Thesis (Ph.D.)--University of Wisconsin--Madison, 2006 / eContent provider-neutral record in process. Description based on print version record. Includes bibliographical references (p. 184-207).

Thesis (Ph.D.)--University of Wisconsin--Madison, 2006 / Includes bibliographical references (p. 184-207). Also available on the Internet.

The composite right to meaningful and informed participation in the criminal process comprises the right to information, the right to understand, the right to be prepared, the right to be present, the right to confrontation and the right to present one’s case. The sub-rights are not of an overarching nature such as the right to legal representation and the right of access to the law. The various rights are grouped together because they show some connection with the ability of the suspect or the accused to participate in the criminal proceedings as a legal subject, and not as an object of the proceedings as in primitive times. These rights ensure that the accused will not participate in the criminal process from an unfavourable position. The heading ‟meaningful and informed participation” is therefore a collective term for these rights. These sub-rights form part of the comprehensive right to a fair trial. The thesis examines aspects of the position of the accused in South Africa and in foreign jurisdictions such as the United States of America, Canada, New Zealand, Australia, Germany, the United Kingdom and Islamic systems. International instruments such as the European Convention for the Protection of Human Rights and decisions of the United Nations Human Rights Committee are also considered. The thesis first considers the historical perspective of the accused in primitive times when he was regarded as an object of the criminal proceedings, to the present time when he is regarded as a subject of the proceedings. The study on foreign jurisdictions reveals that for the most part, our law is in line with the law of other countries. The study also demonstrates that the various rights are not absolute. In exceptional circumstances, some diminution of the accused’s rights is necessary to protect the interests of society. Nevertheless, the courts should act cautiously and not allow the exceptions to overtake the rule. The judiciary should strive to find a better balance between the constitutional rights of the accused and the interests of society. To this end, the judicial system must be objective yet vigilant. / Criminal and Procedural Law / LL.D.

Much discussed and little understood, Richard Nixon's southern strategy demands scrutiny. A brief survey of the literature suggests that study on this controversial topic has reached an impasse. Southern historians keen to emphasise the importance of class in the region's partisan development over the last fifty years insist that any southern strategy predicated on racialised appeals to disaffected white conservatives was doomed to failure. Conversely, conventional accounts of the Nixon era remain wedded to the view that the southern strategy represented a successful devil's bargain whereby an avaricious Californian exchanged the promise of racial justice for black southerners in return for white Dixie's electoral votes. Most sobering of all are political scientists concerned with executive power, who evidence the limited discretion enjoyed by presidents to implement any agenda inimical to the corporate will of the federal bureaucracy. Since Nixon's executive departments were brimming with Democratic holdovers from the Kennedy and Johnson years, the question of whether or not the President demanded concessions to southern racists apparently becomes more or less irrelevant: the 'fourth branch' of the federal government inevitably ensured that a southern strategy was simply impossible to execute. In reality, much of this stalemate is the product of academic territorial warfare on the battleground of a subject wide open to multiple interpretations. A southern historian keen to showcase the importance of his local research is likely to show little interest in evidence that a President based in Washington D.C. could initiate social change in Tuscaloosa, Alabama. Similarly, political scientists fighting an unrewarding battle to emphasise the autonomy of federal departments are naturally disinclined to highlight examples of presidential willpower altering bureaucratic culture. Nevertheless, an intriguing paradox remains in evidence. Despite leaning more towards the political philosophy of antediluvian white southerners than the demands of black Americans, Richard Nixon presided over a period of such fundamental social reconstruction below the Mason-Dixie line that he could legitimately claim to have desegregated more southern schools than any other President in history. Whilst a raft of excellent monologues demonstrating the impact of local movements down South on national politics have been published over the last decade, few have even attempted to explain this peculiar phenomenon. As Matthew Lassiter observed in a Journal of American History roundtable on American conservatism in December 2011, 'the recent pendulum swing has overstated the case for a rightward shift in American politics by focusing too narrowly on partisan narratives and specific election cycles rather than on the more complex dynamics of political culture, political economy, and public policy.' The purpose of this thesis is to explain how a President notorious for pursuing the votes of white segregationists rested at the head of a federal government that ruthlessly dismantled Jim Crow. By incorporating the range of methodologies elucidated above, it will identify exactly how much influence President Nixon and his executive officers exerted over civil rights policy. Was Nixon's reactionary agenda thwarted by over-mighty bureaucrats? Or did the President act more responsibly than the majority of commentators have admitted?

