Thesis (doctoral)--Universität Freiburg in der Schweiz.

The thesis addresses the question: how have international human rights norms for protecting women and girls from harmful practices influenced and shaped the emergence and conceptualisation of community bylaws for addressing child marriage and other harmful practices affecting women in rural Malawi? 'Community bylaws' is a label for Chief-led community 'rules' aimed at combating harmful practices, which mostly affect women and girls. This thesis contributes to the theoretical discourse on norm diffusion by critically assessing and appraising the way in which scholars have conceptualised how international human rights norms are internalised, and, particularly, how vernacularisation operates, through a case study of the community bylaws. Drawing from qualitative empirical data following a study conducted in four districts covering the three regions of Malawi, the study focused on the territories of four Senior Chiefs. Data was gathered through semi-structured interviews with Senior Chiefs and government officials, NGOs, and donors; and through focus group discussions with Group Village Heads, Village Heads, groups that formulated or monitor the implementation of community bylaws, and women living under these bylaws. The thesis shows that while scholars have sought to explain how international human rights norms are appropriated in local communities using the concept of vernacularisation, existing conceptualisations do not adequately represent what is happening with the community bylaws phenomenon. Vernacularisation is a unicameral concept that sees human rights ideas and programmes as being purposefully introduced in local communities by epistemic outsiders. Based on empirical data, this thesis argues that the concept of 'horizontal vernacularisation' better describes the processes occurring in respect of community bylaws in Malawi. This concept has regard to vernacularisation as a bicameral act, whereby the local can also trigger vernacularisation, whether knowingly or not. Thus, horizontal vernacularisation acknowledges that human rights appropriation and translation through community bylaws unfolds within a predominantly local-local dialogue, and is not usually structured, since the bylaws sprout in a continuum of intuitive, interlocking, convoluted, and iterative processes. As such, this thesis contributes to a deeper understanding of community bylaws in rural and cultural settings, and their role in reconceptualising the internalisation of international human rights norms for protecting women and girls from harmful practices.

'Witness protection' has been introduced in the criminal justice systems of several states worldwide as a recognised tool for facilitating the cooperation of witnesses and ensuring that concerns about their safety are not ignored. Although not a new phenomenon, witness protection praxis continues to evolve and remains largely undeveloped in many states. In Nigeria, the relevance of witness protection as a critical aspect of criminal justice administration is increasingly becoming evident. As an area of enquiry, scholarly literature on witness protection is descriptive, locally focused, and lacking in conceptual clarification. Recent developments in Nigeria highlight the need for the clarification of legal and conceptual issues within the existing legal framework for protecting witnesses. Using the Nigerian case study, this thesis illustrates the obscurities inherent in the concept of witness protection. These are highlighted around five critical areas: the definition of witness protection; the scope of beneficiaries requiring protection; the nature of crimes necessitating protection; the nature of protective measures; and the administrative control of witness protection. The thesis explores the concept of witness protection, which is still at an early developmental stage in Nigeria. In the absence of a clear legal jurisprudence, the thesis pieces together the practice of witness protection in Nigeria and embarks on a conceptual and legal clarification of issues important to developing a witness protection framework. To achieve this, the thesis draws from international debates, legal developments and institutional practices from other jurisdictions as a basis for improving Nigerian efforts in witness protection and for making normative proposals to that effect. The thesis utilises two distinct perspectives: the criminal justice and the human rights perspectives as heuristic tools for analysing the concept of witness protection and to separate the disparate influences that shape how it is construed. A combination of desktop research by way of doctrinal research and empirical research was adopted. In pursuit of a more detailed understanding of contemporary developments relating to witness protection in Nigeria, field research was undertaken. This comprised qualitative research using semi-structured interviews of a specifically selected sample of criminal justice experts and practitioners with knowledge about witness protection in Nigeria. The semi-structured interviews justify the assumptions that there is a need to examine and clarify the scope of witness protection and what it depicts. The thesis finds that the concept and practice of witness protection evolved within specific parameters and its definitions are determined within these limits. It advances the existing witness protection conversations by offering an analytical basis for discussing witness protection and proposes organising principles for delineating the scope of witness protection. The clarifications made in the analysis within this thesis are utilised in making normative proposals and policy recommendations for developing a legal framework for witness protection in Nigeria. The thesis recommends a formal witness protection framework, through the enactment of comprehensive witness protection legislation that clearly defines the objectives of witness protection, the scope of beneficiaries, the scope of crimes necessitating protection, the type of protective measures and guidelines for assigning these measures, clear eligibility criteria and which establishes an independent witness protection agency to administer witness protection in Nigeria.

