Law, Democracy & Development - Volume 17, Issue 1, 2013
Volumes & issues
Volume 17, Issue 1, 2013
Source: Law, Democracy & Development 17, pp 1 –23 (2013) http://dx.doi.org/10.4314/ldd.v17i1.1More Less
The pornography of 19th century Victorian society, Steven Marcus observes in The Other Victorians, gave expression to a fantasy that exactly mirrored the public ideal image of chastity in reverse reflection. As exemplary of Victorian morality, Marcus refers to an 1857 treatise on human sexuality, The Functions and Disorders of the Reproductive Organs, by the physician William Acton. Unlike Freud, Acton maintained that healthy children hardly manifest any sexual feelings. For youngsters who give in to titillations an ill fate awaits: "His intellect has become sluggish and enfeebled, and if his evil habits are persisted in, he may end in becoming a drivelling idiot or a peevish valetudinarian."
States' obligations in relation to access to medicines : revisiting Kenyan High Court decision in P.A.O and Others v Attorney-General and AnotherSource: Law, Democracy & Development 17, pp 24 –48 (2013) http://dx.doi.org/10.4314/ldd.v17i1.2More Less
Recently a Kenyan High court in P.A.O and others v Attorney General and another (hereinafter P.A.O) handed down a judgment in relation to sections 2, 32, and 34 of the Anti-Counterfeit Act vis-à-vis Kenya's obligations under international human rights law and the Constitution. For many Africans, access to medicines has remained a great challenge not least because of high prices mainly due to patent on these medicines. Although recent developments across Africa had shown that modest progress has been made in realizing access to medicines for people living with HIV, a great percentage of those in need of these medicines are not receiving them. One of the major obstacles to access to medicines in Africa is patent rights enjoyed by pharmaceutical companies on essential medicines such as anti-retroviral drugs.
Phishing in the world wide web ocean : Roestof v Cliffe Dekker Hofmeyr Inc - a case of cyber laundering through an attorney's trust accountAuthor Abraham HammanSource: Law, Democracy & Development 17, pp 49 –63 (2013) http://dx.doi.org/10.4314/ldd.v17i1.3More Less
Money launderers are always exploring new channels to clean their ill-gotten gains. The attorney's trust account is especially attractive to persons, or organisations, that seek to launder money. As a result, the Financial Action Task Force (FATF) has included lawyers amongst other professionals who are regarded as targets in complex money laundering schemes. In Roestof v Cliffe Dekker (Roestof) a trust account of an attorney was transformed into an instrument of crime and manipulated in pursuit of a criminal purpose. This crime was in the process hidden behind the veil of credibility which attaches to the trust account. Attorneys' firms have vast amounts of money in their trust accounts. They must be heedful, on the one hand, of not becoming victims of money launderers as a result of phishing schemes and, on the other hand, they must be alert to the fact that their accounts may be used as one-stop laundromats to clean the money. In this article the behaviour of two attorneys will be discussed: the one attorney, Roestof, whose money was fraudulently transferred out of his Absa Bank private account, and Adriaans, the other, a director at the time of Cliffe Dekker, who caused the money to be transferred to the cyber launderer. The article then further examines the court's failure to discuss the conduct of the attorneys in relation to suspicious and unusual transactions and includes recommendations as to how attorneys can put safeguards in place to avoid becoming victims.
In Roestof, an amount of R350 000 was fraudulently transferred out of the plaintiff's personal account, and R200 000 thereof was cleaned via the trust account of the defendant firm. One of the directors of the firm was led to believe that the firm was receiving payment of a debt due to one of its clients. It was the client who used the attorney firm's trust account as a conduit to decontaminate the criminal proceeds of the phishing scam and caused the onward transmission of the money to another party. Attorneys need to be much more watchful to avoid becoming victims of phishing schemes and be much more alert to the fact that there are criminals who may masquerade as clients, who will utilise their accounts as devices to clean their ill-gotten gains.
