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Building a South African Human Rights Culture in the Face of Cultural Diversity: Context and Conflict
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AbstractSouth Africa has faced enormous challenges since the advent of democracy in 1994. One of the difficulties in the post-apartheid era has been the building of a human rights culture in the context of substantial cultural diversity. In this paper, the constitutional, judicial and institutional contexts - which have consolidated and supported the expression of human rights in the face of cultural diversity - are reviewed. The focus on cultural rights in the constitution is discussed, and the relevance of several constitutional institutions in terms of ensuring human rights, is mentioned. With a clear understanding of the constitutional, judicial and institutional contexts in place, the paper discusses the potentially inherent conflict between human rights and cultural rights, using gender-related issues as a proxy. Several examples of this potential conflict are discussed, including female circumcision, virginity testing and polygamy. The importance of human rights education for informing the debate about cultural and human rights in South Africa is emphasized. The answers to the challenges associated with the clash between cultural rights and human rights are not simple, although pragmatically - in addition to the role of the available constitutional, judicial and institutional structures - they could reside in a cross-cultural debate.
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Post-Colonial Public Law: Are Current Legal Establishments Democratically Illegitimate?
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AbstractThe extant literature covering indigenous peoples resident on the African continent targets colonial law as an obstacle to the recognition of indigenous rights. Whereas colonial law is argued by a wide body of literature to be archaic and in need of review, this article takes a different route and argues the perspective that colonial law is democratically illegitimate for ordering the population it presides over - specifically in Africa. It is seen, in five case studies, that post-colonial public law structures have not considered the legitimacy of colonial law and have rather modified a variety of constitutional statutes as country contexts dictated. However, the modified statutes are based on an alien theoretical legality, something laden with connotations that hark to older and backward times. It is ultimately argued that the legal structures which underpin ex-colonies in Africa need considerable revision so as to base statutes on African theoretical legality, rather than imperialistic European ones, so as to maximise the law’s democratic legitimacy for both indigenous and non-indigenous Africans.
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Provisional Registration of a Retirement Fund under Scrutiny in Swaziland
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AbstractRecently the Industrial Court of Swaziland was faced with a complaint in Mngadi v Motor Vehicle Accident Fund’s Pension Fund, which raised two important issues of first impression in Swaziland retirement law. This note discusses the significance and effects of Mngadi on provisional registration of retirement funds in Swaziland. It argues that Mngadi should be welcomed because it clarifies the significance of the need for retirement funds to operate in accordance with their registered rules. The note also discusses the problems with the Registrar’s power to issue a provisional certificate of registration under Section 5 in light of the problems that emerged in Mngadi. The note argues that Mngadi should be welcomed because it highlights the characteristics of a defined benefit fund, and implicitly distinguishes it from a defined contribution fund. While Mngadi should generally be welcomed, the Industrial Court should be criticised for its failure to develop the law.
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Electoral Conflict and Justice: The Case of Zimbabwe
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AbstractIn recent years, Africa has faced a new form of conflict arising from disputed elections. Incumbents have refused to vacate office after apparently losing elections, triggering violent conflict. Regional organisations have invested considerable political energy to manage these conflicts. Post-electoral conflict accords (PECAs) resulting in power-sharing have been the favoured modus vivendi with regional mediators. However, little attention has been paid to the crucial issue of justice in the management of these disputes. Like most conflicts, electoral conflict centres on perceived injustice in the electoral process. Therefore, in order to manage these conflicts in an effective way, justice must be acknowledged in both procedural and substantive content. This article focuses on management of electoral conflict in Zimbabwe. It argues that the protracted post-electoral conflict in Zimbabwe can be explained, to a large extent, through failure to acknowledge procedural, distributive and retributive justice concerns.
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