International and Comparative

Karel | Nov 20, 2018
The State Of The South African Refugee Protection Regime: Part I - Current Status
Tove van Lennep
|
Oct 30, 2018

Once applauded by UNHCR’s Antonio Guterres as ‘one of the most advanced and progressive systems of refugee protection in the world’, the South African refugee regime has deteriorated beyond recognition.This brief - the first in a three-part series - explores the state of protection and what it means for asylum-seekers within our borders.

Zimbabwe II - Politics
Charles Simkins
|
Jan 09, 2018

The first brief in this series outlined key demographic and economic conditions and dynamics. This brief considers their political implications.

Immunity of heads of states: The Al Bashir case
Michelle Toxopeüs
|
Aug 01, 2017

In both the South African Supreme Court of Appeal and the International Criminal Court, the Al Bashir case centred on immunity enjoyed by heads of state. Both courts concluded that President Omar Al Bashir did not enjoy immunity on his June 2015 trip to South Africa. This brief outlines the basis of each court judgment as it relates to immunity and concludes that its application is often open to interpretation.

Authoritarianism in Zambia
Rafael Friedman
|
May 23, 2017

On the night of the 11th of April 2017 the Zambian Police broke down the gate of Hakainde Hichilema’s compound and began their quest to arrest the country’s main opposition leader. All of this less than a year after Hichilema had disputed the result of a close-run presidential election. Both the election and the arrest speak to worrying trends in Zambian democracy amidst the backdrop of a stony silence by the South African government and other international actors.

American Foreign Policy in Sub-Saharan Africa: Where to from here?
Rafael Friedman
|
Mar 29, 2017

Policy in the United States of America towards Sub-Saharan Africa has been a relatively stable issue over the course of the past few presidential administrations. In stark contrast to the debates that exist around American foreign policy in many other regions, American policy towards Africa has largely enjoyed bipartisan support from both Republicans and Democrats since the end of the Cold-War. This policy has been focussed on three main areas, which are likely to remain at the core of America’s relations with Sub-Saharan Africa; trade, foreign aid and security cooperation. Rafael Friedman explores what impact, if any, the shock election of Donald Trump will have on these.

America’s War on Terror in Africa
Rafael Friedman
|
Mar 23, 2017

The growth of America's Global War on Terror has raised a number of questions for the African continent. Including the scope of American involvement and the impact that it has, and is likely to have, on counter-terror efforts in Africa. Rafael Friedman explores these in this brief.

Mozambique’s severe financial and economic problems
Anton van Dalsen
|
Jan 24, 2017

This brief provides some background regarding a huge increase in Mozambique’s foreign debt and the serious impact on the country’s financial and general economic situation. It highlights the dangers of ill-considered and opaque government action and draws attention to the potential impact on South Africa of a grave deterioration in the economic situation of a neighbouring country.

After Al-Bashir: Part II
Matthew Kruger
|
Apr 12, 2016

In Part I of this brief, I explained that although the decision of the Supreme Court of Appeal in the Southern African Litigation Centre matter, involving Mr Al-Bashir, represents an important victory in the struggle for international justice, it is potentially quite limited in its future scope and impact. I then outlined the nature of South Africa’s political community—a sovereign state that is also a member of the family of nations—and thereafter connected this conception of statehood to crimes against humanity, war crimes and genocide. In doing so, I explained that these crimes, by their nature, harm all people everywhere. In this brief, I explain why these crimes also directly violate the Constitution. I also argue that the nature of this violation is such that it renders unconstitutional and therefore not binding any rule, either international or domestic, that purports to afford sitting heads of state absolute immunity in relation to such crimes.

After Al-Bashir: Part I
Matthew Kruger
|
Apr 12, 2016

Last Friday, 8 April 2016, the Minister of Justice and others filed papers in the Constitutional Court. They are appealing the Supreme Court of Appeal’s finding that government’s failure to take steps to arrest and detain, for surrender to the ICC, Mr Al-Bashir when he visited South Africa in 2015 was unlawful.

Brazil's Travails, And Ours
Charles Simkins
|
Mar 10, 2016

Charles Simkins looks at Brazil and the dire straits the country finds itself in, drawing instructive comparisons between the political and economic situations of South Africa and our troubled BRICS partner.

Six Lessons From Stalingrad
Charles Simkins
|
Dec 15, 2015

This Brief looks at the turning point in Nazi Germany's Eastern Offensive. It identifies six principles that underwrote Hitler's humiliating defeat, and which remain relevant today.

