A review of five international forensic reports : fingerprint evidence lessons for South African lawyers
- Authors: Chiwara, Mercy
- Date: 2018
- Subjects: Fingerprints Fingerprints -- Identification Forensic sciences
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/10927 , vital:35964
- Description: For more than a century fingerprint evidence has been used as a tool for the forensic identification of offenders, and has generally been accepted without being tested, challenged or scrutinized because the courts were convinced that no prints look alike or are the same. Fingerprint evidence has been used and accepted on the basis that each person’s friction ridges are unique, that the ridges are permanent and can be transferred to a surface. However, the transferability of the uniqueness raises issues that are very significant in relation to the reliability of fingerprint evidence because only a partial impression is typically transferred. Furthermore, the print can be distorted as a result of pressure and this inevitably affects the impression. Nevertheless, in recent and authoritative Reports from the United States and Scotland, criticisms are being raised against fingerprint evidence. These challenges include the fact that to date there has not been a study to validate the reliability of fingerprint individualisation, the fact that there is no specific requirement with regard as to how much constant or uniform detail between latent print and known print suffices to reach a decision of identification and the fact that there are no objective standards coupled with the problem that there is a lack of scientific validity of the method used for comparisons. This study reviews the law relating to fingerprint evidence in the light of the reports produced by the Office of the Inspector General, United States Department of Justice, Reviewing the Mayfield Case (US) in 2006, the National Academy of Sciences (US) Report in 2009, the Fingerprint Inquiry Report by Lord Campbell in Scotland in 2011, the National Institute of Standards and Technology and National Institute of Justice (US) Report in 2012, and the President’s Council of Advisors on Science and Technology Report (US) in 2016, so as to establish lessons for South African lawyers in as far as reliability, weight and admissibility of fingerprint evidence is concerned. Finally, this study concludes that South Africa’s norm of accepting fingerprint evidence as unquestionable is problematic in law and in science and that there is a need for reform regarding the manner in which fingerprint evidence is evaluated by the courts.
- Full Text:
- Date Issued: 2018
- Authors: Chiwara, Mercy
- Date: 2018
- Subjects: Fingerprints Fingerprints -- Identification Forensic sciences
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/10927 , vital:35964
- Description: For more than a century fingerprint evidence has been used as a tool for the forensic identification of offenders, and has generally been accepted without being tested, challenged or scrutinized because the courts were convinced that no prints look alike or are the same. Fingerprint evidence has been used and accepted on the basis that each person’s friction ridges are unique, that the ridges are permanent and can be transferred to a surface. However, the transferability of the uniqueness raises issues that are very significant in relation to the reliability of fingerprint evidence because only a partial impression is typically transferred. Furthermore, the print can be distorted as a result of pressure and this inevitably affects the impression. Nevertheless, in recent and authoritative Reports from the United States and Scotland, criticisms are being raised against fingerprint evidence. These challenges include the fact that to date there has not been a study to validate the reliability of fingerprint individualisation, the fact that there is no specific requirement with regard as to how much constant or uniform detail between latent print and known print suffices to reach a decision of identification and the fact that there are no objective standards coupled with the problem that there is a lack of scientific validity of the method used for comparisons. This study reviews the law relating to fingerprint evidence in the light of the reports produced by the Office of the Inspector General, United States Department of Justice, Reviewing the Mayfield Case (US) in 2006, the National Academy of Sciences (US) Report in 2009, the Fingerprint Inquiry Report by Lord Campbell in Scotland in 2011, the National Institute of Standards and Technology and National Institute of Justice (US) Report in 2012, and the President’s Council of Advisors on Science and Technology Report (US) in 2016, so as to establish lessons for South African lawyers in as far as reliability, weight and admissibility of fingerprint evidence is concerned. Finally, this study concludes that South Africa’s norm of accepting fingerprint evidence as unquestionable is problematic in law and in science and that there is a need for reform regarding the manner in which fingerprint evidence is evaluated by the courts.
