Magister Artium - MA / Malawi is endowed with a progressive, transformative and comprehensive legal and policy framework that guarantees the promotion and protection of human rights and justice for its citizenry, including women. The country is a party to multilateral human rights conventions, treaties, and protocols that strive to nurture and safeguard a culture that protects marginalised groups and has, thus, enacted relevant laws to domesticate the instruments. However, studies have shown that the legislative framework has not translated into practice that can create meaningful impact on the lives of ordinary citizens. My study explored the experiences of women that seek child maintenance through the Lilongwe Child Justice Court in Malawi.

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With the merger of judicial supervision and mandated treatment, drug courts have given rise to therapeutic jurisprudence and attempt to address those issues which have plagued corrections policymakers for several decades. The evaluation literature indicates that drug courts tend to produce lower recidivism rates, increased retention rates and lower costs when compared to traditional programs. However, as drug courts approach their second decade, there is a void in the literature regarding the implementation of drug court programs. This study specifically examined those factors which either facilitate or challenge the implementation of drug court programs. This study examined implementation issues from a bottom-up and top-down perspective. In order to examine these issues, the perceptions of drug court judges and administrators in five states were obtained through the administration of a survey instrument. Examination of the influence of government factors upon the implementation of drug court programs yielded interesting findings. A host of factors appear to influence the implementation of drug court programs, including federal, state and local agencies and actors. Respondents consistently identified state and local actors as being the most supportive and influential of the efforts to create and implement drug courts. Of those, the most common actors were public defenders and the district attorneys. If opposition to drug courts existed, the respondents indicated that local law enforcement or the general public were generally the sources of the opposition. In addition, there is clearly a more positive view of the influence of state and local actors when compared to their federal counterparts. From a policy perspective, the results of this research reveal that innovative programs for criminal offenders can thrive in conservative states. Four states in the sample are southern states with Utah being the only non-southern state, yet one which is typically regarded as conservative in terms of social policy and political values. Despite the conservative character of these states, drug court programs are thriving. Moreover, actors and agencies within these states appear supportive of innovative programming within the criminal justice system which is markedly different from the traditional approaches supported by conservatives.

Drug courts have become an important part of adult and juvenile corrections. Since the establishment of the first adult drug court in 1989, the therapeutic court model has developed, and can now be considered a significant component in American criminal justice. The problem is adult drug courts have faced considerable disapproval in the area of evaluation and documentation. Through the Bureau of Justice Assistance (BJA), the federal government allots millions of dollars to support drug court programs; there have been attempts to count and record the activities of these programs with little success, there is little uniform data on actual drug court success nationwide. The intent of this dissertation was to systematically and critically analyze drug court evaluations. My major goal was to demonstrate the need for uniformity in regards to assessing the impacts on outcomes. I analyzed drug court evaluations and their attempt to identify factors that contribute to graduation, in-program recidivism/ retention rates, drug treatment relapse and postprogram recidivism rates. Forty drug court evaluations were used in this examination. Further, I introduced a model that will aid in examining the impacts on outcome. My studies' unit of analysis is the evaluation report. I attempted to explain specific issues, such as how well drug courts work for different types of offenders. I was also able to generate a well founded policy recommendation for the evaluation of drug courts based on empirical data and literature. Conclusions show that Drug Courts do reduce post-program recidivism however there were certain impacts on graduation and termination rates. I also demonstrated the need for more methodologically sound and uniform evaluations in order to determine effectiveness. / Ph. D.

