ISSN: 2522-3062
Affiliations: Professor, the Thabo Mbeki African Leadership Institute.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 147 – 150
None.
ISSN: 2522-3062
Affiliations: BA (University of the Witwatersrand); LLB (University of the Witwatersrand); LLM (University of South Africa); LLD (University of Pretoria). Postdoctoral Fellow, Thabo Mbeki African Leadership Institute.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 151 – 168
The realisation of the right to development is contingent on the appropriation of the excesses generated by the counter-imperial dimension of international law and on the strategic rupturing of international law. Embedded in this approach is the implicit acceptance that the right to development is a derivative of international law and that international law has an imperial dimension. There is in this sense a golden thread that uninterruptedly connects colonialism, international law and the notion of development. This is buttressed by the fact that international law was the mode within which calls for decolonisation were couched. In addition, post-colonial states advanced arguments for decolonisation using the medium of development under the auspices of international law. In this sense, decolonisation was effected using the language of development. In order to avert re-inscribing the very imperial dimension of international law that must be disrupted, the notion of the right to development ought to treat the excesses generated by international law as political opportunities rather than legal ones. In this sense, law becomes a political strategy as opposed to a legal strategy.
ISSN: 2522-3062
Affiliations: Associate degree, Bachelor degree (University of Dschang); Maitrise (Yaoundé II); LLM, LLD (University of Pretoria). Postdoctoral Research Fellow, Faculty of Law, Department of Public Law, University of the Free State.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 169 – 192
In this article, I start on the premise that the gap between the excellent economic performance of Africa and its state of generalised underdevelopment coupled with rampant poverty, corruption, prolonged economic crisis and political instabilities is not the cause but rather the symptom of a deeper evil. In doing so, I review the extent to which the right to development in Africa has not been realised owing to the proliferation of illicit financial flows. The fact is that development is a broad concept, for not only does it include sound economic performance and fair distribution of benefits, but it requires the improvement of the living conditions of individual citizens through the provision of healthcare services, housing, education and infrastructures. This article will shed light on the scope, mechanisms and patterns as well as sophisticated criminal networks and obscure chains of command through which a persistent proliferation of illicit outflows of capital divert resources from their legitimate purpose and result in states losing control over staggering funds and assets that could otherwise be used for poverty alleviation and other basic needs. The article reviews from a comparative perspective some instruments and initiatives in a bid to curb illicit financial flows.
ISSN: 2522-3062
Affiliations: Associate Professor at the Thabo Mbeki African Leadership Institute, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 193 – 214
The right to development (RTD) is controversial. This controversy is built on the identification of the international community as one of the duty bearers of the RTD. This means that state members of the international community should fund development projects outside their territory or should contribute to resource mobilisation for the achievement of the RTD beyond their borders. Against this backdrop the article seeks an alternative solution for resource mobilisation for the achievement of the RTD. It shifts the RTD from depending on donors and developed countries to the recovery of assets stolen from developing countries through illicit financial flows. The article relies on the power game theory that posits that in the international arena, initiatives are informed by self-interest. However, it also recognises the challenges linked to asset recovery and articulates this position considering the new institutional theory, which believes in ‘the common good’. Another key issue associated with anticorruption and anti-money laundering initiatives which informs asset recovery is that different countries have different norms and values, which are likely to influence the interpretation of the laws and regulations in consideration of the context. Ultimately, successful asset recovery requires a joint adoption and harmonisation of common strategies by actors.
ISSN: 2522-3062
Affiliations: Research Professor at the School of Postgraduate Studies, Faculty of Law, North-West University, North West, South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 215 – 233
At the dawn of the twenty-first century, the African continent showed very little progress in terms of surmounting its many challenges such as poverty, malnutrition, social injustices, underdevelopment and the plight of diseases and intractable internecine conflicts. The progress reports on the achievements of the African continent were abysmal. Despite the abundance of natural resources on which dynamic and energetic Africans tread their feet, the continent has not been able to move from one in which a good chunk of its people is mired in underdevelopment and injustices to prosperity and justice for everyone. International aid, just like bilateral and multilateral partnerships concluded and provided for the purpose of catapulting socio-economic, cultural and political development, have not yielded the desired results. The fundamental question is what lies between the wealth of the African people and their prosperity? In other words, what prevents Africa from moving from poverty to prosperity, despite its wealth of resources and the support provided by the international community? It is the view of this article that this is attributable to unethical, irresponsive and irresponsible political leadership that has come as a malediction to the continent. Drawing from scholarship on the notion of leadership as well as regional instruments on how political power should be guided in democratic settings, this article argues that ethical leadership becomes the panacea to the surmountable man-made crises plaguing the African continent. Leadership, as used in this context, is at all levels and not limited to the national executive. In short, the survival of Africa, the restoration of hope on the continent and the cultivation of a uniquely impressive African identity that portrays the continent as a benefactor rather than a beneficiary, a role player rather than having an allocated role, will be facilitated by responsive, responsible and ethical leadership.
ISSN: 2522-3062
Affiliations: LLB, LLM (University of South Africa). Senior Lecturer: Department of Jurisprudence, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 234 – 252
Human trafficking is a serious crime and a grave violation of human rights. In recent years, there have been indications that this crime is reaching alarming proportions and is becoming more organised and profitable. To curb this crime, the adoption of the United Nations Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol) created a cornerstone upon which to build a global initiative to combat this crime. State parties to the Palermo Protocol—including fifteen of the sixteen Southern African Development Community (SADC) states—must comply with provisions of the Protocol. Due to the fact that SADC citizens face a myriad of vulnerabilities that make them susceptible to trafficking, such as endemic poverty, minimal access to health and education, gender inequality, unemployment and a general lack of opportunities, makes human trafficking not only an issue of human rights and security, but also a development case. The latter is supported by the unequivocal inclusion of this crime for the first time—internationally in the United Nations Sustainable Development Goals, regionally in the African Union’s Agenda 2063 and sub-regionally in the SADC Protocol on Gender and Development. This article attempts to place the issue of human trafficking in SADC within a developmental paradigm. In this regard, it considers the implementation measures of the targets set in the SDGs, Agenda 2063 and provisions of the SADC Gender Protocol. The article argues that the lack of political will in implementing human trafficking provisions, limited resources, corruption and variable performances between SADC countries pose significant obstacles to regional development in SADC.