Constitutionalism and separation of powers in South Africa after the promulgation of the 1996 constitution : a comparative perspective
- Authors: Ramatsekisa, Tsietsi Given
- Date: 2016
- Subjects: Separation of powers -- South Africa Constitutional law -- South Africa Democracy -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/12642 , vital:39295
- Description: Constitutionalism and separation of powers is the most dynamic topic worldwide. Montesquieu, the French philosopher is credited with the doctrine of separation of powers. Various countries adopted the doctrine and modified it, in order to fit their systems of governments. The reason behind is that there is no universally recognized model of separation of powers or one size fit all. Countries apply this doctrine differently in a fashion that fits their domestic laws and constitutional requirements. Montesquieu gave a classic exposition and the rationale for separation of powers in one of his well-celebrated work “The Spirit of Laws”. The concept of separation of powers emerged premised on the theory that the arms of state namely, the judiciary, the legislature and the executive, should operate within their providence without one interfering with the other. From the South African perspective, the Constitution of South Africa of 1996 requires separation of powers even though it is not explicitly so stated in the text. This research examines the unique South African model of separation of powers and how the courts have navigated through it from the time the Constitution was promulgated. It seeks to establish whether or not a South African model of separation of powers has come to the fore. The research further examines the problem of interference amongst the arms of state and mechanism of checks and balances which can be applied to prevent or minimise such interference. In doing so, the study pursued a desktop survey of primary and secondary materials, including scientific literature, legislation, courts’ jurisprudence, and official documents. A comparative perspective was also made in order to learn from the experiences of other jurisdictions where the doctrine is applied. The findings reveal that South Africa has a unique model of separation of powers. The model was learned and enriched from various foreign jurisdictions. The courts have contributed enormously to this model, which contrive to be fluid and living.
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- Authors: Ramatsekisa, Tsietsi Given
- Date: 2016
- Subjects: Separation of powers -- South Africa Constitutional law -- South Africa Democracy -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10353/12642 , vital:39295
- Description: Constitutionalism and separation of powers is the most dynamic topic worldwide. Montesquieu, the French philosopher is credited with the doctrine of separation of powers. Various countries adopted the doctrine and modified it, in order to fit their systems of governments. The reason behind is that there is no universally recognized model of separation of powers or one size fit all. Countries apply this doctrine differently in a fashion that fits their domestic laws and constitutional requirements. Montesquieu gave a classic exposition and the rationale for separation of powers in one of his well-celebrated work “The Spirit of Laws”. The concept of separation of powers emerged premised on the theory that the arms of state namely, the judiciary, the legislature and the executive, should operate within their providence without one interfering with the other. From the South African perspective, the Constitution of South Africa of 1996 requires separation of powers even though it is not explicitly so stated in the text. This research examines the unique South African model of separation of powers and how the courts have navigated through it from the time the Constitution was promulgated. It seeks to establish whether or not a South African model of separation of powers has come to the fore. The research further examines the problem of interference amongst the arms of state and mechanism of checks and balances which can be applied to prevent or minimise such interference. In doing so, the study pursued a desktop survey of primary and secondary materials, including scientific literature, legislation, courts’ jurisprudence, and official documents. A comparative perspective was also made in order to learn from the experiences of other jurisdictions where the doctrine is applied. The findings reveal that South Africa has a unique model of separation of powers. The model was learned and enriched from various foreign jurisdictions. The courts have contributed enormously to this model, which contrive to be fluid and living.
