One of the incidences of federalism is that taxing powers are shared between the federating units. Thus fiscal federalism affects the administration of consumption taxes in federal systems. The implication of fiscal federalism under the Nigerian constitution on consumption taxes has generated some controversies over the years. The question has been whether the constitution allows a dual level administration of consumption taxes by the federal and states governments or whether the powers are solely vested in the federal government. This article argues that there is a hiatus in the constitution as it is unclear who has the powers to impose consumption taxes in Nigeria. The article will propose necessary constitutional amendment drawing from the lessons the experiences other federal systems like Australia, Canada, the United States of America, India and Ethiopia present.
{"title":"Administration of Value Added Tax (Goods and Services Tax) and Fiscal Federalism in Nigeria: Lessons from Australia, Canada, the USA, India and Ethiopia","authors":"Newman U. Richards","doi":"10.3366/ajicl.2022.0422","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0422","url":null,"abstract":"One of the incidences of federalism is that taxing powers are shared between the federating units. Thus fiscal federalism affects the administration of consumption taxes in federal systems. The implication of fiscal federalism under the Nigerian constitution on consumption taxes has generated some controversies over the years. The question has been whether the constitution allows a dual level administration of consumption taxes by the federal and states governments or whether the powers are solely vested in the federal government. This article argues that there is a hiatus in the constitution as it is unclear who has the powers to impose consumption taxes in Nigeria. The article will propose necessary constitutional amendment drawing from the lessons the experiences other federal systems like Australia, Canada, the United States of America, India and Ethiopia present.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49437892","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article looks into the successes and challenges of the United Nations Declaration of Human Rights (the Declaration) 1948. Too often the approach of its failures has been explored over the years, but the author believes it is a herculean task to maintain and promote world peace and universal human welfare, so those steps taken in obedience and application of the Declaration need to be unravelled and appreciated. The unity and coexistence among states, the creation of subsidiary organs, the installation of good governance in many countries, the internationalisation of constitutions and uniform judicial decisions in national and regional courts are all recorded as successes of the Declaration in this article. The challenges of the Declaration are also explored in this work, such as the modern forms of slavery still practised in many parts of the world, the controversy of international criminal justice, violence against women and the claim to extreme rights. The author analyses these challenges and gives recommendations for a better future in the application of the Declaration.
{"title":"The United Nations Declaration of Human Rights 1948: Successes and Challenges","authors":"Tamfuh Y. N. Wilson","doi":"10.3366/ajicl.2022.0427","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0427","url":null,"abstract":"This article looks into the successes and challenges of the United Nations Declaration of Human Rights (the Declaration) 1948. Too often the approach of its failures has been explored over the years, but the author believes it is a herculean task to maintain and promote world peace and universal human welfare, so those steps taken in obedience and application of the Declaration need to be unravelled and appreciated. The unity and coexistence among states, the creation of subsidiary organs, the installation of good governance in many countries, the internationalisation of constitutions and uniform judicial decisions in national and regional courts are all recorded as successes of the Declaration in this article. The challenges of the Declaration are also explored in this work, such as the modern forms of slavery still practised in many parts of the world, the controversy of international criminal justice, violence against women and the claim to extreme rights. The author analyses these challenges and gives recommendations for a better future in the application of the Declaration.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45130916","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There are three main regional human rights tribunals (HRTs) in Africa, namely the African Commission, the African Court and the African Committee of Experts on the Rights and Welfare of the Child. In addition to these, there are political bodies within the African Union responsible for implementing human rights mandates as well as several sub-regional courts established for the primary purpose of adjudicating trade disputes and facilitating political integration which have issued notable human rights decisions and judgments. Accordingly, Africa is not lacking in human rights jurisprudence. What is lacking, however, is genuine commitment on the part of state actors to implement the decisions and judgments of the various human rights bodies. This article examines the factors responsible for slowing down the pace and rate of state compliance in Africa. It argues, among other things, that compliance with HRTs' decisions in Africa has been limited due to poor supervision mechanisms, weak domestic infrastructures, weak state institutions caused by 'strong men syndrome' and poor observance of the rule of law, poor institutional designs of regional and sub-regional HRTs, lack of awareness and erroneous perceptions about international human rights system, ineffective follow-up as well as a poor system of governance in many states in Africa among other factors. The article notes that attitudinal barriers and erroneous perceptions about international human rights system are central to the various barriers and thus adequate attention should be given to changing negative attitudes and perceptions among states actors and members of the public in the various African states.