- Full Text:
- Date Issued: 2018
The regulation of anti-dumping : a critical assessment with a focus on South Africa
- Authors: Chikomo, Unico
- Date: 2018
- Subjects: Antidumping duties
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/10896 , vital:35961
- Description: Economic globalisation entails the integration of national economies into one economy centred upon free International trade and the unrestricted flow of foreign direct investment.1 It has been argued by economists, politicians, business people, lawyers and many others that economic globalisation results in healthy competition amongst producers of goods and technologies around the world. This in turn results in market efficiency, cheaper, high quality goods and the increased spread of technology and wealth amongst countries. International trade aims to increase trade liberalisation, which has been seen to create higher standards of living for people as a result of greater competition amongst producers in different parts of the international globe. However whilst in support of trade liberalisation trade lawyers have warned that International trade must be fair. Unfair trade can take the form of dumping, price fixing, and certain methods of subsidisation. Unfair trade usually has disastrous effects on the domestic markets of importing countries which can result in injury to domestic industry and the national economy. Such injury can be in the form low sales, losses, company closures and retrenchments. As a result of such domestic injury, World Trade Organisation (WTO) law condemns dumping if it causes injury to the domestic industry of the importing country2 and allows importing countries to impose certain measures aimed at protecting themselves against such injury; these measures are called anti-dumping measures. However, WTO member states need to ensure that their anti-dumping frameworks are consistent with WTO norms. The principal objective of this study is to critically assess the existing regulatory framework of anti-dumping in South Africa with a view to identifying shortcomings that may result in the framework being inconsistent with WTO anti-dumping rules. In pursuing that objective, the study explores the norms and standards of the existing WTO regulatory framework on anti-dumping and ascertains the obligations of South Africa with regard to the imposition of anti-dumping measures.
- Full Text:
- Date Issued: 2018
- Authors: Chikomo, Unico
- Date: 2018
- Subjects: Antidumping duties
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/10896 , vital:35961
- Description: Economic globalisation entails the integration of national economies into one economy centred upon free International trade and the unrestricted flow of foreign direct investment.1 It has been argued by economists, politicians, business people, lawyers and many others that economic globalisation results in healthy competition amongst producers of goods and technologies around the world. This in turn results in market efficiency, cheaper, high quality goods and the increased spread of technology and wealth amongst countries. International trade aims to increase trade liberalisation, which has been seen to create higher standards of living for people as a result of greater competition amongst producers in different parts of the international globe. However whilst in support of trade liberalisation trade lawyers have warned that International trade must be fair. Unfair trade can take the form of dumping, price fixing, and certain methods of subsidisation. Unfair trade usually has disastrous effects on the domestic markets of importing countries which can result in injury to domestic industry and the national economy. Such injury can be in the form low sales, losses, company closures and retrenchments. As a result of such domestic injury, World Trade Organisation (WTO) law condemns dumping if it causes injury to the domestic industry of the importing country2 and allows importing countries to impose certain measures aimed at protecting themselves against such injury; these measures are called anti-dumping measures. However, WTO member states need to ensure that their anti-dumping frameworks are consistent with WTO norms. The principal objective of this study is to critically assess the existing regulatory framework of anti-dumping in South Africa with a view to identifying shortcomings that may result in the framework being inconsistent with WTO anti-dumping rules. In pursuing that objective, the study explores the norms and standards of the existing WTO regulatory framework on anti-dumping and ascertains the obligations of South Africa with regard to the imposition of anti-dumping measures.
- Full Text:
- Date Issued: 2018
The reliability of firearm identification in South Africa : a comparative perspective
- Authors: Mutsavi, Tanyarara
- Date: 2018
- Subjects: Forensic sciences Firearms -- Identification
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/10850 , vital:35860
- Description: Crime has become a well-known and worrying fact of life in South Africa. It constrains the ability of citizens to participate actively and meaningfully in all spheres of social and economic life. In many cases where a crime is committed, a firearm is involved. In order to fight gun crime there is a need for the perpetrators to be prosecuted. For prosecution to take place, there must be evidence to link the suspects to the committed crime. This is when firearm identification as a form of expert scientific evidence comes into play. This type of evidence links the bullets and cartridges recovered from the crime scene to the suspect.s firearms through the process of matching which is done by using a comparison microscope. Expert scientific evidence like firearm identification evidence, needs to be scientifically reliable because unreliable evidence may lead to the conviction of the innocent and exoneration of the guilty. Case law, authoritative reports and other literature have shown that firearm identification is not scientific and therefore it is not reliable. This is a disturbing position, considering the fact that this type of evidence is still being used in courts and no alternative has been found thus far to replace it. This study therefore proposes some reforms and recommendations which have been registered in authoritative reports which assist South Africa in dealing with firearm identification evidence. To achieve reliability, some writers have suggested that South Africa should adopt the US approach with regard to admissibility where judges play a .gate keeping. role by making sure that expert evidence is reliable before it enters the court. However, this study argues that scientific reliability, in South Africa, should not be a criterion for admissibility, but should rather be a central factor in deciding what weight should be attached to the expert evidence given in a particular case. The reason for this is that, in South Africa, the jury system is not used and therefore the judge does not have to exercise a .gate keeping. role, as he or she will be the final arbiter as to whether the evidence is reliable. In this context, reliability is considered during cross-examination. Cross-examination by the defence is crucial and this study proposes some possible cross-examination questions that can be helpful in testing the reliability of firearm identification evidence.