It has been twenty-five years that the ANC has enjoyed political hegemony and an investigation is required into whether the legitimacy of constitutional supremacy remains intact as a state functioning under a dominant political party. There are certain pathologies which develop in a dominant political party state, pathologies which lead to autocratic rule and which has the potential to undermine the constitutional institutions such as that created by the South African Constitution. The first aspect considered is the weakened oversight role of Parliament over the executive because of the democratic centralism policies practiced by the ANC. Democratic centralism entails strict party discipline which means Parliament cannot fully exercise its role in holding the executive accountable as envisaged in the Constitution. Provisions of the Electoral Act and the Anti-defection clause in the Constitution further allows a concentration of power in the top hierarchy of the dominant political party, thus ensuring that political leaders have all the might to ensure that self-preservation is the order of the day. Parliament which is meant to represent the electorate can be considered as a mere formal or hypothetical construction as the decisions of the dominant political party affects parliamentary processes. The second constitutional implication is that courts become overburdened to make decisions on matters which are better suited to another branch of government. Whilst constitutional review is a function of a thriving and working democracy, the argument presented here is that the judiciary has come to make decisions of a highly political nature. The reason for this is first the failure of Parliament to correctly exercise its oversight role and secondly the abuse of power by high ranking politicians in the dominant political party. The unintended consequence of a dominant political party state is the expansion of the role of the courts as the courts perform the ultimate watchdog role due to the loss of accountability in a dominant party regime. Thus, trespassing onto the terrain of other branches of government and in doing so undermining the independence of the judiciary itself. The last aspect which impedes constitutional legitimacy is the large-scale ‘capture' of state institutions. This phenomenon is linked to the ANC practice of cadre deployment which is a means to safeguard policies and to ensure that promises to the electorate are carried out by party loyalists. This practice in a dominant-party political landscape has created a loophole whereby democratic values and constitutional safeguards are often compromised. Pliable cadres are deployed to key positions and reporting lines are blurred which in turn has facilitated certain corrupt tendencies, leading to the demise of accountability, transparency and the efficiency of government and state-owned enterprises. Through analyzing case law and party policies and considering the pathologies associated with dominant party rule which has developed under the ANC's governance, it is aimed to determine whether a dominant political party erodes constitutional legitimacy in South Africa.

This minor dissertation analyses the competing rights of free expression of the media and confidentiality of asylum seekers in the context of asylum applications and appeals. This research is grounded in the landmark judgment of the Constitutional Court in the Mail and Guardian Media Limited and Others v Chipu N.O. and Others [2013] ZACC 32. The judgment considered the intersection of the competing rights in light of the constitutional challenge to the former section 21 of the Refugees Act, No 130 of 1998. This section provided for the strict confidentiality of asylum applications and prevented any member of the public or the media from attending asylum application proceedings or viewing the application. The offending provision was challenged by on the basis that it unjustifiably limited the right to freedom of expression and in the result, the Constitutional Court declared section 21(5) of the Refugees Act invalid. The amended section now allows for the Refugee Appeals Authority to exercise a discretion to allow access to, and/or reporting on, its hearings subject to its consideration of certain factors. Having regard to the revised section and the dearth of domestic case law and academic opinion on this issue, this research aims to formulate an understanding of the importance of free expression in the context of asylum proceedings in order to guide the Refugee Appeals Authority in exercising its new discretion. This research will address the issues through three lenses. First, the jurisprudential lens will examine the underpinnings of each right and their relative importance. Next, the judgments lens will examine how each right was dealt with by the High Court and the Constitutional Court. Finally, the comparative lens will examine how the rights have been dealt with in foreign law in the asylum systems of New Zealand and Canada.

