underscores what the macro level contribution of the Madonna Judgment has been, and reasons that, even though it might have been as painful as giving birth, it has indeed been worthwhile.
Media freedom, which is an aspect of the right to freedom of expression, is now generally recognised as an indispensable element of democracy. The mass media promotes the free flow of information, which enables citizens to participate in a meaningful and informed manner in the democratic process, also serves as a watchdog by scrutinising and criticising public officials over the way they manage public affairs. States in the SADC region have embraced democratic governance and have adopted liberal constitutions that, among others, guarantees both freedom of expression and media freedom. However, many of these states still have anachronistic laws on their statute books that unduly insulate public functionaries from criticism over how they conduct public affairs. One form which this protection takes is insult laws, whose rationale is said to be the protection of the honour and dignity of public functionaries. This article examines the impact of insult laws on media freedom in SADC's emerging democracies, and in particular, highlights the incompatibility of such laws with the ideals of a democratic society.
This contribution deals with the question whether, in view of the phenomenon of the failed state and the apparent shift from effectiveness towards legality in public international law, effective government as one of the requirements of statehood, should be replaced by the concept of good governance.
This note is a lego-anthropological commentary on the Constitutional Court case Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC). The authors assess the judgment in the light of the essential principles and practices governing succession to traditional leadership. While they are in general agreement that women should not be excluded entirely from the office of traditional leadership, they submit that women's inclusion should be achieved by an evolutionary process rather than by rigid judicial or legislative decree. Succession by women can in fact take place within the ambit of current customary usage and law.
The tension between the right of a people to self-determination and the right of a state to its territorial integrity has claimed many lives in Africa. The raison d'être of international law is the regulation of affairs pertinent to its main subjects : states. A difficulty arises when one asserts rights of individuals or peoples within a legal system that is designed for the needs of states. Generally, the international community has not had difficulty with the exercise of the right to self-determination ; the problem has always been when its application resulted in secession. In post-colonial Africa, struggles have been waged under the banner of self-determination and these have been thwarted with reference to the right of a state to its territorial integrity. This paper seeks to address this tension as Africa is replete with examples of the suppression of 'a peoples'' right to selfdetermination in favour of the territorial integrity of a state.