Research Articles - Dullah Omar Institute
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Item The 2010 Kenyan constitution and the hierarchical place of international law in the Kenyan domestic legal system: a comparative perspective(Pretoria University Law Press (PULP), 2013) Orago, Nicholas WasongaThe prominent use of international human rights law in a state’s domestic legal system depends on the hierarchical place occupied by international law in general, and international human rights law in particular, among the sources of law in that particular legal system. Two systems of receipt of international law in the domestic legal systems have been used by different states: monism, which looks to directly incorporate ratified international law treaties in a state’s domestic legal system; and dualism, which entails the transformation of international law into the domestic legal system through the domestication of ratified international law treaties by means of the enactment of parliamentary legislation. Kenya, as a Commonwealth country, has always primarily followed a dualist approach which requires that domesticating legislation be enacted by parliament for ratified international law treaties to have application in the domestic legal system. However, with the promulgation of the new Constitution in August 2010, international law has been given a more prominent role in the domestic legal system through the inclusion in the Constitution of a provision directly incorporating ratified treaty law into the Kenyan legal system as a legitimate source of law. This article is primarily focused on analysing the hierarchical place of international law, specifically international human rights treaty law, in the Kenyan domestic legal system in the context of the new constitutional dispensation. It recommends that in order for international human rights law to have a prominent place in the governance of the country, article 2(6) of the Constitution should be interpreted progressively so as to give international human rights law norms an infra-constitutional but a supra-legal status in the domestic legal system. In this way, international human rights law will act as a bulwark against recession to totalitarian rule, as well as safeguard the democratic and fundamental rights protection gains that were won in the struggle for constitutional change.Item Adding injury to insult: Intrusive laws on top of a weak system(Constitutional Court Review, 2016) Ntliziywana, PhindileLocal governments often encounter difficulties when state functions and powers are devolved to them. Capacity at local level often becomes the Achilles heel of devolution. This is the case in South Africa. The South African national government has undertaken a variety of capacity-building initiatives to address the capacity problems faced in the South African system of local government. A flurry of legal instruments containing capacity-building measures have been passed and more are in the offing. This paper is inspired by the argument raised by Steytler and De Visser about the national government’s attempt to legislate systemic problems faced by municipalities out of existence.Item Addressing female genital cutting/mutilation (FGC/M) in The Gambia(Routledge, 2021) Durojaye, Ebenezer; Nabaneh, SatangThe purpose of this chapter is to examine the viability of the use of criminal sanction to address FGC/M in general. It then examines the nexus between FCG/M and human rights and discusses the reasons often adduced to support use of criminal law to address FGC/M. Furthermore, it focuses on the amendment to the Women’s Act in The Gambia, which prohibits FGC/M. The paper evaluates the utility of the approach adopted by the Gambian government vis-a-vis its obligation under the Protocol to the African Charter on the Rights of Women (African Women’s Protocol). The paper concludes by noting that while the prohibition of FGC/M through sanction is important, such an approach will fail to achieve its desired aim of reducing the incidence of this practice unless other complementary measures are adopted by states.Item The African Commission on Human and People's Rights and the woman question(Springer, 2016) Durojaye, Ebenezer; Oluduro, O.This paper proposes that in developing jurisprudence on women's rights, the African Commission will need to ask the woman question particularly the African woman question. The woman question requires a judicial or quasi-judicial body to always put woman at the centre of any decision with a view to addressing the historically disadvantaged position of women in society. Asking the African woman question means examining how the peculiar experiences of African women have been ignored by laws rooted in patriarchy across the region. Although the Commission has handled few cases directly dealing with women's rights, the paper suggests that the Commission can draw inspiration from decisions of other regional and international human rights bodies such as the European Court on Human Rights and the Committee on Elimination of All Forms of Discrimination against Women (CEDAW Committee) on how to ask the woman question. The paper recommends that in line with feminist reasoning there is a need for the African Commission to develop a consistent gender-sensitive approach in dealing with cases that may have implications for women. In essence the African Commission must ask the African woman question when dealing with cases on the enjoyment of women's fundamental rights.Item ANC proposals on local government(Community Law Centre, University of the Western Cape, 2012) de Visser, Jaap; Chigwata, TinasheIn the run up to the ANC Policy Conference in Mangaung, the party's Legislature and Governance Working Group has produced a policy discussion document that pays considerable attention to provincial and local government.Item The approaches of the African Commission to the right to health under the African Charter(Faculty of Law, University of the Western Cape, 2013) Durojaye, EbenezerIn 2012 the African Commission on Human and Peoples' Rights celebrated its 25 years of existence. The Commission was established pursuant to the African