The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

by | Sep 19, 2021 | SLR, SLR V32 I2

The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

Author: Riaan Eksteen

ISSN: 1996-2193
Affiliations: BA BA (Hon) MA PhD; Senior Research Associate at the Department of Politics and International Relations, University of Johannesburg
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 330 – 361
https://doi.org/10.47348/SLR/2021/i2a8

Abstract

The judiciary’s influence on foreign affairs has been neglected for too long as the focus has been confined to the role of the two political branches – thus, a state-centrism orientation. Studies on foreign affairs confirm this omission. Hence, the question: what is the role of the judiciary in foreign affairs and what precisely is its influence? Consequential decisions by the Supreme Court of the United States (“SCOTUS”) underscore the extent of the court’s engagement with foreign policy-related issues. While the political branches of government most directly determine foreign-policy outcomes, the contribution of the court by way of its relevance and influence is no less significant. Its impact is incontrovertible. The executive can no longer assume that its actions in foreign affairs will not be scrutinised and evaluated constitutionally. Presidential decisions often stem from overreach, especially in matters with implications for foreign affairs. Over the years, it has become increasingly apparent that the President is not immune from rebuke. SCOTUS is the only constitutional interpreter and consequently a vital compass. The result is that the executive has to bend to the judiciary. The latter will not accommodate the former when its judicial mandate is to interpret the Constitution in order to make clear what the executive has decreed, however unpalatable that may be to the executive. The response by SCOTUS is no longer confined to single, isolated cases; it has become widespread. The court no longer shies away from displaying judicial power when it is faced with cases dealing with foreign affairs. What SCOTUS has declared unequivocally is that when the political branches are allowed to switch the Constitution on or off at will, this will lead to a regime in which the executive, and not SCOTUS, says what the law is. This article concludes that the recognition of this role of SCOTUS in foreign affairs is long overdue.

An Evaluation of the Legal Framework for Redressing Sexual Violence in the Boko Haram Insurgency in Nigeria: Challenges and the Way Forward

by | May 30, 2021 | SLR, SLR V32 I1

An Evaluation of the Legal Framework for Redressing Sexual Violence in the Boko Haram Insurgency in Nigeria: Challenges and the Way Forward

Author: Anita Nwotite

ISSN: 1996-2193
Affiliations: BL LLB LLM, Lecturer, Faculty of Law, Nnamdi Azikiwe University, Nigeria
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 169 – 182
https://doi.org/10.47348/SLR/v32/i1a8

Abstract

Sexual violence is one of the human rights violations characterising the Boko Haram insurgency in Nigeria. These violations include rape, sexual slavery and the abduction of women and girls by members of the insurgent group. Unfortunately, the emphasis has always been on the provision of humanitarian aid rather than redressing these violations. This article argues that although there are laws in place regulating sexual violence in Nigeria, these laws are inadequate in providing redress for the victims. Besides, the laws are rarely implemented to ensure a system of justice for victims, given the patriarchal and cultural antecedents of Nigeria. It is against this background that the article evaluates the legal framework for redressing sexual violence in the Boko Haram insurgency in Nigeria with a view to revealing the gap that exists therein. To achieve this aim, the article defines sexual violence and instances of such in the Boko Haram context. It also examines the legal framework for redressing sexual violence in Nigeria and the limitations of these laws in that regard. The article further considers the concept of redress and what it entails. Although the article adopts a legal approach, it is concluded that this approach is inadequate in addressing the issue at stake and that, in addition, a resort to extra-legal or other radical measures is needed. To address this challenge, the article among other things, recommends the eradication of cultural practices and negative values encouraging sexual violence; stipulation of a timeframe within which cases of sexual violence must be redressed; the appointment of an independent monitoring body to ensure the implementation of constitutional provisions in that regard; judicial independence; and advocacy by both civil society organisations and the media as tools to compel the relevant authorities to fulfil their responsibility to protect victims of sexual violence. This, it is submitted, will go a long way to address the vulnerability of Nigerian women and girls faced with sexual violence by insurgent groups.

The Unreported War: Tackling Denialism and Social Stigma towards Victims of Armed Conflict-Related Sexual and Gender-Based Violence

by | May 30, 2021 | SLR, SLR V32 I1

The Unreported War: Tackling Denialism and Social Stigma towards Victims of Armed Conflict-Related Sexual and Gender-Based Violence

Author: Ropafadzo Maphosa

ISSN: 1996-2193
Affiliations: LLB LLM (cum laude), Researcher at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, a centre of the University of Johannesburg
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 155 – 168
https://doi.org/10.47348/SLR/v32/i1a7

Abstract

In addressing the United Nations Security Council at its 7938th meeting, the Special Adviser on the Prevention of Genocide, Adama Dieng, said that the social stigma attached to sexual violence is integral to the logic of using sexual violence as a tactic, a method of war or even torture. The perpetrators of sexual crimes understand that sexual violence attacks one’s individual and collective identity and ostracises survivors, thus untying the strings of family and kinship that hold the very fabric of communities together. As a result, survivors of gender-based and sexual violence often find it difficult to cope with its social repercussions. This article will pursue a detailed discussion pertaining to the severe stigma suffered by survivors of conflict-related sexual violence and how this issue is not adequately addressed in international law. The risk faced by survivors is threefold: first by the action of the perpetrator, then by the reaction of society through stereotypical and patriarchal attitudes, and finally by the courts, which often are not only unresponsive but also perpetuate negative social norms and rape myths leading to double persecution. Due to a lack of evidence and other factors, such as patriarchy and social inequalities, the stigma associated with conflict-related sexual violence is manifested in court rooms through various rape myths about its survivors. Sexual violence is a gendered phenomenon, in that it is often linked to, and stems from, harmful social and traditional practices relating to perceptions of gender and power dynamics surrounding them. In times of conflict, prevalent power dynamics, and the practices linked to them, can be further exacerbated leading to a higher prevalence of sexual violence. Therefore, the core argument advanced in this article is the necessity of combatting stigma and rape myths, and to promote the reporting of sexual crimes by and access to justice for survivors.

