Too much of a good thing: When transitional justice prescriptions may not work

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Too much of a good thing: When transitional justice prescriptions may not work

Authors: VO Ojo and N Filbert

ISSN: 1996-2118
Affiliations: LLB LLM; Doctoral researcher in International Criminal Law, the Faculty of Law Humboldt Universitaet zu Berlin. Project Manager and Researcher, Future Challenges NGO, Nigeria; LLB LLM PhD; Doctoral researcher, Faculty of Law, Humboldt Universitaet zu Berlin, Germany. Assistant Lecturer, University of Dar es Salaam School of Law, Tanzania. Assistant Lecturer, University of Dar es Salaam School of Law
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 526 – 542
https://doi.org/10.47348/SACJ/v33/i3a1

Abstract

Transitional justice developed as a pragmatic concept prescribing a set of mechanisms to be used by societies or countries experiencing systematic periods of armed conflicts or emerging from authoritarian regimes characterised by egregious violations of human rights or humanitarian law. While relative success stories of its utilisation have been recorded, questions have been raised regarding the recent tendency to prescribe transitional justice for societies which have not or are yet to undergo any transition. Through its lack of success in Nigeria and debatable effectiveness in Uganda, the article shows that transitional justice mechanisms are not a cure-all. While it does not contend that there is a perfect notion of transitional justice, the article proposes that transitional justice mechanisms must be designed from the ground up, with the victims at the centre of the process. While transitional justice is a global project, this article argues that its success can be achieved when its applicability and administration take into account the contextual and indigenous focus with a move towards localising its mechanisms.

Transitional justice and constitutionalism: The case of Ghana

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Transitional justice and constitutionalism: The case of Ghana

Author: Marian Yankson-Mensah

ISSN: 1996-2118
Affiliations: LLB (Kwame Nkrumah University of Science and Technology), LLM (University of
the Western Cape), Dr Iur (Humboldt Universität zu Berlin); Project Officer, International Nuremberg Principles Academy, Nuremberg, Germany.
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 543 – 562
https://doi.org/10.47348/SACJ/v33/i3a2

Abstract

The delicate process of constitution-making during transition covers a range of issues, but usually features questions on how to address past human rights violations, change repressive laws, recognise basic rights and reform state institutions. Hence, the constitution-making process can have significant implications on the transitional justice mechanisms that are adopted and how they are implemented. In the case of Ghana, the 1992 Constitution came into force after decades of political instability. On 28 April 1992, a draft constitution for Ghana’s fourth republic was approved in a referendum. As part of the transitional provisions in the 1992 Constitution, amnesty provisions were enshrined to protect members of all previous military regimes from prosecution. However, the 1992 Constitution did not contain express provisions for initiation of other transitional justice mechanisms. In a bid to reflect on the rarely examined relationship between transitional justice mechanisms and constitutionalism, this paper shall examine Ghana’s amnesty laws, truth commission and reparative measures in relation to the constitution-making process and constitutional norms. The paper opines that as separate processes towards a common end, proper synchronisation of Ghana’s transitional justice processes and constitution-making could have shaped the country’s transitional justice mechanisms in the right direction towards achieving their perceived goals.

Confronting past gross human rights violations in Ethiopia: Taking stock of the Reconciliation Commission

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Confronting past gross human rights violations in Ethiopia: Taking stock of the Reconciliation Commission

Authors: Marshet T Tessema and Markos Debebe Belay

ISSN: 1996-2118
Affiliations: LLB LLM PhD; Assistant Professor of Law, Hawassa University, Ethiopia; LLB LLM.
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 563 – 579
https://doi.org/10.47348/SACJ/v33/i3a3

Abstract

It is a trite fact that in the recent past decades, Ethiopia has been under a one-party dictatorship. The ruling political party encountered protracted civil protest and at times, an armed struggle. This has led to the overthrow of former party leaders and the dictatorship. The protracted protest against the party has led to change from within the ruling party. Thus, with the coming to power of Prime Minister Abiy Ahmed, there has been a widespread change in the political and legal landscape. Ethiopia has adopted various mechanisms including establishing a reconciliation commission as a means to reckon with legacies of a repressive past. This article takes stock of the major problematic areas of the Ethiopian Reconciliation Commission establishment law, Proclamation 1102/2018, with the aim to propose measures to be taken to rectify its blind spots.