Charter on Human and Peoples Rights, which came into force in 1986. Since its establishment the Commission has played significant roles in the advancement of human rights in the region. While it can be argued that the formative stage of the Commission was characterised by administrative inefficiency and lacklustre performance, the Commission would seem to have improved at the latter stage of its existence. Indeed, the Commission has handed down a number of important and landmark decisions relating to the socio-economic rights guaranteed in the Charter. The African Charter remains one of the few regional human rights instruments that guarantee both civil and political rights and socio-economic rights as enforceable rights. In addition, the African Charter remarkably contains provisions safeguarding people's rights, which is a rare feat when compared with other regional human rights instruments. The coming into force on 25 November 2005 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (African Women's Protocol) marks a momentous occasion in the annals of the promotion and protection of human rights in Africa. The African Women's Protocol contains a number of radical and progressive provisions relating to the rights of women, thereby providing an opportunity for the African Commission to redress human rights violations experienced by women.Item Are the rights of children paramount in prison legislation?(Juta Law, 2013) Muntingh, Lukas; Ballard, ClareThe principle, the rights of the child shall be of paramount importance in all decisions affecting the child, is established firmly in international law and, accordingly, reflected in the Constitution. Constitutional jurisprudence acknowledges the notion that children are physically and psychologically more vulnerable than adults and thus require treatment that is different from adults when they come into conflict with the law. It is this differentiation that lies at the heart of the Child Justice Act 75 of 2008, the legislation that sets out the criminal procedure specific to the needs of children, as well as the principle that children’s exposure to the criminal justice system should be limited wherever possible. The Correctional Services Act 111 of 1998 predates the Child Justice Act by approximately ten years – a period when legislators were perhaps less attuned to the needs of children in conflict with the law. When examined against the requirements of s 28(2) of the Constitution, there are, unfortunately, a number of shortcomings in the Correctional Services Act in relation to sentence administration and remand detention. These are discussed according to the following themes: (1) remand detention of children and how this is regulated by the Correctional Services Act and the Child Justice Act; (2) sentence administration with specific reference to the parole regime; (3) conditions of detention with reference to the privilege system and access to services.Item Are ward committees working? Insights from six case studies(Community Law Centre, University of the Western Cape, 2009) Smith, Terence; de Visser, JaapThe research presented in this book sets out to offer a deeper and more nuanced understanding of the functioning and value of ward committees. In-depth qualitative studies of six ward committees are described. They provide insights into how ward committees are functioning and the key reasons behind the dysfunctionality that appears to plague the majority of ward committees. They also provide lessons for the future to strengthen the role of ward committees. It is envisaged that this resource book will be useful for local government councillors and practitioners, ward committee members, policy makers and ordinary citizens interested in the structures of participatory local governance.Item Between rhetoric and reality: the relevance of substantive equality approach to addressing gender inequality in Mozambique(GAP, 2017) Durojaye, EbenezerThe purpose of this article is to examine the socio-cultural challenges that continue to limit women’s enjoyment of their fundamental rights and freedoms in Mozambique. In this regard, this article focuses on three areas of gender inequality – denial of inheritance rights, sexual violence and early/child marriage-in the country. In addition, the article, using a substantive equality approach, critically examines whether the steps and measures taken by the government of Mozambique to address gender inequality are consistent with its obligations under international human rights law. For the purpose of this analysis, the article focuses on Mozambique’s obligations under the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) and the Protocol to the African Charter on the Rights of Women (African Women’s Protocol). The article concludes by making suggestions on how Mozambique can better safeguard the rights of women and improve their status.Item Book Review: Improving local government(Commonwealth Journal of Local Governance, 2009) de Visser, JaapAcademic literature that engages in a comparison of local government systems, policies and practices and their impact on democracy and development is hard to come by. Yet, these comparisons are critical as they shed light on challenges, failures and best practices in local government across jurisdictions. They also reveal an often-surprising similarity in challenges and choices experienced by countries that engage in decentralisation and are therefore critical resources for policy entrepreneurs and policy makers. This book is thus a very welcome addition to this small pool of academic publications that pursue such comparisons.Item Bridging the gap between theory and practice: Reviewing the functions and powers of local government in South Africa(Commonwealth Journal of Local Governance, 2009) Christmas, Annette; de Visser, JaapThe purpose of this practice note to evaluate the current allocation of functions and powers in the Constitution, and furthermore to propose a set of criteria to guide decisions on where powers and functions are best situated. For local government in particular, the review process provides an opportunity to reflect on the experience of