Aboriginal rights, and aboriginal fishing rights in particular, are topics which elicit a variety of responses ranging from the positive to hostile. In British Columbia, fish is big business and it is the fourth largest industry in the province. The stakes are high and the positions of the various user groups and stakeholders are clearly demarcated. The fight over fish has pitted aboriginal groups against other aboriginal groups as well as against the federal government and its department of fisheries and oceans - however, the fight becomes vicious, underhanded, and mean spirited when the aboriginal groups are matched against the commercial industry. In an attempt to even the odds the aboriginal peoples have turned to the courts for recognition and protection of what they view as inherent rights - that is a right to fish arising out of the very nature of being an aboriginal person. Up until the Supreme Court of Canada decision in R. v. Sparrow aboriginal rights had been virtually ignored by both the courts and the state. However Sparrow changed all that and significantly altered the fight over fish. And that fight has become a virtual no-holds barred battle. The Sparrow decision remains to this day one of the most important Supreme Court decisions pertaining to aboriginal rights. This thesis is a case study of Sparrow - it will examine the decision from a perspective of whether subordinate or disadvantaged groups are able to use the law to advance their causes of social progress and equality. The thesis examines the status and nature of aboriginal fishing rights before and after the Sparrow decision. The thesis will examine whether the principles of the decision have been upheld or followed by the courts and the government of Canada. Data will consist of interviews with representatives of the key players in the fishing industry, namely, the Musqueam Indian Band, the Department of Fisheries and Oceans, and the commercial industry. In brief, the findings of my research do not bode well for the aboriginal peoples - the principles of the Sparrow decision have not been followed by the government of Canada and aboriginal fishing rights remain subject to arbitrary control. The thesis will examine why and how this happened. / Arts, Faculty of / Anthropology, Department of / Graduate

The study investigates the human rights violations that underlie widowhood practices in Cape Coast and Komenda in the Central Region of Ghana. Review of the relevant literature on widowhood practices suggests that widowhood practices are a global cultural phenomenon, which is not confined to Sub-Sahara Africa. A survey of relevant studies on the phenomenon suggests that there are two competing perceptions on African widowhood practices: (1) a dominant negative perspective and (2) a minor positive perspective. The dominant negative perspective, which receives overwhelming research attention, focuses only on the negative characteristics of widowhood while the minor positive perspective which receives scanty research attention, rejects the criticisms levelled against widowhood practices as being externally influenced by Christianity and Western Feminism. Various stakeholders within the Akan community were given an opportunity to retell their own versions of widowhood practices. In order to achieve this purpose, the research extracted competing narratives from all the multiple sample subgroups of the proposed study: widows; widow family heads; chiefs; widowhood ritual practitioners; elderly female supervisors of widowhood practices; an official from the Commission for Human Rights and Administrative Justice (CHRAJ); an official from the Ministry of Women and Children Affairs (MOWAC); and an official from the Domestic Violence and Victims Support Unit (DOVVSU) of Ghana. The study found out that despite legislative intervention and policy frameworks, the practice still persist among the Akan communities in Ghana. The reasons for the continued existence of such rituals are explained followed by recommendations for possible solutions.

LL.M. / Please refer to full text to view abstract

The Transkeian Territories extend over a stretch of 17000 square miles between the north eastern border of the Cape Colony and the southern border of Natal. In 1870 this was an exclusively Native area ; inhabited by some half million natives tribally organised under independent chiefs and grouped into racial entities according to origln; customs, and language dialects.

This thesis aims to investigate and deconstruct the relationship between the narcotic, its narrative, and western modernity. To reveal the relationship, this thesis argues that it is possible to understand the philosophical, political, cultural and ethical dimensions of western modernity through the ulterior lens of the narcotic. As such, this thesis investigates western modernity's relationship to (a) cocaine as a specific narcotic, and (b) the concept of the narcotic with all its attendant connotations of addictions, illegitimacy, transgression, illegality, and so on. Accordingly, the thesis is both interpretive of the historical narrative of the narcotic of cocaine, and generative in its deconstruction of the relationship between western modernity and the concept of the narcotic. The deconstruction of this relationship ultimately reveals both prior narratives not as oppositional, but as supplementary. This has radical consequences for the manner in which we engage with narcotic use and the user - if the narcotic is supplement to the logic of western modernity, at each attempt to expel the use and user of the narcotic, rather then create difference, we self implicate ourselves in that expulsion and distance. To seek a new and more just means of dealing with the concept of the narcotic, and its use, therefore requires a new epistemological framework which can at once contemplate both narratives at the same time. To this end, the thesis suggests the use of critical complexity theory as one such methodological tool, if supplemented by the thoughts and strategies of Derridian deconstruction and Foucauldian discourse analysis.

