The composite theory: An African contribution to the academic freedom discourse

by | Oct 16, 2019 | SAJHR, SAJHR V31 I2

The composite theory: An African contribution to the academic freedom discourse

Authors Kwadwo Appiagyei-Atua, Klaus D Beiter, Terence Karran

ISSN: 1996-2126
Affiliations: Marie Curie International Incoming Fellow at University of Lincoln, UK; Marie Curie Intra-European Fellow at University of Lincoln, UK; Professor in Higher Education, University of Lincoln, UK & Docent Professor in the Faculty of Education at the University of Oulu, Finland
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 315 – 329

Abstract

This article expounds the Composite Theory to define the parameters for the exercise of academic freedom in Africa, informed by its political, historical and cultural circumstances and expressed in the Dar es Salaam Declaration on Academic Freedom and Social Responsibility of Academics and the Kampala Declaration on Intellectual Freedom and Social Responsibility. This approach follows in the line of the Special Theory and General Theory postulated to justify the exercise and application of academic freedom in Germany and the United States of America, respectively. The Composite Theory contends that academic freedom in the African context should not only be seen in the narrow prism of protecting the rights of academics on and off the university campus. It includes a commitment to recognise and contribute to promoting the rights of other key actors in the academic freedom equation, to wit, students and the society as a fulfilment of the academic’s social responsibility. This role can be fulfilled both within and outside the university campus. Internally, academics shall respect students’ right to academic freedom and immerse knowledge-sharing in a democratic ethos. This approach will likely instil in the students respect for democracy, human rights and the rule of law, which they will carry away with them from the university into life within the society. Extramurally, equipped with their knowledge, skills and experience, African academics should take advantage of their privileged positions in society to leave their ivory towers and, where necessary, solidarise with other civil society actors to promote social transformation and human emancipation. This is the guaranteed way to protect academic freedom on the campuses.

A right to transport? Moving towards a rights-based approach to mobility in the city

by | Oct 16, 2019 | SAJHR, SAJHR V31 I2

A right to transport? Moving towards a rights-based approach to mobility in the city

Authors Thomas Coggin, Marius Pieterse

ISSN: 1996-2126
Affiliations: Lecturer in law at the University of the Witwatersrand; Professor of law at the University of the Witwatersrand
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 294 – 314

Abstract

Given the spatial and economic inequalities inherent to South African towns and cities, which have been exacerbated by recent waves of urbanisation, this article aims to situate the provision of public transport in South Africa within a rights-based framework. This involves both an acknowledgement of the geographical components of human rights and of the human rights impacts of policies pertaining to transport provision and regulation. Relying upon urban theory on the ‘right to the city’, we illustrate how public transport, while not the subject of an independent constitutional right, is central to accessing the objects of most constitutionally ensconced socio-economic rights, and is also an integral element of exercising various civil and political rights. Drawing from examples in contemporary Johannesburg, we accordingly argue that executive policy choices in relation to the provision and regulation of public transport should be assessed through a rights-based prism and should be subjected to dialogic interaction with the judiciary, within a substantive, rights-based understanding of mobility and urban accessibility.

Climate change, public trusteeship and the tomorrows of the unborn

by | Oct 16, 2019 | SAJHR, SAJHR V31 I2

Climate change, public trusteeship and the tomorrows of the unborn

Authors Anél du Plessis

ISSN: 1996-2126
Affiliations: Professor of Law, North-West University (Potchefstroom Campus)
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 269 – 293

Abstract

The impacts of climate change on human and ecological systems and the increasing volatility of life situations demand of scholars to critically evaluate governments’ protection of the natural resource base and the interests that communities have in a safe, healthy and preserved environment. It begs the question what the South African government must do as national ‘public trustee’ to protect the environmental interests and rights of unborn generations of South Africans. The recently adopted United Nations Secretary-General’s Report on Intergenerational Solidarity and the Needs of Future Generations reiterates the relevance of the focus on the environmental and other needs of future generations. This article considers how the government as public trustee ought to approach ‘climate-resilient development’ as provided for in the Climate Change Response White Paper to ensure a long-term response adequate to protecting the environmental interests and rights of the present and future generations.