the new local government dispensation just eight years after it was first established. Importantly, this evaluation probes the extent to which the functions and powers delineated for local government have enabled it to meet its developmental mandate.Item Career patterns of local politicians: The case of metropolitan mayors(Community Law Centre, University of the Western Cape, 2006) de Visser, JaapLocal government is emerging as a strong third sphere of government. Within local government, metropolitan cities are coming out as powerful institutions. Meanwhile, the discussion on the role of provincial governments is raging. Instead of looking at constitutional or managerial aspects of local and provincial governments, this article looks at the impact of the emergence of local government on the career patterns of politicians. How have political parties reacted to this new sphere of government in terms of their politicians’ career management? What does this say about the role, function and importance of the three levels of government in South Africa? An overview of the history of metropolitan mayors and their profiles, albeit very limited in timespan and scope, reveals some interesting career patternsItem Community participation: The cornerstone of (local) participatory democracy(Community Law Centre, University of the Western Cape, 2007) de Visser, JaapCommunity participation is key to the functioning of local government. One of the constitutional objects of local government is to encourage the involvement of communities and community organisations in local government. The landmark Doctors for Life and Matatiele judgments, passed by the Constitutional Court in August 2006, are critical for the interpretation of the law of community participation in local government. The judgments are fundamental, particularly in relation to the nature and scope of the duty to involve the community in decision making as well as the enforceability of the legal provisions on community participation.Item Confronting the state of local government: the 2013 Constitutional Court decisions(Juta, 2016) de Visser, Jaap; Steytler, NicoIn September 2014 the then Minister of Cooperative Governance and Traditional Affairs, Pravin Gordhan, divided municipalities into three groups: a third of the municipalities was carrying out their tasks adequately, a third was just managing, and the last third was ‘frankly dysfunctional’ because of poor governance, inadequate financial management, and poor accountability mechanisms.1 What this analysis starkly illustrates is that local government cannot be seen as a uniform institution, operating in the same manner, facing the same challenges. Most, but not all metropolitan municipalities are highly functional and the same applies to the so-called ‘secondary cities’. Then there are highly dysfunctional rural municipalities but also rural municipalities that perform well. Yet a uniform system of law applies to them all.Item Constitution-Building in Africa(Community Law Centre, University of the Western Cape, 2015) de Visser, Jaap; Steytler, Nico; Powell, Derek; Durojaye, EbenezerThe process towards the adoption of a constitution is determined by the context in which the constitution is written. It navigates such issues as political engagement, keeping politically agreed timelines, ensuring the inclusion of a variety of constituencies and groups, the use of domestic and foreign technical expertise, and ensuring legitimacy and public awareness. This book examines examples of constitution-making processes around the continent and how they attempt(ed) to accommodate the many interests at play. As such, the chapters offer a range of different constitution-making narratives. In Zimbabwe, the Global Political Agreement (GPA) provided for a parliamentary select committee, co-chaired by the three main political parties, to lead the drafting of a constitutional text. The process included public hearings and a referendum. In the case of Malawi, all of its five constitutional review projects were initiated by the presidential appointment of a constitutional review commission or technical drafting committee. The drafting of the country’s 1966 Constitution took place primarily under the auspices of the ruling Malawi Congress Party; the 1995 constitutional review process was led by a National Consultative Council and consisted of various consultative processes. While this review was markedly more inclusive, it still lacked legitimacy. The making of Kenya’s 2010 Constitution was, by all accounts, impressive in its inclusivity. With the horrors of the 2007/2008 post-election violence engraved in collective memory, and the experience of the impressive consultation, led by the Ghai Commission, still fresh in mind, Kenya’s Constitution was drafted on the basis of extensive consultation.Item The constitutional conversation between the federal structure and a bill of rights(Institute of Federalism, University of Fribourg, 2015-01) Steytler, NicoIt is often assumed that a constitution speaks with one voice and that all parts are in harmony with each other. Although different provisions can be given higher status than others (as reflected in the more arduous amendment procedures concerning, for example, national values), the general assump-tion is that they are all of equal value. Where provisions are seemingly at odds with one another, such as cases where there are two rights in a bill of rights lead to conflicting outcomes, the deft in-terpreter can nevertheless produce a balanced or harmonious end-result. While this approach is nec-essary for a purposive interpretation of a constitution, it blocks from view a different reality in which parts of the constitution are in constant conversation with each other. A particular instance of this is the conversation between the federal structure and a bill of rights. Tuning into this conversation is not only pertinent from a theoretical perspective but also has practi-cal consequences. The Community Law Centre at the University of the Western Cape in South Afri-ca, to which I have been attached for the past two decades, has a dual focus: multi-level government and