Apprehension of bias and the spectacle of the fair-minded observer: a survey of recent commonwealth and South African decisions on pre-judgment
- Okpaluba, Chuks, Juma, Laurence
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126107 , vital:35850 , http://specjuris.ufh.ac.za/apprehension-bias-and-spectacle-fair-minded-observer-survey-recent-commonwealth-and-south-african
- Description: A perusal of contemporary Commonwealth case law reveals that allegations of bias or apprehension of bias tend to revolve around the pecuniary or other interests of the Judge arising from kinship, previous relationship, or association with party or counsel.1Apparent bias could also be inferred from the judge‘s conduct or utterances, especially, his/her criticisms or cumulative criticisms of a party during proceedings or in adjudication.2In other instances, a judge‘s previous knowledge or association with the case in court, or of an important witness, may disqualify him/her from sitting or passing judgment in the case.3
- Full Text:
- Date Issued: 2014
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126107 , vital:35850 , http://specjuris.ufh.ac.za/apprehension-bias-and-spectacle-fair-minded-observer-survey-recent-commonwealth-and-south-african
- Description: A perusal of contemporary Commonwealth case law reveals that allegations of bias or apprehension of bias tend to revolve around the pecuniary or other interests of the Judge arising from kinship, previous relationship, or association with party or counsel.1Apparent bias could also be inferred from the judge‘s conduct or utterances, especially, his/her criticisms or cumulative criticisms of a party during proceedings or in adjudication.2In other instances, a judge‘s previous knowledge or association with the case in court, or of an important witness, may disqualify him/her from sitting or passing judgment in the case.3
- Full Text:
- Date Issued: 2014
An overview of normative frameworks for the protection of development-induced IDPs in Kenya.
- Authors: Juma, Laurence
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127112 , vital:35957 , https://doi.org/10.1163/17087384-12342016
- Description: Based on the assumption that development induced displacement brings new challenges that the existing protection frameworks may not be aptly suited to deal with, this article analyses how the existing laws have met this challenge and the prospects for further improvement. While its focus is on Kenya, it evaluates the normative quality of protection and standards offered by regional instruments against the existing, as well emerging, parameters for implementation at the domestic level. In this regard, the article examines the propriety of Kenya’s newly promulgated law on internal displacement in providing for protection for the development induced IDPs, the implementation programme that it establishes and its prospects for furthering the vision of the UN Guiding Principles on Internally Displaced and other regional instruments.
- Full Text:
- Date Issued: 2013
- Authors: Juma, Laurence
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127112 , vital:35957 , https://doi.org/10.1163/17087384-12342016
- Description: Based on the assumption that development induced displacement brings new challenges that the existing protection frameworks may not be aptly suited to deal with, this article analyses how the existing laws have met this challenge and the prospects for further improvement. While its focus is on Kenya, it evaluates the normative quality of protection and standards offered by regional instruments against the existing, as well emerging, parameters for implementation at the domestic level. In this regard, the article examines the propriety of Kenya’s newly promulgated law on internal displacement in providing for protection for the development induced IDPs, the implementation programme that it establishes and its prospects for furthering the vision of the UN Guiding Principles on Internally Displaced and other regional instruments.
- Full Text:
- Date Issued: 2013
Protection of development-induced internally displaced persons under the African Charter: the case of the Endorois community of Northern Kenya
- Authors: Juma, Laurence
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127100 , vital:35955 , https://heinonline.org./HOL/Page?handle=hein.journals/ciminsfri46amp;div=15amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: The discourse on development-induced displacement has highlighted the enormity of problems faced by communities who are forcefully removed to create room for development projects, while at the same time, exposed the insularity of national and international legal frameworks for their protection. Using the case of Centre for Minority Rights Development (CEMIRIDE) on behalf of the Endorois Community v Kenya (No 276/200), decided by the African Commission on Human and People's Rights in November 2009, this article analyses the support that regional and continental rights enforcement mechanisms could provide to the protection of IDPs, particularly those displaced by development projects.
- Full Text:
- Date Issued: 2013
- Authors: Juma, Laurence
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127100 , vital:35955 , https://heinonline.org./HOL/Page?handle=hein.journals/ciminsfri46amp;div=15amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: The discourse on development-induced displacement has highlighted the enormity of problems faced by communities who are forcefully removed to create room for development projects, while at the same time, exposed the insularity of national and international legal frameworks for their protection. Using the case of Centre for Minority Rights Development (CEMIRIDE) on behalf of the Endorois Community v Kenya (No 276/200), decided by the African Commission on Human and People's Rights in November 2009, this article analyses the support that regional and continental rights enforcement mechanisms could provide to the protection of IDPs, particularly those displaced by development projects.
