Combating corruption while respecting human rights : a critical study of the non-conviction based assets recovery mechanism in Kenya and South Africa
- Authors: Obura, Ken Otieno
- Date: 2014
- Subjects: Human rights -- Kenya , Human rights -- South Africa , Corruption -- Kenya , Corruption -- South Africa , Reparation (Criminal justice) -- Kenya , Reparation (Criminal justice) -- South Africa , Political corruption -- Kenya , Political corruption -- South Africa , Corruption investigation -- Kenya , Corruption investigation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3719 , http://hdl.handle.net/10962/d1013159
- Description: The thesis contributes to the search for sound anti-corruption laws and practices that are effective and fair. It argues for the respect for human rights in the crafting and implementation of anti-corruption laws as a requisite for successful control of corruption. The basis for this argument is threefold: First, human rights provide a framework for checking against abuse of state’s police power, an abuse which if allowed to take root, would make the fight against corruption lose its legitimacy in the eye of the people. Second, human rights ensure that the interest of individuals is catered for in the crafting of anti-corruption laws and practices thereby denying perpetrators of corruption legal excuses that can be exploited to delay or frustrate corruption cases in the courts of law. Third, human rights provide a useful framework for balancing competing interests in the area of corruption control – it enables society to craft measures that fulfils the public interest in the eradication of corruption while concomitantly assuring the competing public interest in the protection of individual members’ liberties – a condition that is necessary if the support of the holders of these competing interests is to be enlisted and fostered in the fight against corruption. The thesis focuses on the study of the non-conviction based assets recovery mechanism, a mechanism that allows the state to apply a procedure lacking in criminal law safeguards to address criminal behaviour. The mechanism is thus beset with avenues for abuse, which if unchecked could have debilitating effects not only to individual liberties but also to the long term legitimacy of the fight against corruption. In this regard, the thesis examines how the human rights framework has been used in Kenya and South Africa to check on the potential dangers of the non-conviction based mechanism and to provide for a proportional balance between the imperative of corruption control and the guarantee against arbitrary deprivation of property. The aim is to unravel the benefits of respecting human rights in the fight against corruption in general and in the non-conviction based assets recovery in particular. Kenya and South Africa are chosen for study because they provide two models of non-conviction based mechanisms with different levels of safeguards, for comparative consideration.
- Full Text:
- Authors: Obura, Ken Otieno
- Date: 2014
- Subjects: Human rights -- Kenya , Human rights -- South Africa , Corruption -- Kenya , Corruption -- South Africa , Reparation (Criminal justice) -- Kenya , Reparation (Criminal justice) -- South Africa , Political corruption -- Kenya , Political corruption -- South Africa , Corruption investigation -- Kenya , Corruption investigation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3719 , http://hdl.handle.net/10962/d1013159
- Description: The thesis contributes to the search for sound anti-corruption laws and practices that are effective and fair. It argues for the respect for human rights in the crafting and implementation of anti-corruption laws as a requisite for successful control of corruption. The basis for this argument is threefold: First, human rights provide a framework for checking against abuse of state’s police power, an abuse which if allowed to take root, would make the fight against corruption lose its legitimacy in the eye of the people. Second, human rights ensure that the interest of individuals is catered for in the crafting of anti-corruption laws and practices thereby denying perpetrators of corruption legal excuses that can be exploited to delay or frustrate corruption cases in the courts of law. Third, human rights provide a useful framework for balancing competing interests in the area of corruption control – it enables society to craft measures that fulfils the public interest in the eradication of corruption while concomitantly assuring the competing public interest in the protection of individual members’ liberties – a condition that is necessary if the support of the holders of these competing interests is to be enlisted and fostered in the fight against corruption. The thesis focuses on the study of the non-conviction based assets recovery mechanism, a mechanism that allows the state to apply a procedure lacking in criminal law safeguards to address criminal behaviour. The mechanism is thus beset with avenues for abuse, which if unchecked could have debilitating effects not only to individual liberties but also to the long term legitimacy of the fight against corruption. In this regard, the thesis examines how the human rights framework has been used in Kenya and South Africa to check on the potential dangers of the non-conviction based mechanism and to provide for a proportional balance between the imperative of corruption control and the guarantee against arbitrary deprivation of property. The aim is to unravel the benefits of respecting human rights in the fight against corruption in general and in the non-conviction based assets recovery in particular. Kenya and South Africa are chosen for study because they provide two models of non-conviction based mechanisms with different levels of safeguards, for comparative consideration.
