This thesis unpacks relationship between economic policy formulation and implementation and the realisation of socio-economic rights. The paper provides an overview of the history of the economic system and policies in Kenya. It then conducts an in-depth analysis of the economic system and policy direction envisioned under the 2010 Constitution and the current development agenda to determine how far they align with the aim of realising socio-economic rights for all. The paper establishes that the Constitution of Kenya 2010 sets the foundation for an egalitarian mixed economy, setting human rights as a core consideration in the development and implementation of economic policy. However, while the overarching development goals appear to centre on human flourishing, the economic policies implemented in practice were found to have failed to achieve these ends due, at least in part, to the misalignment with human rights principles and obligations. Overall, the deep-rooted neoliberal capitalist elements of the system contribute to the nominal incorporation of human rights, and the focus on GDP growth at the expense of genuine progress in terms of well-being for the people. The paper recommends shifting to a rights-centred approach to development and specific reforms to fiscal and debt policy. / Mini Dissertation (LLM (Human Rights and Democratisation in Africa))--University of Pretoria, 2021. / Centre for Human Rights / LLM (Human Rights and Democratisation in Africa) / Unrestricted

Includes bibliographical references.

Includes bibliographical references. / The Qualification Directive intended to achieve the harmonization of the asylum determination procedures among European states. The Qualification Directive introduced minimum standards for the determination of asylum claims, aiming at equal outcomes in decision-making processes, especially on first instance levels. While all member states had to change their national legislation to comply with the provisions of this Directive, they were allowed to adopt more favorable legislation. However, after a period of four years and an assessment of the situation, it became clear that the Qualification Directive failed its goal at least partly, since imbalances in asylum determination processes still existed. These resulted in immense differences in recognition rates of same country nationals in European states, despite the goal of the concept to reach uniform standards. The cause was said to be insufficient guidance coming from the Qualification Directive for the decision-making authorities. Consequently, the European Commission adopted a recast Qualification Directive in 2011. It demanded national legislation to be adapted accordingly by the 21st of December 2013. The international refugee regime is governed by the 1951 Convention Relating to the Status of Refugees (hereinafter 1951 Convention). Being a party to that Convention is a prerequisite for joining the EU. Thus all European states are bound by the obligations arising from the 1951 Convention. Consequently, the recast Qualification Directive is “based on the full and inclusive application” of the 1951 Convention. Nonetheless, due to the development of international human rights law, in terms of the protection of women’s rights, it is evident that the 1951 Convention lacks sufficient clarification and guidance for asylum claims arising from women’s experiences of traditional harmful practices. Those harmful and discriminatory practices comprise for example forced marriage, female genital mutilation, domestic violence including rape, China’s one child policy and the risk of forced sterilization emerging in this context as well as in others, traditional dress codes, dowry burning or honor killings. This list is not meant to be exhaustive, since women might be subjected to several other norms, customs, rules or policies, which they try to escape from and base their asylum claims on. Asylum claims that deal with these forms of harm are often referred to as gender-related asylum claims. However, under the refugee definition of the 1951 Convention a specific ground of ‘gender’ or ‘sex’ is missing.

Juvenile justice is a core facet of international child law aimed at protecting children who come into conflict with the law. The international and regional juvenile justice frameworks outline the standards expected of States party to the international instruments. Both South Africa and Scotland are obligated to adhere to these rules and principles by way of creation and implementation of domestic laws in furtherance of a child-centered approach to justice. This dissertation analyses the effectiveness of both national systems and assesses the extent to which they respect, protect and fulfill children's rights in the context of international child law. This study also aims to highlight areas in which South Africa and Scotland fail to meet the prescribed standards and proposes various recommendations in order to do so more effectively.

The problem of refugees is a global one that is of concern to all states. There are rising numbers of refugees that are forced to migrate from their homes in search of safety. How states respond to refugee situations is very important for the protection of refugee's rights. The international community has been able to draft some international conventions and treaties that provide for the protection of refugees. However, most are drafted in a manner that caters for individual determination and protection procedures. This is despite the fact that refugees enter countries in large groups most times. The major international laws that that cater for group situations are not exact on who must take on the responsibility in mass influx situations, how this responsibility should be shared and also the form and manner that the responsibility sharing mechanisms should take. This research is an insight into the laws and current practise of state in times of mass influx refugee situations. The current crisis in Syria is an example of mass influx situations and how states have been handling the situation and this research analyses the Syrian situation in order to understand current state practice. The research also explores the laws that are currently in place to protect refugees and if they can be applied to mass influx situations while adequately guaranteeing the protection of the human rights of the refugees. It further explores the options that are open to states in times of mass influx, state practice and the obligations that should arise in such situations.

