Law, Democracy & Development - Volume 19, Issue 1, 2015
Volumes & issues
Volume 19, Issue 1, 2015
Author Jamil Ddamulira MujuziSource: Law, Democracy & Development 19 (2015)More Less
This volume contains contributions from seasoned and young academics dealing with the following issues: socio-economic rights at local government level in South Africa; Kenya's implementation of the Smuggling Protocol in response to the irregular movement of migrants from Ethiopia and Somalia; the question of whether insufficient access to substance abuse treatment centres for illicit drug users is a breach of the right to access healthcare services in South Africa; institutionalising a military judicial office and improving security of tenure of military judges in South Africa; an analysis of selected challenges in the enforcement of the prohibition of insider trading and market manipulation in the European Union and South African regulatory frameworks; the unresolved ethnic question in Uganda's district councils; revisiting legal harmonisation under the Southern African Development Community Treaty; The Zimbabwe Human Rights Commission: prospects and challenges for the protection of human rights; the Investor-State Dispute Resolution Forum under the SADC Protocol on Finance and Investment: challenges and opportunities for effective harmonisation; using courts of law to tackle poverty and social exclusion: the case of post-2010 Kenya; an investigation into the causes of violent strikes in South Africa: some lessons from foreign law and possible solutions; and refugees and asylum seekers: Barriers to accessing South Africa's Labour Market.
In the face of judicial deference : taking the "minimum core" of socio-economic rights to the local government sphereSource: Law, Democracy & Development 19, pp 1 –28 (2015) http://dx.doi.org/10.4314/ldd.v19i1.1More Less
The Constitution of the Republic of South Africa, 1996 (the Constitution) is transformative as it is committed to correcting the injustices of the country's past and to establishing a society based on democratic values, social justice and human rights. The Bill of Rights in the Constitution guarantees a variety of human rights as one of the mechanisms for realising the transformative objectives of the Constitution. These guarantees include traditional civil liberties as well as justiciable socio-economic rights. The latter seek to secure a basic quality of life for all members of society and afford entitlements to the material conditions required for human welfare. They include the rights of access to housing, healthcare services (including reproductive health care), sufficient food and water, social security and social assistance, further education, land on an equitable basis, and an environment that is not harmful to health and wellbeing.
Kenya's implementation of the Smuggling Protocol in response to the irregular movement of migrants from Ethiopia and SomaliaSource: Law, Democracy & Development 19, pp 29 –64 (2015) http://dx.doi.org/10.4314/ldd.v19i1.2More Less
The Horn of Africa continues to be engulfed in a crisis. Political transitions have taken place in the East and the Horn of Africa sub-region in the recent past. Human rights violations continue to occur in Somalia, Eritrea, South Sudan and Sudan. The above-mentioned regions are fraught with tension and are home to recurring cycles of conflict, primarily due to conflicting geopolitical and economic interests, as well as environmental factors that have led to frequent droughts and prolonged spells of famine.
Insufficient access to substance abuse treatment centres for illicit drug users and its potential effect on a foetus : a breach of the right to access health care servicesAuthor Salona LutchmanSource: Law, Democracy & Development 19, pp 65 –78 (2015) http://dx.doi.org/10.4314/ldd.v19i1.3More Less
This article will examine whether the State is in breach of section 27 of the Constitution, specifically the right to access health care services, in that it has failed to provide sufficient free of cost substance abuse treatment centres and facilities in South Africa for abusers of illicit drugs. It will be argued that as a result of this breach, the State has inadvertently aggravated another social ill, illicit drug abuse during pregnancy and consequent harm to the foetus. The article is divided into four parts. First, the legal problem will be examined in detail in order to understand the extent and severity of illicit drug use in South Africa as well as one important and under-researched consequence, the antenatal use of illicit drugs and consequent harm to the foetus. Secondly, legislative as well as other methods employed by the state to curb this issue are critically examined. The third part of the article advocates a legal framework to determine whether the State is in breach of its constitutional obligations in terms of section 27 of the Constitution. The international law counterpart to section 27, Article 12 of the International Covenant on Economic Social and Cultural Rights (1966) (ICESCR), is examined in order to unpack the contents of the State's obligation. It is argued that the state has failed to provide sufficient free of cost substance abuse treatment centres and facilities and this is in breach of its constitutional obligations to respect, protect, promote and fulfil the right to access healthcare. As a result of this breach, the State may be found liable for not exercising due diligence in preventing, punishing and investigating the harm suffered by the foetus due to its mother's use of illicit drugs during pregnancy. Finally, the article concludes with recommendations as to how the State can improve the plight of illicit drug users, with a focus on pregnant users.
