International and Comparative

Human Rights violations in the Kingdom of Eswatini

This brief discusses human rights violations in the Kingdom of Eswatini in terms of domestic and international law. There are two aspects to consider: the use of force by the police and the right to freedom of expression and access to information. The reasons for civil unrest and the response to it by the government are explored. Following the unrest, the people of Eswatini should exercise their right to choose their political system and justice must be done for lives lost during the unrest.

Update on the Impending Border Management Authority

After being amended at the National Council of Provinces, the Border Management Authority (BMA) Bill is one step closer to enactment. But the BMA exacerbates the problem it seeks to address: In its attempt to resolve the fragmentation of South Africa’s border management, it creates another costly level of government bureaucracy under the ailing Department of Home Affairs.

Report: Conference On Fast-Tracking The Implementation Of The UNCAC In Southern Africa

This brief describes the process employed to create a set of recommendations to fast-track the implementation of the UN Convention Against Corruption in Southern Africa. This process commenced at a regional conference held in Livingstone, Zambia in October 2019.

Genocide

The particular horror evoked by genocide exists for three main reasons. Genocide is murder at a mass scale, it is usually perpetrated against the defenseless and, although tensions may build up over decades or even centuries, it can flare up very rapidly.

Water Governance II: A broad outline of South Africa’s international obligations

This is the second of two briefs outlining water governance in South Africa. The first brief focused on the legislative framework domestically and the second sets out South Africa’s international and transboundary obligations.

China’s Loans to South Africa - Brief V

This is the final brief in a series of five that takes a look at South Africa’s recent loans from China; it looks at why the BRICS Bank was not used, on what basis government is able to refuse disclosing further information on the loans, and finishes with a conclusion for the series.

China’s Loans to South Africa - Brief IV

This is the fourth brief in a series of five that takes a look at South Africa’s recent loans from China; it is a summary of the lessons learned from the experiences of the six countries analysed, which have also taken on Chinese debt.

China’s Loans to South Africa - Brief III

This is the third brief in a series of five that takes a look at South Africa’s recent loans from China; it looks at the experiences other countries have had with Chinese debt, namely Zambia, Kenya and Ethiopia.

China’s Loans to South Africa - Brief II

This is the second brief in a series of five that takes a look at South Africa’s recent loans from China; it looks at the experiences other countries have had with Chinese debt, namely Sri Lanka, Pakistan and Argentina.

China’s Loans to South Africa - Brief I

This is the first brief in a series of five that takes a look at South Africa’s recent loans from China. This brief is an overview of South Africa’s debt situation, how the loans from China fit into this, and why we need to look at the experiences other countries have had with Chinese debt.

The African Continental Free Trade Area III – Is Africa ready?

This brief speaks to the likelihood of achieving the African free trade area against imminent challenges, including Nigerian membership, diverging state interests and obstacles to negotiation and implementation.

The African Continental Free Trade Area II – Projected Impact on South Africa

This brief identifies channels through which the African Continental Free Trade Area is expected to transform the South African economy, with positive projections for economic diversification, development and job creation.

The African Continental Free Trade Area I – An Introduction to AfCFTA

This brief explores the current status of the historic African free trade agreement, an agreement intended to unite fifty-four African states and over a billion people under the banner of economic growth and autonomy.

The State Of The South African Refugee Protection Regime: Part III - Party Politics

Asylum has become a battleground for party politics and electioneering.This brief - the third in a three-part series - reviews the asylum policies and statements of four of South Africa’s major political parties (the ANC, DA, EFF and COPE) in the run up to the 2019 election.

The State Of The South African Refugee Protection Regime: Part II - Politics And Policy

This brief - the second in a three-part series - explores reasons for the deterioration of refugee protection in South Africa.

The State Of The South African Refugee Protection Regime: Part I - Current Status

Once applauded by UNHCR’s Antonio Guterres as ‘one of the most advanced and progressive systems of refugee protection in the world’, the South African refugee regime has deteriorated beyond recognition.This brief - the first in a three-part series - explores the state of protection and what it means for asylum-seekers within our borders.

South African Support For The Suspension Of The SADC Tribunal

This brief considers the relevance of a recent High Court judgment in which Zuma’s actions were declared unlawful, irrational and unconstitutional.

Curing South Africa's “Sea Blindness” - Cyril Ramaphosa, SONA and the Indian Ocean Rim Association

South Africa got its new Valentine shortly before the clock ticked to midnight on 14th February 2018, as Jacob Zuma exited and Cyril Ramaphosa became first, acting President, then President-Elect and finally President of the Republic in less than twenty-four hours.

