"As already mentioned, gauranteeing the right to a fair trial aims at protecting individuals from unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms. The fundamental importance of the right to a fair trial is illustrated not only by international instruments and the extensive body of interpretation it has generated, but most recently, by a proposal to include it in the non-derogable rights stipulated in article 4(2) of the ICCPR. Standards for a fair trial may stem from binding obligations that are included in human rights treaties to which a state in examination is a party, but they may also be found in documents and practices which, though not binding, can be taken to express the direction in which the law is evolving. One of the problems is that law and human rights have been viewed largely as Western concepts, and are therefore defined and valued by Western criteria. This leads to a number of difficulties. First, there are many non-Western societies in which law and human rights thus defined, is impractical and mechanisms of protecting human rights in non-Western justice systems are not recognised as comparable counterparts to those in Western societies. Secondly, African states have failed to abide by their international fair trial obligations because, probably, these standards are impractical given the realities like poverty, illiteracy and strong cultural beliefs that characterise most African communities. As a result, the law applied by the Western style courts is felt to be so out of touch with the needs of most African communities, and coercion to resort to them amounts to denial of justice. This explains why communities, especially in the rural Africa, resort to indigenous African justice systems irrespective of state recognition or otherwise. Upon realisation that the Western style of justice did not respond to the prevailing post-genocide situation for example, the government of Rwanda re-established traditional courts to help deal with the crime of genocide and foster reconciliation. A Gacaca court is constituted of a panel of lay judges who coordinate a process in which genocide survivors and suspected perpetrators and the latter between themselves confront each other. They, and the community, participate by telling the truth of what happened; who did what during the genocide, and then the judges, based on the evidence given to them, decide on the case. These judges are elected by their respective communities for their integrity, not their learning. However, human rights organisations argue that Gacaca proceedings violate the accused persons's fair trial rights. They question among other things capacity of lay judges who make decisions in these courts, to conduct a fair trial. They also contend that Gacaca does not guarantee the right to be presumed innocent because it requires confessoins and that defendants are denied legal representation. In South Africa, traditional courts (konwn as chiefs' courts) exist. They have played a crucial role in dispensing justice in the indigenous communities and are prototypes of the kind of dispute resolution mechanisms desirable in a modern society. They apply 'people's law', which developed as a result of lack of legitimacy of the Western system of justice among the indigenous South Africans. However, critics see them as conservative and unable to render justice in the modern social, economic and political climate in South Africa today. As a result, Western style court proceedings that are conducted in foreign languages to indigenous communities, and thus have to rely on inaccurate and unreliable interpreters in addition to costs for legal counsels and subjection to very technical and formal procedures, are the only alternative in criminal matters. Briefly, the major problem is to ascertain whether indigenous African criminal justice systems do, or otherwise conform to fair trial standards. If they do not, according to who are they not fair? In other words, is there a universal measure of fairness or does appreciation depend on people's enviornment and their socio-economic backgrounds, in which case, the beneficiaries of indigenous African criminal justice systems should be the ones to appreciate its fairness?" -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2004. / Prepared under the supervision of Prof. Nii Ashie Kotey at the Faculty of Law, University of Ghana / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

Aim of the study: The main aim of the study is to examine and pursue research regarding the history and role of law in the disintegration of the institutions of traditional leadership in South Africa, Botswana and Lesotho in order to make recommendations regarding the challenges and opportunities facing traditional authorities in these countries. The traditional systems, roles and functions of these institutions are traced from the pre-colonial era up to the period of democratic regimes in these countries. This study is based on the premises that the jurisprudence of the institution of traditional leadership is as old as mankind and that this institution is rooted in the rural soil of African communities. Research Methodology: This study is based on legal comparative research with reference to South Africa, Botswana and Lesotho. A literature survey of the most important sources dealing with history, legislation and policy documents was undertaken. Conclusion and Recommendations: The institution of traditional leadership is one of the oldest traditional institutions of governance in South Africa, Botswana and Lesotho. During the pre-colonial era traditional authorities constituted an important component in the traditional system of the administration of the traditional community. Traditions placed a great amount of responsibility on traditional leaders to look after the best interests of their communities. When the colonial government took over the reigns of these three countries, they changed the pre-colonial form and nature of traditional authorities. These colonial governments exercised control over traditional leaders and allowed minimum independence in their traditional rule. The post-colonial governments of South Africa, Botswana and Lesotho retained the institution of traditional leadership. The Constitutions of these countries provide the legal framework for the recognition and functioning of the office of traditional leaders. However, it has been noted in this study that the relationship between the traditional leaders and the governments of these countries has been a mixture of conflict and cordiality. One of the reasons for this uneasy relationship between the traditional leaders and the central governments of these countries is that the status, authority, power and functions of traditional leaders have been reduced considerably when new institutions such as Local Governments, Land Boards, District Councils and Village District Councils were given powers and functions previously exercised by traditional leaders. The post-colonial transformation of traditional leadership in these three countries has led to a steep decline in the authority of traditional leaders. In order to encourage active participation of the traditional leaders in the new democratic structures and bodies, the institution of traditional leadership must be adapted to the changing political, social and economic environments. Rural local government bodies and the national governments of these countries should not view the institutions of traditional leadership as competitors for political power. The post-colonial governments of South Africa, Botswana and Lesotho should introduce traditional leaders as equal partners in the development and advancement of rural communities. In order to achieve this goal the governments of these countries should empower and capacitate traditional leaders so that they do not become misfits in the new constitutional and democratic settlements. / Thesis (LL.D. (Indigenous Law))--North-West University, Potchefstroom Campus, 2007.