{"title":"Implementation of the Decisions and Judgments of African Regional Human Rights Tribunals: Reflections on the Barriers to State Compliance and the Lessons Learnt","authors":"V. Ayeni","doi":"10.3366/ajicl.2022.0425","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0425","url":null,"abstract":"There are three main regional human rights tribunals (HRTs) in Africa, namely the African Commission, the African Court and the African Committee of Experts on the Rights and Welfare of the Child. In addition to these, there are political bodies within the African Union responsible for implementing human rights mandates as well as several sub-regional courts established for the primary purpose of adjudicating trade disputes and facilitating political integration which have issued notable human rights decisions and judgments. Accordingly, Africa is not lacking in human rights jurisprudence. What is lacking, however, is genuine commitment on the part of state actors to implement the decisions and judgments of the various human rights bodies. This article examines the factors responsible for slowing down the pace and rate of state compliance in Africa. It argues, among other things, that compliance with HRTs' decisions in Africa has been limited due to poor supervision mechanisms, weak domestic infrastructures, weak state institutions caused by 'strong men syndrome' and poor observance of the rule of law, poor institutional designs of regional and sub-regional HRTs, lack of awareness and erroneous perceptions about international human rights system, ineffective follow-up as well as a poor system of governance in many states in Africa among other factors. The article notes that attitudinal barriers and erroneous perceptions about international human rights system are central to the various barriers and thus adequate attention should be given to changing negative attitudes and perceptions among states actors and members of the public in the various African states.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43130721","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article contests the dominant ethnocentric Human Rights grammar and proposes a decentred alternative by focusing on the legal epistemologies of Southern African Indigenous Peoples. Increasing inequalities, aggravated poverty, environmental degradation, unsustainable life-styles and socio-cultural polarisation are compelling challenges that demand approaches grounded on new narratives, beyond the framework provided by Western centric theorisation, binary logic, the individual liberal human rights paradigm and neo-liberal development and justice models. The cultural specificity of human rights as well as their rise as normative instruments and assertions of universal entitlements, stripped human rights off the political and transformative potential to challenge the economic, social and political structures at the core of the imbalances they aim at remedying. In an attempt to transcend the limitations of the current hegemonic human rights paradigm (centred on the individual, rights and legalistic approaches), the proposal advanced here aims at reclaiming and recapturing the insights and values of African Indigenous Peoples as intellectual capital to reconfigure the prevailing human rights discourse. This article strives to rework and enlarge the notion and content of human rights with elements from counter hegemonic alternative world-views informed by peripheral knowledge(s), subaltern legalities and epistemologies. It seeks to revert epistemic injustice by formulating an alter-native narrative based on Indigenous Peoples’ world-views.
{"title":"Deconstructing the Dominant Human Rights Grammar: An Alter-Native Narrative based on Indigenous Peoples’ World-Views","authors":"Davinia Gómez-Sánchez","doi":"10.3366/ajicl.2022.0421","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0421","url":null,"abstract":"This article contests the dominant ethnocentric Human Rights grammar and proposes a decentred alternative by focusing on the legal epistemologies of Southern African Indigenous Peoples. Increasing inequalities, aggravated poverty, environmental degradation, unsustainable life-styles and socio-cultural polarisation are compelling challenges that demand approaches grounded on new narratives, beyond the framework provided by Western centric theorisation, binary logic, the individual liberal human rights paradigm and neo-liberal development and justice models. The cultural specificity of human rights as well as their rise as normative instruments and assertions of universal entitlements, stripped human rights off the political and transformative potential to challenge the economic, social and political structures at the core of the imbalances they aim at remedying. In an attempt to transcend the limitations of the current hegemonic human rights paradigm (centred on the individual, rights and legalistic approaches), the proposal advanced here aims at reclaiming and recapturing the insights and values of African Indigenous Peoples as intellectual capital to reconfigure the prevailing human rights discourse. This article strives to rework and enlarge the notion and content of human rights with elements from counter hegemonic alternative world-views informed by peripheral knowledge(s), subaltern legalities and epistemologies. It seeks to revert epistemic injustice by formulating an alter-native narrative based on Indigenous Peoples’ world-views.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42070606","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The essence of this article is to evaluate the use of criminal law as an effective mechanism for the protection of the environment in Nigeria. There has been an increasing use of criminal prosecutions in environmental matters worldwide, but in Nigeria, it has proved an ineffective mechanism. We have adequate provisions for salient criminal aspects under the environmental statutes but they are bereft of enforcement. Some of these statutes are defective in all respects which detracts considerably from their potency. For instance, the general level at which fines are imposed neither reflects the gravity of the environmental crimes nor punishes adequately those who commit them. The discourse also examines the legal and economic theories of criminal law enforcement in comparison with the current realities in Nigeria. Finally, it suggests a review of the legal framework for the criminal enforcement of environmental laws as well as sentencing guidelines in Nigeria.