"One moment of extreme irresponsibility" : notes and comments on Humphreys v S and the volitional component of dolus eventualis in the context of dangerous or irresponsible drivingAuthor H.J. Van der MerweSource: Law, Democracy & Development 17, pp 64 –77 (2013) http://dx.doi.org/10.4314/ldd.v17i1.4More Less
Charging irresponsible and reckless motorists with intent based crimes is a relatively recent initiative on the part of the National Prosecuting Authority (NPA). Traditionally, the NPA's approach to motor vehicle accidents caused by dangerous or irresponsible driving resulting in death has been to charge the person responsible with culpable homicide. However, in March 2010 the NPA decided to proactively pursue a more "aggressive" prosecutorial strategy by bringing charges of murder and attempted murder against Molemo "Jub Jub" Maarohanye and his co-accused for having collided with a group of schoolchildren while "drag racing". Ostensibly the NPA's rationale for a more aggressive approach to such cases is to increase the preventative and deterrent effects of punishment among South African road users, especially dangerous drivers and those motorists prone to risk taking. The underlying intention of this strategy is to counteract the high number of fatalities on South African public roads that occur as a result of dangerous or reckless driving. However, the ruling of the Supreme Court of Appeal (SCA) in Humphreys v The State illustrates that this enterprise, however desirable or well received it may be amongst the public, may not always be justifiable in terms of the established principles of substantive criminal law.
Derogation from constitutional rights and its implication under the African Charter on Human and Peoples' RightsAuthor Abdi Jibril AliSource: Law, Democracy & Development 17, pp 78 –110 (2013) http://dx.doi.org/10.4314/ldd.v17i1.5More Less
The African Charter on Human and Peoples' Rights (African Charter or Charter) does not contain a clause permitting suspension of human rights during public emergency, while major human rights instruments allow state parties to suspend some rights. The African Commission on Human and Peoplesâ?? Rights (African Commission or Commission) has repeatedly held that a declaration of a state of emergency cannot be invoked as a justification for violations or permitting violations of the African Charter. The silence of the African Charter and the position of the African Commission have not been welcomed by some scholars.
The African Charter enjoys universal ratification as all member states of the African Union are parties thereto. Upon ratification, state parties have undertaken to adopt legislative and other measures to give effect to the rights recognised therein. However, an examination of their constitutions reveals that state parties have not taken sufficient legislative measures to ensure compatibility of their laws with the African Charter. As a result, many African constitutions contain derogation clauses.
This article argues that the omission of a derogation clause from the African Charter was not a mistake. And it is not a defect in the Charter. Rather, it shows positive development of human rights norms in Africa and should not be seen as a defect. The arguments calling for incorporation of a derogation clause fail to consider factors that may justify its absence. The incorporation of a derogation clause in the African constitutions and consequently derogating from constitutional rights are violations of the African Charter and other international human rights treaties including the International Covenant on Civil and Political Rights (ICCPR).
The article is organised in seven sections. The first section introduces the issues to be explored. The second section discusses the meaning of important terms such as "derogation" and "public emergency," and the purpose served by derogating from human rights. The third section presents arguments against the absence of derogation clauses together with the factors that may justify their absence. The fourth section makes a brief survey of the African constitutions to examine their compatibility with the African Charter. The fifth and sixth sections discuss the implication of derogating from the constitutional rights under the African Charter and other human rights instruments respectively. The last section makes some concluding remarks.