- Full Text:
- Date Issued: 2018
- Authors: Mutsavi, Tanyarara
- Date: 2018
- Subjects: Forensic sciences Firearms -- Identification
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/10850 , vital:35860
- Description: Crime has become a well-known and worrying fact of life in South Africa. It constrains the ability of citizens to participate actively and meaningfully in all spheres of social and economic life. In many cases where a crime is committed, a firearm is involved. In order to fight gun crime there is a need for the perpetrators to be prosecuted. For prosecution to take place, there must be evidence to link the suspects to the committed crime. This is when firearm identification as a form of expert scientific evidence comes into play. This type of evidence links the bullets and cartridges recovered from the crime scene to the suspect.s firearms through the process of matching which is done by using a comparison microscope. Expert scientific evidence like firearm identification evidence, needs to be scientifically reliable because unreliable evidence may lead to the conviction of the innocent and exoneration of the guilty. Case law, authoritative reports and other literature have shown that firearm identification is not scientific and therefore it is not reliable. This is a disturbing position, considering the fact that this type of evidence is still being used in courts and no alternative has been found thus far to replace it. This study therefore proposes some reforms and recommendations which have been registered in authoritative reports which assist South Africa in dealing with firearm identification evidence. To achieve reliability, some writers have suggested that South Africa should adopt the US approach with regard to admissibility where judges play a .gate keeping. role by making sure that expert evidence is reliable before it enters the court. However, this study argues that scientific reliability, in South Africa, should not be a criterion for admissibility, but should rather be a central factor in deciding what weight should be attached to the expert evidence given in a particular case. The reason for this is that, in South Africa, the jury system is not used and therefore the judge does not have to exercise a .gate keeping. role, as he or she will be the final arbiter as to whether the evidence is reliable. In this context, reliability is considered during cross-examination. Cross-examination by the defence is crucial and this study proposes some possible cross-examination questions that can be helpful in testing the reliability of firearm identification evidence.
- Full Text:
- Date Issued: 2018
The use of alternative dispute resolution mechanisms in labour relations in the workplace in South Africa
- Authors: Rwodzi, Night Tafadzwa
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa Mediation and conciliation, Industrial -- South Africa Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/10907 , vital:35962
- Description: Disputes are part and parcel of human nature and always manifest everywhereincluding the employment arena. It is this inevitability of disputes that warrantsmeasures to be in place so as to effectively and without delay, resolve them in order to realise industrial peace. This study is prompted by the way industrial disputes have been handled in the past and the contemporary era. South African legal system provides Alternative Dispute Resolution (ADR) mechanisms to the use of adjudication by the ordinary courts in resolving workplace disputes. However, a set of methods made up of conciliation, mediation and arbitration have not been effective in resolving labour disputes owing to a variety of factors. Failure to provide a speedy resolution of disputes, large number of referrals to the Commissioner for Conciliation, Mediation and Arbitration (CCMA) and a large number of review applications lodged at the Labour Courts are some of the contributory factors that delay matters in bringing to finality. It is therefore the aim of this study, to proffer plausible recommendations that intends to cure and provide a silver bullet to the lacuna which exists in the current labour dispute system. To achieve the above stipulated aim, a general background of the study, accompanied by the chronicles of dispute resolution statutes and mechanisms is deliberated. Thereafter, South African compliance with International Labour Organisation (ILO) Conventions is discussed to assess the efficacy of labour dispute mechanisms. A critical analyses of the effectiveness of ADR within the scope of Labour Relations Act (LRA) 66 of 1995 will then follow. Although there are some limitations to this study, it should be noted that relevant legislation passed by parliament, cases, together with international and regional conventions ratified by the government, scholarly articles, journals and books are used to strengthen arguments and provide guidance in achieving the aims and objectives of the study.
