The Prohibition of Child Slavery in South Africa, Uganda and Zimbabwe: Overcoming the Challenges of Implementation of Legislation

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

The Prohibition of Child Slavery in South Africa, Uganda and Zimbabwe: Overcoming the Challenges of Implementation of Legislation

Authors Rufaro Audrey Mavunga

ISSN: 2522-3062
Affiliations: Institute for Dispute Resolution, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 19 – 43

Abstract

The elimination of child slavery is a priority in many international instruments today. This article investigates the extent to which South Africa, Uganda and Zimbabwe comply with international instruments to which they are party. It therefore compares and contrasts the different legislative provisions that prohibit child slavery in South Africa, Uganda and Zimbabwe. The municipal laws of these countries in some cases do not always reflect the principles and standards of international law. The research subsequently prompts the reformulation or refinement of some laws. In other instances, legislation adequately prohibits child slavery, but the law is ineffectively enforced. These states face challenges with the enforcement of legislation and this article further investigates some of the problems faced with regard to the implementation. Furthermore, this article also proposes practical ways in which states can effectively overcome the challenges they face in enforcing such laws.

Deferrals of Investigations and Prosecutions in the International Criminal Court

by | Oct 1, 2019 | CILSA, CILSA V51 I1 2018

Deferrals of Investigations and Prosecutions in the International Criminal Court

Authors Johan D van der Vyver

ISSN: 2522-3062
Affiliations: IT Cohen Professor of International Law and Human Rights, Emory University, School of Law; Extraordinary Professor in the Department of Private Law, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 1 – 18

Abstract

In its efforts to stifle the prosecution of Sudanese President Omar al-Bashir from prosecution in the ICC, the AU has appealed to the Security Council of the United Nations to order the deferral of proceedings against the accused within the confines of Article 16 of the ICC Statute. The AU has also submitted a proposal for the amendment of Article 16 of the ICC Statute. The proposed amendment would: (a) authorise states with jurisdiction in a particular situation to request the Security Council to use its Article 16 powers; and (b) grant the power to defer proceedings in the ICC to the General Assembly in cases where the Security Council, within a period of six months, fails to take action under Article 16. The fact, though, is that Article 16 was inserted into the ICC Statute to avoid a conflict of interest between the Security Council and the ICC in cases where both institutions are seized with investigations into the same situation. The Security Council could not use its Article 16 powers in the case against al-Bashir because it was not engaged in an investigation into the situation in Darfur. The proposed amendment of the ICC Statute is in total conflict with the true meaning of Article 16 as reflected in the history and purpose of its creation.

Student (K-12) Data Protection in the Digital Age: A Comparative Study

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

Student (K-12) Data Protection in the Digital Age: A Comparative Study

Authors Kai Feng, Sylvia Papadopoulos

ISSN: 2522-3062
Affiliations: Bachelor of Law; Deputy Director and Associate Professor of America-China Law Institute, China University of Political Science and Law; Senior Lecturer University of Pretoria and Chair of the Law Schools Global League: New Technology and the Law Research Group
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 261 – 287

Abstract

Schools have traditionally aggregated student education records themselves, in written formats and with relatively unsophisticated systems. However, today the amount of record keeping has increased and schools are ever more reliant on third-party operators, who compile information and operate databases systematically and more efficiently. These and other factors have opened opportunities for private vendors to access student data and to share it with others. In addition, schools now routinely incorporate various forms of digital technology in the form of educational software, teaching aids, websites, and programmes that provide connected devices to each student, allowing and encouraging teachers to incorporate technology into their lessons. By its very nature, the internet is a marketing information-sharing environment and the potential for traceability exists whenever the students are engaged in online activities. With these advances and developments, data security and other concerns become of paramount importance. Among the issues that have been raised are issues such as how can the legal system engage in harm reduction? Which legal approach is appropriate? What is the scope of student data that the law should protect? To what extent should schools and operators be held accountable for compliance? How do regulators maintain the balance between the need for student data protection and other interests? To date, proponents of new technology have given insufficient answers to these questions. This comparative study aims to find common strengths in different approaches to these issues relating to student data protection, while at the same time considering cultural and legal differences that exist among the following jurisdictions: the United States (US), the European Union (EU), China, and South Africa.

Intervening for Democracy: The Threat or Use of Force and Crisis in The Gambia

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

Intervening for Democracy: The Threat or Use of Force and Crisis in The Gambia

Authors Andrew G Jones

ISSN: 2522-3062
Affiliations: Master’s degree in International Law from Bangor University, UK; PhD candidate of China University of Political Science and Law
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 241 – 260

Abstract

The recent constitutional crisis in the West African state of the Republic of The Gambia saw the incumbent president of the state refuse to relinquish power after he was defeated in a democratic election. While political means were ultimately successful, the early response to the crisis involved the threat of force, which was held over the state throughout the situation and was ultimately carried out by the involved nations. Despite the lack of bloodshed and actual conflict, this resort to the threat and use of force was not in keeping with the accepted prohibitions contained in the United Nations Charter system and international law. This article seeks to outline how the international response to the crisis in The Gambia was a breach of international law in an attempt to impose the will of other states upon the internal political workings of another under the moral justification of the defence of democracy. Further, it will show that the prohibition of the threat or use of force established by the UN Charter system does not make room for force to stand as a stick with which to guarantee democratic freedoms.

