Research Articles (Public Law and Jurisprudence)

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Origins, relevance and prospects of federalism and decentralization in the horn of Africa
(2022) Fessha, Yonatan T.; Dessalegn, Beza
The Horn of Africa is the most conflict-ridden region in the African continent. Both inter-and intra-state conflicts have dominated the region. In a bid to check intra-state conflicts and accommodate ethno-national and religious diversity, federal or federal like models of governance have been proposed, discussed, and, in some cases, adopted across the region. Focusing on Ethiopia, Somalia, Sudan and South Sudan, this article discusses the origin, reasons, and prospects of the federal idea in the Horn. The article argues that the major rationale for the federal idea in the Horn is the containment of communal tensions. Yet, the track record of federalism in alleviating communal tensions has not been encouraging. This is partly related to design issues that have undermined the efforts to use federalism to address communal tensions. More importantly, however, the commitment to genuinely implement the federal idea has largely been absent.
Horizontality and housing rights protection against private evictions from a European and South African perspective
(Brill Academic Publishers, 2022) Fick, Sarah; Vols, Michel
In the recent decision of fjm v. the United Kingdom, the ECtHR made a decision on the required protection against private evictions that threatens to water-down the protection of housing rights offered by the echr. This article sets out to determine the effect of the fjm judgment on the protection provided by Article 8, especially in matters concerning private evictions. The analysis of the case includes a discussion on whether the decision of the ECtHR was correct, considering both its previous decisions, as well as the sa Constitutional Court’s findings in similar matters. It analyses the recent European and South African case law with the help of a number of concepts developed in legal theory. These concepts concern vertical and horizontal relations between actors involved in housing law cases, as well as direct and indirect effect of human and constitutional rights.
Climate adaptation planning for resilient and sustainable cities: Perspectives from the City of Rotterdam (Netherlands) and the City of Antwerp (Belgium)
(Cambridge University Press, 2022) Berg, Angela van der
Climate adaptation planning in pursuit of resilient and sustainable societies has become a focal point in urban policy. Climate adaptation planning is generally regarded as separate from traditional urban planning practices. Globally and in Europe, however, cities are increasingly integrating climate adaptation planning into their traditional urban planning instruments and processes. Recent research indicates that the scope of such integration is at varying stages. The City of Rotterdam (Netherlands) and the City of Antwerp (Belgium) have been identified as two European cities that face similar climate impacts and risks given their proximity to a large river delta. Both cities aim to integrate climate adaptation into their respective urban planning policies, but the scope of their integration differs.
Addressing climate change through international human rights law: From (extra) territoriality to common concern of humankind
(Cambridge University Press, 2022) Bellinkx, Vincent; Casalin, Deborah; Scholtz, Werner
International human rights law (IHRL) offers potential responses to the consequences of climate change. However, the focus of IHRL on territorial jurisdiction and the causation-based allocation of obligations does not match the global nature of climate change impacts and their indirect causation. The primary aim of this article is to respond to the jurisdictional challenge of IHRL in the context of climate change, including its indirect, slow-onset consequences such as climate change migration. It does so by suggesting a departure from(extra)territoriality and an embrace of global international cooperation obligations in IHRL.
Towards comprehensive guidance for states in the African region to respond to children’s rights in emergencies, disasters and pandemics
(Brill Nijhoff, 2021) Bouah, Nicole; Sloth-Nielsen, Julia
The covid-19 pandemic spread has it impacted health systems, economies and communities across the African continent. It has also exacerbated risks already faced by children: limiting access to education, reducing protection from sexual and genderbased violence, harmful traditional and cultural practices including child, early or forced marriage (cefm), female genital-mutilation (fgm); and further limiting access to reproductive services and food insecurity. This article illustrates that because demonstrably different considerations arise by comparison to children’s experiences in the global north, it would be a valuable contribution for the African Committee of Experts on the Rights and Welfare of the Child to develop a General Comment on state responses to upholding children’s rights in the context of epidemics, pandemics and emergencies, tailored to the specificities of the region.
Child soldiers and the defence of duress under International Criminal Law
(Routledge, 2021) Nortje, Windell; Quénivet, Noëlle; Macmillan, Palgrave
Atrocities committed by children are frequently explained away by arguments of coercion: children are forced by commanders to participate in acts of extreme violence, threatened with brutal punishment if they fail to comply. Indeed, in the limited cases where children or former child soldiers have come before courts, duress has often been raised as a key defence. In my own research on child perpetrators of genocide in Rwanda,1 ‘irresistible constraint’, as it was worded in the Rwandan legislation, was frequently invoked by defendants; in the very first juvenile case before the Rwandan courts, the 16-year-old defendant argued that he had been forced to kill his four nephews to save his own life. His plea was accepted in part – as a mitigating factor rather than complete defence. Duress was one of the defences raised by Dominic Ongwen before the International Criminal Court. Whilst being prosecuted for crimes committed as an adult, Ongwen had been forcibly conscripted into the Lord’s Resistance Army in Uganda around the age of 9 or 10.2 And duress has played in important role in refugee exclusion proceedings, with child soldiers arguing that they were coerced into committing crimes when seeking to negate individual criminal responsibility as a ground for exclusion.