Institutionalising a military judicial office and improving security of tenure of military judges in South AfricaAuthor Aifheli Enos TshivhaseSource: Law, Democracy & Development 19, pp 79 –93 (2015) http://dx.doi.org/10.4314/ldd.v19i1.4More Less
Challenges of judicial independence facing South African military judges are relatively well known. This article makes concrete suggestions on ways in which certain aspects of the judicial independence of South African military courts could be improved. It particularly argues for the institutionalisation of a military judicial office and for a stronger degree of tenure for South African military judges as part of crafting a suitable model for judicial independence of these courts. The contribution draws inspiration from the idea that there is no single correct formula for achieving the basic requirements of judicial independence. There is therefore a lot of scope to develop different ideas geared to meeting the requirements of judicial independence by military courts. The article is divided into two parts. Part one attempts to make a case for the institutionalisation of a military judicial office while part two makes a proposal for the improvement of security of tenure of military judges taking into account some global trends in this field. Some of the thoughts discussed may find resonance in military justice systems in many parts of the world.
An overview analysis of selected challenges in the enforcement of the prohibition of insider trading and market manipulation in the European Union and South African regulatory frameworksAuthor Howard ChitimiraSource: Law, Democracy & Development 19, pp 94 –106 (2015) http://dx.doi.org/10.4314/ldd.v19i1.5More Less
It is submitted that cross-border trading in securities has caused a great number of challenges for various national regulators, especially with regard to the enforcement of market abuse laws. For instance, cross-border trading in securities has exacerbated the commission of other related illicit trading practices, such as, high frequency trading, credit default swaps, short selling and front running, particularly during the 2008-2009 global financial crises. Moreover, cross-border trading in securities has, to some extent, given rise to the inconsistent application and enforcement of the market abuse prohibition in South Africa and other European Union (EU) Member States. Accordingly, the need for strong co-operation and co-ordination between such regulators is still crucial and inevitable for the purposes of combatting market abuse in the EU6 and other jurisdictions, such as, South Africa. It is against this background that some selected national regulators and/or role players in the enforcement of the market abuse prohibition in South Africa, such as, the Financial Services Board (FSB), the Directorate of Market Abuse (DMA) and the Enforcement Committee as well as the EU's Committee, of the Wise Men, the Forum of European Securities Commissions (FESCO), the Committee of European Securities Commissions Regulators (CESR), the European Securities and Markets Authority (ESMA), the Lamfalussy Process and the EU's Action Plan for Financial Services, will be discussed. This is mainly done to isolate and expose the challenges and/or flaws in the enforcement of market abuse laws in both the EU and South Africa in order to recommend, where applicable, possible anti-market abuse measures that could be employed to enhance the curbing of market abuse activities in their respective jurisdictions. Thereafter, some concluding remarks will be provided.
Source: Law, Democracy & Development 19, pp 107 –126 (2015) http://dx.doi.org/10.4314/ldd.v19i1.6More Less
The Constitution of Uganda of 1995 (the Constitution) recognises 65 indigenous communities in Uganda. It aspires to integrate all the people of Uganda by directing that "[e]verything shall be done to promote a culture of cooperation, understanding, appreciation, tolerance and respect for each other's customs, traditions and beliefs". The Constitution posits five fundamental rights that are particularly relevant to our discussion. These are: equality and freedom from discrimination; respect for human dignity and protection from inhuman treatment; the protection of freedom of conscience and religion; the protection of minorities; and the right to culture and similar rights.
Decentralisation to local government is often associated with two important drivers, namely, deepening democracy and pursuing development. In Uganda, a decentralisation agenda was pursued in order to achieve sustainable levels of development, improve the country's democratic governance, sustain political stability, and promote diversity. This article focuses on Uganda's quest to use decentralisation to promote the accommodation of diversity. It is a critical goal as the neglect or even suppression of diversity, be it ethnic, cultural or religious, can be linked to poverty, political despondency, alienation, and civil strife. It may even result in ethnic groups directly challenging the legitimacy of the state.
