Beyond Legality: The Historical Disregard of the Principle of Legality and its Impact on Forced Marriage Prosecution in International Criminal Law

by | Aug 25, 2024 | FUND, FUND V30I1

Beyond Legality: The Historical Disregard of the Principle of Legality and its Impact on Forced Marriage Prosecution in International Criminal Law

Authors Julian Rebecca Okeyo and Emma Charlene Lubaale

ISSN: 2411-7870
Affiliations: LLB (UFH) PGCE LLM (Rhodes). Research assistant, IRPQP, Rhodes University; LLB (Makerere) LLM LLD (Pretoria). Research associate, Faculty of Law, Rhodes University; senior academic, Department of Law and Criminology, University of Greenwich
Source: Fundamina, Volume 30 Issue 1, p. 68-115
https://doi.org/10.47348/FUND/v30/i1a3

Abstract

The principle of legality, a fundamental theme of international criminal law, emphasises that an individual should not be punished for an offence that is not defined by law. Increasingly, international criminal courts and tribunals are disregarding this principle through extending crimes by analogy, an approach that is not supported by the principles of international criminal law. One area where this approach is evident is in the prosecution of the crime of forced marriage, which has never been explicitly proscribed by any of the statues of international criminal tribunals/courts. This contribution first examines the views of the Nuremberg and Tokyo tribunals to come to grips with the latter’s approach to the principle of legality. Subsequently, a brief analysis of the International Criminal Court, the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia is conducted to highlight a consistent pattern of disregarding the principle of legality. When compared to the Nuremberg and Tokyo tribunals, the approach of these three courts is unique in that the latter have not classified forced marriage as a distinct crime, choosing instead to include it under crimes against humanity, seemingly suggesting that the principle of legality is not undermined. However, this contribution underscores that this approach is still a violation of the principle of legality. It is argued that the extension of crimes against humanity by analogy represents a continuation of challenges observed by the Nuremberg and Tokyo tribunals concerning the disregard of the legality principle and that the ongoing prosecution of forced marriage in the absence of a specific criminal provision is a violation of this principle.

The Evolution of Privacy and Data Protection in Kenya

by | Aug 25, 2024 | FUND, FUND V30I1

The Evolution of Privacy and Data Protection in Kenya

Author Mugambi Laibuta

ISSN: 2411-7870
Affiliations: LLB (Moi University) LLM (London School of Economics and Political Sciences) PhD (University of the Witwatersrand). Advocate of the High Court of Kenya; Certified Information Privacy Manager
Source: Fundamina, Volume 30 Issue 1, p. 116-165
https://doi.org/10.47348/FUND/v30/i1a4

Abstract

The contribution looks at the right to privacy within Kenya’s legal system by setting out the constitutional, legislative and jurisprudential framework on this right, as well as the right to data protection. The evolution of the rights to privacy and data protection in Kenya have been marked by significant milestones, reflecting global trends and local imperatives. The right to privacy in Kenya has featured in the constitutional text since Kenya gained independence from colonial rule. Conversations during the clamour for constitutional reforms shaped the current constitutional text that provides for an individual right to privacy and has been the springboard for the promulgation of legislation regarding data protection rights. The enactment of the Data Protection Act, 2019 was a pivotal moment, providing a legal framework for the protection of personal data. The Act emphasises the rights of individuals regarding their personal data, including the rights to be informed about the processing thereof, to access it and to its rectification. The Act also provides for baseline data protection principles and grants the Office of the Data Protection Commissioner powers to enforce data subject rights and data protection principles. Other legislation, such as the Children Act and the HIV and AIDS Prevention and Control Act, also provide privacy safeguards. For decades, the Kenyan courts have ruled in favour of the right to privacy. However, despite legislative developments, some statutes regulating national security organs still contain provisions limiting the right to privacy. This contribution describes the past and present status of the rights to privacy and of data protection in Kenya.

In Memoriam: Professor DG Kleyn (1955–2024)

by | Aug 25, 2024 | FUND, FUND V30I1

In Memoriam: Professor DG Kleyn (1955–2024)

Author Emile Zitzke

ISSN: 2411-7870
Affiliations: Associate Professor of Law, University of the Witwatersrand, Johannesburg
Source: Fundamina, Volume 30 Issue 1, p. 166-170

Abstract

Extraordinary. That is the late Professor Duard Kleyn of the University of Pretoria summarised in one word. In this tribute, I will reflect on some of the ways in which Duard embodied extraordinariness in his professional and personal life. I write this as a former student who later became a colleague, mentee and a friend.