A liberdade religiosa é um direito fundamental previsto no art. 5, inciso VI, da Constituição da República Federativa do Brasil. Apresenta várias facetas, pois consiste no direito de professar ou não uma religião, de mudar de crença, de poder se manifestar através de cerimônias e reuniões e, finalmente, no direito dos fiéis de se organizarem em instituições. O Estado garante este direito ao não interferir na liberdade individual do cidadão e ao garantir que outros cidadãos também não interfiram. Ao longo da história, o Brasil acumulou sete constituições. A segunda, de 1891, adotou em definitivo o modelo de separação entre Estado e Igreja. O modelo de Estado laico foi mantido pela atual Constituição, de 1988. Laicidade não é sinônimo de laicismo. Este significa exclusão da religião do âmbito público, enquanto aquele diz respeito à neutralidade e imparcialidade por parte do Estado. Secularização é um fenômeno de caráter social, da diminuição de práticas religiosas, e não apresenta caráter político. A ampla liberdade religiosa possibilita conflitos com outros direitos fundamentais, podendo, assim, vir a ser restringida. Todavia, há a necessidade de se impor limites a essas restrições através de instrumentos jurídicos que garantam não seja o direito em tela suprimido de forma excessiva. Algumas situações têm tornado concretos possíveis conflitos legais entre a liberdade religiosa e outros direitos fundamentais: disciplina dos filhos com a nova redação dada para o ECA, que proíbe o uso de castigo físico, símbolos religiosos em repartições públicas, e a tensão da ética sexual cristã com o conceito de diversidade. A Teologia apresenta seus próprios conceitos de Estado, liberdade e tolerância. Na tradição reformada, a autoridade civil é uma ordem divina que deve atuar dentro de seus limites sem poder adentrar na esfera de outras áreas da sociedade, tais quais a Igreja e a família. Em sua liberdade, o cristão se submete às autoridades pelo bem de todos, visto que o mal precisa ser controlado. A tolerância cristã não relativiza suas convicções, mas também não permite que se vá além do uso de palavras na proclamação da fé. Apesar de o cristianismo ter por longos períodos se misturado com o poder civil, não é este o objetivo perseguido. Todo o cidadão tem o direito de fazer parte da administração pública e do governo e dar sua colaboração à polis, independente de seu credo ou ausência de credo. Assim, o cristão pode participar da política e deve buscar cooperar, visto ter um mandato cultural de mordomia da criação. Sua participação, porém, deve elevar a exigência ética dos agentes públicos e políticos. Pela corrente teológica que permeia a pesquisa, a família deve ter primazia na formação educacional das crianças. O Estado não deveria dificultar a prática de homeschooling e nem interferir no método de disciplina preferido pelos pais, pois família e Estado circulam em esferas distintas. Ainda que não seja essa o entendimento que tem direcionado a legislação brasileira, é possível incentivar a criação de leis nesse sentido, vez que a Constituição do Brasil não ignora a importância do papel central da família na educação. Quanto às tensões da ética cristã sexual tradicional com as exigências dos ativistas de diversidade sexual, não podemos ter expectativa de soluções definitivas, visto que essa é uma consequência da pluralidade cultural e religiosa natural do Estado democrático de direito. / Religious liberty is a fundamental right foreseen in the Constitution of the Federative Republic of Brazil. It has many faces, for it consists in the right to profess or not profess a religion, to change beliefs, to manifest faith through ceremonies and rites, and, finally, in the right which the followers have to organize themselves in institutions. The State assures the right of religion by not interfering in the individual liberty of its citizens, and also by assuring that other citizens will not interfere either. Across history, Brazil accumulated seven constitutions. The second one, from 1891, institutionalized the separation model between Church and State. The lay State is kept in the current Constitution from 1988. Laicity is not synonym of laicisim. The last one means exclusion of religion of the public square, as the first one means neutrality an impartiality by the State. Secularization is a phenomenon of social character, related to the decrease of religious practice, and it does not have any political character. Ample religious liberty can cause some conflicts with other fundamental rights, so it can be restrained. Nevertheless, there is the need to impose limits to these restrictions through legal tools which will assure the right in case will not be diminished to the point of non existence. Some situations have made concrete the possible tensions between religious liberty and other civil rights: discipline of children by the new text given to the Statute of Childhood that forbids the use of physical punishment, religious symbols in public institutions, and the tension between sexual Christian ethics and the concept of diversity. Theology also presents its own concepts of State, freedom and tolerance. In the tradition of Reformation, civil authority is a divine order to which obedience is due but must act inside