Text in Afrikaans / Summaries in Afrikaans and English / Die beginsel van die onafhanklikheid van die regbank word verskans in die Grondwet van die Republiek van Suid-Afrika van 1996. 'n Onafhanklike regbank is noodsaaklik ten einde te voldoen aan die primere funksie van die regbank, naamlik die bewerkstelliging van geregtigheid. Openbare vertroue in die onafhanklikheid van die regbank verhoog die legitimiteit van hierdie instelling, wat noodsaaklik is vir nakoming en eerbiediging van die howe se beslissings deur die gemeenskap. In die verlede het kritici beweer dat die regbank 'n legitimiteitskrisis beleef op grond daarvan dat polilieke oorwegings 'n rol gespeel het by die aanstelling van regsprekende amptenare, dat die regbank nie verteenwoordigend genoeg is van die bevolking wat betref ras en geslag nie en dat die howe in die verlede in sommige gevalle te owerheidsgesind was en soms diskriminerende wetgewing sonder veel skroom of teenspraak aanvaar en toegepas het. Kritici het daarop gewys dat die opbloei in die volkshowe as alternatief tot die formele howe, as voorbeeld dien van die algehele miskenning van en wantroue in die reg bank. 'n Kritiese evaluering van hierdie aangeleenthede is gedoen aan die hand van 'n regsvergelykende ondersoek. Daar is tot die gevolgtrekking gekom dat die Regterlike Dienskommissie en die Landdrostekommissie 'n belangrike hervorming teweeg gebring het op die gebied van aanstelling van regterlike amptenare. Verder is bevind dat die juriestelsel nie 'n realistiese oplossing bied om die regbank meer verteenwoordigend van die gemeenskap te maak nie, maar dat die assessorestelsel blyk 'n meer praktiese en geskikte alternatief te wees. Dit het verder geblyk dat daar van regterlike beamptes verwag word om, in die lig van die Grondwet van 1996 en 'n stelsel van grondwetlike oppermagtigheid, 'n aktivistiese waarde-ge6rienteerde of waarde-aktiverende benadering by wets- en grondwetuitleg te volg. Daar is verder bevind dat die informele howe behoue moet bly, maar aangepas behoort te word by veranderende omstandighede, in die lig van die Grondwet en die handves van fundamentele regte. Ten slotte is voorstelle gemaak as moontlike oplossing vir bepaalde probleme wat geidentifiseer is. / The principle of the independence of the judiciary is entrenched in the Constitution of the Republic of South Africa of 1996. An independent judiciary is essential in order to fulfill the primary function of a judiciary, namely the realisation of justice. Public confidence in the independence of the judiciary increases the legitimacy of this institution, which is essential for respect for and compliance with the decisions of the court by the community. In the past critics maintained that the judiciary is experiencing a legitimacy crisis, due to the fact that political considerations have played a role in the appointment of judicial officials, that the judiciary is not representative of the community in respect of race and sex and that the courts have been too executive-minded in the past and have at times accepted and applied discriminatory legislation without much hesitation or contradiction. Critics alleged that the proliferation of people's courts as an alternative to the formal courts, was an indication of the general denial of and loss of confidence in the judiciary. A critical evaluation of these aspects was undertaken by way of a comparative study. It lead to the conclusion that the Judicial Service Commission and the Magistrates Commission brought about an important reform regarding the appointment of judicial officials. It was found that the jury system does not constitute a realistic solution to make the judiciary more representative of the community, but that the assessor system seems to be a more practical alternative. It became apparant that in view of the Constitution of 1996 and our system of constitutional supremacy, it is expected of judicial officals to follow an activistic value-orientated or value-activated approach during legislative and constitutional interpretation. It is furthermore concluded that the informal courts should be retained, but that they should be adapted to the changing circumstances in view of the Constitution and the bill of rights. Finally, suggestions are made in order to address certain problems which have been identified. / Criminal and Procedural Law / LL.D.

Text in Afrikaans / Summaries in Afrikaans and English / Die beginsel van die onafhanklikheid van die regbank word verskans in die Grondwet van die Republiek van Suid-Afrika van 1996. 'n Onafhanklike regbank is noodsaaklik ten einde te voldoen aan die primere funksie van die regbank, naamlik die bewerkstelliging van geregtigheid. Openbare vertroue in die onafhanklikheid van die regbank verhoog die legitimiteit van hierdie instelling, wat noodsaaklik is vir nakoming en eerbiediging van die howe se beslissings deur die gemeenskap. In die verlede het kritici beweer dat die regbank 'n legitimiteitskrisis beleef op grond daarvan dat polilieke oorwegings 'n rol gespeel het by die aanstelling van regsprekende amptenare, dat die regbank nie verteenwoordigend genoeg is van die bevolking wat betref ras en geslag nie en dat die howe in die verlede in sommige gevalle te owerheidsgesind was en soms diskriminerende wetgewing sonder veel skroom of teenspraak aanvaar en toegepas het. Kritici het daarop gewys dat die opbloei in die volkshowe as alternatief tot die formele howe, as voorbeeld dien van die algehele miskenning van en wantroue in die reg bank. 'n Kritiese evaluering van hierdie aangeleenthede is gedoen aan die hand van 'n regsvergelykende ondersoek. Daar is tot die gevolgtrekking gekom dat die Regterlike Dienskommissie en die Landdrostekommissie 'n belangrike hervorming teweeg gebring het op die gebied van aanstelling van regterlike amptenare. Verder is bevind dat die juriestelsel nie 'n realistiese oplossing bied om die regbank meer verteenwoordigend van die gemeenskap te maak nie, maar dat die assessorestelsel blyk 'n meer praktiese en geskikte alternatief te wees. Dit het verder geblyk dat daar van regterlike beamptes verwag word om, in die lig van die Grondwet van 1996 en 'n stelsel van grondwetlike oppermagtigheid, 'n aktivistiese waarde-ge6rienteerde of waarde-aktiverende benadering by wets- en grondwetuitleg te volg. Daar is verder bevind dat die informele howe behoue moet bly, maar aangepas behoort te word by veranderende omstandighede, in die lig van die Grondwet en die handves van fundamentele regte. Ten slotte is voorstelle gemaak as moontlike oplossing vir bepaalde probleme wat geidentifiseer is. / The principle of the independence of the judiciary is entrenched in the Constitution of the Republic of South Africa of 1996. An independent judiciary is essential in order to fulfill the primary function of a judiciary, namely the realisation of justice. Public confidence in the independence of the judiciary increases the legitimacy of this institution, which is essential for respect for and compliance with the decisions of the court by the community. In the past critics maintained that the judiciary is experiencing a legitimacy crisis, due to the fact that political considerations have played a role in the appointment of judicial officials, that the judiciary is not representative of the community in respect of race and sex and that the courts have been too executive-minded in the past and have at times accepted and applied discriminatory legislation without much hesitation or contradiction. Critics alleged that the proliferation of people's courts as an alternative to the formal courts, was an indication of the general denial of and loss of confidence in the judiciary. A critical evaluation of these aspects was undertaken by way of a comparative study. It lead to the conclusion that the Judicial Service Commission and the Magistrates Commission brought about an important reform regarding the appointment of judicial officials. It was found that the jury system does not constitute a realistic solution to make the judiciary more representative of the community, but that the assessor system seems to be a more practical alternative. It became apparant that in view of the Constitution of 1996 and our system of constitutional supremacy, it is expected of judicial officals to follow an activistic value-orientated or value-activated approach during legislative and constitutional interpretation. It is furthermore concluded that the informal courts should be retained, but that they should be adapted to the changing circumstances in view of the Constitution and the bill of rights. Finally, suggestions are made in order to address certain problems which have been identified. / Criminal and Procedural Law / LL.D.