The Collective Responsibility of Organised Armed Groups for Sexual and Gender-Based Violence during a Non-International Armed Conflict

by | May 30, 2021 | SLR, SLR V32 I1

The Collective Responsibility of Organised Armed Groups for Sexual and Gender-Based Violence during a Non-International Armed Conflict

Authors: Martha M Bradley & Aniel de Beer

ISSN: 1996-2193
Affiliations: LLB, LLM, LLD (UP), LLM (UCT), Lecturer, Department of Public Law, University of Pretoria. External Expert: Department of International and European Law, Centre for International Humanitarian and Operational Law, Palacký University, Olomouc, Czech Republic; BProc, MBA, LLM, LLD (UP), LLB (Stell), extraordinary lecturer, Department of Public Law, University of Pretoria. External Expert: Department of International and European Law, Centre for International Humanitarian and Operational Law, Palacký University, Olomouc, Czech Republic
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 129 – 154
https://doi.org/10.47348/SLR/v32/i1a6

Abstract

This contribution considers a possible legal framework for holding organised armed groups (“OAGs”) collectively responsible for acts of sexual and gender-based violence (“SGBV”) during non-international armed conflicts. It argues that a framework providing for collective as opposed to individual criminal responsibility of OAGs is essential. Certain sections of the Articles on the Responsibility of States for Internationally Wrongful Acts (“Articles on State Responsibility” or “ASR”) are used as a blueprint for achieving such a framework. In this regard, the concepts of international legal responsibility of OAGs, internationally wrongful acts and attribution are analysed in the context of crimes committed by OAGs. In conclusion, the article proposes future research in order to advance the prospect of collective claims and collective compensation for victims of SGBV.

The Case for a Law against the Online Distribution of Non-Consensual Intimate Images in Uganda

by | May 30, 2021 | SLR, SLR V32 I1

The Case for a Law against the Online Distribution of Non-Consensual Intimate Images in Uganda

Authors: Ronald Kakungulu-Mayambala, Rukundo Solomon, Victor Phillip Makmot & Diana Rutabingwa

ISSN: 1996-2193
Affiliations: LLB (Hons) (Mak), Dip LP (LDC), LLM (Fordham), SJD (Arizona), Associate Professor, School of Law, Makerere University; LLB (Hons) (UDSM), Dip LP (LDC), Associate Researcher, Mawazo Policy Research Centre; LLB (Hons) (Mak), Dip LP (LDC) Associate, Kirunda & Wesige Advocates; LLB (TUoN), LLM (Lond), MSC (Ebor), Senior Governance and Human Rights Advisor, Deutsche Gesellschaft für Internationale Zusammenarbeit
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 93 – 128
https://doi.org/10.47348/SLR/v32/i1a5

Abstract

The distribution of sexually graphic or intimate images of individuals on the internet without their consent is on the rise in Uganda. Several female celebrities and lesser-known individuals have fallen victim to this phenomenon in recent years. This article examines the civil and criminal remedies currently available to the victims. The article argues that these remedies are insufficient to deal with the challenge posed by the non-consensual distribution of these intimate images in the online environment and argues for the creation of a new law that specifically addresses this issue.

Citizenship by Naturalisation: Are Regulations 3(2)(b) and (c) to the South African Citizenship Act 88 of 1985 Invalid?

by | May 30, 2021 | SLR, SLR V32 I1

Citizenship by Naturalisation: Are Regulations 3(2)(b) and (c) to the South African Citizenship Act 88 of 1985 Invalid?

Author: Fareed Moosa

ISSN: 1996-2193
Affiliations: BProc (UWC), LLB (UWC), LLM (UCT), LLD (UWC), Professor and Head of Department: Mercantile and Labour Law, University of the Western Cape
Source: Stellenbosch Law Review, Volume 32 Issue 1, 2021, p. 71 – 92
https://doi.org/10.47348/SLR/v32/i1a4

Abstract

This article argues that regulation 3(2)(b), read with regulation 3(2)(c), issued pursuant to section 23(f) of the South African Citizenship Act 88 of 1995 (“1995 Act”), is invalid and ought to be set aside on judicial review. It is argued that they are inconsistent with sections 5(1)(c), (2), (5) and (9)(a) of the 1995 Act. This article shows that, whereas regulation 3(2)(b) requires a foreigner seeking citizenship to be physically present in South Africa and not be absent from the Republic for more than 90 days in each of the five years preceding the date of application for citizenship, no such physical presence requirement is contained in section 5(1)(c), or in section 5 of the 1995 Act in general, if read holistically. Section 5(1)(c) merely requires that an aspirant citizen be ordinarily resident in South Africa for five continuous years immediately preceding the lodgement of an application for citizenship. In the context of section 5(1)(c), the term “ordinarily resident” is interpreted as not requiring a physical presence in South Africa for any period of time during a calendar year. Rather, it merely requires that a foreigner must have sufficiently strong ties to South Africa to support a finding that his real home is there. Therefore, it is hypothesised that the Minister of Home Affairs acted ultra vires the 1995 Act when he issued regulations 3(2)(b) and (c).