- Full Text:
Access to land as a human right the payment of just and equitable compensation for dispossessed land in South Africa
- Authors: Yanou, Michael A
- Date: 2005
- Subjects: Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3699 , http://hdl.handle.net/10962/d1003214 , Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
- Description: This thesis deals with the conceptualization of access to land by the dispossessed as a human right and commences with an account of the struggle for land between the peoples of African and European extractions in South Africa. It is observed that the latter assumed sovereignty over the ancestral lands of the former. The thesis discusses the theoretical foundation of the study and situates the topic within its conceptual parameters. The writer examines the notions of justice and equity in the context of the post apartheid constitutional mandate to redress the skewed policy of the past. It is argued that the dispossession of Africans from lands that they had possessed for thousands of years on the assumption that the land was terra nullius was profoundly iniquitous and unjust. Although the study is technically limited to dispossessions occurring on or after the 13th June 1913, it covers a fairly extensive account of dispossession predating this date. This historical analysis is imperative for two reasons. Besides supporting the writer’s contention that the limitation of restitution to land dispossessed on or after 1913 was arbitrary, it also highlights both the material and non-material cost of the devastating wars of dispossessions. The candidate comments extensively on the post apartheid constitutional property structure which was conceived as a redress to the imbalance created by dispossession. This underlying objective explains why the state’s present land policy is geared towards facilitating access to land for the landless. The thesis investigates the extent to which the present property structure which defines access to land as a human right has succeeded in achieving the stated objective. It reviews the strengths and weaknesses of the land restitution process as well as the question of the payment of just and equitable compensation for land expropriated for restitution. The latter was carefully examined because it plays a crucial role in the success or otherwise of the restitution scheme. The writer argues that the courts have, on occasions, construed just and equitable compensation generously. This approach has failed to reflect the moral component inherent in the Aristotelian corrective justice. This, in the context of South Africa, requires compensation to reflect the fact that what is being paid for is land dispossessed from the forebears of indigenous inhabitants. It seems obvious that the scales of justice are tilted heavily in favour of the propertied class whose ancestors were responsible for this dispossession. This has a ripple effect on the pace of the restitution process. It also seems to have the effect of favouring the property class at the expense of the entire restitution process. The candidate also comments on the court’s differing approaches to the interpretation of the constitutional property clause. The candidate contends that the construction of the property clause and related pieces of legislation in a manner that stresses the maintenance of a balance between private property interest and land reform is flawed. This contention is supported by the fact that these values do not have proportional worth in the present property context of South Africa. The narrow definition of “past racially discriminatory law and practices” and labour tenant as used in the relevant post apartheid land reform laws is criticized for the same reason of its uncontextual approach. A comparative appraisal of similar developments relating to property law in other societies like India and Zimbabwe has been done. The writer has treated the post reform land evictions as a form of dispossession. The candidate notes that the country should guard against allowing the disastrous developments in Zimbabwe to influence events in the country and calls for an amendment of the property clause of the constitution in response to the practical difficulties which a decade of the operation of the current constitution has revealed.