{"title":"An Evaluation of Environmental Criminal Liability and Enforcement in Nigeria","authors":"Joseph Nwazi","doi":"10.3366/ajicl.2022.0412","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0412","url":null,"abstract":"The essence of this article is to evaluate the use of criminal law as an effective mechanism for the protection of the environment in Nigeria. There has been an increasing use of criminal prosecutions in environmental matters worldwide, but in Nigeria, it has proved an ineffective mechanism. We have adequate provisions for salient criminal aspects under the environmental statutes but they are bereft of enforcement. Some of these statutes are defective in all respects which detracts considerably from their potency. For instance, the general level at which fines are imposed neither reflects the gravity of the environmental crimes nor punishes adequately those who commit them. The discourse also examines the legal and economic theories of criminal law enforcement in comparison with the current realities in Nigeria. Finally, it suggests a review of the legal framework for the criminal enforcement of environmental laws as well as sentencing guidelines in Nigeria.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48209202","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Paris Principles relating to the status of national human rights institutions set universally acknowledged standards for assessing the effectiveness of a domestic national human rights institution. However, it is often the case for these institutions to formally conform to the principles but remain ineffective. The article examines the Uganda Human Rights Commission, which enjoys ‘A’ status for its compliance with the Paris Principles parameters and discovered that, notwithstanding the compliance, the effectiveness of a national human rights institution could be hampered in practice. The article argues that proper assessment of the effectiveness of a domestic institution should transcend formal and structural compliance with the Paris Principles and examine the practical manifestation of those standards in the institution's operation. The institutions can be rendered ineffective by the appointment of unqualified members, lack of diversity and pluralism, inadequate funding and facilities, unnecessary bureaucratic bottlenecks, binding incompatible instruments and non-compliance with decisions.
{"title":"Assessing the Effectiveness of the Uganda Human Rights Commission vis-à-vis the Paris Principles Relating to the Status of National Human Rights Institutions","authors":"Kasim Balarabe, Valentine Tebi Mbeli, A. Azeez","doi":"10.3366/ajicl.2022.0417","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0417","url":null,"abstract":"The Paris Principles relating to the status of national human rights institutions set universally acknowledged standards for assessing the effectiveness of a domestic national human rights institution. However, it is often the case for these institutions to formally conform to the principles but remain ineffective. The article examines the Uganda Human Rights Commission, which enjoys ‘A’ status for its compliance with the Paris Principles parameters and discovered that, notwithstanding the compliance, the effectiveness of a national human rights institution could be hampered in practice. The article argues that proper assessment of the effectiveness of a domestic institution should transcend formal and structural compliance with the Paris Principles and examine the practical manifestation of those standards in the institution's operation. The institutions can be rendered ineffective by the appointment of unqualified members, lack of diversity and pluralism, inadequate funding and facilities, unnecessary bureaucratic bottlenecks, binding incompatible instruments and non-compliance with decisions.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43835909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article discusses the current innovation introduced by the Administration of Criminal Justice Act (ACJA) in the trial of criminal cases which has purportedly extinguished trial de novo. It argues that based on extant case law and the provisions of the Constitution, section 396(7) of the ACJA is null and void, therefore it cannot achieve the intended purpose. This article adopts doctrinal research methodology focusing on the meaning and circumstances in which trial de novo would be invoked and its legal implications as well as the difference between trial de novo and appeal. It argues that unless the Constitution that creates the courts is amended as contemplated under section 9 thereof, the purported extinction of trial de novo by the ACJA cannot be achieved despite the good intention as the elevation to High Court judge robs him of jurisdiction to preside over a dispute as a trial judge. It found that the ACJA does not envisage cases of retirement and death of a trial judge or magistrate which are causes of trial de novo. It identifies alternatives to trial de novo under the 2011 Evidence Act and makes a case for their adoption as done by the Indian courts. It recommends that the relevant sections of the Constitution be amended wherein the mischief sought to be cured by the ACJA can then be legally achieved just as it was in the case of the National Industrial Court via the 1999 CFRN (Third Alteration) Act 2010.