- Full Text:
- Date Issued: 2018
- Authors: Rwodzi, Night Tafadzwa
- Date: 2018
- Subjects: Dispute resolution (Law) -- South Africa Mediation and conciliation, Industrial -- South Africa Industrial relations -- South Africa
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/10907 , vital:35962
- Description: Disputes are part and parcel of human nature and always manifest everywhereincluding the employment arena. It is this inevitability of disputes that warrantsmeasures to be in place so as to effectively and without delay, resolve them in order to realise industrial peace. This study is prompted by the way industrial disputes have been handled in the past and the contemporary era. South African legal system provides Alternative Dispute Resolution (ADR) mechanisms to the use of adjudication by the ordinary courts in resolving workplace disputes. However, a set of methods made up of conciliation, mediation and arbitration have not been effective in resolving labour disputes owing to a variety of factors. Failure to provide a speedy resolution of disputes, large number of referrals to the Commissioner for Conciliation, Mediation and Arbitration (CCMA) and a large number of review applications lodged at the Labour Courts are some of the contributory factors that delay matters in bringing to finality. It is therefore the aim of this study, to proffer plausible recommendations that intends to cure and provide a silver bullet to the lacuna which exists in the current labour dispute system. To achieve the above stipulated aim, a general background of the study, accompanied by the chronicles of dispute resolution statutes and mechanisms is deliberated. Thereafter, South African compliance with International Labour Organisation (ILO) Conventions is discussed to assess the efficacy of labour dispute mechanisms. A critical analyses of the effectiveness of ADR within the scope of Labour Relations Act (LRA) 66 of 1995 will then follow. Although there are some limitations to this study, it should be noted that relevant legislation passed by parliament, cases, together with international and regional conventions ratified by the government, scholarly articles, journals and books are used to strengthen arguments and provide guidance in achieving the aims and objectives of the study.
- Full Text:
- Date Issued: 2018
Reconfiguring international pharmaceutical patent protection principles to combat linkage evergreening :|b'de-linking the evergreen' and proposing a solution for developing countries
- Authors: Omino, Akinyi Melissa Anne
- Date: 2016
- Subjects: Patent medicines--Developing countries Drugs--Developing countries Patent laws and legislation--Developing countries
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/11663 , vital:39094
- Description: Recent remarks made by the current South African Minister of Health describing as a plot to ‘genocide’ a leaked document allegedly authored by a group of multinational pharmaceutical companies in response to the country’s Draft IP Policy is evidence of the importance of both pharmaceutical patents and the national intellectual property policies underpinning their legislative landscape. The proliferation of linkage evergreening provisions through multilateral agreements has also recently become a trend globally. Evergreening has been described as the various ways in which pharmaceutical patent owners use the law and related regulatory processes to extend the patent term of their high profit-making pharmaceuticals. The evergreening phenomenon has also been referred to as patent evergreening, which involves the practice of obtaining multiple patents that cover different aspects of the same product. Linkage evergreening however specifically refers to the phenomenon where generics pharmaceutical manufacturers cannot receive regulatory approval or marketing authorization for developing a pharmaceutical product that is still protected by a patent. The evergreening phenomenon is achieved through Free Trade Agreements (FTAs) which require participating nations to incorporate linkage and other intellectual property provisions in their national patent systems in exchange for preferential trade terms. These agreements generally provide for stronger provisions than the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and are thus referred to as “TRIPS Plus". Not surprisingly, these “TRIPS Plus” FTAs are negotiated outside the purview of the World Trade Organization (WTO). This thesis examines the role, legality and impact of bilateral free trade agreements which include wide ranging provisions that allow the proliferation of linkage evergreening and thereby frustrate and delay generic medicines’ market entry, prolong and expand patent protections and constrain the exercise of TRIPS flexibilities intended to support access and promote public health. The free trade agreements discussed include the North American Free Trade Agreement (NAFTA), the US - Australia Free Trade Agreement (AUSFTA) and the US - Korea Free Trade Agreement (KORUSFTA). This study also examines the Economic Partnership Agreements (EPAs) in the context of access to medicines and linkage evergreening in developing countries and LDCs in Africa, with a focus on the recently concluded EU – SADC EPA and the EU-EAC EPA still under negotiation. Relevant legislation, policy documents and case law from South Africa, India, the EAC and ARIPO are also explored in this study to gauge their potential to effectively address the challenges of access to medicines and evergreening. This thesis offers a solution to evergreening through the recommendation of guidelines which show law and policy makers how to curtail linkage evergreening. More specifically, it is hoped that the said guidelines as well as the discussion and analyses presented in this thesis will assist in the development of national and regional intellectual property policies, amendment of national and regional legislative instruments as well as the negotiation of regional trade agreements aimed at securing the interests of LDCs and developing countries. It is further hoped that the recommendations made will contribute to ongoing efforts to improve access to affordable medicines in the developing world.