- Full Text:
- Authors: Yanou, Michael A
- Date: 2005
- Subjects: Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3699 , http://hdl.handle.net/10962/d1003214 , Human rights -- South Africa , Compensation (Law) -- South Africa , Right of property -- South Africa , Land reform -- South Africa , Land tenure -- South Africa , Constitutional history -- South Africa , Restitution -- South Africa , Land tenure -- Law and legislation -- South Africa , Land reform -- Law and legislation -- South Africa
- Description: This thesis deals with the conceptualization of access to land by the dispossessed as a human right and commences with an account of the struggle for land between the peoples of African and European extractions in South Africa. It is observed that the latter assumed sovereignty over the ancestral lands of the former. The thesis discusses the theoretical foundation of the study and situates the topic within its conceptual parameters. The writer examines the notions of justice and equity in the context of the post apartheid constitutional mandate to redress the skewed policy of the past. It is argued that the dispossession of Africans from lands that they had possessed for thousands of years on the assumption that the land was terra nullius was profoundly iniquitous and unjust. Although the study is technically limited to dispossessions occurring on or after the 13th June 1913, it covers a fairly extensive account of dispossession predating this date. This historical analysis is imperative for two reasons. Besides supporting the writer’s contention that the limitation of restitution to land dispossessed on or after 1913 was arbitrary, it also highlights both the material and non-material cost of the devastating wars of dispossessions. The candidate comments extensively on the post apartheid constitutional property structure which was conceived as a redress to the imbalance created by dispossession. This underlying objective explains why the state’s present land policy is geared towards facilitating access to land for the landless. The thesis investigates the extent to which the present property structure which defines access to land as a human right has succeeded in achieving the stated objective. It reviews the strengths and weaknesses of the land restitution process as well as the question of the payment of just and equitable compensation for land expropriated for restitution. The latter was carefully examined because it plays a crucial role in the success or otherwise of the restitution scheme. The writer argues that the courts have, on occasions, construed just and equitable compensation generously. This approach has failed to reflect the moral component inherent in the Aristotelian corrective justice. This, in the context of South Africa, requires compensation to reflect the fact that what is being paid for is land dispossessed from the forebears of indigenous inhabitants. It seems obvious that the scales of justice are tilted heavily in favour of the propertied class whose ancestors were responsible for this dispossession. This has a ripple effect on the pace of the restitution process. It also seems to have the effect of favouring the property class at the expense of the entire restitution process. The candidate also comments on the court’s differing approaches to the interpretation of the constitutional property clause. The candidate contends that the construction of the property clause and related pieces of legislation in a manner that stresses the maintenance of a balance between private property interest and land reform is flawed. This contention is supported by the fact that these values do not have proportional worth in the present property context of South Africa. The narrow definition of “past racially discriminatory law and practices” and labour tenant as used in the relevant post apartheid land reform laws is criticized for the same reason of its uncontextual approach. A comparative appraisal of similar developments relating to property law in other societies like India and Zimbabwe has been done. The writer has treated the post reform land evictions as a form of dispossession. The candidate notes that the country should guard against allowing the disastrous developments in Zimbabwe to influence events in the country and calls for an amendment of the property clause of the constitution in response to the practical difficulties which a decade of the operation of the current constitution has revealed.
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Judicial enforcement of socio-economic rights under the 1996 constitution : realising the vision of social justice
- Authors: Ngcukaitobi, T
- Date: 2003
- Subjects: South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3689 , http://hdl.handle.net/10962/d1003204 , South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Description: Few legal developments in South Africa and elsewhere in the world in recent times have excited such controversy as the legal recognition of social and economic rights. South Africa has created a special place for itself in world affairs for being one of the countries that recognise socio-economic rights in a justiciable Bill of Rights. Partly this is in response to the appalling levels of poverty prevalent in the country which could potentially destabilise the new democracy. Improvement of the quality of life of every citizen is a crucial step in consolidating the constitutional democracy. The question that will face any court in giving effect to socio-economic rights is: how are these rights to be judicially enforced in a given context? The crux of this thesis lies in the resolution of this question. Firstly this thesis traces the philosophical foundations to the legal recognition of socio-economic rights. It is stated that the recognition of these rights in a justiciable bill of rights requires a conceptually sound understanding of the nature of obligations that these rights place on the state. It is emphasised that it is imperative that access to justice be facilitated to poor and vulnerable members of society for the realisation of the constitutional goal of addressing inequality. Particular concern and priority should in this context be given to women, children and the disabled. The study explores various judicial remedies and makes suggestions on new and innovative constitutional mechanisms for judicial enforcement of these rights. It is concluded that there is an important role to be played by civil society in giving meaningful effect to socio-economic rights.