Aim of the study: The main aim of the study is to examine and pursue research regarding the history and role of law in the disintegration of the institutions of traditional leadership in South Africa, Botswana and Lesotho in order to make recommendations regarding the challenges and opportunities facing traditional authorities in these countries. The traditional systems, roles and functions of these institutions are traced from the pre-colonial era up to the period of democratic regimes in these countries. This study is based on the premises that the jurisprudence of the institution of traditional leadership is as old as mankind and that this institution is rooted in the rural soil of African communities. Research Methodology: This study is based on legal comparative research with reference to South Africa, Botswana and Lesotho. A literature survey of the most important sources dealing with history, legislation and policy documents was undertaken. Conclusion and Recommendations: The institution of traditional leadership is one of the oldest traditional institutions of governance in South Africa, Botswana and Lesotho. During the pre-colonial era traditional authorities constituted an important component in the traditional system of the administration of the traditional community. Traditions placed a great amount of responsibility on traditional leaders to look after the best interests of their communities. When the colonial government took over the reigns of these three countries, they changed the pre-colonial form and nature of traditional authorities. These colonial governments exercised control over traditional leaders and allowed minimum independence in their traditional rule. The post-colonial governments of South Africa, Botswana and Lesotho retained the institution of traditional leadership. The Constitutions of these countries provide the legal framework for the recognition and functioning of the office of traditional leaders. However, it has been noted in this study that the relationship between the traditional leaders and the governments of these countries has been a mixture of conflict and cordiality. One of the reasons for this uneasy relationship between the traditional leaders and the central governments of these countries is that the status, authority, power and functions of traditional leaders have been reduced considerably when new institutions such as Local Governments, Land Boards, District Councils and Village District Councils were given powers and functions previously exercised by traditional leaders. The post-colonial transformation of traditional leadership in these three countries has led to a steep decline in the authority of traditional leaders. In order to encourage active participation of the traditional leaders in the new democratic structures and bodies, the institution of traditional leadership must be adapted to the changing political, social and economic environments. Rural local government bodies and the national governments of these countries should not view the institutions of traditional leadership as competitors for political power. The post-colonial governments of South Africa, Botswana and Lesotho should introduce traditional leaders as equal partners in the development and advancement of rural communities. In order to achieve this goal the governments of these countries should empower and capacitate traditional leaders so that they do not become misfits in the new constitutional and democratic settlements. / Thesis (LL.D. (Indigenous Law))--North-West University, Potchefstroom Campus, 2007.

INTIMIDATION AS A FACTOR IN THE LIBERATION STRUGGLE OF SOUTH AFRICA WITH SPECIAL REFERENCE TO BELA BELA (WARMBATHS): AN ANTHROPOLOGICAL PERSPECTIVE The cultural revitalisation or adjustment model of Anthony Wallace provides a basis for interpreting religious, political and other revitalisation movements. This study focuses on political revitalisation movements. Participation in the activities of revitalisation movements does not always occur voluntarily. Leaders of such movements apply techniques and methods of intimidation enforcing change and participation. In South Africa, political revitalisation was inter alia brought about by the ANC as political liberation movement who used methods of violent and non-violent intimidation to force people, regardless of their ethnic affiliation, to support the movement and enforce political change. The ANC inter alia used charactersitic cultural phenomena and components of Bantu-speakers as resources for intimidation to ensure unanimity, participation and ultimately to achieve political liberation. Cultural components that were exploited included communality, group solidarity, administration of justice, songs and dances. / INTIMIDASIE AS 'N FAKTOR IN DIE VRYHEIDSTRYD IN SUID-AFRIKA MET SPESIALE VERWYSING NA