Doctoral Degrees (Public Law)

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    Sustainable development for rural women artisanal miners in Malawi : obligations under the African Charter and Maputo Protocol
    (Stellenbosch : Stellenbosch University, 2022-12) Mkali, Theodora Talumba; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: This research examines the rights of rural women artisanal miners in the artisanal and small-scale mining sector in Malawi. This mining sector is affected by the regulation of this subsector through the Mines and Minerals Act and the National Artisanal and Small-scale Mining Policy (ASM Policy). It thus formulates a matrix of rights to establish whether or not the law and policy framework on ASM in Malawi adequately ‘protect, promote and fulfil’ the rights of RWAMs. In addition, this research also analyses the Africa Mining Vision, the flagship regional policy framework, to assess how states have adopted the matrix of rights to give effect to RWAMs’ rights commitments. In the first instance, the research provides for the Feminist Legal Theory (FLT) methodology, which refers to feminist legal methods and African feminist views to justify the need to address the realities of RWAMs in ASM. In addition, the research expands on the two main organising principles, formalisation and sustainable development, by adopting a feminist lens. Thus, in answering the main research question, the research clarifies how categorising women as a homogenous group shapes the law and policy actions to exclude those with intersecting identities, such as RWAMs. This research also presents the context of ASM in Malawi given RWAMs participation and involvement in this subsector. In addition, this research provides an overview of Malawi’s legal and policy framework, particularly in gender and development. Specifically, this research analyses the standpoint of Malawi’s law and policy framework on mining given RWAMs rights. Finally, this research has conclusions and recommendations. It elaborates on the key findings of each chapter, provides recommendations and insists on future research. The recommendations made in this research dwell on the practical aspects Malawi must implement given the matrix of rights for the benefit of RWAMs.
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    The application of the principle of complementarity in the relationship between the African Court and the African Commission under the Regional African Human Rights System
    (Stellenbosch : Stellenbosch University, 2021-12) Thomas, Irene Nyakagere; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The principle of complementarity has great potential in enhancing the engagement between the African Commission on Human and Peoples Rights (African Commission) and the African Court on Human and Peoples Rights (African Court) to improve and strengthen the protection of human rights on the African continent. As observed in this research, the shared and overlapping mandates of these institutions can only be effectively coordinated if they work together in a planned, structured, and constructive way. As argued in this research, a well informed and developed application of the principle of complementarity could aid in achieving the overlapping mandates of these institutions, enhance access to justice within the regional African human rights system and facilitate the maximisation of the limited financial resources allocated to the two institutions. The 17 years of co-existence between the African Commission and African Court have witnessed various efforts geared towards activating the principle of complementarity. This includes case transfers and reform of the Rules of Procedure of the two institutions. However, the application of complementarity in the relationship between the African Commission and the African Court still faces serious challenges. The main hurdles being the ambiguity of, and minimum recourse to the complementarity provisions by the two institutions. In a quest to unlock the potential of the principle of complementarity, this research adopts a theoretical framework that speaks not only to the legal component of the discourse but also to its organisational component. The analysis is informed by a fusion of reinforcement theory and relevant elements of organisational theory. To establish a frame of reference to guide the analysis of the application of the principle of complementarity in the relationship between the African Commission and the African Court the research also analyses other complementary institutional arrangements in international law such as the United Nations’ human rights compliance mechanisms, the International Criminal Court system, the Inter-American human rights system as well as the European human rights system. The research findings demonstrate the need for the incorporation of the organisational component in the deliberations and strategies adopted by the two institutions with regard to their complementary relationship. By drawing inspiration from other regional and international complementary institutional arrangements, the research further highlights that the lack of express articulation of the modes of engagement in the complementarity arrangement between the African Commission and the African Court does not bar the development of mutual enforcement strategies. Instead, it could inspire flexibility and progressive transformation to ensure that the normative framework does not restrict complementarity.