- Full Text:
- Authors: Ngcukaitobi, T
- Date: 2003
- Subjects: South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3689 , http://hdl.handle.net/10962/d1003204 , South Africa. Constitution , South Africa. Bill of Rights , Civil rights -- South Africa , Human rights -- South Africa , South Africa -- Politics and government -- 1994- , South Africa -- Economic conditions -- 1991- , South Africa -- Social conditions -- 1994-
- Description: Few legal developments in South Africa and elsewhere in the world in recent times have excited such controversy as the legal recognition of social and economic rights. South Africa has created a special place for itself in world affairs for being one of the countries that recognise socio-economic rights in a justiciable Bill of Rights. Partly this is in response to the appalling levels of poverty prevalent in the country which could potentially destabilise the new democracy. Improvement of the quality of life of every citizen is a crucial step in consolidating the constitutional democracy. The question that will face any court in giving effect to socio-economic rights is: how are these rights to be judicially enforced in a given context? The crux of this thesis lies in the resolution of this question. Firstly this thesis traces the philosophical foundations to the legal recognition of socio-economic rights. It is stated that the recognition of these rights in a justiciable bill of rights requires a conceptually sound understanding of the nature of obligations that these rights place on the state. It is emphasised that it is imperative that access to justice be facilitated to poor and vulnerable members of society for the realisation of the constitutional goal of addressing inequality. Particular concern and priority should in this context be given to women, children and the disabled. The study explores various judicial remedies and makes suggestions on new and innovative constitutional mechanisms for judicial enforcement of these rights. It is concluded that there is an important role to be played by civil society in giving meaningful effect to socio-economic rights.
- Full Text:
Victims, survivors and citizens: human rights, reparations and reconciliation: inaugural lecture
- Authors: Asmal, Kader
- Date: 1992-05-25
- Subjects: Human rights -- South Africa , Civil rights -- South Africa
- Language: English
- Type: text , book
- Identifier: http://hdl.handle.net/10962/69386 , vital:29513 , ISBN 1868081212
- Description: The professorial inaugural lecture is for the university an occasion to celebrate - celebrate in the full meaning of the word, i.e. to perform publicly and duly, to observe and honour with rites and festivities, to publish abroad, praise and extol. Through the custom of the inaugural lecture the university celebrates and affirms its basic function, that of creating, preserving, transmitting and applying knowledge, particularly scientifically-based knowledge. The university appoints to the position of professor one who has attained excellence in the handling of knowledge in her or his discipline, and through a jealous watchfulness over the dignity and esteem of this time-honoured position of excellence amongst scholars, defends the capacity of the university to advance human knowledge and human progress. The University of the Western Cape is particularly honoured to celebrate by way of this address the inauguration of its first ever Professor of Human Rights Law. We take pride from both the position and the incumbent: the post demonstrates our commitment to scholarly relevance, the incumbent to the pursuit of excellence. This university has distinguished itself amongst South African educational institutions for the way that it has grappled with questions of appropriate intellectual and educational responses to the demands of the social and political environment. That search involved debates and contests over what constitutes knowledge or valuable knowledge, over the nature of the process of knowledge production, over the relationship between theory and practice, about autonomy and accountability, about the meaning of "community" and about how the activities of a university are informed by the definition and conception of "community". The decision to establish a chair in Human Rights Law was arrived at as part of that process of searching for the appropriate forms of curricular transformation. South African society with its history of colonial conquest and latterly apartheid rule is one bereft of a rights culture; and where the discussion of a bill of rights and the general establishment of an awareness of human rights had been started in recent times, it has often been motivated by a concern with the protection of traditionally advantaged sectors of society. A university like ours has an obligation to contribute to the debate about and the promotion of human rights in ways which will also be concerned with healing, reparation and reconstruction in this severely brutalised nation. In this address marking his formal assumption of the University of the Western Cape’s Chair in Human Rights Law, Kader Asmal gives testimony of the depth of scholarly rigour and the breadth of humane concern brought to and emanating from this position. The integral coming together of Asmal the international scholar, the anti-apartheid activist of long standing, the seasoned international solidarity worker, the spirited publicist is evidenced in this address which is sure to stand as a signal point of reference in our national debate about this complex subject. The University had been privileged to attract to its staff some of the finest scholars from the ranks of the formerly exiled South Africans; this inaugural ceremony provides the institution with the opportunity to welcome into its midst one of those in the person of Kader Asmal. , Publications of the University of the Western Cape ; series A, no. 64