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The cultural practice of child marriage as a challenge to the realisation of the human rights of the girl –child: a comparative study of South Africa and Nigeria
- Authors: Olaborede, Adebola Olufunmi
- Date: 2016
- Subjects: Forced marriage Teenage marriage Children's rights Rites and ceremonies
- Language: English
- Type: Thesis , Doctoral , Law
- Identifier: http://hdl.handle.net/10353/2578 , vital:27898
- Description: This study primarily sets out to examine the cultural practice of child marriage in Africa with a focus on the comparative study of South Africa and Nigeria. This practice has been prohibited in a number of international human rights instruments such as the African Charter on the Rights and Welfare of the Child, and the Protocol to the African Charter on Human and Peoples’ Right on the Rights of Women in Africa. However, overwhelming statistics show that the overall prevalence of child marriage in Africa is still very high and if current trends continue, Africa will become a region with the largest number of the global share of child marriages, by 2050. Different interconnecting factors promote and reinforce child marriage which makes this practice very complex. The challenge of cultural traditional practices and religious beliefs that promote child marriage in Africa are evaluated in this study. The complexities surrounding these cultural practices mainly relate to the conflict that exists between adhering to customs and traditional practices, and promoting the practical implementations and enforcement of human rights standards within communities. In particular, the age at which most girls are given out in marriage conflicts with the minimum legal age of marriage, lack of free and full consent to marriage and the mixed legal system, which mainly comprises of customary law, Islamic law and common or civil law and legislation, that often conflict with one another in most African States. Discussions on these contradictions, as in the case of child marriage, often lead to a seemingly endless debate between the universality of human rights and cultural relativism within African societies. Therefore, this study bears heavily on the debate and relationship between culture and human rights, and the extent to which they can be reconciled in order to achieve a realisation of the fundamental rights of the girl-child. A qualitative research method based on an extensive literature analysis from different disciples is adopted. In addition, is a comparative study of South Africa and Nigeria which seeks to provide insight into the nature and extent of the practice of child marriage, as well as evaluate the adequacy, effectiveness and shortcomings of national legislations that relate to the rights of a girl-child in the context of child marriage, in both jurisdictions.
- Full Text:
- Authors: Olaborede, Adebola Olufunmi
- Date: 2016
- Subjects: Forced marriage Teenage marriage Children's rights Rites and ceremonies
- Language: English
- Type: Thesis , Doctoral , Law
- Identifier: http://hdl.handle.net/10353/2578 , vital:27898
- Description: This study primarily sets out to examine the cultural practice of child marriage in Africa with a focus on the comparative study of South Africa and Nigeria. This practice has been prohibited in a number of international human rights instruments such as the African Charter on the Rights and Welfare of the Child, and the Protocol to the African Charter on Human and Peoples’ Right on the Rights of Women in Africa. However, overwhelming statistics show that the overall prevalence of child marriage in Africa is still very high and if current trends continue, Africa will become a region with the largest number of the global share of child marriages, by 2050. Different interconnecting factors promote and reinforce child marriage which makes this practice very complex. The challenge of cultural traditional practices and religious beliefs that promote child marriage in Africa are evaluated in this study. The complexities surrounding these cultural practices mainly relate to the conflict that exists between adhering to customs and traditional practices, and promoting the practical implementations and enforcement of human rights standards within communities. In particular, the age at which most girls are given out in marriage conflicts with the minimum legal age of marriage, lack of free and full consent to marriage and the mixed legal system, which mainly comprises of customary law, Islamic law and common or civil law and legislation, that often conflict with one another in most African States. Discussions on these contradictions, as in the case of child marriage, often lead to a seemingly endless debate between the universality of human rights and cultural relativism within African societies. Therefore, this study bears heavily on the debate and relationship between culture and human rights, and the extent to which they can be reconciled in order to achieve a realisation of the fundamental rights of the girl-child. A qualitative research method based on an extensive literature analysis from different disciples is adopted. In addition, is a comparative study of South Africa and Nigeria which seeks to provide insight into the nature and extent of the practice of child marriage, as well as evaluate the adequacy, effectiveness and shortcomings of national legislations that relate to the rights of a girl-child in the context of child marriage, in both jurisdictions.