Thesis (doctoral)--Universiteit Maastricht, 2004. / Includes bibliographical references (p. 343-367).

In 1998, Florida voters approved Article V, Revision 7, which changed the funding mechanism of the state circuit court system from a county/state mix to state responsibility. The change was implemented as planned in the 2004/05 fiscal year. Although increased efficiency was a key goal of Revision 7, to date no published studies exist on the impacts of Revision 7 on circuit or system efficiency and/or productivity. This work analyzes Revision 7, integrating the larger debate of increasing judgeships or improving efficiency. The study is a full performance analysis of the Florida circuit courts from 1993 through 2008 that can benchmark the system‟s future efficiency and productivity. In that respect, top performers are identified. The study follows the evolution of court studies from their rational origins to the more recent orientation of open-natural systems. Resource dependency and institutional theory, two open-natural system frameworks, are utilized to predict that Florida‟s circuit courts have become more efficient over the period since the implementation of Revision 7. The efficiency outcomes are expected to be unequal across circuit sizes. Integrating a Florida debate to a larger one that transcends time and culture, productivity changes are expected to be a function of the number of judges that a circuit adds within a given year, controlling for other factors. The results of the study methodologies—data envelopment analysis, Malmquist Productivity Index, hierarchal regression analysis and analysis of covariance—reveal that only 3 of 300 DMU‟s in Florida are technically efficient; the mean IOTA score is .76. The Florida circuits did not improve efficiency and productivity as expected, in fact becoming significantly less efficient over time as a function of Revision 7. Small and medium-sized circuits lost iii efficiency, large circuits showed no change and there was a significant interaction between circuit size and Revision 7 period. Within the system overall, productivity fell by 2.7%, most noticeably in the small and medium-sized circuits. The number of judges a circuit added explained 32.2% of the variance in total factor productivity change. The largest system productivity losses followed both Revision 7 intervention years and the addition of the most judges in a single year. Analysis of covariance revealed that productivity increased only when no judges were added to a circuit, regardless of circuit size or time period (+2.6%). The addition of a single judge reduced average productivity by 8.6%; adding two judges reduced productivity by 10.5% and adding 3 or more judges reduced productivity by 16.2%. As judges were added, productivity declined in circuits of all sizes, but the drop was more pronounced in the small and medium-sized circuits. None of the circuits showed an increase in productivity from 1993 to 2008. Revision 7 has not increased circuit court efficiency or productivity in Florida. It is recommended that efficiency and productivity analyses be included in resource allocation decisions such as adding judgeships. More data on court structures and process are needed. Efficiency and productivity measures show that the current level of circuit court judgeships is sufficient.

Political deliberation is a classic component of collective decision-making. It consists in forming one’s political position through the give-and-take of reasons in the search of, but not necessarily reaching, consensus. Participants of genuine deliberation are open to transform their preferences in the light of persuasive arguments. Constitutional theory has borrowed this notion in its effort to reconstruct a justificatory discourse for judicial review of legislation. Constitutional courts were ascribed the pivotal role of implementing fundamental rights in most contemporary democracies and called for a more sophisticated picture of democratic politics. One influential defence has claimed that courts are not only insulated from electoral competition in order to guarantee the pre-conditions of majoritarian politics, but are deliberative forums of a distinctive kind: they are better located for public reasongiving. This belief has remained, from the normative point of view, largely underelaborated. The thesis proposes a model of deliberative performance to fill that gap. This qualitative concept unfolds the institutional and ethical requirements for courts to be genuinely deliberative. Instead of taking a stand on the old dispute about which institution is more legitimate to have the “last word” on constitutional meaning, this research leaves this question suspended and systematizes the large range of variations that can exist in constitutional courts’ performances. Discussions about the potential roles of constitutional courts, in this perspective, become more sensitive to contexts and to their varying degrees of legitimacy. The thesis offers a comprehensive picture of what is at stake if a constitutional court plans to be truly deliberative. This picture comprises the virtues presupposed by an ethics of deliberation, the institutional devices that facilitate deliberation, the approach to constitutional reasoning that is more hospitable to deliberation and, finally, the political perception to grasp the limits of deliberation itself.

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