For the purpose of this study tbe child witness in the accusatorial system will be viewed as a source of information. When a witness gives evidence in court, the function of the witness is to provide the court with certain information. A number of crucial questions arise when the witness is a child. Do children bave the ability to remember and relate an event accurately? Are children prone to suggestion and fantasy? What effect, if any, does the court environment have on a child 's ability to convey information? What perceptions do children have about the legal process, and how do these perceptions affect their ability to testify? Do adults influence the information which children impart by the techniques they employ to obtain such information? Accepting the hypothesis that child witnesses are sources of information, the purpose of this study is to evaluate all aspects of the criminal justice system relating to child witnesses as well as available research on children to determine whether it is possible to obtain reliable and accurate information from children. Proposals will be formulated regarding the most successful methods of obtaining reliable and accurate information from children, and how these can be adapted for use by the legal system. The purpose of the study is to develop an approach to children in the legal system that will be fair to children while at the same time protecting the rights of the accused, and which will lead to a successful method of obtaining accurate information.

The Child Justice Act 75 of 2008 has brought about some new elements in the South African Criminal Justice system in cases involving children in conflict with the law. The changes require that children in conflict with the law should be treated differently from adult accused persons. The Act is now regarded as a Criminal Procedure for children in conflict with the law. In other words the emphasis is on ensuring that children are diverted away from the formal Criminal Justice provided that children acknowledge responsibility. One of the elements that is introduced by the Act is the Preliminary Inquiry that is an informal, pre- trial procedure that must be held in respect of every child that is alleged to have committed an offence. The role of the Presiding Judicial Officer is very active during this stage because he is the one that takes charge of the proceedings and the role of the Prosecutor and the Legal Representative is very minimal. The purpose of the Preliminary Inquiry is in the main to determine whether a child in conflict with the law could be diverted if the provisions of section 52 (1) of the Act are complied with. Preliminary Inquiry if properly used will have possible benefits for the South African Criminal Justice system in that cases involving children will be timeously be finalised and the turn around time for criminal cases in general will possibly improve. Same will translate in the confidence of the citizens being improved in the Justice system. The second element that is introduced by the Act is formalised diversion into the Criminal Justice System. Diversion had for a number of years before the coming into operation of the Child Justice Act been used in South Africa but it was informal. The diversion that is envisaged by the Act is restorative in nature in that the Act seeks to involve the child offender, the victim, the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent recurrence of the incident and promoting reconciliation. Restorative Justice is not a new invention in the South African legal system it is a return to traditional patterns of dealing with conflict and crime that had been present in different cultures throughout human history. Restorative Justice has been understood as Ubuntu in the African context. The Truth and Reconciliation Commission demonstrated the benefits of restorative justice in dealing with conflicts that had a potential of setting the country alight. Restorative Justice has evolved in South Africa throughout different historical epochs up to the current legal conjuncture. It has now been endorsed with success in precedent setting cases in the High Courts of the Republic and the Child Justice Act has now fully institutionalised it into the Criminal Justice system. One hopes that it will be extended beyond cases involving children in conflict with the law but to adult accused persons. Various pieces of legislation attempt to endorse the principles of restorative justice but are not as comprehensive as the Child Justice Act. There are 4 instances where a matter may be diverted in terms of the Act: (i) By a Prosecutor in terms of section 41; (ii) Diversion at Preliminary inquiry; (iii) Diversion before the closure of state case at trial; (iv) At any time during trial but before judgement. There are 2 diversion options that are provided by the Act that is level one diversion option in respect of schedule 1 offences and level 2 diversion options in respect of schedule 2 and 3 which are much more serious. The Act further entrenches Family Group Conference as well as Victim Offender Mediation which are restorative justice mechanisms. The legal consequences of diversion are that when the child has successfully complied is equivalent to an acquittal. The last element is the multi sectoral approach to crime fighting in that all role players should work together in dispensing justice to children in conflict with the law. The days of working in silos are now over because everybody has a role to play and there has to be collaboration at all levels. The Act entrenches the public private partnerships particularly in helping to rehabilitate and reintegrate children to society. The Act provides for the establishment of One Stop Child Justice Centres. The purpose is to promote cooperation between government departments, non governmental organisations and civil society to ensure integrated and holistic approach in the implementation of the Act. The Act further provides for the development of the National Policy Framework by the Departments of Justice and Constitutional Development, Social Development, Correctional Services, South African Police Services, Education and Health within 2 months of the commencement of the Act. The purpose is to ensure uniform, coordinated and cooperative approach by all government departments, organs of state and institutions in dealing with matters of child justice and enhance service delivery. This study seeks to examine the innovations brought about by the Child Justice Act into the South African Criminal Justice System. The study further explores the possible benefits that may accrue to the Criminal Justice System because of Preliminary Inquiry, Restorative Justice and the Multi Sectoral Approach to crime.