- Full Text:
- Date Issued: 2013
The South African Defence Review (2012) and private military/security companies (PMSCs): heralding a shift from prohibition to regulation?
- Juma, Laurence, Tsabora, James
- Authors: Juma, Laurence , Tsabora, James
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126132 , vital:35852 , https://doi.org/10.17159/1727-3781/2013/v16i4a2415
- Description: This article discusses the possibility of South Africa enacting a new law regulating private military/security companies (PMSCs) beyond the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act of 2006. It argues that such a possibility arises from the policy direction expressed in the Defence Review of 2012, and the recent developments at the international level, which indicate a shift towards accommodation of PMSCs as legitimate players in the security sector. The article surveys the current state of national and international law relating to PMSCs and illustrates how the emerging shift from prohibition to regulation has affirmed the need for legislative intervention in this field. It concludes that since the future is on the side of regulation and not prohibition, legislation that furthers the policy agenda envisioned by the Defence Review 2012 may be the best tool to unlock the inhibitions of the past and create a viable climate for reframing the debate on domestic law governing private militarism in South Africa.
- Full Text:
- Date Issued: 2013
- Authors: Juma, Laurence , Tsabora, James
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126132 , vital:35852 , https://doi.org/10.17159/1727-3781/2013/v16i4a2415
- Description: This article discusses the possibility of South Africa enacting a new law regulating private military/security companies (PMSCs) beyond the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act of 2006. It argues that such a possibility arises from the policy direction expressed in the Defence Review of 2012, and the recent developments at the international level, which indicate a shift towards accommodation of PMSCs as legitimate players in the security sector. The article surveys the current state of national and international law relating to PMSCs and illustrates how the emerging shift from prohibition to regulation has affirmed the need for legislative intervention in this field. It concludes that since the future is on the side of regulation and not prohibition, legislation that furthers the policy agenda envisioned by the Defence Review 2012 may be the best tool to unlock the inhibitions of the past and create a viable climate for reframing the debate on domestic law governing private militarism in South Africa.
- Full Text:
- Date Issued: 2013
Chieftainship succession and gender equality in Lesotho: negotiating the right to equality in a jungle of pluralism
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127067 , vital:35951 , https://heinonline.org/HOL/Page?handle=hein.journals/tjwl22amp;div=11amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: Women constitute about 51% of Lesotho's population 1 and enjoy a higher literacy rate than men. 2 They are also the backbone of a society that for several hundreds of years provided male labor to South Africa's farms and gold mines.3 However, Basotho women are generally excluded from mainstream politics and are discriminated against in almost all spheres of socioeconomic life. This exclusion, marginalization, and discrimination have been largely blamed on patriarchy and entrenched traditional norms, both of which are sustained by a plural legal system that has seemingly remained insular to developments around the globe. 4
- Full Text:
- Date Issued: 2012
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127067 , vital:35951 , https://heinonline.org/HOL/Page?handle=hein.journals/tjwl22amp;div=11amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: Women constitute about 51% of Lesotho's population 1 and enjoy a higher literacy rate than men. 2 They are also the backbone of a society that for several hundreds of years provided male labor to South Africa's farms and gold mines.3 However, Basotho women are generally excluded from mainstream politics and are discriminated against in almost all spheres of socioeconomic life. This exclusion, marginalization, and discrimination have been largely blamed on patriarchy and entrenched traditional norms, both of which are sustained by a plural legal system that has seemingly remained insular to developments around the globe. 4
- Full Text:
- Date Issued: 2012
Nothing but a mass of debris: urban evictions and the right of access to adequate housing in Kenya
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128425 , vital:36108 , http://www.scielo.org.za/scielo.php?script=sci_arttextamp;pid=S1996-20962012000200008amp;lng=enamp;nrm=iso
- Description: The article explores the opportunities that the new constitutional dispensation in Kenya has created for the protection against unlawful eviction of poor populations living in urban centres. It analyses the content of the right to accessible and adequate housing as provided for in article 43 of the Constitution of Kenya and articulated in various international instruments, and traces how this provision has been applied in the eviction cases that the Kenyan courts have decided. From this analysis, the article suggests that the new constitutional dispensation has opened up possibilities for rights enforcement that the courts as well as administrative organs should take advantage of. It also makes tangible suggestions on how to improve rights litigation in this regard, such as affirming the rights of access to courts and seeking further judicial oversight prior to any eviction and the promulgation of enabling legislation.
