Legal hostility towards street vendors in Tanzania: A constitutional quandary?

by | Oct 13, 2019 | SADC, SADC 2014/15

Legal hostility towards street vendors in Tanzania: A constitutional quandary?

Authors Tulia Ackson

ISSN: 2026-8556
Affiliations: Senior Lecturer and Associate Dean, School of Law University of Dar es Salaam
Source: SADC Law Journal, The, 2014/15, p. 144 – 163

Abstract

Although the Constitution of the United Republic of Tanzania, 1977, categorically provides for the right to own property, this right is a distant reality in respect of one unique social group. An already politically, economically and socially marginalised group, street vendors find themselves on the wrong side of the law too often with fairly harsh consequences. These include evictions from their working stations often without sufficient notice, confiscation of goods, arrests, fines and imprisonment. If it is indeed true, that the Constitution guarantees the right to own property, how and why are street vendors seemingly beyond the horizon of the legal protection openly enjoyed by other sections of the community? This article identifies and examines the pertinent laws at the heart of this ‘legal hostility’ towards street vendors, but also offers suggestions how this situation may be reversed. It is argued that if Tanzania’s Development Vision 2025 and the Millennium Development Goal (MDG) No. 1 are to be realised, a conducive, legally articulated working environment for street vendors is an absolute, inescapable requirement.

Facing reality: Regional integration, the unitary state and prospects for the actualisation of the SADC Charter of Fundamental Social Rights

by | Oct 13, 2019 | SADC, SADC 2014/15

Facing reality: Regional integration, the unitary state and prospects for the actualisation of the SADC Charter of Fundamental Social Rights

Authors Emmanuel K.B. Ntumy

ISSN: 2026-8556
Affiliations: Senior Lecturer, Department of Law, University of Botswana
Source: SADC Law Journal, The, 2014/15, p. 110 – 143

Abstract

The transformation of the Southern African Co-ordination Conference (SADCC) into the Southern African Development Community (SADC) in 1992 heralded the birth of theories, theses and postulations about the benefits accruable via co-operation and regional integration. These were in addition to the variants of harmonisation suggested even in the face of diverse, implacable and therefore conflictual socio-political and economic policies of the component States. Included in this menu were commentaries on Economic Communities, Customs Unions, Common Market the European Economic Community, regional blocs such as the European Union and even the African Union. The multiplier effects of benefits amidst diversity and even the desirability of exploring the international environment for models, best practices and normative benchmarks were all actively advocated and robustly debated. Two decades later, the euphoria seems to have evaporated to be replaced by the realities of obsessive territoriality, clear historical and socio-economic disparities, symbolic overtures to regional integration, internal statist proclivities and emerging re-prioritisation of state-driven individualistic imperatives. These developments, to some, may appear natural, but to others however, their potentially deleterious effects on the general citizenry of the Southern African sub-region need closer observation. The question which is a logical corollary then becomes one of whether adequate preparatory work was done before this grand scheme was foisted on the gullible public. If so, why has the equally grand objective of socio-economic co-operation and integration become so elusive? The answer lies in a candid examination of the socio-political, economic and historical origins of the member states. This must be coupled with an evaluation of the perceptions and expectations that informed the inception of this intergovernmental organisation. To do this, the paper uses the Charter of Fundamental Social Rights as both an illustration and a measuring tool. The paper contends that the lofty ideals encapsulated in the Charter are out of tune with the demonstrated concerns of the members and the modalities they adopt in achieving their individualised objectives. This is with particular regard to labour formations and issues related to them. The paper thus asserts that should this trend continue, the SADC could well become a shifting mirage in the political, social and economic terrain of Southern Africa.