Uganda's civil courts and the administration of military justice : an appraisal of their jurisprudence on selected issuesAuthor Ronald NaluwairoSource: Law, Democracy & Development 17, pp 111 –131 (2013) http://dx.doi.org/10.4314/ldd.v17i1.6More Less
The last two decades stand out as the most important period in Uganda's history as far as civil courts' engagement with issues of military justice is concerned. In this period, Uganda's civil courts have handled many cases concerning the administration of military justice more than in any other epoch. Key among these cases include: Attorney General v Major General David Tinyefuza, Brigadier Henry Tumukunde v The Attorney General & Electoral Commission, Joseph Tumushabe v Attorney General, Attorney General v. Joseph Tumushabe, Uganda Law Society and Jackson Karugaba v Attorney General, Uganda Law Society v The Attorney General, Attorney General v Uganda Law Society, Dr Kizza Besigye & Others v Attorney General, Uganda Law Society v Attorney General, and Major General James Kazini v Attorney General. A key observation about many of these cases is that they involve senior army officers/former senior army officers challenging their prosecution by the military justice system as essentially persecution by Government for their critical views. This is for instance true of the Tinyefuza case, the Tumukunde case, the Kazini case and the cases involving Rtd Col Dr. Kiiza Besigye.
Who is watching the watchers? : a critical assessment of the Independent Police Investigative Directorate's prospects of investigating misconduct in the South African Police ServiceSource: Law, Democracy & Development 17, pp 132 –156 (2013) http://dx.doi.org/10.4314/ldd.v17i1.7More Less
Recent events have again turned the public spotlight on the conduct of police officers in the execution of their duties. The public display of violence and brutality against a Mozambican taxi driver, Mido Marcia, by members of the South African Police Service (SAPS) in Daveyton, Gauteng in February 2013, exposed the brazen abuse of power by some elements within the SAPS. Against this background, it can be asked whether the institutions established in terms of legislation relating to oversight of the police are capable of investigating police misconduct. This article examines whether the recently-established Independent Police Investigative Directorate (IPID) has the potential to be an effective oversight mechanism to ensure accountability - in respect of the SAPS. It examines, in particular, the IPID's mandate to investigate corruption matters within the SAPS, and whether - in its current form and capacity - it is effectively fulfilling its mandate. It is concluded that while much progress has been made since the time of the largely ineffectual Independent Complaints Directorate (ICD), the predecessor of the IPID, there remain significant risks to the efficient, effective and independent execution of the IPID's mandate.
Special interest councillors in Zimbabwe : a review of law and practice in terms of the 2013 ConstitutionSource: Law, Democracy & Development 17, pp 157 –176 (2013) http://dx.doi.org/10.4314/ldd.v17i1.8More Less
The law and practice surrounding the election of local leadership has for long been an area under debate in Zimbabwe. While Zimbabwe has a long history of local government, there is considerable tension with regard to the role of the national Minister of Local Government Rural and Urban Development (hereafter referred to as the Minister) in local government matters. The appointment of "special interest" councillors by the Minister plays a particularly important role in this debate because of the tension that exists between the imposition of ministerial appointments and the concept of a democratically elected municipal council. This article examines the legal and policy frameworks surrounding this national instrument. It then discusses the content of a number of key regional instruments on local democracy as well as the content of the recently adopted Constitution of Zimbabwe. It then presents the results of a survey of 20 major urban councils across the country and examines the extent to which the law and practice of appointing special interest councillors respond to the demands of modern democratic local governance.
The relevance of a multidisciplinary interpretation of selected aspects related to women's sexual and reproductive health rights in AfricaAuthor Elvis FokalaSource: Law, Democracy & Development 17, pp 177 –201 (2013) http://dx.doi.org/10.4314/ldd.v17i1.9More Less
Generally, women's rights and interest are steadily being recognised and given the attention they deserve at the global, regional and national levels. Despite this recognition of women's rights at these levels, and in several human rights instruments, it should be noted that the protection and enforcement of women's sexual and reproductive health rights, particularly, has not been given sufficient attention in the priority list of some governments and the legislation they have enacted. Unfortunately, this legislative vacuum intensifies the traditional recognition and the value of women in some communities only for their childbearing ability. This, the absence of their childbearing ability automatically extinguishes such value and limits women's enjoyment of their sexual and reproductive health rights. This is the more so, because conventional African traditions, such as patriarchal customary practices do not empower women to make decisions especially on issues that relates to their own lives, families, the lives of their children, or communities. This is so because these practices are deep-rooted concepts of culture and tradition in many sub-Saharan African societies designed by men.