- Full Text:
- Date Issued: 2012
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128425 , vital:36108 , http://www.scielo.org.za/scielo.php?script=sci_arttextamp;pid=S1996-20962012000200008amp;lng=enamp;nrm=iso
- Description: The article explores the opportunities that the new constitutional dispensation in Kenya has created for the protection against unlawful eviction of poor populations living in urban centres. It analyses the content of the right to accessible and adequate housing as provided for in article 43 of the Constitution of Kenya and articulated in various international instruments, and traces how this provision has been applied in the eviction cases that the Kenyan courts have decided. From this analysis, the article suggests that the new constitutional dispensation has opened up possibilities for rights enforcement that the courts as well as administrative organs should take advantage of. It also makes tangible suggestions on how to improve rights litigation in this regard, such as affirming the rights of access to courts and seeking further judicial oversight prior to any eviction and the promulgation of enabling legislation.
- Full Text:
- Date Issued: 2012
Privatisation, human rights and security: reflections on the draft international convention on regulation, oversight and monitoring of private military and security companies
- Authors: Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128800 , vital:36160 , http://dx.doi.org/10.4314/ldd.v15i1.3
- Description: Efforts to establish regulatory frameworks for private military/security companies (PMSCs), driven by public security concerns as well as private interests of the companies themselves, have yielded a number of soft law instruments. Unfortunately, most of these instruments are conditioned by the underlying interests of their promulgators and have therefore failed to establish universally acceptable regulatory standards.
- Full Text:
- Date Issued: 2011
- Authors: Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128800 , vital:36160 , http://dx.doi.org/10.4314/ldd.v15i1.3
- Description: Efforts to establish regulatory frameworks for private military/security companies (PMSCs), driven by public security concerns as well as private interests of the companies themselves, have yielded a number of soft law instruments. Unfortunately, most of these instruments are conditioned by the underlying interests of their promulgators and have therefore failed to establish universally acceptable regulatory standards.
- Full Text:
- Date Issued: 2011
The laws of Lerotholi: role and status of codified rules of custom in the kingdom of Lesotho
- Authors: Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128810 , vital:36162 , https://heinonline.org/HOL/P?h=hein.journals/pacinlwr23ampi=94
- Description: The status of customary law in African societies is diminished by factors, most of which are generated by the machinery of the modern state. But its mantle, kept alive by neo-traditional scholarship and a commitment to multiculturalism in the post-independence era, has nevertheless sustained an active discussion on its relevance to the future of law and the general administration of justice in African states.2
- Full Text:
- Date Issued: 2011
- Authors: Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128810 , vital:36162 , https://heinonline.org/HOL/P?h=hein.journals/pacinlwr23ampi=94
- Description: The status of customary law in African societies is diminished by factors, most of which are generated by the machinery of the modern state. But its mantle, kept alive by neo-traditional scholarship and a commitment to multiculturalism in the post-independence era, has nevertheless sustained an active discussion on its relevance to the future of law and the general administration of justice in African states.2
- Full Text:
- Date Issued: 2011
The problems of proving actual or apparent bias: an analysis of contemporary developments in South Africa
- Okpaluba, Chuks, Juma, Laurence
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127498 , vital:36017 , https://doi.org/10.17159/1727-3781/2011/v14i7a2616
- Description: This article takes a critical look at the divergent approaches of courts in constructing the meaning of actual and apparent bias in adjudicative contexts. It argues that while proving actual bias on the part of an adjudicator may not always be easy and parties often revert to apprehended bias, an allegation of bias in any adjudication process is a matter that courts take very seriously. This notwithstanding, the courts have failed to consistently demarcate the necessary elements and threshold of proof that complainants must overcome to secure a successful challenge of decisions based on adjudicative impartiality. Upon critical evaluation of the decisions on the subject so far rendered, this article suggests that the pattern which has seemingly emerged is that which weighs the allegations of bias against the presumption of impartiality and the requirements of the double reasonableness test.
- Full Text:
- Date Issued: 2011
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127498 , vital:36017 , https://doi.org/10.17159/1727-3781/2011/v14i7a2616
- Description: This article takes a critical look at the divergent approaches of courts in constructing the meaning of actual and apparent bias in adjudicative contexts. It argues that while proving actual bias on the part of an adjudicator may not always be easy and parties often revert to apprehended bias, an allegation of bias in any adjudication process is a matter that courts take very seriously. This notwithstanding, the courts have failed to consistently demarcate the necessary elements and threshold of proof that complainants must overcome to secure a successful challenge of decisions based on adjudicative impartiality. Upon critical evaluation of the decisions on the subject so far rendered, this article suggests that the pattern which has seemingly emerged is that which weighs the allegations of bias against the presumption of impartiality and the requirements of the double reasonableness test.
- Full Text:
- Date Issued: 2011
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