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    Compliance with minimum wages : a South African legal perspective
    (Stellenbosch : Stellenbosch University, 2021-03) Heppell, Erik; Smit, Nicola; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: Globalisation has increased competition and resulted in various advancements of human life. However, it also has negative consequences, such as stagnating lower spectrum wages that occur despite increased labour productivity. Stagnating lower labour market wages that coincide with progressive top hierarchy wages result in excessive income inequality that presents detrimental consequences on various microeconomic and macroeconomic levels. Wages are the most common earnings of people and is therefore used within a regulatory framework to establish a minimum wage to address excessive income inequality. The utilisation of minimum wage is especially relevant in the South African context with its unequal labour market – one of the worst in the world – that undoubtedly played a role in introducing the SANMW. A threat to reaching the objectives of the SANMW and other minimum wage policies in other nations is the lack of compliance with minimum wage (that may be) exacerbated by non-compliance in developing countries. Establishing a legal minimum wage is important, but equally important is compliance/obedience to it. Without compliance, legal provisions may arguably only be of academic value and limited to paper. This thesis considers the compliance with minimum wage from a legislative viewpoint by deliberating three research questions. Firstly, how is minimum wage compliance pursued and achieved through the South African legal framework by considering three elements: being the coverage of minimum wage, the determination of minimum wage, and the legal enforcement of minimum wage and the sanctions/remedies for non-compliance. Secondly, what weaknesses in legal regulation can be identified, and based thereon, what recommendations can be made for more effective regulation and implementation of a minimum wage in South Africa? Thirdly, what lessons good and bad can be learned from the comparative foreign national legal minimum wage compliance frameworks of Australia and the United Kingdom? In answering the research questions, the concept of inequality is further examined, particularly in the South African context, before considering statutory/regulatory measures intended to address inequality in the labour market. The international legislative minimum wage compliance framework is established as a benchmark before considering the South African minimum wage compliance framework. Possible weaknesses are identified, followed by applicable recommendations. The legal minimum wage compliance frameworks of Australia and the United Kingdom are analysed. These nations arguably present respectable well-established minimum wage compliance frameworks that may act as a point of reference to other nations. Based on this comparative analysis, best and worst practices of the foreign jurisdictions are established before providing an effective legal minimum wage compliance framework.
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    Developing the right to education in the context of regional African human rights law : protecting children with non-heteronormative sexual orientations, non-binary gender identities or gender expressions
    (Stellenbosch : Stellenbosch University, 2021-03) Kreuser, Charlene; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: At the centre of this dissertation is the denial of a fundamental right based on personal attributes. This denial is due to preconceptions regarding what people should be, the behaviours they should adopt, and the romantic relationships that they should form. The question that the dissertation addresses is part of a larger issue of how heteronormative conceptions of sexual orientation, gender identities and gender expression shape the law and its institutions, excluding persons who do not fit this conceptual approach. The right to education is guaranteed under international and regional human rights law. It is key to promoting the full and harmonious development of children into adults who can contribute to the development of their communities. Despite this, learners with non-heteronormative sexual orientations and non-binary gender identities or gender expressions(“SOGIE”) face discrimination and marginalisation in the school environment, preventing them from fully enjoying this right. On the African continent, two factors exacerbate the discrimination experienced by these learners. Firstly, the perception that non-heteronormative SOGIE are un-African. Secondly, non-heteronormative SOGIE are not explicitly listed as prohibited grounds of discrimination under the African Charter on Human and Peoples’ Rights(“ACHPR”), the African Charter on the Rights and Welfare of the Child (“ACRWC”), and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (“Maputo Protocol”). Against this backdrop, this dissertation explores the perception that non-heteronormative SOGIE are un-African, and utilises queer theory and queer legal theory as tools to assist in unpacking and re-thinking heteronormativity as site of violence. This dissertation further utilises a teleological approach to the interpretation of treaties to develop the right to education of children with non-heteronormative SOGIE under the ACHPR, the ACRWC, and the Maputo Protocol through the lens of the rights to human dignity, non-discrimination, equal protection of the law, and the principle of the best interests of the child. In this regard, guidance is drawn from the interpretation of these rights by the international, European, and inter-American human rights bodies. Although the current interpretation of rights to human dignity, non-discrimination, equal protection of the law, and the best interests of the child under the African human rights system does not provide adequate protection to children with non-heteronormative SOGIE in education, it is shown that these rights can be purposefully interpreted to provide a framework for the protection of learners with non-heteronormative SOGIE.
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    Plea negotiation at the International Criminal Court : opportunities and costs
    (Stellenbosch : Stellenbosch University, 2021-03) Oyugi, Phoebe Akinyi; Kemp, Gerhard; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The International Criminal Court (ICC) faces serious challenges in the delivery of its mandate including legal and procedural challenges, political challenges as well as challenges relating to the victim participation and reparation regime. Therefore, this dissertation examines the question of whether the ICC should implement a plea negotiation policy to mitigate some of the challenges it faces. In order to answer this question, three sub-questions are set out as follows: which of the challenges facing the ICC might be mitigated by the implementation of a plea negotiation policy; whether plea negotiation would fit into the legal and procedural framework of the ICC; and, which lessons might be learned from the practice of plea negotiations in national jurisdictions on one hand, and in the International Criminal Tribunals for the Former Yugoslavia and Rwanda on the other hand. The dissertation concludes that the ICC should implement a policy of plea negotiation because it fits in the ICC’s legal and procedural framework and it can help mitigate some of the legal, procedural and political challenges facing the ICC. Be that as it may, the limitations of the practice of plea negotiation are fully acknowledged. However, it is argued that, these limitations can be mitigated by paying attention to lessons learned from the law, policy and jurisprudence relating to plea negotiations in national jurisdictions and the preceding international criminal tribunals. All in all, the dissertation concludes that plea negotiation could be an important tool to increase the efficiency of trials and increase conviction rates while saving judicial resources at the ICC. Appendix A and B of this dissertation contain texts of proposed provisions on plea negotiation to be included in the Rome Statute of the International Criminal Court and the Rules of Procedure and Evidence, respectively.