{"title":"The Administration of Criminal Justice Act and the Extinguishment of Trial de Novo in Nigeria: Far From Being Settled?","authors":"D. Eyongndi","doi":"10.3366/ajicl.2022.0415","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0415","url":null,"abstract":"This article discusses the current innovation introduced by the Administration of Criminal Justice Act (ACJA) in the trial of criminal cases which has purportedly extinguished trial de novo. It argues that based on extant case law and the provisions of the Constitution, section 396(7) of the ACJA is null and void, therefore it cannot achieve the intended purpose. This article adopts doctrinal research methodology focusing on the meaning and circumstances in which trial de novo would be invoked and its legal implications as well as the difference between trial de novo and appeal. It argues that unless the Constitution that creates the courts is amended as contemplated under section 9 thereof, the purported extinction of trial de novo by the ACJA cannot be achieved despite the good intention as the elevation to High Court judge robs him of jurisdiction to preside over a dispute as a trial judge. It found that the ACJA does not envisage cases of retirement and death of a trial judge or magistrate which are causes of trial de novo. It identifies alternatives to trial de novo under the 2011 Evidence Act and makes a case for their adoption as done by the Indian courts. It recommends that the relevant sections of the Constitution be amended wherein the mischief sought to be cured by the ACJA can then be legally achieved just as it was in the case of the National Industrial Court via the 1999 CFRN (Third Alteration) Act 2010.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47190648","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Presidential or executive power of pardoning convicted offenders is, generally speaking, beyond ordinary checks and balances. It could arguably be one of the most controversial of executive powers prone to abuse by the political elite. To the extent that the power sanctions the circumvention of the justice system by undoing, sidestepping, and interfering with some judicial outcomes, its appropriateness has been questioned as being possibly a serious indictment on the separation of powers and the rule of law. This contribution focuses on the use of the presidential power of clemency in Zambia as a reflective case study. It addresses some of the legitimate questions that arise from a legal and constitutional standpoint in the use of this power. The paper argues that the danger that is posed to the independence of the judiciary by the power of pardon does not derive from the mere existence of the prerogative of mercy powers, but rather from collateral factors such as the apparent failure to understand the extent to which pardoned convicts lose their rights, rather than gain them; the apparent failure to appreciate the justice protective function of the power of pardon itself; and the absence of inbuilt trigger mechanisms in the law to monitor possible abuse of the power.
{"title":"Skirting the Justice System through Presidential Clemency in Zambia: Some Critical Reflections","authors":"Mumba Malila","doi":"10.3366/ajicl.2022.0416","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0416","url":null,"abstract":"Presidential or executive power of pardoning convicted offenders is, generally speaking, beyond ordinary checks and balances. It could arguably be one of the most controversial of executive powers prone to abuse by the political elite. To the extent that the power sanctions the circumvention of the justice system by undoing, sidestepping, and interfering with some judicial outcomes, its appropriateness has been questioned as being possibly a serious indictment on the separation of powers and the rule of law. This contribution focuses on the use of the presidential power of clemency in Zambia as a reflective case study. It addresses some of the legitimate questions that arise from a legal and constitutional standpoint in the use of this power. The paper argues that the danger that is posed to the independence of the judiciary by the power of pardon does not derive from the mere existence of the prerogative of mercy powers, but rather from collateral factors such as the apparent failure to understand the extent to which pardoned convicts lose their rights, rather than gain them; the apparent failure to appreciate the justice protective function of the power of pardon itself; and the absence of inbuilt trigger mechanisms in the law to monitor possible abuse of the power.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45424896","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One hundred and thirty years ago, governments convened in Brussels to discuss a new treaty that would address the trades in slaves, firearms and liquors in Africa. This treaty - the Brussels Conference Act (BCA) - came just five years after the Berlin Conference and Act and has largely been overshadowed by its predecessor. In many ways, though, for colonial governments the BCA was both the necessary counterpart and the logical, as well as legal, successor to the Berlin Conference and Act. If Berlin politically carved up the continent of Africa, Brussels provided the legal justification for doing so. The BCA did this through creating a series of zones, within which European states empowered themselves to act in ways that would facilitate, and at times mandate, colonialism in the guise of humanitarian ideals. These zones covered much of sub-Saharan Africa and the waters off its eastern coast. While the BCA itself lasted until the end of the First World War, the idea of these zones had greater longevity, with special zones proposed in discussions on slavery and the arms trade both during the League of Nations era and into the early years of the United Nations. This article explores the ways in which the idea of this zone within the BCA enabled colonialism and how this idea persisted into the middle of the twentieth century. In doing so, it seeks to consider zones of control not only a matter of legal history, but also as a way to better understand and make more visible the structures upon which international law is built today.