The Western Sahara Case: Land Reform and Pre-Colonial Land Rights in Namibia

by | Oct 13, 2019 | SADC, SADC 2014/15

The Western Sahara Case: Land Reform and Pre-Colonial Land Rights in Namibia

Authors Dr. Nico Horn

ISSN: 2026-8556
Affiliations: Faculty of Law, University of Namibia
Source: SADC Law Journal, The, 2014/15, p. 96 – 109

Abstract

Article 16 of the Namibian Constitution guarantees the property rights of property owners at the time of independence. However, it does not refer to the long pre-independence practice of disowning indigenous people, a practice which began with the Herrero/Nama genocide during the German/Herero war in 1904. Recent developments in the Mabo case in Australia could give Namibians a tool to have indigenous land rights acknowledged despite the constitutional rights of the present land owners. One may ask what do the small Murray Islands, in the Torres Strait off the Queensland coast, have in common with Namibia? Unlike the bloody German/Herero and Nama wars, no shot was fired when Her Majesty’s administration in Queensland declared the Murray Islands a crown colony. Yet, the two peoples had a common history of submission to a colonial power; and although allowed to remain on their ancestral lands, they were not informed that they had been colonised. The Mabo case, a lawsuit brought by the Meriam people, was instrumental in abandoning one of the oldest justifications for the occupation of inhabited land, the so-called terra nullius rule. The example of the Mabo case provides an opportunity to approach the land reform programme in Namibia from a different perspective, at least in the central and southern regions of the country. The Namibian Constitution guarantees private property rights. The idea that more than one right can exist over land is not unknown to both common law and statutory law in Namibia. The paper will propose a process where several strategies are used to obtain the final goal: a just distribution of land to all the peoples of Namibia in a way that contributes to prosperity and stability.

Seeking a Gender Equitable Customary System of Distributive Justice: The Case of the Lozi of Western Zambia

by | Oct 13, 2019 | SADC, SADC 2014/15

Seeking a Gender Equitable Customary System of Distributive Justice: The Case of the Lozi of Western Zambia

Authors Mulela Margaret Munalula

ISSN: 2026-8556
Affiliations: Associate Professor of Human Rights University of Zambia
Source: SADC Law Journal, The, 2014/15, p. 81 – 95

Abstract

This paper looks at African customary law as a system of distributive justice capable of fulfilling the just distribution of basic goods in state. In this case that good is the right to property (land) and those seeking a fair entitlement to it are women. The aim of the paper is to re-vision customary law to appropriately fulfill its mandate as an inclusive gender sensitive system of justice. The paper is premised on the fact that not only is land a pre-requisite for securing a livelihood, much of it is regulated by customary law. Furthermore, women’s land rights are mostly sanctioned by customary law. And yet the significance of customary law is not reflected in the dual legal system that applies which ranks customary law below state or general law, and thereby renders rather precarious any entitlements to land derived from customary law. If justice is to prevail, customary law should be accorded its rightful status. However that is not the primary concern of this paper. The appropriate recognition of customary law comes only later after customary law has adequately provided for women. Thus its recognition should be earned by its own renewal as a system that is not based on gender hierarchy or a denial of women’s status as persons under the law with a full set of rights and obligations. Thus prior to or through the process of recognition, customary law must pass the test required of a distributive justice system by feminist theory. Lozi (Western Zambia) customary law is used to illustrate this argument: First it reminds the reader that as originally conceived, customary law is a system of law capable of providing for the distribution of basic goods in society. Secondly and more significantly, Lozi customary law shows that whilst it has the potential to serve as a system of distributive justice, its orientation towards gender hierarchy undermines that capacity. Thus what follows is a proposal to move customary land tenure from a system that espouses bilateral traits with a bias towards the father-right to a truly equitable system capable of a gender-just distribution of land rights. In short, the paper is a proposal for effectuating gender justice.

The Role of Traditional Authorities in Land Allocation and Management in Lesotho

by | Oct 13, 2019 | SADC, SADC 2014/15

The Role of Traditional Authorities in Land Allocation and Management in Lesotho

Authors Kananelo E. Mosito KC

ISSN: 2026-8556
Affiliations: Dean, Faculty of Law, National University of Lesotho; President of the Court of Appeal of Lesotho
Source: SADC Law Journal, The, 2014/15, p. 68 – 80

Abstract

This paper examines the role of chiefs in land allocation and management in Lesotho and argues that, the process of the introduction of legal dualism and attempts at unification of the legal system through legislation has not brought about the complete transformation of the role of chiefs in land allocation and management. The fundamental principles of a customary land tenure system still permeate throughout the current land tenure system, with chiefs still performing important functions. The paper suggests that improving Lesotho’s land tenure system will depend on the integration of the customary land practices and how well the Sesotho customary legal practices are harnessed and developed.