its limits and cannot get in the sphere of other areas of society, such as Church and family. In their liberty, the Christian must submit to authorities for the good of all, for evil has to be controlled. Christian tolerance does not make relative its convictions, but does not allow that one will go beyond words to proclaim his or her faith. Even though Christianity has been mixed for long times with civil power, that is not the goal to be persuaded. Every citizen has the right to be part of the public administration and government, as well as to cooperate to the polis, no matter his or her creed or absence of creed. So the Christian can participate in politics and must be helpful because they have a cultural mandate to take care of creation. Their participation shall elevate the ethical demand of public and political agents. By the theology that leads this research, family has priority on the educational formation of children. State should not put barriers to homeschooling nor interfere on the discipline method chosen by parents because family and State move in different spheres. Though this is not the understanding that has directed Brazilian legislation, it is possible to create new laws that would benefit this orientation, for the Constitution of Brazil does not ignore the central role that family has in education. Concerning the tension between traditional sexual Christian ethics and the demand of sexual diversity activists we should not expect any definitive solution, given the fact that this conflict is a consequence of cultural and religious plurality natural of the democratic rule of law.

Submitted by Marcia Bacha (marcia.bacha@fgv.br) on 2012-05-10T20:12:20Z No. of bitstreams: 1 Patrícia Cerqueira de Oliveira.pdf: 973087 bytes, checksum: 4271b70e01d010e8f06b391199c368d8 (MD5) / Approved for entry into archive by Marcia Bacha (marcia.bacha@fgv.br) on 2012-05-10T20:12:31Z (GMT) No. of bitstreams: 1 Patrícia Cerqueira de Oliveira.pdf: 973087 bytes, checksum: 4271b70e01d010e8f06b391199c368d8 (MD5) / Made available in DSpace on 2012-05-10T20:12:43Z (GMT). No. of bitstreams: 1 Patrícia Cerqueira de Oliveira.pdf: 973087 bytes, checksum: 4271b70e01d010e8f06b391199c368d8 (MD5) Previous issue date: 2012 / Esse trabalho cuida, em linhas gerais, do acesso à Justiça, na perspectiva de acesso à ordem jurídica justa, a compreender tanto o acesso à orientação jurídica quanto o acesso ao sistema judicial, a partir da revisão teórica e da observação empírica dos Balcões de Justiça e Cidadania (BJC), instalados pelo Tribunal de Justiça do Estado da Bahia na cidade de Salvador. A proposta é proceder a uma análise profunda dos BJC para verificar de que forma colaboram para a inclusão no sistema de justiça de parte da população da Capital do Estado que não teria como obter informações sobre seus direitos e/ou resolverem seus conflitos. Para tanto, elaborei uma hipótese: a de que os Balcões de Justiça e Cidadania contribuem para dar acesso à população que procura orientação quanto aos seus direitos, ou tem conflitos cuja solução ainda não foi formalizada judicialmente. Em seguida, defini alguns parâmetros para conduzir a investigação: a) natureza da demanda dos serviços jurídicos - o número de atendimentos dos BJC de Salvador, desde aqueles atendimentos que se referiam a orientação jurídica até os que diziam respeito a conflitos de interesse; b) número de acordos realizados nos BJC de Salvador; c) natureza do conflito levado aos BJC; d) características dos locais em que estão situados os BJC; e) perfil dos usuários dos serviços dos BJC; f) satisfação dos usuários dos serviços prestados nos BJC de Salvador. O objetivo é sumariar alguns insights oriundos da pesquisa desenvolvida nos BJC da cidade de Salvador, por acreditar que poderá ter alguma utilidade para o desenvolvimento da prática e para se pensar uma política pública efetiva de acesso à Justiça, customizada aos contornos da cidade de Salvador. / This work is about, in general, the access to Justice, from the perspective of access to the fair legal system, to understand both the access to legal advice and access to the judicial system, from the theoretical view and empirical observation of Justice Branch and Citizenship (BJC), installed by the Court of the State of Bahia in Salvador. The proposal is to undertake a thorough analysis of the BJC to see how they collaborate for the inclusion in the justice system of the population such information on their rights and / or resolve their conflicts. For this, I developed a hypothesis: that the branches of Justice and Citizenship help to give access to the population that seeking guidance about their rights, or has a conflict whose solution has not been formalized legally yet. Then, I set some parameters to conducting the investigation: a) nature of the demand for legal services - the number of calls from BJC Salvador, since those calls that referred to legal advice to those who were related to conflicts of interest; b) number of arrangements in Salvador BJC; c) nature of the conflict led to BJC; d) characteristics of the sites that are situated BJC; e) profile of the services of BJC; f) user’s satisfaction of services provided in the BJC of Salvador. The goal is to summarize some insights come from the research developed in the BJC in city of Salvador, by believing that you may have some use for the development of practice and to think an effective public policy of access to Justice, tailored in the contours of the city of Salvador.