South Africa’s obligations to react to the intensified criminalisation of same-sex conduct in Nigeria and Uganda under domestic and international law

by | Oct 16, 2019 | SAJHR, SAJHR V31 I2

South Africa’s obligations to react to the intensified criminalisation of same-sex conduct in Nigeria and Uganda under domestic and international law

Authors Annika Rudman

ISSN: 1996-2126
Affiliations: Associate Professor, Department of Public Law, Faculty of Law, University of Stellenbosch, South Africa
Source: South African Journal on Human Rights, Volume 31 Issue 2, 2015, p. 241 – 268

Abstract

Discrimination against LGTB persons is endemic in most African countries. The bias against LGTB persons is often supported by discriminatory legislation. Legislation criminalising same sex intimacy, sexual acts, LGTB advocacy and same sex marriages has in the last few years been introduced in Nigeria and Uganda. The SAHRC has called on the South African government clearly and visibly to reject these laws and to appeal to have them repealed. The government however has made it clear that it relies on what it perceives to be the sovereign rights of these states to adopt this type of legislation and it has therefore declined to respond to this call. The way in which the executive has approached this situation is an expression of what foreign policy so often is, a manifestation of the state’s self-interest strategies. However, the critical issue that this article aims to interrogate is whether there are any restrictions on these self-interest strategies when gross violations of basic human rights are taking place. The article draws attention to a number of key issues; first, whether the executive is bound by the constitutionally protected principles of equal rights and non-discrimination in setting out its foreign policy; second, whether South Africa as a member of the UN and AU is under any international/regional legal obligations to act when basic rights are being grossly violated; third, whether South Africa’s obligations under customary international law on state responsibility is relevant in this case; and last, if there are such legal obligations internally, externally or in combination whether these obligations would move South Africa’s responsibility beyond the point of relying solely on the use of quiet diplomacy.

Current Development and Case Note: A perspective on women and leadership in the South African judiciary

by | Oct 16, 2019 | SAJHR, SAJHR V31 I3

Current Development and Case Note: A perspective on women and leadership in the South African judiciary

Authors Tabeth Masengu

ISSN: 1996-2126
Affiliations: Research Officer at the Democratic Governance and Rights Unit (DGRU), University of Cape Town
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 655 – 666

Abstract

None

Current Development and Case Note: Organs of state: An anatomy

by | Oct 16, 2019 | SAJHR, SAJHR V31 I3

Current Development and Case Note: Organs of state: An anatomy

Authors Meghan Finn

ISSN: 1996-2126
Affiliations: Researcher, SAIFAC (South African Institute for Advanced Constitutional, Public, Human Rights and International Law), a Centre of the University of Johannesburg
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 631 – 654

Abstract

None

The principle of equality, legal aid and transformative Constitution in South Africa: A critical analysis

by | Oct 16, 2019 | SAJHR, SAJHR V31 I3

The principle of equality, legal aid and transformative Constitution in South Africa: A critical analysis

Authors Serges Djoyou Kamga

ISSN: 1996-2126
Affiliations: Associate Professor, Thabo Mbeki African Leadership Institute, University of South Africa
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 607 – 630

Abstract

The principle of equality is at the centre of the South African Constitution, which aims to establish an egalitarian society. As shown by the empowering nature of the jurisprudence of the South African Constitutional Court, the latter plays an important role in giving effect to socio-economic rights. Yet, the poor have no legal aid, and therefore no access to court especially in civil matters through which their socio-economic rights can be addressed. This shows that a considerable potential of the Constitution is not realised. Arguably, a key constraint is the lack of legal aid for the poor. Legal aid is crucial in South Africa where only a few people can afford the services of lawyers. This article critically explores the extent to which the Constitution has been transformative for the poor, in terms of guaranteeing their access to justice through legal aid. Answering this question entails addressing the extent to which legal aid provided by the legal system is in line with the tenets of equality which inform the Constitution. In assessing the realisation of the rights of the poor through legal aid, this article examines legal and policy documents, as well as the state’s practice pertaining to legal aid.