The social model of disability, rights discourse and the impact of South Africa's Education White Paper 6 on access to the basic education system for persons with severe or profound intellectual impairmentsAuthor Meryl Du PlessisSource: Law, Democracy & Development 17, pp 202 –225 (2013) http://dx.doi.org/10.4314/ldd.v17i1.10More Less
Access to quality education and increased access to higher education are two critical factors that can contribute to breaking the inequality cycle in South Africa. This is so because these factors affect earnings and unemployment, which in turn are key drivers of income inequality. Education empowers people to claim and realise other rights, allows them to make informed decisions about the lives they wish to lead, and to contribute to their communities.
The data collected in the 2007 Community Survey conducted by Statistics South Africa suggested that while only 1.9% of children were reported as having a disability, children with disabilities accounted for 10% of all children who were not attending school. By 2009, it was estimated that as many as 467 005 children with disabilities of school-going age were not attending school, an increase of 207 005 from the 260 000 estimated in 2001. Furthermore, children with disabilities were indicated as having a much lower school attendance rate than other children. The National Department of Education estimated that by 2011 108 240 learners with disabilities or impairments were accommodated in 442 special schools that were serviced by 9 585 educators. The number of learners with disabilities in non-special schools is not known. While bearing in mind the challenges to compiling reliable statistics on people with disabilities, these figures are consistent with the corresponding figures in developing countries in that only 2% of disabled children in developing countries receive any schooling.
Author Oluwatoyin BadejogbinSource: Law, Democracy & Development 17, pp 226 –252 (2013) http://dx.doi.org/10.4314/ldd.v17i1.11More Less
In more ways than one, Boko Haram ramifies the national security threats that confront Nigeria. Since its resurgence in 2009, the sect has waged a war of terror on Nigeria, exploiting ethno-religious differences in the country to advance its brand of religion. The sect's capacity to threaten peace, security and political stability has been felt by some countries that share borders with Nigeria, and the human fatalities that have resulted from its violent activities are disturbingly high. A recent report by the Prosecutor of the International Criminal Court claimed the sect's egregious "large-scale attacks" provide a reasonable basis for believing that it has committed crimes against humanity. Such fatalities are not new in Nigeria. Indeed, Boko Haram merely perpetuates a long narrative of violent clashes over ethnic, regional and religious differences in Nigeria. In the early 1980s, a Muslim sect called the Yan Tatsine instigated a wave of violence that claimed several hundred lives in several states in Northern Nigeria. Like Boko Haram, Yan Tatsine was vehemently opposed to Western civilization. Both sects drew large followings that had one thing in common - an obsession with rigid creed.
Securing land rights in rural communities of Nigeria : policy approach to the problem of gender inequalityAuthor Jonathan Chukwuemeka MaduSource: Law, Democracy & Development 17, pp 253 –272 (2013) http://dx.doi.org/10.4314/ldd.v17i1.12More Less
"The pursuit of gender equality in inheritance rights still remains one of the most difficult challenges in rights-based approaches" due to "well entrenched patriarchal characteristics of socio-economic, cultural and religious practices in Africa." This is true of the situation in the rural communities of South-Eastern Nigeria (the Igbo ethnic group). Conflicts that arise out of any frustration of human needs cannot be suppressed or merely wished away, and, as Leroy has advised, "resource-based conflicts should be seen and analyzed within a policy and governance context".
