Doctoral Degrees (Public Law)

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Browsing Doctoral Degrees (Public Law) by browse.metadata.advisor "Erasmus, M. G."

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    Distribution of financial resources and constitutional obligations in decentralised systems a comparison between Germany and South Africa
    (Stellenbosch : University of Stellenbosch, 2005-12) Brand, Dirk Johannes; Erasmus, M. G.; University of Stellenbosch. Faculty of Law. Dept. of Public Law.
    In this dissertation a comparative study is made of the constitutional accommodation of the distribution of financial resources and constitutional obligations to the various spheres of government in Germany and South Africa. Both countries have decentralised or multi-level systems of government and can be classified, in terms of current studies on federalism, as integrated or cooperative federal systems. An overview of the historical developments, the political contexts, the fundamental principles and the constitutional frameworks for government in Germany and South Africa is provided as a basis for the in-depth analysis regarding the financial intergovernmental relations in these countries. This study has shown that economic theory is important in the design of decentralised systems of government and that political and socio-economic considerations, for example, the need for rebuilding Germany after World War II and the need to eliminate severe poverty in South Africa after 1994, often play a dominant role in the design and implementation of decentralised constitutional systems. The economic theory applicable to decentralised systems of government suggests a balanced approach to the distribution of financial resources and constitutional obligations with a view to obtaining the most efficient and equitable solution. In both countries the particular constitutional allocation of obligations and financial resources created a fiscal gap that required some form of revenue sharing or financial equalisation. The German financial equalisation system has been developed over fifty years and is quite complex. It attempts to balance the constitutional aim of reasonable equalisation of the financial disparity of the Länder with the financial autonomy of the Länder as required by the Basic Law. The huge financial and economic demands from the eastern Länder after unification in 1990 placed an additional burden on the available funds and on the financial equalisation system. Germany currently faces reform of its financial equalisation system and possibly also bigger constitutional reform. The South African constitutional system is only a decade old and the financial equalisation system that is less complex than the German system, is functioning reasonably well but needs time to develop to its full potential. The system may however require some adjustment in order to enhance accountability, efficiency and equity. A lack of sufficient skills and administrative capacity at municipal government level and in some provinces hampers service delivery and good governance and places additional pressure on the financial equalisation system. The Bundesverfassungsgericht and the Constitutional Court play important roles in Germany and South Africa in upholding the principle of constitutional supremacy, and make a valuable contribution to the better understanding of the constitutional systems and the further development thereof. This study has shown that clear principles in constitutional texts, for example, such as those contained in the Basic Law, guide the development of applicable financial legislation and add value to the provisions on financial equalisation and how they are implemented. These principles in the Basic Law are justiciable and give the Bundesverfassungsgericht an important tool to adjudicate the financial equalisation legislation. The study of the constitutional accommodation of the distribution of financial resources and constitutional obligations in Germany and South Africa is not an abstract academic exercise and should be seen in the particular political and socio-economic contexts within which the respective constitutions function. The need to give effect to the realisation of socio-economic rights, for example, the right of access to health services, places additional demands on the financial equalisation system. The South African society experienced a major transformation from the apartheid system to a democratic constitutional order that in itself has had a significant influence on financial intergovernmental relations. This dissertation focuses on a distinct part of constitutional law that can be described as financial constitutional law. This comparative analysis of the two countries has provided some lessons for the further development of South Africa’s young democracy, in particular the financial intergovernmental relations system.
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    Human rights and the rule of law in Rwanda : reconstruction of a failed state
    (Stellenbosch : Stellenbosch University, 2000-12) Sahinkuye, Mathias; Erasmus, M. G.; Pirie, S. C.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: Human rights denials have more characterised Rwandan history than their promotion and protection. When the Rwandan State emerged from Tutsi domination and colonialism, many Rwandans hoped that the era of liberty had at least dawned. But the reality has been a total disappointment and replicas of earlier abuses have emerged, despite the ratification by Rwanda of most international human rights instruments. This dissertation is premised on the assumption that Rwanda has failed as a democratic constitutional State, and the whole socio-economic-political system has gone wrong. Chapter one argues that disequilibrium was built into the Rwandan system before colonisation and evangelisation. There was a 'consensus' that Tutsis were a superior minority race, able to govern and dominate, well organised and accepted by their Hutu subjects. The colonists and the Catholic Church exploited this injustice for their indirect rule. In a world evolving towards the international human rights system, this had a very precarious foundation in Rwanda. Indeed, poor management of changes due to evangelisation, education and market economy led to the denial of human dignity. It exacerbated division in favour of Hutus rather than reinforcing national unity. Chapter two considers the Hutu regime as a failure of a democratic constitutional State in the postcolonial era, despite the promise to serve the interests of all Rwandans through democracy and respect for human rights. In a one-party State, a handful of Hutus have monopolised power and resources. The institutional infrastructure for the management of the State and protection of human rights was set up to safeguard the interests of the ruling group only and oppress the rest of the population. The Hutu government, particularly, took revenge on Tutsis that they killed, forced into exile and denied access to public affairs. Hutu opponents, real or imaginary, and people from other regions than that of the President were also denied such access. Separation of powers was purposely just a theory, whence a non-independent judiciary, interference of the executive in the functioning of other branches of government and abuse of legislative power became the reality. In order to perpetuate the ruling group's hegemony, civil society was hindered, while states of emergency were used to deny the right to life, liberty and the security of the person. Many other rights were also denied regardless of whether the denial was a legacy of the past or just a result of the undemocratic nature of the State and the underdevelopment of the country. The Hutu regime's failure to promote national unity resulted in a genocide which took the lives of many Tutsis and Hutus. Whereas the current Tutsi government presented itself as committed to democracy and human rights, Chapter three argues that it was a mutatis mutandis replica of the Hutu rule. Indeed, the State system and resources have been captured by a group of Tutsis while other Tutsis have been left without hope and Hutus have become second-class citizens, whence justice and national unity are in jeopardy. By avoiding to tackle the fundamental issue of nation-statehood, the United Nations have failed to maintain peace and security. The failure to condemn Ugandan aggression against Rwanda, the forced repatriation of refugees, and the non-prosecution of Tutsis involved in crimes against humanity have proved the demise of international law and the maintenance of the culture of impunity in Rwanda. The author nonetheless argues that respect for human rights and establishment of the rule of law are still possible through a process of reconciliation and reconstruction.
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    Individual criminal liability for the international crime of aggression
    (Stellenbosch : University of Stellenbosch, 2008-03) Kemp, Gerhard; Erasmus, M. G.; Van der Merwe, S. E.; University of Stellenbosch. Faculty of Law. Dept. of Public Law.
    Aggression is regarded as one of the core crimes under customary international law, but the definition of aggression is still contentious. At present there is no international instrument that provides for effective individual criminal liability for the crime of aggression. The Rome Statute of the International Criminal Court (ICC) provides for the inclusion of the crime of aggression within the court’s jurisdiction, but the Statute needs to be amended to include a definition of aggression and conditions for the exercise of jurisdiction by the ICC. This dissertation seeks to identify the elements of the international crime of aggression, for purposes of individual criminal liability. It is submitted that the creation of the ICC provides the international community with an historic opportunity to establish effective jurisdiction over the crime of aggression.