Browsing by Author "Dube, Angelo"

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    On amorphous terms, terrorism and a feeble judiciary: Analysing the dissenting judgment in Maseko v Prime Minister of Swaziland and Others (2016)
    (UNISA Press, 2017) Dube, Angelo; Nhlabatsi, Sibusiso
    On 16 September 2016, the Swaziland High Court delivered judgment in the matter between Maseko and others v Prime Minister of Swaziland and others [2016] SZHC 180, in which it declared certain provisions of the Suppression of terrorism Act (2008); and the Sedition and Subversive Activities Act (1938) as unconstitutional. The Declaration followed a constitutional challenge, based on the applicants’ freedom of expression, assembly and association. The judgment was unprecedented in the Swaziland context, given that of the four applicants, three were political activists and one was a Human Rights lawyer. All four have been in frequent collision with the government over their political opinions. Two judges ruled in favour of the applicants, whilst the third one ruled against them. The judgment was a sharp departure from past decisions, where the courts often ruled in favour of the state, leaving many litigants without a remedy. The ruling marked the first time a Swazi court had declared the Swaziland Constitution a living document. However commendable the main judgment, the dissenting opinion raises several constitutional questions that need to be addressed. This article therefore, critically analyses the dissenting opinion of Justice Hlophe, and seeks to demonstrate that his approach is antithetical to constitutionalism, and is irreconcilable with accepted notions of Bill of Rights litigation.
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    On the suitability of group lending model in South Sudan’s Small and medium enterprises sector
    (The African Finance & Economics Consult, 2016) Dube, Andile; Dube, Angelo
    Post-conflict societies, such as South Sudan are characterised by weak regulatory frameworks and lack of political will to implement much needed reforms. This often impacts directly on the economy. The legal, social and financial environment is also weakened in the process, leading to the demise of key economic drivers. The small and medium enterprise (SME) sector is critical for the growth of nascent economies such as South Sudan’s. The effectiveness of SMEs as key economic drivers is amongst other things dependent on their access to credit. With only a few SME-specific credit facilities in South Sudan at the moment, it is important that these institutions adopt funding models that will suit the poor, most of whom do not have collateral and credit history. Group lending appears as a suitable model for the poor. The success of this mode of SME funding in selected jurisdictions, namely Angola, Bangladesh, Bolivia, Burundi, and Colombia underscores such a position. The socio-economic, legal and political environment of the three jurisdictions studied in this paper where group lending has been successful closely mirror that of South Sudan. The dynamics of group lending will, therefore, likely suit the needs of South Sudan. Hence it is suggested as one solution to uplifting the small business sector of Africa’s newest country, although attention must also be given to other critical development factors such as a sound regulatory regime, an effective taxation system and access to credit.
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    Prosecuting the three core crimes: Complementarity in light of Africa’s new international criminal Court.
    (University of Western Cape., 2019) Nkosi, Mfundo; Dube, Angelo
    The principle of complementarity forms the basis upon which the International Criminal Court (ICC) exercises its jurisdiction. This principle of international law first appears in the Preamble to the Rome Statute and then the admissibility provisions under Article 17 of the Rome Statute, which outline that the Court will declare a case inadmissible where it is being investigated or prosecuted by a state which has jurisdiction over it; unless the state is unwilling or unable to genuinely carry out the investigation or prosecution. Alternatively where the case has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the state to genuinely prosecute. This principle implies that the ICC is a court of last resort and will therefore not intervene in a case where the state of commission is either able or willing genuinely to investigate and prosecute perpetrators of grave crimes. It is common cause that Africa has been the staging area of mass atrocities for decades. The indictment of Kenyan president Uhuru Kenyatta’s’ and his deputy William Ruto, Hissene Habre case, and the indictment and issuance of an arrest warrant against the Sudanese President Omar El-Bashir are instructive in this regard. The ICC’S actions created the perception of bias, injustice and inequity. This prompted a sharp reaction from African states, which threated a mass withdrawal from the Rome Statute in 2013. The one positive spin off from the AU reaction was the expansion of the jurisdiction of the merged court to include a criminal chamber in 2014, thus creating Africa’s first international criminal court, the African Criminal Court (ACC). This development was the result of the discontent and frustration of the African continent towards the work of the ICC, which was perceived as focusing only on African cases, whilst ignoring the litany of cases coming from other regions of the world.