Source: Law, Democracy & Development 17, pp 273 –297 (2013) http://dx.doi.org/10.4314/ldd.v17i1.13More Less
The title and thus broad framing of this article is "poverty as injustice". The implicit other side of the claim "poverty as injustice" is that justice would mean the absence of poverty. Our contention is that the understanding of poverty as a practical social problem in the first place rather than as a manifestation of injustice results in an approach to poverty that is focused solely on technical and managerial solutions to poverty. Such approaches to poverty are problematic because they lose sight of the political dimensions of poverty, that is, the fact that poverty is embedded in a particular ideology. A definition of "poverty" as inadequate access to basic living resources, such as, food, water, housing and health care, surfaces the political dimensions of poverty. What determines access to these basic resources is economic and political power. Any response to poverty must therefore engage power. At the heart of any response to poverty must be the search for, and the ideal of, justice.
The European Union as a model for regional integration in the Southern African Development Community : a selective institutional comparative analysisAuthor Amos SaurombeSource: Law, Democracy & Development 17, pp 457 –476 (2013) http://dx.doi.org/10.4314/ldd.v17i1.22More Less
The SADC has adopted the EU model of integration. Most SADC institutions mirror their EU equivalents. These institutions are treaty based; hence this comparative discussion is relevant in showing how institutions in both the SADC and the EU play influential roles in economic integration as mandated by their Treaties. These institutions have defined roles pertaining to law-making processes and in relation to the adjudication of the EU's activities. The rationale behind this discussion is mainly informed by the choice SADC has made in electing the EU linear model of integration. The choice of using the EU as a model was irresistible for SADC as "the EU is a living laboratory for the integration theory". It is for this reason that this article investigates the rationale behind the choice, its implications and, ultimately, whether such an ambitious agenda can produce the desired results.
The right to basic education, the South African constitution and the Juma Musjid case : an unqualified human right and a minimum core standardAuthor Chiedza SimboSource: Law, Democracy & Development 17, pp 477 –503 (2013) http://dx.doi.org/10.4314/ldd.v17i1.23More Less
The 2011 decision by the Constitutional Court (CC) in Governing Body of the Juma Musjid Primary School and others v Essay NO and others, which dealt with the right to basic education in the context of an application for the authorisation of the effective eviction of a public school conducted on private property, provides us with telling insight about the possible scope and content of the right to basic education guaranteed in section 29(1) of the South African Constitution (Constitution). More than 16 years after the enactment of the CC has not had an opportunity to provide clarity on the scope and content of the right to basic education. Although the CC did not (and was not required to) provide full clarity on this issue in the Juma Musjid case, Justice Nkabinde provided pointers to assist with understanding the scope and content of the right to basic education guaranteed in section 29(1) (a) of the Bill of Rights, affirming that the right - unlike some of the other socio-economic rights - is immediately realisable. The CC confirmed that because there is no internal limitation in section 29 (1) (a) requiring "access" to the right, that the right be "progressively realised" within "available resources" subject to "reasonable legislative measures", the right to a basic education in section 29 (1) (a) may be limited only in terms of a law of general application which is "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom". Indeed, while all socio-economic rights in the Constitution provide for negative and positive obligations, the right to education is unique in that it includes the right to basic education, which unlike the right to housing and the right to water has no internal qualifiers. That recognition of the fundamental difference between the obligations engendered by section 29 (1) (a) and the obligation engendered by other social and economic rights protected in the Constitution forms the basis of the analysis in this article. In this article the author advances the argument that basic education is not only an unqualified human right but that section 29 imposes an obligation on the state to provide a minimum core of that right to everyone. It must be conceded that the CC has indeed previously stated that the international law concept that social and economic rights place a minimum core obligation on the state cannot be uncritically imported into South African constitutional law and that, at best, it can be used to assist the CC to determine whether or not the state had acted reasonably. However, the contention in this paper is that the recognition by the court judgment in the Juma Musjid case of the unique formulation of section 29 (1) (a) when compared and contrasted with other socio-economic rights already interpreted by the CC, should consequently lead the CC to accept that the minimum core concept applies to the interpretation of section 29 and section 29 (1) (a) which is that the right to basic education should be regarded as the minimum core standard of the right to education in South Africa.