Zimbabwe II - Politics

The first brief in this series outlined key demographic and economic conditions and dynamics. This brief considers their political implications.

In both the South African Supreme Court of Appeal and the International Criminal Court, the Al Bashir case centred on immunity enjoyed by heads of state. Both courts concluded that President Omar Al Bashir did not enjoy immunity on his June 2015 trip to South Africa. This brief outlines the basis of each court judgment as it relates to immunity and concludes that its application is often open to interpretation.

On the night of the 11th of April 2017 the Zambian Police broke down the gate of Hakainde Hichilema’s compound and began their quest to arrest the country’s main opposition leader. All of this less than a year after Hichilema had disputed the result of a close-run presidential election. Both the election and the arrest speak to worrying trends in Zambian democracy amidst the backdrop of a stony silence by the South African government and other international actors.

This brief will discuss the decision of the International Criminal Court to institute Article 87(7) proceedings against South Africa. This brief will look at what the consequences may be if an adverse finding is made against South Africa.

Policy in the United States of America towards Sub-Saharan Africa has been a relatively stable issue over the course of the past few presidential administrations. In stark contrast to the debates that exist around American foreign policy in many other regions, American policy towards Africa has largely enjoyed bipartisan support from both Republicans and Democrats since the end of the Cold-War. This policy has been focussed on three main areas, which are likely to remain at the core of America’s relations with Sub-Saharan Africa; trade, foreign aid and security cooperation. Rafael Friedman explores what impact, if any, the shock election of Donald Trump will have on these.

The growth of America's Global War on Terror has raised a number of questions for the African continent. Including the scope of American involvement and the impact that it has, and is likely to have, on counter-terror efforts in Africa. Rafael Friedman explores these in this brief.

This brief provides some background regarding a huge increase in Mozambique’s foreign debt and the serious impact on the country’s financial and general economic situation. It highlights the dangers of ill-considered and opaque government action and draws attention to the potential impact on South Africa of a grave deterioration in the economic situation of a neighbouring country.

This brief is on the pending application before the Pretoria High Court to declare the decision to withdraw from the ICC invalid and it deals with the arguments in support of the application.

This is the first Brief in a series of Briefs which looks at the role of Traditional Leaders in African Countries.

This is the final Brief in the three part series by Charles Simkins on democracy and looks at authoritarian strategies.

This is the second Brief in the three part series of Briefs by Charles Simkins on democracy and it deals with the interpretation of environments of democracy.

This is the first Brief in a three part series of Briefs which deal with democracy. This Brief looks at indicators of democracy.

Charles Simkins looks at the the IMF's April 2016 World Economic Outlook and where this leaves South Africa, both now and in the years to come.

In Part I of this brief, I explained that although the decision of the Supreme Court of Appeal in the Southern African Litigation Centre matter, involving Mr Al-Bashir, represents an important victory in the struggle for international justice, it is potentially quite limited in its future scope and impact. I then outlined the nature of South Africa’s political community—a sovereign state that is also a member of the family of nations—and thereafter connected this conception of statehood to crimes against humanity, war crimes and genocide. In doing so, I explained that these crimes, by their nature, harm all people everywhere. In this brief, I explain why these crimes also directly violate the Constitution. I also argue that the nature of this violation is such that it renders unconstitutional and therefore not binding any rule, either international or domestic, that purports to afford sitting heads of state absolute immunity in relation to such crimes.

Last Friday, 8 April 2016, the Minister of Justice and others filed papers in the Constitutional Court. They are appealing the Supreme Court of Appeal’s finding that government’s failure to take steps to arrest and detain, for surrender to the ICC, Mr Al-Bashir when he visited South Africa in 2015 was unlawful.

Charles Simkins looks at Brazil and the dire straits the country finds itself in, drawing instructive comparisons between the political and economic situations of South Africa and our troubled BRICS partner.

Andrew Barlow looks at the UK's NHS - an internationally lauded and nationally loved single-payer universal health care system - and how the many issues its faces are relevant to the recent NHI White Paper and its proposals to implement a similar system here in South Africa.

Andrew Barlow looks at the success of Ethiopian Airlines and what lessons this has for South African Airways' shareholder – our government.

This Brief looks at the turning point in Nazi Germany's Eastern Offensive. It identifies six principles that underwrote Hitler's humiliating defeat, and which remain relevant today.