In terms of the Constitution every person has the right to freedom and security of the person. This includes the right to be free from all forms of violence from either public or private sources. The state is charged with the duty to protect the individual from such harm. While the Constitution refers to the protection of victims of crime in broad and general terms without indicating how these rights should be protected, it makes meticulous and detailed provision for the rights of arrested, detained and accused persons. This leads to the popular belief that the Constitution protects the criminal and not the victim, engendering public dissatisfaction with the status quo, which is amplified by the fact that South Africa’s current legal dispensation for victims of crime does not embody the requirements of ubuntu and African customary law, which the Constitution declares to be binding on South African courts. This study analyses the means that exist in South African law for the victim of crime to obtain redress for criminal acts and proposes effective avenues through which victims can obtain redress, should the existing machinery prove to be inadequate. The term restitution is used to indicate recompense obtained from the perpetrator, while the term compensation refers to recompense obtained from the state. A comparative study is conducted to ascertain how the legal position of victims of crime in South Africa compares with that of victims of crime in Great Britain, India and New Zealand, respectively. South Africa does not have a state-funded victim compensation scheme such as those which exist in most developed countries. The respective proposals of the South African Law Commission for a victim compensation scheme and revised legislation to deal with offender/victim restitution are considered critically, inter alia, in the light of the findings of the comparative study. Proposals are made regarding changes to the South African legal system to bring it in line with international developments regarding restitution and compensation to victims of crime, attention being given to the meaning, significance and implementation of the doctrine of restorative justice when dealing with the aftermath of criminal injury. In addition to a complete revision of South African legislation dealing with offender/victim restitution, this study recommends the consolidation of the Road Accident Fund and the Compensation Fund operating in terms of the Compensation for Occupational Injuries and Diseases Act. These two bodies should be amalgamated to create a unified Compensation Scheme to compensate victims of crime, as well as victims of traffic and industrial injuries. General qualifying criteria for claimants would be drafted, with specific criteria applying in cases of traffic, industrial and crime related injuries, respectively.

It is argued that a lack of adequate legislation in pre-1994 South Africa resulted in inequality in the workplace and in society in general. The new democracy intended to address this by promulgated legislation and today the South Africa Constitutional and legislative provisions promoting equality are viewed as amongst the most progressive in the world. Conversely, this progressive legislation aimed to protect against discrimination, still seems to fail the very people it intended to promote and protect. The new legislation created awareness of the need for equality; the right of workers to employment – or at least to decent working conditions. The right to equality is accorded to everybody through the Constitution of South Africa. The Bill of Rights is based on the notion of equality before the law, and the prohibition of discrimination on various grounds. Despite this, the perception exist that persons with disabilities as a minority group are still being marginalised and are restricted in their right to exercise the right to participate and make a meaningful contribution to the labour market. This not only seems to be in contradiction with the Constitutional right to choose an occupation, but has wider social and economic consequences. The ethos of equality legislation is to ensure that the workplace is representative of the society we live in. It is understandable that labour as a social phenomenon is not only concerned with workplace related issues but with aspects encompassing the whole of the socio-political and economic scene. South African labour legislation drafted over the last two decades strives to align with the conventions and recommendations of the International Labour Organisations and in terms of the obligations of South Africa as a member state. However, the question prevails: is this legislation adequate to address the discrimination and inequality experienced by persons with disability? If so, why do statistics indicate such high unemployment amongst this group? Yet, there is a growing awareness that persons with disabilities represent enormous, untapped economic potential. According to the ILO report on The Right to Decent Work of Persons with Disabilities (1997), much has been accomplished in the international arena in recent years to improve the lives of persons with disabilities in the workplace. This treatise will attempt to evaluate the efficacy of South African legislation in the promotion and integration of persons with disabilities in the labour market.

The legal framework and legislation governing the rights of the children have become of great concern in modern societies, particularly, in the area of criminal justice and human rights. The Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child are basic international and regional conventions regulating the rights of the children and include how to deal with children in conflict with the law. States parties to these conventions are required to take appropriate measures, which includes enactment of legislation to give effect to these rights. Legislative instruments must address the following issues: The principle of the best interest of the child; the age of criminal responsibility; restorative justice; diversion; and the trials of children in conflict with the law. The above-mentioned instrument require and emphasise the use of an alternative approach in respect of the children who are in conflict with law. In this research a comparative approach is used to compare the South African and South Sudanese child justice legislative instruments. The legislative instruments pertaining to child justice in both countries are set out and compared. It is concluded that the South African legislative instruments are more aligned to the Convention on the Rights of the Child and African Charter on the Rights and Welfare of the Child. Recommendations and proposals are made to enact to adopt in South Sudan new legislative measures and provisions aim to afford more protection to children in conflict with the law and to strike a better balance between rights of a child and victim of crimes.