The study aims to review the regulatory powers exercised by the South African Revenue Services (SARS) with regard to the issuing, decline or revocation of a taxpayer’s tax clearance certificate, to highlight any remedial measures and procedures available to the aggrieved taxpayer in order to protect the right of taxpayers to fair administrative action in their dealings with SARS. Previously, a tax clearance certificate was not issued in terms of any statute or provision of any Tax Act. However, since the introduction of the Tax Administration Act, as amended (TAA), the issuing of the tax clearance certificates are more efficiently regulated. The issuing of tax clearance certificate’s must conform to the values and principles prescribed for under current legislation, and more particularly, as espoused under the Constitution of South Africa, 1996 (the Constitution). However, it has been reported some taxpayer were experiencing unreasonable and incomprehensible delays in obtaining responses to the objections lodged with SARS for assessment. Taxpayers seeking resolution of their disputes with SARS, currently opt to incur litigation costs in order to obtain appropriate relief from the High Courts. Taxpayers must take note that there is nothing in Promotion of Administrative Justice Act (PAJA) or the common law, which empowers a Court to order an administrator to take action, including the making of a decision which the administrator is not lawfully allowed to make. The study highlights remedial measures and procedures available to the aggrieved taxpayer to prevent the misapplication of fiscal power by SARS in the issuing of the taxpayer’s compliance status, thus protecting the right to fair administrative action in their dealings with SARS. Taxpayers who are aggrieved by a decision taken by the Revenue Authority are encouraged to timeously address their grievances, commencing with the internal dispute resolution remedies provided for within the TAA. / Financial Accounting / M. Compt. (Accounting Sciences)

The situation of prisons in Africa has been of concern to practitioners in the criminal justice system, researchers, policy makers, the government and even international organizations. Likewise, is the challenge of not having adequate information about prison system in Africa. In addition, most African countries are signatories to international treaties and convention regarding the treatment of prisoners, to what extent are prisons in Africa complying with the provisions and recommendation of such treaties and conventions. This study was therefore designed to explore the prison system in Africa countries. As part of its objectives the study explored the prison condition in countries in Africa as exemplified by the physical structure of the prison buildings; living conditions with regards to overcrowding, medical care, separation of categories, food, sanitation, beds and beddings, administration and independent monitoring. Furthermore, the treatment and prison conditions of pre- trial detainees were also considered. Similarly, this thesis evaluated the treatment and prison conditions of prisoners with special needs. This category of prisoners include prisoners with mental health care needs, prisoners with disabilities, foreign national prisoners, older prisoners, prisoners on the death row and prisoners living with HIV/AIDS. The conditions and treatment of women prisoners, pregnant women prisoners, and babies living with their mothers in prison were also discussed. The Nelson Mandela Rules, Kampala and Luanda declarations were employed as a bench mark to ascertain whether the treatment and conditions in prisons in Africa meet up to international standards. The study adopted a qualitative approach of inquiry using literature search as mode of inquiry. Data for the study was obtained from books, reports from international organisations such as United Nations, United Nations Office on Drugs and Crime, Penal Reform International, Amnesty International, international conventions and treaties among others, journals (Local, Africa and International), reports from selected countries, government legislations, policies, Acts, previous studies on prison system, web based information and national data. The review of literature with regards to physical structure revealed that most prisons in African countries do not meet international standards pertaining to the issue of physical structure as most prison building are dilapidated and in bad conditions. The study further revealed that the prisons and treatment of prisoners in African prison do not meet international standards. In specific terms, most of the prisons in countries in Africa are overcrowded; most prisons are also characterized by inadequate medical care with lack of facilities, medical personnel and medications. To a large extent most prisons do not meet international standards with reference to separation of categories as most prisons in countries in Africa lock up awaiting trial persons with convicted persons, minor offenders with