{"title":"Zoning Control: Revisiting the Brussels Conference Act of 1890 and Its Legacy into the Twentieth Century","authors":"J. Oldfield","doi":"10.3366/ajicl.2022.0413","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0413","url":null,"abstract":"One hundred and thirty years ago, governments convened in Brussels to discuss a new treaty that would address the trades in slaves, firearms and liquors in Africa. This treaty - the Brussels Conference Act (BCA) - came just five years after the Berlin Conference and Act and has largely been overshadowed by its predecessor. In many ways, though, for colonial governments the BCA was both the necessary counterpart and the logical, as well as legal, successor to the Berlin Conference and Act. If Berlin politically carved up the continent of Africa, Brussels provided the legal justification for doing so. The BCA did this through creating a series of zones, within which European states empowered themselves to act in ways that would facilitate, and at times mandate, colonialism in the guise of humanitarian ideals. These zones covered much of sub-Saharan Africa and the waters off its eastern coast. While the BCA itself lasted until the end of the First World War, the idea of these zones had greater longevity, with special zones proposed in discussions on slavery and the arms trade both during the League of Nations era and into the early years of the United Nations. This article explores the ways in which the idea of this zone within the BCA enabled colonialism and how this idea persisted into the middle of the twentieth century. In doing so, it seeks to consider zones of control not only a matter of legal history, but also as a way to better understand and make more visible the structures upon which international law is built today.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47826558","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Behind the cloak of maintaining national security and public order, African governments and the private sector constantly encroach upon the data privacy rights of individuals. The right to privacy is not only protected by various international human rights instruments that African states have voluntarily ratified but has been enshrined in several constitutions. Yet, without proper safeguards, the same states continue to stifle the right through intrusive surveillance methods. They indiscriminately acquire, intercept, transmit, analyse and retain an individual’s data, able to be amassed to generate intimate and detailed profiles of individuals. While the right to privacy is not absolute, international human rights law requires that its limitations be legal, justifiable and reasonable 129 . Hence the purpose of this article is to determine the extent to which the South African communications surveillance law conformed to the foregoing. The article finds that the silence of the Regulation of Interception of Communications and Provision of Communication-related Information Act 130 (RICA) on mass surveillance, its weak and ineffective data privacy safeguards, insufficient oversight provisions and law enforcement officials’ impunity render the law invalid for a democratic society. Further, the new personal data law 131 has exempted national security operations from its regulation. As a result, RICA needs to be reformed, as affirmed by the recent verdict of AmaBhunghane Centre for Investigative Journalism NPC v. Minister of Justice and Correctional Services & Others 132 .
{"title":"The Regulatory Dilemma on Mass Communications Surveillance and the Digital Right to Privacy in Africa: The Case of South Africa","authors":"Dorcas Basimanyane","doi":"10.3366/ajicl.2022.0414","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0414","url":null,"abstract":"Behind the cloak of maintaining national security and public order, African governments and the private sector constantly encroach upon the data privacy rights of individuals. The right to privacy is not only protected by various international human rights instruments that African states have voluntarily ratified but has been enshrined in several constitutions. Yet, without proper safeguards, the same states continue to stifle the right through intrusive surveillance methods. They indiscriminately acquire, intercept, transmit, analyse and retain an individual’s data, able to be amassed to generate intimate and detailed profiles of individuals. While the right to privacy is not absolute, international human rights law requires that its limitations be legal, justifiable and reasonable 129 . Hence the purpose of this article is to determine the extent to which the South African communications surveillance law conformed to the foregoing. The article finds that the silence of the Regulation of Interception of Communications and Provision of Communication-related Information Act 130 (RICA) on mass surveillance, its weak and ineffective data privacy safeguards, insufficient oversight provisions and law enforcement officials’ impunity render the law invalid for a democratic society. Further, the new personal data law 131 has exempted national security operations from its regulation. As a result, RICA needs to be reformed, as affirmed by the recent verdict of AmaBhunghane Centre for Investigative Journalism NPC v. Minister of Justice and Correctional Services & Others 132 .","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47552773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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