Victimisation and challenges to integration: Transitional justice response to children born of war in northern Uganda

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Victimisation and challenges to integration: Transitional justice response to children born of war in northern Uganda

Author: B Nanyunja

ISSN: 1996-2118
Affiliations: LLB (MUK), Dip. LP (LDC), LLM (UWC and Humboldt Universität zu Berlin); Legal Researcher, Uganda Legal Information Institute, Uganda.
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 580 – 597
https://doi.org/10.47348/SACJ/v33/i3a4

Abstract

Uganda witnessed one of its worst conflicts between 1986 and 2007. The conflict in northern Uganda was between the government troops and the Lord’s Resistance Army (LRA). Serious crimes were committed against the civilian population. Women and girls were abducted by the rebels to serve as sex slaves and children were born as a result. After the conflict, these children’s integration has not been well received by their communities. It has not been properly addressed by the state operatives either. The children are dismissed as perpetrators of the conflict. Their return has been marred with stigmatisation and ostracism, forcing them to live on the margins of society. After the conflict, a National Transitional Justice Policy was passed. The overarching framework aims at addressing justice and reconciliation through inter alia social reintegration. However, it leaves an accountability gap. The framework largely departs from the needs of this particular community: acknowledging their existence and integration. The purpose of this article is to identify transitional justice opportunities and how these accommodate and advance accountability, integration and reconciliation in addressing victimisation concerns of the war children. Ultimately, it argues that addressing the abuses of the affected communities will ease social [re]integration.

Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? Part 2

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? Part 2

Authors: Samantha Goosen and Nicci Whitear-Nel

ISSN: 1996-2118
Affiliations: LLB LLM (UPE) PhD (UKZN), Lecturer, School of Law, University of KwaZulu-Natal, Pietermaritzburg; BA LLB (UN) LLM (UKZN), Senior Lecturer, University of KwaZulu-Natal, Pietermaritzburg
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 598 – 616
https://doi.org/10.47348/SACJ/v33/i3a5

Abstract

Although South Africa has not directly grappled with whether to extend the protection of the marital privileges to cohabitant life partners, Canada has. The ‘marital privileges’ refer to spousal testimonial privilege and marital communications privilege, collectively, in this article. In 2015, the Canadian legislature abolished spousal testimonial privilege. The marital communications privilege has been retained, and the Canadian courts have considered whether to extend it to cohabitant life partners or abolish it. To gain perspective on whether the marital privileges in South Africa should be retained but reformed, the authors discuss the position in Canada, a constitutionally comparable democracy. The authors consider the scope and applicability of the marital privileges before and after the 2015 Canadian amendments,1 which abrogated spousal testimonial privilege. The authors discuss the abrogation of spousal testimonial privilege in Canada and consider its relevance in the South African context. Also considered is why the marital communications privilege has been retained. This research suggests that while the central rationale for retaining the marital communications privilege is to foster marital relationships and protect the right to privacy, the rationale of dignity also plays a key role. The authors also consider the decision of the European Court of Human Rights dealing with marital communications privilege in The Netherlands. Finally, it will be submitted that whichever view one takes, the marital privileges in South Africa should not be retained in their current form.

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

by | Feb 14, 2021 | SACJ, SACJ V33 I3 2020

Quantification of damages for unlawful arrest and detention: South Africa, Namibia and Eswatini/Swaziland (2)

Author: Chuks Okpaluba

ISSN: 1996-2118
Affiliations: LLB, LLM (London), PhD (West Indies), Research Fellow, Centre for Human Rights, University of the Free State
Source: South African Journal of Criminal Justice, Volume 33 Issue 3, p. 617 – 645
https://doi.org/10.47348/SACJ/v33/i3a6

Abstract

The discussion of the South African case law on the quantification of damages arising from wrongful arrest and detention which commenced in part (1) of this series, continues in the present part. In part (1), the Constitutional Court judgment in Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) which emphasised the respect and reverence for the constitutional guarantee of personal liberty, and De Klerk v Minister of Police 2018 (2) SACR 28 (SCA) as well as the recent Constitutional Court judgment in the same case – De Klerk v Minister of Police 2020 (1) SACR 1 (CC); [2019] ZACC 32 (22 August 2019) – were among a host of important cases discussed. The Supreme Court of Appeal cases on quantification of damages for wrongful arrest and detention also discussed include: Mashilo v Prinsloo 2013 (2) SACR 648 (SCA); Minister of Police v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018); Minister of Safety and Security v Magagula (991/2016) [2017] ZASCA 103 (6 September 2017). The first section of this part continues with the discussion of the other instances not involving failure to take the detainee to court within 48 hours or consequences of the accused person’s first appearance in court whereby Hendricks v Minister of Safety and Security (CA&R/2015) [2015] ZAECGHC 61 (4 June 2015); Mrasi v Minister of Safety and Security 2015 (2) SACR 28 (ECG); and Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) are among the cases discussed. The second limb of the discussion in this part concerns the issue of wrongful arrest and detention under the Domestic Violence Act 116 of 1998 where the law has developed side by side with the traditional law of wrongful arrest and police negligence as illustrated by the case of Naidoo v Minister of Police 2016 (1) SACR 468 (SCA).