adult but in most cases women are separated from men. The food situation in most prisons in countries in Africa did not meet international standards in quantity and nutritional value. The finding of the study indicated that the sanitary conditions in most prisons in countries in Africa is in very poor condition which could lead to an outbreak of diseases, this too did not meet international standards. Most prisons in countries in Africa are typified by lack of beds and beddings, prisoners in some prisons sleep on bare floors while some sleep standing while others sleep in shifts. This condition does not meet international standards. With regards to administration it was equally revealed that the record keeping of most prisons in countries in Africa is inadequate, most prisons do not have an ombudsman where prisoners could lodge their complaints while corruption seem to also be rife. This do not meet international standards as well. However, on a good note, most prisons in countries in Africa do permit independent observers such as NGOs, human rights organisations and international organization to have access to the prisons Furthermore, literature search disclosed that the population of awaiting trial person in prisons in Africa is very high when compared to the total prison population and that some countries in Africa are among countries in the world with highest number of pre - trial detainees. The treatment and living conditions of pre - trial detainees in most prisons in African countries do not meet international standards as they are locked in overcrowded cells, often locked up with convicted persons, no legal representation and having to stay longer that the stipulates without being charged to court. The thesis also conducted literature search on prisoners with special needs and the study point out that in each of the categories, prisons in countries in African countries do not meet international standards. For instance, there are no provisions to meet the mental health care needs of prisoners as there are no mental health practitioners, no facilities and no screening is conducted in most prisons. Similarly, there are no facilities to assist prisoners living with physical disabilities as well as older prisoners. The situation with foreign national prisoners are not different as there are no translation of prison materials that could make them adjust well to prison life, in some cases their consular are not contacted that they are in prison. With regards to prisoners on the death row, their conditions did not meet international standards as they are locked up in solitary confinement for most part of the day and their cells are often dirty with inadequate food and medical care. Some of this category of prisoners have been on the death row for as long as twenty years. For prisoners living with HIV/AIDS their treatment and condition does not met international standards as there are not treatment of any kind neither is there any form of screening conducted for inmates. For women prisoners, the treatment and conditions do not meet international standards as most prisons were not designed with women in mind. The living condition is unsanitary, unhygienic exemplified with inadequate toilet and bathroom facilities as well as no supply of peculiar needs of women such as sanitary towels. Review of literature equally indicates that there is no special treatment given to pregnant women prisoners. For children living with their mothers in prison, their treatment does not meet international standards as there is no special provision made for them, they share food with their mothers, some are locked up with their mothers for hours in overcrowded cells. Based on the finding of this study, some recommendations were made. These include the need to conduct more studies on prisons in countries in Africa, the need to consider reviewing the indigenous methods of treatment of offenders before the advent of colonial masters, need for a synergy amongst all practitioners in the criminal justice. Other recommendations are that there should be more advocacy on the prison conditions, need to establish a special trust fund, involve the private sector as well as professional bodies and to professionalize corrections management / Corrections Management / Ph. D. (Criminal Justice System)

The history of South African education should not be swept under the carpet when contemporary matters on education are discussed. Public education was brought to life in order to perpetuate the ideals of separate education and apartheid. the school manager was essentially an extension of the ruling party. He or she had to inform his or her subordinates what the authorities demanded to be done in educational circles. The 1996 Constitution (Act 108 of 1996) effectively assured a democratic order which would guarantee the removal of Acts which were discriminatory in nature. The 1996 Constitution lay the foundation for a democratic and open society which has high regard for human rights, childrens' rights and in particular the right of learners to education. The public school must implement the stipulations of the Constitution and of the South African Schools Act (Act 84 of 1996) which aspire to be in line with international human rights documents like the 1948 Declaration of Human Rights and the 1989 Convention on the Rights of the Child. This study is essentially about learner's right to education and the role of the public school in assisting learners to realise this right. All considerations are based on the democratic constitutional dispensation in South Africa after 1994. The study finally illuminates the level of preparedness of the parent community in forming a partnership with the public school so that learners can be assisted in realsing their rights to education. / Educational Studies / M.Ed. (Education Management)