- Full Text:
- Date Issued: 2016
- Authors: Omino, Akinyi Melissa Anne
- Date: 2016
- Subjects: Patent medicines--Developing countries Drugs--Developing countries Patent laws and legislation--Developing countries
- Language: English
- Type: Thesis , Masters , Law
- Identifier: http://hdl.handle.net/10353/11663 , vital:39094
- Description: Recent remarks made by the current South African Minister of Health describing as a plot to ‘genocide’ a leaked document allegedly authored by a group of multinational pharmaceutical companies in response to the country’s Draft IP Policy is evidence of the importance of both pharmaceutical patents and the national intellectual property policies underpinning their legislative landscape. The proliferation of linkage evergreening provisions through multilateral agreements has also recently become a trend globally. Evergreening has been described as the various ways in which pharmaceutical patent owners use the law and related regulatory processes to extend the patent term of their high profit-making pharmaceuticals. The evergreening phenomenon has also been referred to as patent evergreening, which involves the practice of obtaining multiple patents that cover different aspects of the same product. Linkage evergreening however specifically refers to the phenomenon where generics pharmaceutical manufacturers cannot receive regulatory approval or marketing authorization for developing a pharmaceutical product that is still protected by a patent. The evergreening phenomenon is achieved through Free Trade Agreements (FTAs) which require participating nations to incorporate linkage and other intellectual property provisions in their national patent systems in exchange for preferential trade terms. These agreements generally provide for stronger provisions than the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and are thus referred to as “TRIPS Plus". Not surprisingly, these “TRIPS Plus” FTAs are negotiated outside the purview of the World Trade Organization (WTO). This thesis examines the role, legality and impact of bilateral free trade agreements which include wide ranging provisions that allow the proliferation of linkage evergreening and thereby frustrate and delay generic medicines’ market entry, prolong and expand patent protections and constrain the exercise of TRIPS flexibilities intended to support access and promote public health. The free trade agreements discussed include the North American Free Trade Agreement (NAFTA), the US - Australia Free Trade Agreement (AUSFTA) and the US - Korea Free Trade Agreement (KORUSFTA). This study also examines the Economic Partnership Agreements (EPAs) in the context of access to medicines and linkage evergreening in developing countries and LDCs in Africa, with a focus on the recently concluded EU – SADC EPA and the EU-EAC EPA still under negotiation. Relevant legislation, policy documents and case law from South Africa, India, the EAC and ARIPO are also explored in this study to gauge their potential to effectively address the challenges of access to medicines and evergreening. This thesis offers a solution to evergreening through the recommendation of guidelines which show law and policy makers how to curtail linkage evergreening. More specifically, it is hoped that the said guidelines as well as the discussion and analyses presented in this thesis will assist in the development of national and regional intellectual property policies, amendment of national and regional legislative instruments as well as the negotiation of regional trade agreements aimed at securing the interests of LDCs and developing countries. It is further hoped that the recommendations made will contribute to ongoing efforts to improve access to affordable medicines in the developing world.
- Full Text:
- Date Issued: 2016
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:
- Date Issued: 2016
- 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:
- Date Issued: 2016
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:
- Date Issued: 2016
- 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:
- Date Issued: 2016
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