Law, Democracy & Development - Volume 10, Issue 2, 2006
Volumes & issues
Volume 10, Issue 2, 2006
Author Peter FitzpatrickSource: Law, Democracy & Development 10, pp 1 –20 (2006)More Less
Warily, but I hope not too wearily, I want to return to some old ground in constitutional law and question certain distinctions which go to constitute it. These are distinctions between the international and the national, public law and private law (a distinction which seems to retain a stronghold on the ordering of legal knowledge in South Africa), the distinction between written and unwritten constitutions, and the whole divide between what typically goes in a constitution and what typically does not. My purpose in departing from such distinctions is not simply to better order or disorder our legal knowledge but, rather, to show how these distinctions increasingly obstruct an adequate perception and an adequate response to that which goes to the making, to the constituting of constitutions, and thence to the terms of our being together, This is a growing inadequacy which is not only legal in the narrow sense but political and ontological as well. Broadly, if a constitution, both legally and mythically, is to relate somehow to what a people is and to what it is becoming, then the constitutional frame, as it is usually understood, is coming to be more and more limited. This is a rash, not to say rude, thesis to advance in a country which so recently produced what many would aptly see as the most progressive constitution of the twentieth century, but a consolation may be that this is a constitution better poised than most to respond to the imperatives I will be outlining.
Author Danwood Mzikenge ChirwaSource: Law, Democracy & Development 10, pp 21 –48 (2006)More Less
Traditionally, constitutional rights apply in the public sphere but not in the private sphere. In other words, private actors were not bound by human rights. Although often associated with the natural rights theory, the distinction between the public and the private in the application of human rights "antedates modern liberalism by more than two millennia."
Source: Law, Democracy & Development 10, pp 49 –69 (2006)More Less
At times, achieving reconciliation between groups may necessitate that the warring parties or factions be separated and set apart from each other. While this is an interesting way of achieving peace and stability and possibly even reconciliation, it is somewhat out of step with the conventional understanding that polarised and divided groups need to be brought together to learn about each other, to establish dialogue and to see the reality of each other's circumstances.
'Come back when you are 65, Sir' : discrimination in respect of access to social assistance for the elderlyAuthor Rosaan KrugerSource: Law, Democracy & Development 10, pp 70 –81 (2006)More Less
Messrs Roberts, Whitebooi, Casling and Visagie are four elderly gentlemen who live in poverty in Gelvandale, Port Elizabeth. At the end of 2005 they wished to apply for social assistance from the State. At the time of their applications, the men were over the age of 60, but none of them had attained the age of 65. Had they been female, they would have qualified for social assistance in the form of old age pensions at the age of 60. 'These pensions would not have made them rich, but would have enabled them to sustain themselves.'
Author Anthea Van der BurgSource: Law, Democracy & Development 10, pp 82 –100 (2006)More Less
The United Nations High Commissioner for Refugees estimates that at the beginning of the 21st century some 10 million of the world's 23.3 million refugees were children. The United Nations High Commissioner for Refugees 2005 Global Appeal reports 4.2 million adults and children of concern in Africa alone. The main countries from which these migrants originate include Sudan, Angola, Burundi and the Democratic Republic of Congo. Some of the key factors which influence the migration of children include trafficking and smuggling, war and poverty, as well as lack of access to socio-economic rights in the countries of origin.
Like a candle in the wind : commentary on communications decided by the African Commission of Human and People's Rights in 2003Source: Law, Democracy & Development 10, pp 101 –121 (2006)More Less
The Africa regional overview 2003 prepared by Amnesty International presented a gloomy picture of the human rights situation in the region; widespread armed conflict, repression of civil and political rights, violence against women, failure to deliver justice to the most vulnerable in society. However, there have been positive developments, such as the indictment of the then Liberian President Charles Taylor by the Special Court for Sierra Leone, which defy the culture of impunity in Africa. Despite continuing human rights violations and human suffering, a culture of human rights is slowly developing in Africa. The gradual development of a human rights jurisprudence by the African Commission of Human and People's Rights (the Commission) is a good example. The Commission is mandated, under article 45, to ensure the protection and promotion of human and peoples' rights in accordance with the present Charter.