Online public participation platforms have resuscitated the debate globally about whether the Internet can be used to improve the reach of public participation and the quality of comments received during these processes or not. This thesis highlights that this debate is a ruse. Our focus should not be on the mode of participation adopted to engage with interested and affected parties but rather on the manner in which that mode (whether online platforms or more traditional methods) is implemented. Currently in South Africa there is not a standard set of guidelines to assist persons undertaking these modes of participation to ensure that they are adequate or acceptable. This thesis seeks to create such a framework. As all actions in South Africa must comply with the Constitution, it is the starting point for developing this baseline. The Constitution drafters introduced participatory democracy into the South African legal framework. In doing so, they intended that certain principles associated with this notion filter into the legal system. This thesis identifies these principles, drawn from the works of democratic theorists, Constitutional-era South African case law, legislation, practice and administrative process, and proposes a participatory framework ('the Constitutional Framework for Public Participation' or 'CFPP') which, if followed, will ensure that policymaking and administrative participatory processes comply with the Constitutional conception of participatory democracy. In addition, as online participation is most likely to become a prominent tool in engaging interested and affected parties, this thesis considers whether there are any principles relating specifically to online participation which should be included in the CFPP. Following an assessment of online public participation processes, additional principles have been identified but these principles apply equally to offline modes of participation as to online participation. Having incorporated these additional principles into the CFPP, they are applied to the public participation process required in terms of Environmental Impact Assessment ('EIA') to assess whether these processes are being conducted in a Constitutional manner. The findings reveal that the regulations governing the EIA public participation processes fall short of the CFPP. Although the regulations are inadequate, examples of actual EIA public participation processes are examined to determine whether, notwithstanding the inadequate regulations, the implemented public participation process meet the requirements of the CFPP. This also yields a negative outcome, highlighting that public participation processes are not being conducted in a manner required by the Constitution. This thesis suggests that the CFPP can be consulted to assist lawyers, administrators, legislatures, persons responsible for public participation processes, government and others in designing and implementing constitutionally acceptable public participation processes. It is acknowledged that the CFPP will need to be the subject of empirical investigation by subsequent researchers to assess its effectiveness in achieving this objective.

Premised on the fact that access to justice is essential, if rights are to be actually enjoyed, this thesis set out to examine the extent to which refugees and asylum seekers are able to access justice in South Africa, both for the enforcement of their rights and to settle disputes or other interests at law. In doing this, the thesis examines the obligations that South Africa owes to refugees and asylum seekers on access to justice, and how it gives effect to those obligations.

This thesis sets out the findings of an empirical study on three environmental departments' responses to judicial regulation during the first fifteen years of democracy.