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The work of the international criminal court in Africa and challenges for the future of international criminal justice
- Authors: Mupanga, Godfrey
- Date: 2016
- Subjects: Immunities of foreign states Jurisdiction (International law) Government liability (International law) International relations
- Language: English
- Type: Thesis , Doctoral , Law
- Identifier: http://hdl.handle.net/10353/2645 , vital:27977
- Description: Within the first decade of the ICC‟s existence, its case docket was composed of cases originating from Africa only. Relations between the African governments represented by the AU quickly deteriorated. The AU accuses the ICC of bias and unfair targeting of Africa. After the indictment of heads of states that include Omar Al Bashir of Sudan, Uhuru Kenyatta of Kenya and the late Muammar Gaddafi of Libya, the AU passed several resolutions where it reiterated its commitment to the rule of law and to combating impunity. The AU, however, instructed member states to cease all cooperation with the ICC. African states that are ICC members are now faced with conflicting obligations as a result of the AU resolutions. Moreover, the AU resolutions raise the spectre of a legitimacy crisis for the AU and a conflict between articles 27(2) and 98(1) of the Rome Statute. Based mostly on desk research coupled with my experience working on human rights and access to justice programmes in Sudan, South Sudan, Somaliland, Ethiopia, Kenya, Uganda and Zimbabwe, this thesis considers the possibility that the ICC is suffering from a legitimacy crisis as a result of the fall out and the issues of unfair selectivity that are raised by the AU. Employing the Third World Approaches to International Law as an analytical framework, the study attempts to reconcile the apparent contradictions in the new outlook and rhetoric of the AU pursuant to its Constitutive Act and the instruction to member states to withdraw cooperation with the ICC. The thesis also proposes practical ways to resolve the conflicting obligations caused by the AU resolutions and by operation of customary international law immunity of high ranking state officials referred to the ICC by way of a Security Council resolution. The current situation gives the ICC the appearance of a weak institution that is only good for low hanging fruit, which has a negative effect on the legitimacy of the ICC.
- Full Text:
- Authors: Mupanga, Godfrey
- Date: 2016
- Subjects: Immunities of foreign states Jurisdiction (International law) Government liability (International law) International relations
- Language: English
- Type: Thesis , Doctoral , Law
- Identifier: http://hdl.handle.net/10353/2645 , vital:27977
- Description: Within the first decade of the ICC‟s existence, its case docket was composed of cases originating from Africa only. Relations between the African governments represented by the AU quickly deteriorated. The AU accuses the ICC of bias and unfair targeting of Africa. After the indictment of heads of states that include Omar Al Bashir of Sudan, Uhuru Kenyatta of Kenya and the late Muammar Gaddafi of Libya, the AU passed several resolutions where it reiterated its commitment to the rule of law and to combating impunity. The AU, however, instructed member states to cease all cooperation with the ICC. African states that are ICC members are now faced with conflicting obligations as a result of the AU resolutions. Moreover, the AU resolutions raise the spectre of a legitimacy crisis for the AU and a conflict between articles 27(2) and 98(1) of the Rome Statute. Based mostly on desk research coupled with my experience working on human rights and access to justice programmes in Sudan, South Sudan, Somaliland, Ethiopia, Kenya, Uganda and Zimbabwe, this thesis considers the possibility that the ICC is suffering from a legitimacy crisis as a result of the fall out and the issues of unfair selectivity that are raised by the AU. Employing the Third World Approaches to International Law as an analytical framework, the study attempts to reconcile the apparent contradictions in the new outlook and rhetoric of the AU pursuant to its Constitutive Act and the instruction to member states to withdraw cooperation with the ICC. The thesis also proposes practical ways to resolve the conflicting obligations caused by the AU resolutions and by operation of customary international law immunity of high ranking state officials referred to the ICC by way of a Security Council resolution. The current situation gives the ICC the appearance of a weak institution that is only good for low hanging fruit, which has a negative effect on the legitimacy of the ICC.
- Full Text:
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