Freedom of the Press in Uganda in the Light of the Drafting History of Articles 29(1)(A), 43 and 41 of the Constitution

by | Apr 19, 2023 | FUND, FUND V28I2

Freedom of the Press in Uganda in the Light of the Drafting History of Articles 29(1)(A), 43 and 41 of the Constitution

Author Jamil Ddamulira Mujuzi

ISSN: 2411-7870
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Fundamina, Volume 28 Issue 2, p. 1-42
https://doi.org/10.47348/FUND/v28/i2a1

Abstract

Article 29(1)(a) of the Constitution of Uganda (1995) provides for the right to freedom of speech and expression, which includes freedom of the press and other media. Article 43 provides for the circumstances in which the rights in the Constitution may be limited, including the right to freedom of the press. Article 41 provides for the right of every citizen to access information in possession of the state. In 1989, Uganda embarked on the process of enacting a new Constitution. In this contribution, I demonstrate the drafting history of articles 29(1)(a), 43 and 41 of the Constitution by referring to the report of the Constitutional Commission and the Proceedings of the Constituent Assembly. It is submitted that some of the phrasing of article 29(1)(a) as agreed to by the Constituent Assembly delegates to extend the protection of the right to the freedom of the press was omitted from the final Constitution without explanation. Also, some of the phrasing of article 43 specifically excluded by the Constituent Assembly delegates was included in the final Constitution. This contribution refers to the case law on the right to the freedom of the press and argues that, when dealing with that right, the courts have not clearly explained the two parts under article 43. Since access to information is vital for freedom of the press, this contribution also demonstrates the drafting history of article 41 and refers to cases in which courts have interpreted it.

In-Between Black and White: Defining Racial Boundaries in Colonial Natal at the Turn of the Twentieth Century – Part One

by | Apr 19, 2023 | FUND, FUND V28I2

In-Between Black and White: Defining Racial Boundaries in Colonial Natal at the Turn of the Twentieth Century – Part One

Authors Stephen Allister Peté and Paul Swanepoel

ISSN: 2411-7870
Affiliations: BA LLB (University of Natal) LLM (University of Cape Town) MPhil (University of Cambridge) PhD (University of KwaZulu-Natal); MA (Hons) (University of St Andrews) LLB (University of Natal) MSc PhD (University of Edinburgh). Senior Lecturer, School of Law, University of KwaZulu-Natal
Source: Fundamina, Volume 28 Issue 2, p. 43-72
https://doi.org/10.47348/FUND/v28/i2a2

Abstract

Mahmood Mamdani has argued that a system of “define and rule” lay at the heart of a revamped system of British colonial rule – indirect as opposed to direct rule – which developed from the middle of the nineteenth century onwards. In analysing parliamentary discussions and case law concerning definitions of “race” dating from the turn of the twentieth century in the colony of Natal, as well as examining concerns amongst the colonists at that time about the matter of racially mixed marriages, this contribution supports Mamdani’s general thesis and provides examples of the practical and ideological difficulties that arose in the process of attempting to define people according to “race” and “tribe”. It is the contention of this contribution that Mamdani is correct in his assessment that “define and rule” lay at the heart of the British colonial project, particularly in Africa. This contribution asserts, however, that the process of definition was messy, ambiguous, contradictory and never fully resolved in practice. Certain individuals and groups tended to fall between broad definitions of “race” and “tribe”, both of which illustrated the ideological fault lines inherent in a system based upon racial categorisation, giving rise to practical problems of law and governance. The contribution looks at a number of different themes that all relate to the above general issue. First, it discusses a number of judgments of the Supreme Court of Natal during that period that concerned various individuals and groups who did not neatly fit into any of the formal definitions of race in use at the time. Secondly, it examines a fairly extensive debate that took place in the Legislative Assembly of the colony of Natal in 1905 regarding the Native Definition Bill. Thirdly, it examines the related theme of mixed marriages, of which a number were reported in the colony’s newspapers around that time. Even though there may have been relatively few individuals who fell “in-between” the generally accepted racial and tribal divisions, the fact that there was uncertainty about where such persons fitted within the system was profoundly unsettling to the colonial authorities, since it suggested that the entire structure of colonial society was not based on a secure ideological footing.