The Rule of Law and Integrity: Appraising the Place and Role of Anti-Corruption Standards in the Fight against Corruption within the Central African Economic and Monetary Community

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

The Rule of Law and Integrity: Appraising the Place and Role of Anti-Corruption Standards in the Fight against Corruption within the Central African Economic and Monetary Community

Authors Caroline J Nwabueze, Diane Pofinet

ISSN: 2522-3062
Affiliations: Post-Doctorate Research Fellow at the South African Research Chair in Law, Society and Technology, University of South Africa, and Africa Chairperson of Advocates International Rule of Law and Integrity Task Force; Attorney at law and member of the Chad Bar Association
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 207 – 240

Abstract

The Central African Economic and Monetary Community (CEMAC) is an organisation of states of the central Africa sub-region that aims to promote economic integration among member states. Notwithstanding the plausible aims and laudable objectives that gave rise to CEMAC, its member states have not been exempted from the syndrome of corruption. Corruption represents a fundamental catalyst to developmental endeavours of governments at various levels of governance. To enable the fulfilment of its primary objectives, CEMAC has adopted several anti-corruption legal instruments. Paradoxically, years after the implementation of these laws, corruption indexes have continually portrayed CEMAC nations as taking the lead in the hierarchy as the most corrupt nations in Africa and the world at large. This article examines the place and role of CEMAC as regional regulator of economic development in the fight against corruption within its member states. First, this article reviews the legal anti-corruption framework in CEMAC and other regional anti-corruption treaties in Africa. Does corruption now not make a mockery of the purpose of CEMAC as well as raising questions as to why CEMAC was conceived and has not yet delivered? The article underlines the growing number of corruption cases and reports within CEMAC to illustrate this. Second, the article analyses the existence of constraints on member countries of CEMAC in relation to corruption. Anti-corruption enforcement proceedings are reviewed as well as the legal incentives for local governance integrity. Third, the article scrutinises the value added by the CEMAC Treaty within the sub-region over the African Union anti-corruption instrument and concludes with recommendations for a sustainable link between the rule of law and fight against corruption in CEMAC member states.

Precaution against What? – The Electronic or E-authentication Frameworks of the United Kingdom, Canada and South Africa

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

Precaution against What? – The Electronic or E-authentication Frameworks of the United Kingdom, Canada and South Africa

Authors Mzukisi N Njotini

ISSN: 2522-3062
Affiliations: Associate Professor, Department of Private Law, Faculty of Law, University of Johannesburg. The author wishes to acknowledge that this research was commenced and completed while he was in the employ of the College of Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 185 – 206

Abstract

Information and communication technologies (ICTs) provide opportunities and can cause setbacks to society. On the one hand, they have revolutionised the manner in which people, businesses or governments communicate and share information. On the other hand, ICTs have, inter alia, provided opportunities for the misappropriation of information in online settings. Because ICTs have become a source from which information is kept and stored, they contribute to information becoming a public good that requires legal recognition. In addition, this acceptance has meant that measures to secure information should be introduced to avert those who may wish to access, use, alter or interfere with information using whatever means possible. These measures are called e-authentication measures. They are preventive in nature and aim to validate and corroborate certain credentials necessary for the granting of authority to access information. In this article, a comparative approach to e-authentication is followed. It looks at the e-authentication structures adopted in the United Kingdom, Canada and South Africa. This approach is selected with a view to ensure that the e-authentication agenda in South Africa responds adequately to the danger of information being misappropriated online.

International Law and Indigenous People: Self-Determination, Development, Consent and Co-Management

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

International Law and Indigenous People: Self-Determination, Development, Consent and Co-Management

Authors George N Barrie

ISSN: 2522-3062
Affiliations: Professor Emeritus, Law Faculty University of Johannesburg
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 171 – 184

Abstract

The principle of self-determination in international law can refer to political aspirations as well as territorial aspirations. Regarding the latter, the maturation of the discourse on self-determination has provided indigenous peoples with control over their own destiny. This has come about due to an evolutionary development of the principle of self-determination in international law. Self-determination has provided an efficient platform for indigenous peoples to claim their rights to their territories. The true spirit of self-determination has manifested itself as respect for their land without which indigenous peoples cannot fully enjoy their economic and cultural identity. The adoption of the UN Declaration on the Rights of Indigenous Peoples is a vivid illustration of such an outcome. The article analyses the extent to which self-determination encompasses territorial rights for indigenous peoples. This analysis illustrates to what extent self-determination has served as a positive force in the quest of indigenous peoples to territorial rights and how their territorial claims have altered the modern approach to the right to self-determination. Under recent developments indigenous peoples have gained access to international law as ‘actors’ gaining greater control over their own future based on the notion of consent between states and indigenous peoples.