South Africa and the African Growth and Opportunity Act II : The game of ‘chicken’ and calling our bluff
Andrew Barlow
|
Dec 02, 2015

As part of the out of cycle review of South Africa’s eligibility under AGOA, a call for comments was included. The American Chamber of Commerce in South Africa (AmCham), the organisation that represents 250 US companies operating in SA, responded by detailing which issues were of concern to its members. In what follows, I consider at length the two most pressing issues raised by AmCham. I suggest that the poultry dispute has set a new and strong-armed precedent to economic relations between the two countries, and that our future under AGOA is far from certain.

South Africa and the African Growth and Opportunity Act I : Much ado about chicken
Andrew Barlow
|
Dec 02, 2015

A fifteen-year poultry trade dispute between South Africa and the US came to a head recently. Relations thawed, and the US gave our government a 60-day ultimatum in which to remove trade barriers to US bone-in chicken cuts that have blocked them from the SA market since 2000. But US concerns over South Africa's future commitment to meeting eligibility criteria are not limited to trade. The protection of existing investment through the legal recognition of property rights, as well as the creation and conservation of an environment conducive to foreign investors, are at least as important to the US government. In this pair of briefs, I begin by analysing the context the ultimatum was delivered in. I look at the nature of Agoa and our commitments under it, I chart the history of the trade dispute, and I consider the grounds and motivations underlying each side's actions. In the second brief, I examine the two most pressing issues impeding our future inclusion under Agoa. I conclude that US patience has likely run dry, and our future eligibility is far from certain.

THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY: IV - RECENT DEVELOPMENTS IN THE ECONOMIC PROGRAMME
Andrew Barlow
|
Nov 17, 2015

The third brief in this series considered the economic programme of the SADC as it evolved since 2001. The original Regional Indicative Strategic Development Plan has been revised recently, a Tripartite Free Trade Area has been launched, and a long-term economic strategy centred on industrial development and resource beneficiation has been approved. Discussing and evaluating the new economic trajectory that these changes signify is the subject of this final brief.

THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY: I - HISTORY TO 2001
Andrew Barlow
|
Nov 17, 2015

The Southern African Development Community (SADC) is an inter-state organisation based in Gaborone, Botswana that pursues a comprehensive regional integration agenda through both socio-economic and political cooperation. This year represents a turning point in the socio-economic programme of the Southern African Development Community. The launch of the Tripartite Free Trade Area and a pivotal overhaul in socio-economic integration strategy make 2015 a seminal year in the evolution of the SADC and present a choice opportunity for an extended series of briefs. This is the first of four briefs. In it, I chart the history and development of the SADC from its inception in the regional liberation struggles of the 1960’s and 70’s. In the second, I explicate the institutional framework and decision-making structure of the organisation. In the third, I outline the many problems that the SADC has encountered in pursuing its economic integration agenda in the last decade. And in the fourth and last, I discuss what measures the SADC has taken this year to overcome these obstacles, and evaluate their prospects for success.

The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind – IV
Matthew Kruger
|
Oct 27, 2015

In this final brief I consider two issues. First, is the power afforded to the NPA under section 179(2) of the Constitution discretionary and, if so, what is the relevance of this fact? Second, does the NPA have a duty to prosecute foreign nationals who prima facie appear to have committed genocide, crimes against humanity or war crimes and, if so, what is the relevance of this fact? Before addressing these two issues, though, I will provide a brief summary of the conclusions of the first three briefs. According to the SALC decision, the SAPS has a duty to investigate allegations against foreign nationals of crimes against humanity. In coming to this finding, Majiedt AJ said that the NPA does not have a duty to institute criminal proceedings; it has a discretionary power. The concepts of duty and discretion, though, are not mutually exclusive, as Majiedt AJ appears to have assumed. The source of the court’s mistake was its insufficiently thorough analysis of the relationship among ‘power’, ‘duty’ and ‘privilege’. Whether a power is accompanied by duties and/or discretion is a normative question, the answer to which requires consideration of the reasons for and against vesting the NPA with different types of power.

The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind - III
Matthew Kruger
|
Oct 27, 2015

In the first two briefs of this series I outlined the fact that, according to the SALC decision, the SAPS has a duty to investigate allegations of crimes against humanity. I explained, however, that in coming to this conclusion, Majiedt AJ said that the NPA has the power to institute criminal proceedings, but does not also have a duty; rather, it just has a discretion. In other words, he thinks that where a power is discretionary, the person vested with that power does not have a duty to exercise it. I concluded the second brief, however, by explaining that the concept of a duty and the concept of a discretion are not mutually exclusive. In this brief, I provide a possible reason for why the court thought otherwise.