human rights. We have organised ourselves into projects focusing, on the one hand, on local government and federalism, and, on the other, socio-economic rights, gender rights, children’s rights and prisoners’ rights. This dual focus was not by design so much as historical accident. The first director of the Centre, Advocate Dullah Omar, was a leading legal activist in the African National Congress who eventually became the first Minister of Justice in the Mandela cabinet and had played a strong hand in the drafting of the interim Constitution in 1993; his focus was on the structures of government. Other staff members, such as Brigitte Mabandla (who, in the Mbeki cabinet, also be-came a Minister of Justice), were more interested in the Bill of Rights, in particular the rights of women and children. Since then there has been the split in the Centre between the structuralists (fo-cusing on multi-level government) and the normativists (concerned with human rights).Item The constitutional conversation between the federal structure and a bill of rights(Community Law Centre, University of the Western Cape, 2015-01) Steytler, NicoIt is often assumed that a constitution speaks with one voice and that all parts are in harmony with each other. Although different provisions can be given higher status than others (as reflected in the more arduous amendment procedures concerning, for example, national values), the general assump-tion is that they are all of equal value. Where provisions are seemingly at odds with one another, such as cases where there are two rights in a bill of rights lead to conflicting outcomes, the deft in-terpreter can nevertheless produce a balanced or harmonious end-result. While this approach is nec-essary for a purposive interpretation of a constitution, it blocks from view a different reality in which parts of the constitution are in constant conversation with each other. A particular instance of this is the conversation between the federal structure and a bill of rights. Tuning into this conversation is not only pertinent from a theoretical perspective but also has practi-cal consequences. The Community Law Centre at the University of the Western Cape in South Afri-ca, to which I have been attached for the past two decades, has a dual focus: multi-level government and human rights. We have organised ourselves into projects focusing, on the one hand, on local government and federalism, and, on the other, socio-economic rights, gender rights, children’s rights and prisoners’ rights. This dual focus was not by design so much as historical accident. The first director of the Centre, Advocate Dullah Omar, was a leading legal activist in the African National Congress who eventually became the first Minister of Justice in the Mandela cabinet and had played a strong hand in the drafting of the interim Constitution in 1993; his focus was on the structures of government. Other staff members, such as Brigitte Mabandla (who, in the Mbeki cabinet, also be-came a Minister of Justice), were more interested in the Bill of Rights, in particular the rights of women and children. Since then there has been the split in the Centre between the structuralists (fo-cusing on multi-level government) and the normativists (concerned with human rights).Item The Constitutional Court of South Africa: Reinforcing an hourglass system of multi-level government(University of Toronto Press, 2017) Steytler, Nico“The supremacy of the constitution and the rule of law” are two foundational values of South Africa’s 1996 Constitution (s. 1(c)). An independent judiciary is thus set to play a major role in interpreting and enforcing the Constitution. With some significant federal elements in the Constitution, such as establishing provincial and local orders of government, the courts, with the Constitutional Court at the apex, are bound to give shape and texture to this system of government. Since 1995, the Constitutional Court as well as the Supreme Court of Appeal and High Court have asserted the supremacy of the Constitution and the separation of powers, establishing a jurisprudence that gives effect to the principle of limited government. However, in interpreting the federal arrangements, the Constitutional Court has not given full effect to the self-rule elements of provincial government. Instead, it has more often enforced local government’s constitutional “right to govern, on its own initiative, the local government affairs of its community” (s. 151(3)). Furthermore, while soft on the substantive content of provincial self-rule, it has scrupulously policed compliance with the procedural rules of intergovernmental relations. The Court’s jurisprudence has given further credence to the hourglass model of multi-level government; provinces are squeezed thin from the top by a dominant national government and from below by powerful metropolitan governments.Item Constitutional Court shows DFA the door(Community Law Centre, University of the Western Cape, 2010) de Visser, JaapIn October 2009, the Supreme Court of Appeal (SCA) declared parts of the Development Facilitation Act (DFA) unconstitutional. The Gauteng Development Tribunal was making land use management decisions and bypassing municipal land-use planning processes on the basis of the DFA. The SCA held that this violates municipalities' right to administer 'municipal planning', listed in Schedule 4B of the Constitution as a municipal power.Item Court condemns political interference in municipal manager's appointment(Community Law Centre, University of the Western Cape, 2009) de Visser, JaapAmathole District Municipality, a municipality controlled by the African National Congress (ANC), advertised the position of municipal manager. The recruitment process was subject to the municipality’s Recruitment Policy, in which the municipality binds itself to fair and transparent recruitment procedures. This judgment deals with the appointment of a municipal manager in a district municipality. It contains the strongest signal yet that the law condemns the practice of appointing municipal managers on the basis of political affiliation rather than suitability for the post.