Cooperation in Outer Space Activities: South Africa’s Role as a Member State of the African Union and BRICS

by | Oct 1, 2019 | CILSA, CILSA V51 I2 2018

Cooperation in Outer Space Activities: South Africa’s Role as a Member State of the African Union and BRICS

Authors Anél Ferreira-Snyman

ISSN: 2522-3062
Affiliations: Professor, School of Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 141 – 170

Abstract

The complex nature of outer space activities and the high cost involved in the development of space technologies have increasingly necessitated inter-state cooperation and partnerships. Global issues such as environmental protection, natural disaster management and climate change have again highlighted the need for cooperation between states, also in the realm of outer space. Pressure on national budgets as a result of various global economic crises experienced over the last few years, has further incentivised cooperation in the structuring of space programmes. Moreover, as a result of the significant increase in space actors, outer space has become a congested and competitive environment. Greater international cooperation is, therefore, imperative in order to ensure that outer space activities are carried out peacefully, for the benefit and in the interest of all nations and that outer space is preserved for future generations. The socio-economic benefits have made the development of space programmes attractive to a number of developing states, including states in Africa. Africa is becoming one of the most important markets for telecommunication development. Sustained development in this area will, however, be dependent on the safety and integrity of space assets. In this regard, outer space cooperation to develop instruments and norms regulating the space domain is imperative. Effective cooperation between developed and developing countries is, however, dependent on the negotiation of a number of contentious issues, including the use of the Geostationary Orbit, the mitigation of space debris and the militarisation of outer space. The formulation and successful application of measures addressing these issues are reliant on cooperation between space-faring and non-space-faring states. It is submitted that South Africa, as a member of both the African Union and BRICS, has an important role to play in this regard.

Journal Note: A South African Perspective to the Pay Now Argue Later Tax Liability Principle: Lessons to Learn for Botswana

by | Oct 1, 2019 | CILSA, CILSA V51 I3 2018

Journal Note: A South African Perspective to the Pay Now Argue Later Tax Liability Principle: Lessons to Learn for Botswana

Authors Ame Rebecca Masuku

ISSN: 2522-3062
Affiliations: Admitted Attorney in the Courts of the Republic of Botswana; Lecturer, Department of Law, University of Botswana
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 3, p. 412 – 421

Abstract

The Pay Now Argue Later principle is central to the administration of taxes in many jurisdictions. The principle requires that an aggrieved taxpayer wishing to object or appeal decisions of the revenue authority should pay the tax liability imposed for the very assessment they wish to contest. In its rudimentary form, Pay Now Argue Later posits that the aggrieved taxpayer’s liability is undisputed and the outcome of their objection or appeal can only result in a variance of the liability undoubtedly imposed. This note examines the Botswana and South African approach to the principle of Pay Now Argue Later. The examination of the said notion is in the Income Tax Acts and Value Added Tax Acts of both jurisdictions. This note concedes that although the rule is often riddled with criticism and speculations of the inherent ‘unfairness’, it is a necessary tool for the revenue authorities to effectively perform their duty without room for the taxpayer to use frivolous and vexatious tactics to avoid tax liability. In light of this, this note seeks out the ‘best’ way to apply the principle with regard to the taxpayers’ rights and the revenue authority’s rights. The note posits that the South African perspective can provide a platform for Botswana to learn and appreciate a better way to apply the Pay Now Argue Later rule regarding the rights of the parties involved and the legitimacy of the objections and appeal process.

The Veiled Muslim Witness and the Accused’s Right to a Fair Trial in Adversarial Legal Systems

by | Oct 1, 2019 | CILSA, CILSA V51 I3 2018

The Veiled Muslim Witness and the Accused’s Right to a Fair Trial in Adversarial Legal Systems

Authors Willem Gravett

ISSN: 2522-3062
Affiliations: Senior Lecturer in Law, University of Pretoria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 3, p. 380 – 411

Abstract

In a number of recent cases across common-law jurisdictions, female Muslim witnesses have been denied their right to wear the niqab while testifying in court. Ultimately, in each of these cases, the right to a fair trial—and the perceived threat to that right—overrode the witness’s express desire to veil. However, a fundamental fact not recognised in any of these judgments is that a Muslim woman’s refusal to remove her veil has drastic implications for her access to courts in both the criminal and civil contexts, thereby implicating her ability to participate as a citizen. It raises the critical question whether such a state of affairs should be tolerated in a pluralistic society. This contribution investigates this question by analysing the right to confrontation from historical, epistemological and comparative perspectives, including its limitations. It then evaluates the rationales that the courts have advanced for holding that the veiled Muslim witness violates the accused’s right to a fair trial, namely it deprives the court of the ability to observe the witness’s demeanour, it infringes on the right to cross-examine the witness, and it defies the ‘symbolic’ value of confrontation.