This article examines the legal and constitutional framework for the election of district councils in Uganda because the design and practice of elections in Uganda has an impact on Uganda's ability to follow through on the promise of respecting and encouraging diversity through decentralisation. The article concludes that the law and practice surrounding the election of district councils reveal the political exclusion of ethnic minorities. It is argued that this is contrary to the stated policy objectives of decentralisation in Uganda and only serves to further promote the political dominance of the ruling party.
Revisiting legal harmonisation under the Southern African Development Community Treaty : the need to amend the TreatyAuthor Tapiwa ShumbaSource: Law, Democracy & Development 19, pp 127 –147 (2015) http://dx.doi.org/10.4314/ldd.v19i1.7More Less
International trade is important for economic development across the world including in Africa. Even the General Assembly of the United Nations has recognised that international trade is "the primary instrument for economic development." This is true for Africa which continues to struggle to shake off the bonds of poverty. In an effort to maximise participation in international trade, African countries have entered into various bilateral and multilateral trading agreements and arrangements with each other and with the rest of the world. This has culminated in various regional free trade areas and customs unions arrangements. These initiatives aim to promote the movement of goods, services, capital and people within the continent. However, to promote international trade, it is not adequate for them to merely focus on export promotion initiatives; "there is also a need to tackle impediments to trade, which includes the problem of diversity of laws." The continent's colonial legacy which introduced arbitrary borders and foreign legal traditions has made the issue of harmonisation of laws even more imperative. The emergence of various legal harmonisation initiatives at regional level is testimony to the need for legal harmonisation within the African context. However, despite apparent legal diversity in SADC, there is not much tangible progress towards the harmonisation of laws. This raises the question whether this is due to lack of political will or whether there is scope for such harmonisation under the SADC Treaty. This article analyses the Southern African Development Community (SADC) objectives focussing particularly on whether legal harmonisation is achievable under the current SADC Treaty framework. It considers the question whether the current SADC Treaty creates an adequate framework for effective legal harmonisation using regionally adopted community laws. It proposes the amendment of the SADC Treaty to make legal harmonisation one of SADC's objectives in line with similar initiatives on the African continent.
Author L. ChiduzaSource: Law, Democracy & Development 19, pp 148 –174 (2015) http://dx.doi.org/10.4314/ldd.v19i1.8More Less
Many international human rights instruments require States to introduce domestic measures in their territories to ensure the protection and promotion of human rights. This may be mainly attributed to the fact that States are generally held accountable or regarded as being responsible when international human rights obligations are not observed or given effect to. To achieve effective domestic protection of human rights it is important that the introduction of pro-human rights laws is accompanied by a network of complementary norms and mechanisms to co-ordinate or supervise the implementation of such laws. In order to ensure the domestic protection of human rights, the Constitution of Zimbabwe establishes the Zimbabwe Human Rights Commission (ZHRC). In accordance with the Principles Relating to the Status of National Institutions (The Paris Principles), the Constitution mandates the ZHRC with a primary role of promoting and protecting human rights at all levels of society. The aim of this article is to look at the prospects of and challenges to the ZHRC in its quest to promote and protect human rights.
The Investor-State Dispute Resolution Forum under the SADC Protocol on Finance and Investment : challenges and opportunities for effective harmonisationAuthor Lawrence NgobeniSource: Law, Democracy & Development 19, pp 175 –192 (2015) http://dx.doi.org/10.4314/ldd.v19i1.9More Less
Regional integration measures are largely seen as a vehicle for development. The African regional integration project has been in existence for decades, with the African Union (AU) seen as the primary driver of continental integration. Together with seven other sub-regional institutions, the Southern African Development Community (SADC) is regarded as a "building block" of regional integration in Africa. The expectation is that these eight regional economic communities (RECs) will eventually harmonise all their structures and policies under the banner of the AU, and then achieve continental integration in Africa.