It is widely believed that the slow socio-economic development of resource rich countries may be curbed by the promotion of transparency and accountability in resource governance. There is a universal consensus among politicians, multilateral institutions, corporations, and civil societies that the ‘paradox of plenty' and its associated social ills of corruption, poverty and conflict are mainly due to the lack of transparent and accountable resource governance. Nations have thus adopted policies and legal frameworks on resource governance that seek to codify and implement the principles of transparency and accountability. Even so, transparency and accountability are still far from being realised in most developing nations. This thesis argues that transparency and accountability may only be realised in practice if their aspects are duly incorporated in the law. Using the conceptual foundations on the governance principles of transparency and accountability, the thesis identifies four components that a legal framework ought to incorporate to foster transparency and accountability in practice. First, there has to be clear provisions establishing accountability relationships in the legal framework. Questions on who the actors are, who is to be called to account, who is entitled to hold another to account, and for what could one be held accountable have to be made very clear in the law. Even within the framework of multiple accountability mechanisms clarity of the circumstance the various mechanisms function is key. Equally, transparency relationships have to be clear on the kind and nature of the information to be disclosed, to whom it may be disclosed, at what time and in which manner such information may be disclosed. Second, the legal framework must provide for suitable accountability implementation mechanisms that give the accountor the required independence and mandate to inquire, render judgment and have the capacity to put its decisions to effect. Third, the legal framework ought to be able to create a well-coordinated web of accountability structures to provide for checks and balances. The legal framework should be able to ensure that actors given authority to fulfil their obligations are able to answer and face vigorous scrutiny and verification processes by independent actors. Lastly, the legal framework has to facilitate access to clear, reliable and complete information by interested parties and the public to promote transparency. The thesis uses these components to conduct an appraisal of the legal and institutional framework governing hydrocarbons in Tanzania. It establishes whether the governance aspects of transparency and accountability are duly incorporated in the legal framework to ensure their implementation in practice. It concludes that Tanzania's legal framework on hydrocarbons recognises on paper the value of transparency and accountability, but it largely fails to incorporate them sufficiently in a way that ensures they are fully implemented.

The research question central to the thesis is stated as follows: what are the implications of new technological phenomena in South African law to the existing legal frameworks in relation to (i) investigatory powers of law enforcement and security and intelligence agencies to obtain electronic evidence, and (ii) its subsequent admissibility in criminal proceedings? Written with an emphasis on South African law, but also taking into account aspects of foreign and international law, the thesis seeks to investigate how our existing legal frameworks which regulate the use of and access to electronic evidence in criminal proceedings, including its admissibility, integrate and adapt to challenges raised by new and rapidly changing technological developments. The thesis provides a critical analysis of the existing legal framework regulating certain key investigative powers of law enforcement and security and intelligence agencies in the current modern environment of the information age in which they operate. Key among them is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002. New technology has not only increased opportunities for criminal activity, it has also created opportunities for law enforcement and security and intelligence agencies to have access to more sophisticated and new capabilities. The range of intrusive capabilities now available to law enforcement and security and intelligence agencies triggers a range of issues and challenges for individual rights, including how those capabilities are used in investigation activities, the scale of their use, the extent to which such capabilities intrude on privacy rights, legislative authority for their use and safeguards that constrain and regulate such new technological capabilities. The challenges of regulating investigative powers in an era of new and fastpaced technological developments is explored in relation to (i) interception of communications (ii) acquisition and retention of communications data, and (iii) access to encrypted information. The introduction of electronic evidence in criminal legal proceedings raises unique challenges in the South African law on evidence. The most interesting perhaps is the extent to which the nature of the evidence presented, in this instance electronic evidence, impacts on admissibility in criminal proceedings. Potential anomalies arise as the relevant legislation, the Electronic Communications and Transactions Act 25 of 2002, is based on an electronic commerce model law concerned with commercial activities. In this regard, two separate issues are the focus of research interest. The thesis offers a rethinking of (a) admissibility of electronic evidence and (b) its weight. The meaning and application of certain statutory provisions, insofar as it applies to electronic evidence as hearsay or real evidence, or both, are key and controversial issues. Another relates to the business records exceptions, which directly translated for electronic records appears to have created a problematic presumption. On matters of evidential weight, there is no ‘one-size-fits-all' approach that will work. While a robust consideration of authentication is required in the court's assessment of evidential weight of electronic evidence, it should not be subject to inflexible tests that make it difficult for authentic electronic evidence to be admitted into evidence. A central premise of the thesis is that evolving technological phenomena can and do present challenges to existing legal concepts on evidence and the investigatory powers of law enforcement and the security and intelligence agencies to obtain electronic evidence and for its admissibility in criminal proceedings. This is done in the context of understanding whether South African law has developed appropriately in response to advancements in technology. In the final analysis, the thesis considers appropriate and meaningful reform towards a modern and transparent legal framework in South African law.