As part of the out of cycle review of South Africa’s eligibility under AGOA, a call for comments was included. The American Chamber of Commerce in South Africa (AmCham), the organisation that represents 250 US companies operating in SA, responded by detailing which issues were of concern to its members. In what follows, I consider at length the two most pressing issues raised by AmCham. I suggest that the poultry dispute has set a new and strong-armed precedent to economic relations between the two countries, and that our future under AGOA is far from certain.

A fifteen-year poultry trade dispute between South Africa and the US came to a head recently. Relations thawed, and the US gave our government a 60-day ultimatum in which to remove trade barriers to US bone-in chicken cuts that have blocked them from the SA market since 2000. But US concerns over South Africa's future commitment to meeting eligibility criteria are not limited to trade. The protection of existing investment through the legal recognition of property rights, as well as the creation and conservation of an environment conducive to foreign investors, are at least as important to the US government. In this pair of briefs, I begin by analysing the context the ultimatum was delivered in. I look at the nature of Agoa and our commitments under it, I chart the history of the trade dispute, and I consider the grounds and motivations underlying each side's actions. In the second brief, I examine the two most pressing issues impeding our future inclusion under Agoa. I conclude that US patience has likely run dry, and our future eligibility is far from certain.

The third brief in this series considered the economic programme of the SADC as it evolved since 2001. The original Regional Indicative Strategic Development Plan has been revised recently, a Tripartite Free Trade Area has been launched, and a long-term economic strategy centred on industrial development and resource beneficiation has been approved. Discussing and evaluating the new economic trajectory that these changes signify is the subject of this final brief.

The first two briefs in this series described the history and structure of the SADC. This brief and the next will consider and evaluate respectively the origins and recent evolution of its economic programme.

In the first brief the history of the SADC was charted in its development from anti-colonial liberation alliance to regional economic integration organisation. In this brief, the second of four, I look in detail at the current institutional framework of the SADC following the 2001 restructuring.

The Southern African Development Community (SADC) is an inter-state organisation based in Gaborone, Botswana that pursues a comprehensive regional integration agenda through both socio-economic and political cooperation. This year represents a turning point in the socio-economic programme of the Southern African Development Community. The launch of the Tripartite Free Trade Area and a pivotal overhaul in socio-economic integration strategy make 2015 a seminal year in the evolution of the SADC and present a choice opportunity for an extended series of briefs. This is the first of four briefs. In it, I chart the history and development of the SADC from its inception in the regional liberation struggles of the 1960’s and 70’s. In the second, I explicate the institutional framework and decision-making structure of the organisation. In the third, I outline the many problems that the SADC has encountered in pursuing its economic integration agenda in the last decade. And in the fourth and last, I discuss what measures the SADC has taken this year to overcome these obstacles, and evaluate their prospects for success.

In this final brief I consider two issues. First, is the power afforded to the NPA under section 179(2) of the Constitution discretionary and, if so, what is the relevance of this fact? Second, does the NPA have a duty to prosecute foreign nationals who prima facie appear to have committed genocide, crimes against humanity or war crimes and, if so, what is the relevance of this fact? Before addressing these two issues, though, I will provide a brief summary of the conclusions of the first three briefs. According to the SALC decision, the SAPS has a duty to investigate allegations against foreign nationals of crimes against humanity. In coming to this finding, Majiedt AJ said that the NPA does not have a duty to institute criminal proceedings; it has a discretionary power. The concepts of duty and discretion, though, are not mutually exclusive, as Majiedt AJ appears to have assumed. The source of the court’s mistake was its insufficiently thorough analysis of the relationship among ‘power’, ‘duty’ and ‘privilege’. Whether a power is accompanied by duties and/or discretion is a normative question, the answer to which requires consideration of the reasons for and against vesting the NPA with different types of power.

In the first two briefs of this series I outlined the fact that, according to the SALC decision, the SAPS has a duty to investigate allegations of crimes against humanity. I explained, however, that in coming to this conclusion, Majiedt AJ said that the NPA has the power to institute criminal proceedings, but does not also have a duty; rather, it just has a discretion. In other words, he thinks that where a power is discretionary, the person vested with that power does not have a duty to exercise it. I concluded the second brief, however, by explaining that the concept of a duty and the concept of a discretion are not mutually exclusive. In this brief, I provide a possible reason for why the court thought otherwise.