Women are not a proxy: Why the Constitution requires feminist judges

by | Oct 16, 2019 | SAJHR, SAJHR V31 I3

Women are not a proxy: Why the Constitution requires feminist judges

Authors Mateenah Hunter, Tim Fish Hodgson, Catharine Thorpe

ISSN: 1996-2126
Affiliations: Policy Development and Advocacy Fellow at Sonke Gender Justice; Legal Researcher at SECTION27; Researcher at the Judicial College of Victoria
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 579 – 606

Abstract

The South African Constitution entrenches the achievement of equality as a founding value and the full and equal enjoyment of all rights and freedoms as a right and prohibits discrimination based on both sex and gender. Feminism is a movement to end sexism, sexist exploitation and oppression and to end all forms of gender discrimination. The Constitution, at its core, therefore embodies a feminist ideology. This has implications for the interpretation and application of all law and policy, including s 174 of the Constitution which requires the Judicial Service Commission (JSC) to consider ‘the need for the judiciary to reflect broadly the racial and gender composition of South Africa when judicial officers are appointed’. Broadly, the JSC’s conduct between 1994 and 2014 evidences a failure to understand both gender and its constitutional mandate in terms of s 174 to proactively pursue the appointment of both female and feminist judges. Attempts to appoint more women, absent an appropriate understanding of gender, have resulted in both subtle and overt discrimination against female candidates for judicial selection. In order to remedy its misguided approach and fulfil its mandate the JSC must produce detailed guidelines on its approach to gender transformation of the judiciary, grounded in a feminist understanding of the Constitution. A unified feminist movement which embraces South Africa’s feminist Constitution, with the support of a broad coalition of human rights advocacy groups and activist organisations, is urgently needed to guide the JSC in its understanding of feminism and gender, but also to hold the JSC to account when it betrays this mandate. Women are not a proxy for feminism; the South African judiciary is in dire need of a more feminist face.

The fiction of transformation: An analysis of the relationship between law, society and the legal profession in South Africa

by | Oct 16, 2019 | SAJHR, SAJHR V31 I3

The fiction of transformation: An analysis of the relationship between law, society and the legal profession in South Africa

Authors Thandiwe Matthews, Charmika Samaradiwakera-Wijesundara

ISSN: 1996-2126
Affiliations: Admitted Attorney, Senior Legal Officer, South African Human Rights Commission; Admitted Attorney, Lecturer, School of Law, University of the Witwatersrand, South Africa
Source: South African Journal on Human Rights, Volume 31 Issue 3, 2015, p. 553 – 578

Abstract

Notwithstanding South Africa recently having celebrated 20 years of its democracy, it remains one of the most unequal societies in the world. The South African Constitution guarantees the right to equality, yet the country remains divided along racial lines. In spite of numerous legislative and policy attempts to achieve substantive equality, when reflecting on the current demographic statistics, it appears that the South African legal profession finds itself embedded in this division. This speaks to the tensions that have emerged as the country struggles to balance its constitutional obligations to provide redress for discrimination suffered during apartheid while simultaneously striving to meet its economic development imperatives. Through an analysis of rights-based and human capital approaches to transformation, we argue in this article that despite the tensions between meeting transformative objectives and the needs of the economy, these goals are not incongruent. Some pertinent pieces of legislation are considered in making the argument that the transformation of the legal profession requires active transformation beyond the context of law and policy. The role of the legal profession in facilitating transformation in institutional cultures that inform it, particularly with regard to legal education and language, is explored. We argue that the profession needs to be invested in ensuring that its professional constituency adequately reflects the society it represents. This is not only as a means of achieving transformation within the profession, but more importantly, of ensuring that as custodians of the Constitution, it lives the values contained therein.