- Full Text:
- Authors: Asmal, Kader
- Date: 1992-05-25
- Subjects: Human rights -- South Africa , Civil rights -- South Africa
- Language: English
- Type: text , book
- Identifier: http://hdl.handle.net/10962/69386 , vital:29513 , ISBN 1868081212
- Description: The professorial inaugural lecture is for the university an occasion to celebrate - celebrate in the full meaning of the word, i.e. to perform publicly and duly, to observe and honour with rites and festivities, to publish abroad, praise and extol. Through the custom of the inaugural lecture the university celebrates and affirms its basic function, that of creating, preserving, transmitting and applying knowledge, particularly scientifically-based knowledge. The university appoints to the position of professor one who has attained excellence in the handling of knowledge in her or his discipline, and through a jealous watchfulness over the dignity and esteem of this time-honoured position of excellence amongst scholars, defends the capacity of the university to advance human knowledge and human progress. The University of the Western Cape is particularly honoured to celebrate by way of this address the inauguration of its first ever Professor of Human Rights Law. We take pride from both the position and the incumbent: the post demonstrates our commitment to scholarly relevance, the incumbent to the pursuit of excellence. This university has distinguished itself amongst South African educational institutions for the way that it has grappled with questions of appropriate intellectual and educational responses to the demands of the social and political environment. That search involved debates and contests over what constitutes knowledge or valuable knowledge, over the nature of the process of knowledge production, over the relationship between theory and practice, about autonomy and accountability, about the meaning of "community" and about how the activities of a university are informed by the definition and conception of "community". The decision to establish a chair in Human Rights Law was arrived at as part of that process of searching for the appropriate forms of curricular transformation. South African society with its history of colonial conquest and latterly apartheid rule is one bereft of a rights culture; and where the discussion of a bill of rights and the general establishment of an awareness of human rights had been started in recent times, it has often been motivated by a concern with the protection of traditionally advantaged sectors of society. A university like ours has an obligation to contribute to the debate about and the promotion of human rights in ways which will also be concerned with healing, reparation and reconstruction in this severely brutalised nation. In this address marking his formal assumption of the University of the Western Cape’s Chair in Human Rights Law, Kader Asmal gives testimony of the depth of scholarly rigour and the breadth of humane concern brought to and emanating from this position. The integral coming together of Asmal the international scholar, the anti-apartheid activist of long standing, the seasoned international solidarity worker, the spirited publicist is evidenced in this address which is sure to stand as a signal point of reference in our national debate about this complex subject. The University had been privileged to attract to its staff some of the finest scholars from the ranks of the formerly exiled South Africans; this inaugural ceremony provides the institution with the opportunity to welcome into its midst one of those in the person of Kader Asmal. , Publications of the University of the Western Cape ; series A, no. 64
- Full Text:
Detention without trial: past, present and future
- Mathews, A S, Wylie, James Scott
- Authors: Mathews, A S , Wylie, James Scott
- Date: [1988]-02
- Subjects: Detention of persons -- South Africa , Human rights -- South Africa , Political prisoners -- South Africa
- Language: English
- Type: text , book
- Identifier: http://hdl.handle.net/10962/72512 , vital:30079
- Description: Detention without trial can be a formidable government weapon against political opponents. In South Africa this weapon has been fashioned into a multiple warhead. There are currently seven security law detention provisions on the statute book, of which one is dormant but can be activated by the State President. Non security law detention, for example detention under drug laws, will not be discussed in this paper. While the seven detention laws are of varying severity and serve different purposes, they are best classified and explained under two main categories or groups - preventive detention and pre-trial detention.
- Full Text:
- Authors: Mathews, A S , Wylie, James Scott
- Date: [1988]-02
- Subjects: Detention of persons -- South Africa , Human rights -- South Africa , Political prisoners -- South Africa
- Language: English
- Type: text , book
- Identifier: http://hdl.handle.net/10962/72512 , vital:30079
- Description: Detention without trial can be a formidable government weapon against political opponents. In South Africa this weapon has been fashioned into a multiple warhead. There are currently seven security law detention provisions on the statute book, of which one is dormant but can be activated by the State President. Non security law detention, for example detention under drug laws, will not be discussed in this paper. While the seven detention laws are of varying severity and serve different purposes, they are best classified and explained under two main categories or groups - preventive detention and pre-trial detention.
- Full Text:
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