Author J. Oloka-OnyangoSource: Law, Democracy & Development 19, pp 193 –210 (2015) http://dx.doi.org/10.4314/ldd.v19i1.10More Less
Intellectual and political skepticism about the place of the courts in effecting social transformation is not uncommon. In The Hollow Hope, American scholar Gerald Rosenberg strongly criticised the famous US Supreme Court decision in Brown v Board of Education and asserted that it was nearly impossible to generate significant social reforms through litigation, primarily because courts are relatively ineffective and weak. He also argued that courts pale into significance in comparison with other social and political forces, such as, a reforming parliament, a foresighted Executive or a determined civil society. Just as Hitler asked the Pope: "where are your battalions?" courts lack the financial muscle or the political authority to effect change on their own, thereby attracting a similar kind of cynicism and doubt.
An investigation into the causes of violent strikes in South Africa : some lessons from foreign law and possible solutionsAuthor Mlungisi TenzaSource: Law, Democracy & Development 19, pp 211 –231 (2015) http://dx.doi.org/10.4314/ldd.v19i1.11More Less
Workers have, over the past few years, attempted to heighten the impact of their strikes by using various tactics during industrial action, tactics which have a negative impact on the lives and property of other people. These include the trashing of cities, vandalising property, forming picket lines at supermarkets, and preventing shoppers from doing business with their chosen businesses. There have been strike-related disruptions in almost every sector of the economy with no one held responsible for the damage. The bargaining system in South Africa seems to be playing a contributory role in the eruption and escalation of these disruptions. There are certain factors that support this view. These include the lack of a ballot requirement in our bargaining system; the use of replacement labour during strike action; and the failure of the system to regulate protracted strike action accompanied by violence and harm to the economy.
Author Callixte KavuroSource: Law, Democracy & Development 19, pp 232 –260 (2015) http://dx.doi.org/10.4314/ldd.v19i1.12More Less
The employment of those who are seeking or granted asylum in South Africa is very challenging. The challenges range from ill-sentiment towards non-citizens to legal and procedural barriers, such as, measures that are taken by different role players to protect citizens with regards to accessing the labour market. Worth mentioning is the inability of some employers and professional councils to distinguish between the Refugees Act and the Immigration Act. These dynamics have restricted refugees' and asylum seekers' employment opportunities. In this situation, the skills that the refugees and asylum seekers bring with them are not potentially contributing to the South African economy. These refugee skills or human capital which Jacobsen refers to as "refugee resources" or "refugee economic assets", have not been accessed and controlled by South Africa to its own benefit, as will be illustrated in this article.
Socioeconomic Rights in South Africa: Symbols or Substance?, Malcom Langford, Ben Cousins, Jackie Dugard and Tshepo Madingozi (Eds.) : book reviewAuthor Ebenezer DurojayeSource: Law, Democracy & Development 19, pp 261 –270 (2015)More Less
The publication of this book comes two decades after South Africa became a democratic state. It could not have come at a better time as it provides the authors with a good opportunity to assess the benefits or otherwise of the inclusion of socioeconomic rights in the Constitution. The chapters of this book are written by academics, experts and civil society organizations. In the introductory chapter of the book Malcom Langford observes that South Africa presents an interesting paradox with regard to the realisation of socioeconomic rights. While on one hand, the country has explicitly guaranteed socioeconomic rights in the Constitution, enacted pieces of legislation to give bite to these rights, and courts have developed a rich jurisprudence to clarify the content of these rights, on the other hand, these developments have not in any way transformed into better living conditions for the people. Indeed, Langford laments that "the failure of South Africa to match the narrative with social transformation in practice has generated a counter-narrative" (page 1). He explains that the main purpose of the book is to "assess one part of the puzzling of the contrasting on South Africa: what has been the role and impact of socioeconomic rights strategies by civil society actors?" (page 1) He observes that one of the critiques of the South African experience is that the landmark cases on socioeconomic rights have not been properly implemented or that the "rights-culture" has impacted negatively on the alternative route for social change. Focusing on the period 2000-2010, the book seeks to unravel how a diverse group of actors, particularly from marginalised and disadvantaged communities and social groups has used the linguistic and strategic resource of socioeconomic rights? Equally the book seeks to assess the direct and indirect impact of rights-based strategies on realising socioeconomic rights in the country.