This thesis examines the status of amnesties and the duty to prosecute gross and systematic human rights violations in international law. The thesis begins by distinguishing amnesty from other related concepts, such as impunity, pardon and statutes of limitations and so on. Unlike these related concepts, amnesty aims to address major social or political crises in society, such as to resolve an armed conflict, allow the return of political refugees or bring about peaceful political transition. Amnesty is linked to the duty to prosecute, because it is so often in direct conflict with international law norms and standards on the duty to prosecute and to compensate victims of human rights violations. Before the First World War, amnesty was a well-established customary practice. Even where a peace treaty was silent on the mater, amnesty was implied. Compensation was also part of the regime of peace treaties, but not followed as consistently as amnesty. This practice changed dramatically after the First and Second World Wars, because, in a break with the past, the victors did not consider themselves to be on the same level as the vanquished. This resulted in the abolition of the traditional practice of granting amnesty and the demand rather that those responsible for aggression be prosecuted and compelled to pay compensation, as was the case with Germany. Since 1948, with the adoption of the United Nations' Charter, and other international human rights treaties, the power of states to grant amnesty gradually became constrained by the obligation to prosecute perpetrators of gross human rights violations and to pay compensation to the victims of war crimes. Nevertheless, this phenomenon did not put an end to the practice of states granting amnesty for gross human rights violations. Internal armed conflicts during and after the end of the Cold War, with no victors and no vanquished, made amnesty an inevitable option. A considerable number of states continue to utilise amnesty as a device for peace and reconciliation, and they have granted amnesty for war crimes, genocide and crimes against humanity. In customary international law, there is a gap between the actual state practice and the existence of the customary norm creating a duty to prosecute. As a result, the status of the so-called "palatable amnesties" (à la South Africa), often granted as part of a truth and reconciliation process, still remains unclear in international law. This is further exacerbated by the inconsistent practice of the United Nations as the main depository and sponsor of human rights instruments. South Africa and Sierra Leone are used as case studies to illustrate this inconsistency in both state and UN practice on the status of amnesties in international law. As a result, the study proposes a balanced approach model, which is an attempt to strike a balance between accountability, political transformation and social stability in transitional democracies. The balanced approach model proceeds from the premise that the international criminal justice system is not flawless and, therefore, it is important to acknowledge its limitations, such as the lack of enforcement agencies, difficulties in the collection of reliable evidence and a lack of resources to prosecute. In terms of the model, consideration is given to (i) the need to respect the legitimacy of the political process that gives rise to the granting of amnesty; (ii) the amnesty must be proportional to the crimes committed and must be rationally connected to the aims of achieving peace and national reconciliation, the interests of justice, compensation for victims; and finally (iii) the general commitment of the state that grants amnesty to respect international law obligations, which includes the implementation of international obligations as part of municipal law and treaty monitoring obligations as preconditions for the amnesty to pass muster in the balanced approach model. In conclusion, the study proposes model Policy Guidelines on Amnesties Granted for Gross and Systematic Human Rights Violations in International Law for the Assembly of States of the International Criminal Court (ICC) to take note of, and to commend to states and international courts and tribunals, leaving its content to be taken up in the normal processes of the application and development of international law. The status of the Guidelines is that of a code of conduct or guide to practice. In that sense, the Guidelines do not have the character of a binding legal instrument and will serve as the basis for the development of sound principles of international law on amnesties. / Constitutional and International Law / L.LD