In the first brief I explained that the purpose of this series of four briefs is to determine whether the NPA has a duty to prosecute foreign nationals who prima facie appear to have committed crimes against humanity, war crimes and genocide. I indicated that I think such a duty does exist and that this duty is sourced in the Constitution itself. My explanation of why this duty exists began with an outline of the Constitutional Court’s judgment in the SALC decision, a case dealing with the duty of the SAPS to investigate foreign nationals accused of crimes against humanity, war crimes and genocide. I ended the first brief by claiming that the finding of the court that the NPA has a discretion but not a duty to institute criminal proceedings presents certain problems—especially given the decision by the ANC to withdraw South Africa as a member of the ICC. In this second brief, I will explain the significance of the Constitutional Court’s conclusion and I will begin to interrogate the basis of this conclusion.

This is a series of four briefs. In this series I consider whether the NPA has a duty to prosecute foreign nationals who prima facie appear to have committed genocide, war crimes or crimes against humanity. I conclude that although the NPA has a discretion when exercising its power to institute criminal proceedings, it also has a duty to prosecute alleged perpetrators of such crimes. This duty is grounded in the Constitution, with domestic legislation and international law concretising, particularising and duplicating this duty. This conclusion has important implications for any decision by the NPA not to prosecute alleged perpetrators of such crimes. It also means that South Africa’s membership of the ICC is not critical to the NPA’s duty to prosecute such persons. The arguments that I make in this series include a fair amount of legal and conceptual analysis. As such, the ideal approach to reading this series of briefs would be for the four briefs to be read in a single sitting (or, at least, without much break in between reading each brief). In the likely event that such dedication is not possible, however, I have provided short summaries of the preceding briefs in the second, third and fourth briefs of this series. These three summaries, I hope, will be adequate to remind the reader of the more essential arguments of the preceding briefs.

The sale in execution of property previously owned by the Zimbabwean Government on 21 September 2015 is one of several notable legal developments with respect to the SADC Tribunal.

The fourth Brief in the series sets out the economic interests in the system.

The third Brief in the series considers the historical and future impact of the Silk Road.

The second Brief will consider the problems inherent in the system, and their implications for the global economy.

The first Brief in this series describes some basic features of the Chinese financial system, especially in its links to the global economy.

A synopsis of the Rome Statute and its interplay with the African Union.

Part One of an investigation into the challenge of xenophobia and integration within liberal democracy. This study focuses upon challenges arising through Islamic immigration in Western Europe. Issues highlighted include: the rise of the European Right, French Secularism and the Charlie Hebdo Attacks.

The adoption of the newest SADC Tribunal Protocol has sought to rebirth the Tribunal after a long gestation period where it underwent significant review. The latest manifestation indicates that the region’s efforts at taking the rule of law, and regional integration, seriously are nothing short of being stillborn

On 15 July, Brazil, Russia, India, China and South Africa signed agreements to establish the New Development Bank and the Contingency Reserve Arrangement. The provisions of each have to be incorporated into the law of each country. Once this is done, probably by 2016, the institutions can start operation. How will they work?

The recent announcement by the Tanganyika Law Society to challenge the disbandment of the SADC Tribunal (before the High Court in Tanzania) has once again put the demise of this organisation in the spotlight. This Brief tracks the history of the Tribunal and explains why it is so important for the Rule of Law.

The latest ruling by the African Commission of Human and People’s Rights (ACHPR) -that no individual can access the SADC Tribunal as a means of recourse in a dispute with a member state may well be the death blow for that institution. This Brief explains why this is the case.

The Helen Suzman Foundation has already written about the Constitutional Court’s decision in Government of Zimbabwe v Fick. In this brief, we look at whether the concept of sovereignty should have meant any different.

The Constitutional Court’s decision in Government of Zimbabwe v Fick is a partial victory; the disbandment of the SADC Tribunal remains a travesty of justice. This Brief examines this in greater detail.

The future of the neutered SADC Tribunal is dependent upon the SADC Summit in August and perhaps the pending ruling of the South African Constitutional Court on the case of dispossessed Zimbabwean famers. At issue is also the link between the rule law and economic development. In the case of Zimbabwe the rule of power still trumps the law, and as a consequence the economy suffers. This provides portents for the SADC leaders.

Zimbabwe I - Demography & Economy

This, the first of two briefs examining the prospects for Zimbabwe following the presidential succession, will consider the demographic and economic context. The second brief will discuss the political implications.