This is a comparative study of the leadership role of the Chief Justice as head of the judiciary through a decade of change, up to 2009, in South Africa, Ghana and Kenya. It draws on a conceptual framework developed from Burns’s theory of transformational leadership and the “dynamics of the leadership process”, and other scholarship on leadership ethics. The constitutional, legal and political structures surrounding the office of Chief Justice are analysed alongside empirical data gathered from interviews. It addresses three main questions. How do we understand the leadership role of the Chief Justice in Africa? How is this role evolving? What consequences does the distinction between “judicial” and “administrative” functions have for leadership in the judiciary? The study finds, first, that the leadership role of the Chief Justice includes intellectual leadership, administrative leadership, and acting as the representative of the judiciary. Second, the role of the Chief Justice is shifting from one of headship to one of leadership: Chief Justices are expected to be the visible, accountable leaders of the third arm of government. Third, recognising the Chief Justice as leader of the third arm of government raises questions about the usefulness of retaining the distinction between judicial and administrative functions to divide responsibility for court administration between the judiciary and executive. For Chief Justices to lead effectively, they must be free to make decisions on all matters relating to the operation of the judiciary. This need not require immersion in the daily minutiae of court administration. Instead, practices in South Africa and Ghana suggest that leadership could involve collaborating with, delegating to and consulting relevant “constituents” of the Chief Justice’s leadership. This would be consistent with a transformational leadership approach, which it is here argued is the most appropriate form of leadership for the judiciary.

This study focuses on the conceptualization of video evidence as constructed by judges in their written decisions in Canadian criminal courts and the impact this conceptualization has on understandings of truth. Recent years have seen substantial developments in video recording technology and in the cultural practices that support its use. Of particular interest to this study is the mobilization of video as a means of legitimizing truth claims. Using a qualitative content analysis of 52 recent (2005-2015) Canadian criminal court decisions, this study seeks to understand the way in which judges discuss video evidence in their decisions and the impact these discussions have on discourses of truth. The results of this analysis illustrate that the features typically associated with video evidence coincide closely with specific and longstanding discourses of objectivity, reliability, and credibility that are used to evaluate competing claims in criminal courts—discourses that have traditionally been developed with reference to evaluating testimony. Judges’ adoption of these particular criteria over any others results in video achieving an eminent position in the hierarchy of evidence before the courts. The way in which judges conceptualize video evidence both reflects the historic discourses that shape the current judicial approach to video evidence and (re)creates discourses that will be relied on in future. Given the influential role of courts as official arbiters of truth, the discourses adopted by judges have important implications both within and beyond the legal system.

This thesis examines the extent to which the judiciary can intervene into the executive branch’s power over foreign affairs. This thesis focuses on the Supreme Court of Canada’s decision in Canada (Prime Minister) v. Omar Khadr, 2010 SCC 3 where Omar Khadr requested the judiciary to order the executive branch to request his release from American custody in Guantanamo Bay, Cuba. The Supreme Court refused Khadr’s request, but issued a declaratory order stating that Khadr’s rights had been violated by the Canadian government. This thesis places this decision, and its follow-on litigation, in its international and comparative context by examining the international law of diplomatic protection as well as three cases, one from the United Kingdom, one from South Africa and one from West Germany. After examining the context, this thesis concludes that the Supreme Court’s decision, although flawed, was reasonable.

This thesis examines the extent to which the judiciary can intervene into the executive branch’s power over foreign affairs. This thesis focuses on the Supreme Court of Canada’s decision in Canada (Prime Minister) v. Omar Khadr, 2010 SCC 3 where Omar Khadr requested the judiciary to order the executive branch to request his release from American custody in Guantanamo Bay, Cuba. The Supreme Court refused Khadr’s request, but issued a declaratory order stating that Khadr’s rights had been violated by the Canadian government. This thesis places this decision, and its follow-on litigation, in its international and comparative context by examining the international law of diplomatic protection as well as three cases, one from the United Kingdom, one from South Africa and one from West Germany. After examining the context, this thesis concludes that the Supreme Court’s decision, although flawed, was reasonable.

No description available.

Since the renowned terrorist attacks of September 11th, 2001, exclusionary narratives or “othering” have proliferated in the securitized West. Prominently associated with media campaigns, popular culture, or political debates, exclusionary discourses operating within the Canadian judiciary have been largely overlooked. Inspired by the work of Giorgio Agamben and Richard Ericson, this study is a critical discourse analysis of sentencing decisions within five terrorism cases. Findings suggest that “othering” operates in these decisions through seven discursive mechanisms. Those mechanisms construct the offenders as Muslim non-conforming foreign “others” threatening the Canadian nation, and worthy of exclusion. As such, the offenders are seen as deserving of punitive incarceration by the severest extent of the law. The courts also justify this punishment by invoking political imperatives namely the need for the State to preserve its alliance with other nations engaged in the “War on Terrorism” and the necessity to counter the “discontent with the West”. Although limited by legal safeguards, the exceptional state power at play in the post 9/11 era is not without effect on the wider population of Muslim in Canada and abroad.

No description available.

In June 2007, the Court of Appeal in New Zealand disallowed the taxpayers appeal and decided that Trinity Scheme is a tax avoidance arrangement. The decision is significant not only for NZD3billion which is at stake but also for its jurisprudence on tax avoidance. This paper analyses the implication of Accent decision on the development of judicial approach on tax avoidance. Purposive approach of interpretation is codified in New Zealand since mid-19th century. Although New Zealand courts are not reluctant in using purposive approach in judicial reasoning, the final decisions rarely depart from literal meaning of the Act. The tension between general anti-avoidance provision and the specific provision within the Act has long been recognised by the court. The Court of Appeal in Accent proposed a judicial technique which would involve seeing tax avoidance cases in three different categories.

This thesis examines the factors that influence perceptions of judicial corruption. A statistical analysis using data from such sources as Transparency International, the World Bank, and Freedom House demonstrates that aspects of accountability (the ability to remove judges) and transparency (freedom of the press) are only weakly related to perceptions of judicial corruption. A systematic country comparison shows that the structure of the judicial system explains variations in perceived judicial corruption.

In June 2007, the Court of Appeal in New Zealand disallowed the taxpayers appeal and decided that Trinity Scheme is a tax avoidance arrangement. The decision is significant not only for NZD3billion which is at stake but also for its jurisprudence on tax avoidance. This paper analyses the implication of Accent decision on the development of judicial approach on tax avoidance. Purposive approach of interpretation is codified in New Zealand since mid-19th century. Although New Zealand courts are not reluctant in using purposive approach in judicial reasoning, the final decisions rarely depart from literal meaning of the Act. The tension between general anti-avoidance provision and the specific provision within the Act has long been recognised by the court. The Court of Appeal in Accent proposed a judicial technique which would involve seeing tax avoidance cases in three different categories.