The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind – II
Matthew Kruger
|
Oct 27, 2015

In the first brief I explained that the purpose of this series of four briefs is to determine whether the NPA has a duty to prosecute foreign nationals who prima facie appear to have committed crimes against humanity, war crimes and genocide. I indicated that I think such a duty does exist and that this duty is sourced in the Constitution itself. My explanation of why this duty exists began with an outline of the Constitutional Court’s judgment in the SALC decision, a case dealing with the duty of the SAPS to investigate foreign nationals accused of crimes against humanity, war crimes and genocide. I ended the first brief by claiming that the finding of the court that the NPA has a discretion but not a duty to institute criminal proceedings presents certain problems—especially given the decision by the ANC to withdraw South Africa as a member of the ICC. In this second brief, I will explain the significance of the Constitutional Court’s conclusion and I will begin to interrogate the basis of this conclusion.

The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind - I
Matthew Kruger
|
Oct 27, 2015

This is a series of four briefs. In this series I consider whether the NPA has a duty to prosecute foreign nationals who prima facie appear to have committed genocide, war crimes or crimes against humanity. I conclude that although the NPA has a discretion when exercising its power to institute criminal proceedings, it also has a duty to prosecute alleged perpetrators of such crimes. This duty is grounded in the Constitution, with domestic legislation and international law concretising, particularising and duplicating this duty. This conclusion has important implications for any decision by the NPA not to prosecute alleged perpetrators of such crimes. It also means that South Africa’s membership of the ICC is not critical to the NPA’s duty to prosecute such persons. The arguments that I make in this series include a fair amount of legal and conceptual analysis. As such, the ideal approach to reading this series of briefs would be for the four briefs to be read in a single sitting (or, at least, without much break in between reading each brief). In the likely event that such dedication is not possible, however, I have provided short summaries of the preceding briefs in the second, third and fourth briefs of this series. These three summaries, I hope, will be adequate to remind the reader of the more essential arguments of the preceding briefs.

The SADC Tribunal's Disappointing Rebirth
Kameel Premhid
|
Sep 09, 2014

The adoption of the newest SADC Tribunal Protocol has sought to rebirth the Tribunal after a long gestation period where it underwent significant review. The latest manifestation indicates that the region’s efforts at taking the rule of law, and regional integration, seriously are nothing short of being stillborn

BRICS: THE NEW DEVELOPMENT BANK (NDB) AND THE CONTINGENT RESERVE ARRANGEMENT (CRA)
Charles Simkins
|
Aug 04, 2014

On 15 July, Brazil, Russia, India, China and South Africa signed agreements to establish the New Development Bank and the Contingency Reserve Arrangement. The provisions of each have to be incorporated into the law of each country. Once this is done, probably by 2016, the institutions can start operation. How will they work?

SADC Tribunal Back in the Spotlight
Kameel Premhid
|
Jul 29, 2014

The recent announcement by the Tanganyika Law Society to challenge the disbandment of the SADC Tribunal (before the High Court in Tanzania) has once again put the demise of this organisation in the spotlight. This Brief tracks the history of the Tribunal and explains why it is so important for the Rule of Law.

RIP: SADC Tribunal
Kameel Premhid
|
Mar 20, 2014

The latest ruling by the African Commission of Human and People’s Rights (ACHPR) -that no individual can access the SADC Tribunal as a means of recourse in a dispute with a member state may well be the death blow for that institution. This Brief explains why this is the case.

Some Notes on Sovereignty
Kameel Premhid
|
Jul 25, 2013

The Helen Suzman Foundation has already written about the Constitutional Court’s decision in Government of Zimbabwe v Fick. In this brief, we look at whether the concept of sovereignty should have meant any different.

The SADC Tribunal Lives On… Kind Of.
Kameel Premhid
|
Jul 12, 2013

The Constitutional Court’s decision in Government of Zimbabwe v Fick is a partial victory; the disbandment of the SADC Tribunal remains a travesty of justice. This Brief examines this in greater detail.

The SADC Tribunal: The rule of power versus the rule of law - The Tribunal Tragedy
Andre Dumon
|
Mar 14, 2013

The future of the neutered SADC Tribunal is dependent upon the SADC Summit in August and perhaps the pending ruling of the South African Constitutional Court on the case of dispossessed Zimbabwean famers. At issue is also the link between the rule law and economic development. In the case of Zimbabwe the rule of power still trumps the law, and as a consequence the economy suffers. This provides portents for the SADC leaders.

Zimbabwe I - Demography & Economy
Charles Simkins
|

This, the first of two briefs examining the prospects for Zimbabwe following the presidential succession, will consider the demographic and economic context. The second brief will discuss the political implications.