This minor dissertation is a research paper on the use of arbitrary detention to criminalise asylum seekers in South Africa. After the democratic transition in 1994 South Africa became a leading destination for asylum seekers from across the African continent. South Africa’s post-apartheid immigration and refugee system were based on a human-rights approach and aimed at creating a culture of inclusion and tolerance. Despite a progressive Refugee Act, the most prominent aspect of the South African asylum system is its use of arbitrary detention as a form of immigration control. The goal of this research is to analyse the criminalisation of asylum seekers through arbitrary detention in South Africa. This is done through an analysis of the roles the Refugee Act and the Immigration Act play in the asylum process. In understanding the nexus between arbitrary detention and the deprivation of liberty, this research analyses the normative frameworks that inform international and South African legislation. The use of detention as an immigration tool has resulted in a cycle of criminalisation. The South African institutions and erroneous application of immigration laws has criminalised the act of seeking asylum - a universal human right. After an in-depth analysis of the asylum process in South Africa and how arbitrary detention has criminalised asylum seekers, this research discusses the alternatives to detention most applicable in the case of South Africa. The erroneous application of laws, politicization of asylum seekers and use of detention for administrative and deterrence reasons are the primary reasons for the unlawful detention of asylum seekers in South Africa. This research reveals that there are alternatives to the use of detention as the first port of call, this largely lies in the reform of the country’s implementation of refugee law. The progressive nature of the Refugee Act guarantees protection from arbitrary detention, by redressing the management of the asylum process and institutions, the Refugee Act can be better implemented to reflect the human-rights approach it embodies.

The thesis examines the legal efficacy of the current South African legal framework governing security rights in movable property. This is done by bench-marking the South African framework against selected international and regional secured transactions law frameworks, making it the first South African study to be conducted in this manner. This vertical comparative study establishes and gives content to the key policy objectives and fundamental principles of each examined legal framework, and considers their interrelationship. Aspects of a secured-transactions-law framework, included in the study as part of key policy objectives and fundamental principles, which should influence reform, include: (1) whether to implement a unitary, non-unitary, or commercially-facilitative approach to establish a single legal framework for security rights in movable property; (2) whether to change the method used to create and allow the third-party effect of the security right; (3) how comprehensive the scope of a legally and commercially relevant legal framework should be; (4) what the preferred publicity method should be; (5) how to develop transparent and predictable priority rules; (6) how to adopt effective enforcement measures; and (7) the extent different types of creditor should be treated equally by the law. The study presents a robust framework, the first of its kind in South Africa, pivoting on key policy objectives and fundamental principles the South African legislature and policymakers must consider establishing a legally efficient secured transactions law framework. / Thesis (LLD)--University of Pretoria, 2020. / Mercantile Law / LLD / Unrestricted

Tens of thousands of men, women and children are being trafficked around the world and brutally exploited. This research investigated if SA law and policy is equipped to deal with the peculiarities of Human Trafficking. This dissertation's central thesis is that the legal and policy response to human trafficking in South Africa is inadequate to deal with its peculiarities. The anti-trafficking response must extend beyond the application of human rights and criminal law to include a cross-cutting, multi-sectoral, socio-economic and political response that addresses its causes and consequences. The study considers and explores the definition of human trafficking, its causes, consequences and the peculiarities and specificities of human trafficking in SA. The international, regional and domestic legal frameworks and their relevance for human trafficking is outlined with emphasis on the Prevention and Combatting of Trafficking in Persons Act 7 of 2013 and the National Policy Framework. A feminist lens using Intersectionality and Standpoint Theory, is applied to inform the critical analysis of the research question. This thesis demonstrated that South Africa's law and policy although promising, is insufficient in dealing with the peculiarities of human trafficking. The law needs to better account for the root causes of trafficking. It is essential that this response is informed by intersectionality to enable the implementation of broader solutions especially addressing the violation of social and economic rights and the root causes of trafficking.

The aim of this paper was to determine whether the current South African law governing the doctrine of pacta de non cedendo complies with the constitutional mandates imposed by our Constitution. In terms of the current law a pactum de non cedendo will only be accorded validity if the debtor is able to demonstrate a substantial interest in the prohibition against cession. However, the interest requirement is only applicable when a pactum de non cedendo is superimposed onto a pre-existing right, and is not required when a right is born ab initio with a prohibition on transfer. In my opinion the current law falls short of the "spirit, purport and objects of the Bill of Rights", as required by s 39(2) of the Constitution, and is therefore, in need of development. In this paper I propose the following development: Firstly, by requiring the debtor to prove an interest that is served by the pactum de non cedendo, in certain circumstances, the law undermines the value of equality held so dearly by our society. This is because no such requirement exists when other types of restrictive clauses are concluded. It is my contention that the "interest requirement" be relegated from being a free-standing requirement to simply being another factor to be taken into account when conducting the public policy enquiry. Secondly, pacta de non cedendo appearing in book debts and other similar monetary obligations should always be held contrary to public policy due to the importance of the free flow of claims in commerce, specifically, the factoring and securitisation industries. Factoring plays a crucial role in the world economy, the most advantageous aspect of factoring is that small to medium size businesses may obtain much needed finance by selling their claims to a factoring house. Lastly, the current distinction drawn between a pactum de non cedendo that is superimposed onto a pre-existing right, and a right that is created with a pactum de non cedendo is artificial and illogical, the correct distinction that should be drawn is between a pactum de non cedendo that is concluded by the debtor and creditor on the one hand, and between a pactum de non cedendo concluded between the cedent and cessionary on the other.

Children born in foreign territories to parents who are non-nationals are being deprived of the right to nationality, which in turn affects them from exercising other rights which are articulated in human rights instruments. When their births are not registered it means that they do not have birth certificates and in future they will be unable to acquire documents like identity documents and passports. Sometimes even if their births are registered, it is difficult for them to enjoy the other rights because national laws do not accommodate them. Even though all children's rights should be equally protected, this research will focus on children born to at least one parent who is an irregular migrant, and will analyse how this affects their access to the rights to education and health.