The Proliferation of Criminal Gang Activities on the Cape Flats and the Subsequent Legislative and Policy Responses

by | Apr 19, 2023 | FUND, FUND V28I2

The Proliferation of Criminal Gang Activities on the Cape Flats and the Subsequent Legislative and Policy Responses

Author DC van der Linde

ISSN: 2411-7870
Affiliations: Senior lecturer, Faculty of Law, Stellenbosch University
Source: Fundamina, Volume 28 Issue 2, p. 73-116
https://doi.org/10.47348/FUND/v28/i2a3

Abstract

The proliferation of criminal gang activity is inextricably linked to the lingering legacy of the apartheid regime. Decades after apartheid, the communities of the Cape Flats in the Western Cape face a continuous onslaught of violence, predominantly brought about by rival gangs competing for drug territories. The purpose of this contribution is to consider the government’s policy and legislative responses to gangsterism through a historical and constitutional paradigm. The contribution, first, provides a brief historical overview of the causative (especially legislative and socio-economic) factors that led to the proliferation of criminal gangs on the Cape Flats. Secondly, it investigates the violent reality of criminal gang activity in a postdemocratic South Africa. This part also focuses on the legislative response to organised crime, in particular chapter 4 of the Prevention of Organised Crime Act 121 of 1998 (which deals with criminal gang activity), as well as on the various interventions and policies by the national and Western Cape Government to address the challenges related to gangsterism.

Tribute to Reinhard Zimmermann on the Occasion of his Seventieth Birthday

by | Apr 19, 2023 | FUND, FUND V28I2

Tribute to Reinhard Zimmermann on the Occasion of his Seventieth Birthday

Authors Shannon Hoctor and Liezl Wildenboer

ISSN: 2411-7870
Affiliations: Stellenbosch University, President of the Southern African Society of Legal Historians; University of South Africa, Vice-President of the Southern African Society of Legal Historians
Source: Fundamina, Volume 28 Issue 2, p. 117-121
https://doi.org/10.47348/FUND/v28/i2a4

Abstract

None

The Gendered Impact of COVID-19 Directives on Access to Criminal Justice in South Africa

by | Mar 25, 2023 | AJCJ, AJCJ 2022

The Gendered Impact of COVID-19 Directives on Access to Criminal Justice in South Africa

Author: Emma Charlene Lubaale

ISSN: 2958-8162
Affiliations: Faculty of Law, Rhodes University
Source: Africa Journal of Crime and Justice 2022, p. 1 – 27
https://doi.org/10.47348/AJCJ/2022/a1

Abstract

Gender-based violence (GBV) knows no boundaries, and no region has been immune to this scourge. In the South African context, GBV had reached pandemic levels long before the COVID-19 virus. With the outbreak of the COVID-19 pandemic and the resultant lockdown measures adopted in response to it, cases of GBV rose steeply. The pandemic also saw major criminal justice players in South Africa, including the South African Police Service, the National Prosecuting Authority, the judiciary, and Correctional Services, adopt directives to regulate criminal justice during the lockdown periods. The directives took the form of general directives, arguably having no implications for women’s right to access to criminal justice. In this article, I examine selected directives by criminal justice players with a focus on those issued by the judiciary. I assess whether these directives could have been gendered, thus negatively impacting women’s access to criminal justice during the COVID-19 pandemic. I conduct this analysis using the concept of intersectionality, which underscores that the social categorisation of an individual, such as gender, race, nationality, and class can sometimes overlap or compound, thus causing disadvantage or discrimination. Based on this analysis, I conclude that some of these directives were gendered and could have exacerbated the challenge of access to justice by survivors of GBV. This conclusion seeks to confirm the view that seemingly gender-neutral directives and regulations may in fact contain gendered elements.