BELA BELA (WARMBAD): 'N ANTROPOLOGIESE PERSPEK.TIEF Kulturele vernuwmg ts 'n universele verskynsel. Anthony Wallace se model van kulturele vernuwing of -aanpassing bied 'n raamwerk vir die verduideliking en interpretasie van die fases waardeur kulturele vernuwingsbewegings van 'n godsdienstige, politieke of ander aard ontwikkel. In hierdie studie word daar uitsluitlik gefokus op vernuwingsbewegings van 'n politieke aard. Aangesien deelname aan die aktiwiteite van kulturele vernuwings- en aanpassingsbewegings nie noodwendig vrywillig geskied nie, het leiers van hierdie bewegings gebruik gemaak van tegnieke en metodes van intimidasie om deelname en vernuwing op die massas af te dwing. In SuidAfrika is politieke vernuwing onder andere teweeggebring deur die ANC as politieke bevrydingsbeweging. Die ANC het gebruik gemaak van gewelddadige (harde of direkte) sowel as nie-geweldadige (sagte of indirekte) intimidasie om mense, ongeag hulle etniese aanhorigheid, te dwing om die beweging se oogmerke aktief te ondersteun om politieke verandering te weeg te bring. As dee! van die strategie om deur intimidasie mense tot deelname aan massa-aksies soos optogte, betogings en massa-vergaderings te dwing, het die ANC gebruik gemaak van bepaalde kultuur verskynsels en -komponente wat eie is aan die lewensbeskouinge en lewenswyse van Bantoe-sprekendes. Kultuurkomponente wat suksesvol benut is deur die leiers en lede van bevrydingsbewegings omvat, onder andere verskynsels soos kommunaliteit, groep solidariteit, die regspraak, liedere en danse. Hierdie kultuurkomponente en verskynsels is verander en aangepas om ten eerste eenheid en deelname te bewerkstellig en te verseker en uiteindelik om die hoofdoelwit van politieke bevryding te bereik. / Anthropology and Archaeology / M.A. (Anthropology)

INTIMIDATION AS A FACTOR IN THE LIBERATION STRUGGLE OF SOUTH AFRICA WITH SPECIAL REFERENCE TO BELA BELA (WARMBATHS): AN ANTHROPOLOGICAL PERSPECTIVE The cultural revitalisation or adjustment model of Anthony Wallace provides a basis for interpreting religious, political and other revitalisation movements. This study focuses on political revitalisation movements. Participation in the activities of revitalisation movements does not always occur voluntarily. Leaders of such movements apply techniques and methods of intimidation enforcing change and participation. In South Africa, political revitalisation was inter alia brought about by the ANC as political liberation movement who used methods of violent and non-violent intimidation to force people, regardless of their ethnic affiliation, to support the movement and enforce political change. The ANC inter alia used charactersitic cultural phenomena and components of Bantu-speakers as resources for intimidation to ensure unanimity, participation and ultimately to achieve political liberation. Cultural components that were exploited included communality, group solidarity, administration of justice, songs and dances. / INTIMIDASIE AS 'N FAKTOR IN DIE VRYHEIDSTRYD IN SUID-AFRIKA MET SPESIALE VERWYSING NA BELA BELA (WARMBAD): 'N ANTROPOLOGIESE PERSPEK.TIEF Kulturele vernuwmg ts 'n universele verskynsel. Anthony Wallace se model van kulturele vernuwing of -aanpassing bied 'n raamwerk vir die verduideliking en interpretasie van die fases waardeur kulturele vernuwingsbewegings van 'n godsdienstige, politieke of ander aard ontwikkel. In hierdie studie word daar uitsluitlik gefokus op vernuwingsbewegings van 'n politieke aard. Aangesien deelname aan die aktiwiteite van kulturele vernuwings- en aanpassingsbewegings nie noodwendig vrywillig geskied nie, het leiers van hierdie bewegings gebruik gemaak van tegnieke en metodes van intimidasie om deelname en vernuwing op die massas af te dwing. In SuidAfrika is politieke vernuwing onder andere teweeggebring deur die ANC as politieke bevrydingsbeweging. Die ANC het gebruik gemaak van gewelddadige (harde of direkte) sowel as nie-geweldadige (sagte of indirekte) intimidasie om mense, ongeag hulle etniese aanhorigheid, te dwing om die beweging se oogmerke aktief te ondersteun om politieke verandering te weeg te bring. As dee! van die strategie om deur intimidasie mense tot deelname aan massa-aksies soos optogte, betogings en massa-vergaderings te dwing, het die ANC gebruik gemaak van bepaalde kultuur verskynsels en -komponente wat eie is aan die lewensbeskouinge en lewenswyse van Bantoe-sprekendes. Kultuurkomponente wat suksesvol benut is deur die leiers en lede van bevrydingsbewegings omvat, onder andere verskynsels soos kommunaliteit, groep solidariteit, die regspraak, liedere en danse. Hierdie kultuurkomponente en verskynsels is verander en aangepas om ten eerste eenheid en deelname te bewerkstellig en te verseker en uiteindelik om die hoofdoelwit van politieke bevryding te bereik. / Anthropology and Archaeology / M.A. (Anthropology)