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Comparative and International Law Journal of Southern Africa
Number of Followers: 4

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ISSN (Print) 0010-4051
Published by Sabinet Online Ltd

[185 journals]

Editorial
- Authors: Funmi T. Abioye
  Abstract: Today, it can be said that change is the only constant. Change is also something CILSA is embracing and navigating our way through. Change is extant and it is something that the year 2020, in particular, has demanded of all of us.
  PubDate: 2020-01-01T00:00:00Z
Leveraging international law to strengthen the national legal framework on
child sexual abuse material in Namibia
- Authors: Sabine Katharina Witting; Markus Penda Angula
  Abstract: With the gazetting of the Regulations of the Child Care and Protection Act 3 of 2015, on 30 January 2019, a crucial regulatory piece of children’s rights in Namibia has finally been operationalised. However, the Act insufficiently addresses new emerging online offences against children such as the possession and distribution of child sexual abuse material, and hence leaves a considerable gap in the protection of children’s rights. As the Namibian Constitution follows a monist approach to international law, this article argues that the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography can be directly applied to complement the national legal framework to prosecute cases of possessing and disseminating child sexual abuse material, while upholding fair-trial principles.
  PubDate: 2020-01-01T00:00:00Z
The Interaction between section 233 of the South African Constitution and
the Commentaries to the OECD Model Tax Convention on Income and on Capital
- Authors: Enelia Jansen van Rensburg
  Abstract: The Commentaries to the OECD’s Model Tax Convention on Income and on Capital are at times consulted by South African courts when double taxation agreements are interpreted. The question considered in this article is the nature of the interaction, if any, between these Commentaries and section 233 of the Constitution of the Republic of South Africa, 1996. Section 233 requires a court to prefer a reasonable interpretation of legislation that is consistent with international law over other interpretations that are not consistent with international law.The contribution analyses various aspects of the wording of section 233, including the meaning of the phrase ‘international law’. It points out the various roles that transnational sources may play with regard to section 233, for example these sources may either constitute the ‘international law’ to which section 233 refers, or they may be aids to the interpretation of those sources that constitute ‘international law’. The contribution considers which of these roles the Commentaries are most likely to play for purposes of section 233.
  PubDate: 2020-01-01T00:00:00Z
A call for public participation in the treaty-making process in South
Africa : what can South Africa learn from the Kingdom of Thailand'
- Authors: Moses Retselisitsoe Phooko
  Abstract: On 2 August 2002, South Africa signed the Southern African Development Community (SADC) Protocol on Tribunal and the Rules of Procedure Thereof, thus effectively recognising and accepting the jurisdiction of the SADC Tribunal. Among the cases received by the SADC Tribunal was a complaint involving allegations of human rights violations by the government of Zimbabwe. It ruled that the government of Zimbabwe had violated human rights. Consequently, Zimbabwe mounted a politico-legal challenge against the existence of the Tribunal. This resulted in the review of the role and functions of the Tribunal in 2011 which resulted in the Tribunal being barred from receiving new cases or proceeding with the cases that were already before it. Furthermore, on 18 August 2014, the SADC Summit adopted and signed the 2014 Protocol on the Tribunal in the SADC which disturbingly limits personal jurisdiction by denying individual access to the envisaged Tribunal, thus reducing it to an inter-state judicial forum. This article critically looks at the decision of 18 August 2014, specifically the legal implications of the Republic of South Africa’s signing of the 2014 Protocol outside the permissible procedure contained in article 37 of the SADC Protocol on the Tribunal. It proposes that South Africa should correct this democratic deficit by introducing public participation in treaty-making processes in order to prevent a future situation where the executive unilaterally withdraws from an international treaty that is meant to protect human rights at a regional level. To achieve this, this article makes a comparative study between South Africa and the Kingdom of Thailand to learn of any best practices from the latter.
  PubDate: 2020-01-01T00:00:00Z
National human rights institutions and sustainable development with
specific reference to selected African examples
- Authors: John C. Mubangizi
  Abstract: That National Human Rights Institutions (NHRIs) play an important role in the protection and promotion of human rights is a well-known fact. This has been widely acknowledged by the United Nations (UN). Also well-known is the fact that several African countries have enacted new constitutions during the last two to three decades. One of the most salient features of those new constitutions is that they establish NHRIs, among other things. Given their unique role and mandate, these NHRIs can and do play an important role in the realisation of the sustainable development goals contained in the UN 2030 Agenda for Sustainable Development. Adopting a case study approach, this article explores the role NHRIs have played in the promotion and protection of human rights in selected African countries and implications for sustainable development in those countries. The main argument is that there are several lessons African countries can learn from each other on how their NHRIs can more meaningfully play that role. Accordingly, best practice and comparative lessons are identified and it is recommended that NHRIs can contribute to sustainable development more meaningfully if they can make themselves more relevant, credible, legitimate, efficient and effective.
  PubDate: 2020-01-01T00:00:00Z
Comparative exposition of judicial interventionism in the enforcement of
the healthcare right in Nigeria and India
- Authors: Ibrahim Imam; Wahab O. Egbewole
  Abstract: The significance of health to national life has made successive governments in Nigeria and India design certain fundamental policies to regulate, control and guide healthcare service delivery. Since the incorporation of fundamental human rights into the two countries’ constitutions, the healthcare right has appeared as one of the fundamental objectives and directive principles of state policy. This requires governments to put in place policies geared towards implementing these obligations. However, regarding economic and social rights, the Nigerian judiciary has generally played a restrictive or a rather passive role in their enforcement. In contrast, Indian courts have employed a much more pragmatic approach to implementing economic and social rights. The problem with these rights is that judicial intervention resulting from a violation of the healthcare right remains a challenge because section 6(6)(c) and article 35 of the Nigerian and Indian constitutions, respectively, make economic and social rights non-justiciable. The article makes a comparative analysis of the practice in Indian and other jurisdictions in order to justify the possibility of embracing the enforceability of the rights, having regard to the link between economic and social rights and civil and political rights in Nigeria. By drawing on judicial synergy, this article suggests a legislative intercession to bring health rights within the enforceable rights by taking advantage of section 13 and item 60 of the Nigerian Exclusive Legislative List. In addition, the author recommends that the relevant international conventions signed by the country should be domesticated.
  PubDate: 2020-01-01T00:00:00Z
Third-party state intervention in disputes before the International Court
of Justice : a reassessment of Articles 62 and 63 of the ICJ Statute
- Authors: George N. Barrie
  Abstract: In the modern world, disputes before the International Court of Justice (ICJ) which are normally of a bilateral nature, increasingly also affect the interests of third states. Third states may in many instances wish to intervene in such disputes. Articles 62 and 63 of the Statute of the ICJ has attempted to accommodate such an eventuality. Article 62 provides for intervention by a third state if it has an interest of a legal nature which may be affected by the ICJ’s decision in the case. Article 63 allows for member states of a multilateral treaty to intervene in cases involving the interpretation of such a treaty. Intervention under Article 62 is in the discretion of the ICJ. Intervention under Article 63 is a right. Applications to intervene under Article 62 have only been successful in three instances and, applications to intervene under Article 63 have only been successful in two instances. It is submitted that the ICJ should be more flexible in allowing third-party interventions by interpreting Articles 62 and 63 less strictly. This is more in accordance with the greater interdependence of states in the modern world and can prevent the duplication of proceedings. Such flexibility can only enhance the effectiveness of the ICJ in achieving its mandate.
  PubDate: 2020-01-01T00:00:00Z