The Historical Application of Command Responsibility as Basis for Prosecuting Sexual Violence Crimes Under International Criminal Law: The Post-World War II Criminal Tribunals to Rome

by | Mar 4, 2024 | FUND, FUND V29I2

The Historical Application of Command Responsibility as Basis for Prosecuting Sexual Violence Crimes Under International Criminal Law: The Post-World War II Criminal Tribunals to Rome

Author Brenda Akia

ISSN: 2411-7870
Affiliations: LLB (Makere) LLM (Humboldt/UWC) LLD (Pret). Member of the UN CEDAW Committee
Source: Fundamina, Volume 29 Issue 2, p. 1-32
https://doi.org/10.47348/FUND/v29/i2a1

Abstract

The principle of command responsibility places a legal obligation on military commanders or civilian superiors to take reasonable and necessary steps to prevent and suppress commission of crimes, including sexual violence crimes by persons under their command, or to report to competent authorities if the crimes are committed. This contribution provides a historical analysis of the evolution of the codification and adjudication of command responsibility and its application to prosecute sexual violence crimes under international criminal law. Examining this historical evolution aims to provide legal practitioners with a clear understanding of how the doctrine of command responsibility found its way into contemporary international criminal law treaties, such as the Rome Statute of the International Criminal Court. This will assist legal practitioners to successfully apply command responsibility to prosecute sexual violence crimes and to better understand the interplay between international criminal law and international humanitarian law.

“Under the Whip” or Marital Violence, Cruelty and Drunkenness: Defining the Boundaries of Judicially Intolerable Marital Behaviour in the Cape Supreme Court, 1890–1900

by | Mar 4, 2024 | FUND, FUND V29I2

“Under the Whip” or Marital Violence, Cruelty and Drunkenness: Defining the Boundaries of Judicially Intolerable Marital Behaviour in the Cape Supreme Court, 1890–1900

Author Amanda Barratt

ISSN: 2411-7870
Affiliations: BA(Hons) (UCT) LLB LLM (Unisa) PhD (UCT). Associate Professor, Private Law, University of Cape Town
Source: Fundamina, Volume 29 Issue 2, p. 33-84
https://doi.org/10.47348/FUND/v29/i2a2

Abstract

This contribution explores marital violence in the Cape during the last decade of the nineteenth century. It is based on a comprehensive review of 587 matrimonial cases heard in the Cape Supreme Court over a ten-year period from January 1891 to December 1900. The study shows that marital violence had occurred in almost one quarter of the matrimonial suits finalised during that decade. The contribution explores the judicial response to violence within marriage. The optimal protection available to an abused wife was a judicial separation order. Such an order was available where continued cohabitation had become dangerous or “intolerable”. The research explores the kinds of marital behaviour deemed to be sufficiently intolerable to justify a separation order. While the Cape Supreme Court did not always provide abused wives with the protection of a separation order, the court nevertheless expressed firm disapproval of physical abuse. It viewed continual drunkenness as intolerable behaviour, and also regarded both emotional and economic abuse as reprehensible. The contribution also takes a look at the community’s response to interspousal violence and at the prevailing societal views of appropriate behaviour for husbands and wives. The study further investigates the development of the companionate marriage as a partnership of equals. It shows that, by the late nineteenth century, wives were demanding more control within the marital consortium and further that contemporary societal expectations determined that marriages should be romantic relationships based on mutual affection. Law plays an important part in both reflecting and shaping social attitudes. The court rulings helped to shape the law by establishing the legal boundaries of so-called acceptable marital behaviour. These cases reveal the law’s role in shaping acceptable behaviour for husbands and wives respectively, reflecting and reinforcing gendered marital roles.

People for Sale: Tracing the Historical Roots of Slavery and Human Trafficking in Early Colonial South Africa

by | Mar 4, 2024 | FUND, FUND V29I2

People for Sale: Tracing the Historical Roots of Slavery and Human Trafficking in Early Colonial South Africa

Author Nina Mollema

ISSN: 2411-7870
Affiliations: D Litt et Phil LLB LLM LLD (Unisa). Associate Professor, Department of Criminal and Procedural Law, University of South Africa
Source: Fundamina, Volume 29 Issue 2, p. 85-111
https://doi.org/10.47348/FUND/v29/i2a3

Abstract

Some researchers assert that trafficking in persons is a contemporary form of slavery that has existed for at least a century between Africa and Europe in the form of the trans-Atlantic slave trade. Other scholars, who only regard human trafficking as trafficking done for the purpose of sexual exploitation, maintain that the origins of modern trafficking dates to the end of the nineteenth century. However, the history of trafficking in South Africa goes back even further. This contribution outlines the history of human enslavement in South Africa from its conceptualisation as slavery through to its evolution as human trafficking. In this investigation, the similarities and differences between slavery and human trafficking are highlighted. By analysing the annals of human trafficking, it is shown that the original form of human exploitation – slavery – has a long-standing tradition in South Africa. It is contended that learning from past human-bondage injustices may contribute positively to a more comprehensive understanding not only of contemporary slavery, but also of the challenges affecting the present success of anti-trafficking efforts.