The functus officio doctrine and invalid administrative acts in South African administrative law: the demand for a more flexible approach
(Nelson R Mandela School of Law, 2020) Henrico, Radley
In South African administrative law, the issue of invalid administrative action in relation to the application of the doctrine of functus officio has brooked a fair amount of debate. Whilst the courts have attempted to articulate an appropriate approach to be adopted regarding the variation or revocation of invalid administrative action, the issue remains one that is often fraught with a degree of uncertainty. A decision once made by an administrator, which is final, cannot be revisited in the absence of statutory authority.
Legislative administrative action and the limited extent of public participation
(Juta Law, 2020) Henrico, Radley
The preamble of our constitution acknowledges that government is based on the will of the people. Section 1(d) of the constitution states that the Republic of South Africa is one sovereign, democratic state founded on the value of universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. Whilst the constitution recognises a representative, participatory and direct democracy, the focus of this paper is on the participatory dimension of democracy as it relates to legislative administrative actions. Participatory democracy is given due recognition in our constitution through public involvement in parliament’s law-making process. Parliament is obliged to take adequate steps to ensure public involvement as a pre-condition to the enactment of its laws. This requirement is necessary if we are to maintain (and sustain) the democratic ethos underpinning our constitution. The legislative capacity of parliament has been extended by permitting the executive to make laws in accordance with statutory provisions or powers entrusted to them either in terms of specific acts or the constitution. Laws enacted by members of the executive (subordinate or delegated legislation) are referred to as executive rule-making or legislative administrative action. Such actions, emanating from the executive arm of government, take the form of regulations, proclamations and ministerial rules or notices.
Intergovernmental cooperation, divided societies and capital cities: The case of the Ethiopian capital
(Nomos Verlagsgesellschaft, 2020) Fessha, Yonatan
Some call it Addis Ababa. Others call it Finfinnee. That is the capital city of the Federal Democratic Republic of Ethiopia. "What's in a name?" In fact, the name is at the centre of the row over the federal capital. Those who opt to refer the capital as Finfinnee claim that the capital belongs to the Oromo. Those that stick to the official name, Addis Ababa, reject the language of ownership. But this is not merely a fight over history. It is a constitutional politics that has gripped the federation. The debate over the Ethiopian capital brings to fore the question about the place of capital cities in multi-ethnic federations. Using the Ethiopian capital as a case study, this article investigates how capital cities can manage the tension between the accommodation of diverse communities and the indigeneity argument that is often used as a basis to claim ownership. The article argues that the mediation of tensions can be best addressed through the framework of intergovernmental cooperation.
Addressing the limits of autonomy: Origin, organization and purpose of horizontal intergovernmental forums in three federations
(Centro Studi sul Federalismo, 2020) Fessha, Yonatan
Horizontal intergovernmental forums that bring together the constituent units of a federation are increasingly common. This article examines the origin, organization and purpose of the premium horizontal intergovernmental forums in Kenya, Spain and Canada. The constitutional origin of institutions of horizontal intergovernmental relations is uncommon. The experience of the three political forums confirm the view that institutionalization of intergovernmental relations may not be a necessary condition for effective intergovernmental relations. Yet, in countries with no history of multilevel governance or a culture of cross-boundary interaction, institutionalization might give horizontal intergovernmental relation the prompt it needs.
Remedying formal irregularities in wills: A comparative analysis of testamentary rescue in Canada and South Africa
(Routledge, 2020) du Toit, Francois
This article examines the testamentary rescue provisions contained in the statutes governing wills in Manitoba, British Columbia and South Africa, as well as some of the jurisprudence on the interpretation and application of these provisions. The article thus provides an instructive legal comparative analysis of how formally irregular wills are judicially rescued and, therefore, how testamentary formalism is tempered to ensure that testamentary intentions embodied in informal documents are effectuated in the three jurisdictions under discussion. The article also evaluates (in broad terms) the efficacy of Manitoba’s, British Columbia’s and South Africa’s respective testamentary rescue dispensations, and attends to some lessons and possible solutions to challenges arising from these jurisdictions’ engagement with testamentary rescue.
Islamic kafalah as an alternative care option for children deprived of a family environment
(Juta Law, 2014) Sloth-Nielsen, Julia; Assim, Usang Maria
The inclusion of kafalah of Islamic law in the United Nations Convention on the Rights of the Child is the first time an exclusively Islamic concept is recognised in a binding international instrument. The drafting of CRC was set against the background of compromise as it relates to the provision of alternative care for children deprived of a family environment. Islamic kafalah represents one of such compromises in an attempt to accommodate the differences of the various state parties to CRC. However, many scholarly works on children’s rights refer to Islamic kafalah only within the context of its ‘discovery’ during the drafting process of CRC and, as such, the meaning, extent and practice of kafalah, as an alternative care option for children deprived of parental care, has not been the subject of much study. This is unlike the case with other forms of alternative childcare like foster care and adoption. Other studies more focused on Islam and human rights refer to kafalah only within the broader context of discussing the links and divergences between Islamic law and human rights, or children’s rights more specifically. This article specifically focuses on kafalah as an alternative care option for children deprived of a family environment in comparison with other forms of alternative childcare. The extent to which kafalah is internationally recognised and practised is also addressed. A number of themes are analysed in the article, including what the concept of kafalah entails, what its legal implications are, what factors distinguish it from other forms of alternative care, and what the international dimensions to kafalah are in relation to the subject of intercountry adoption. In light of all these questions, an understanding of kafalah will contribute to international children’s rights jurisprudence in the context of child care and protection.

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