The Freedoms of Religion and Culture under the South African Constitution: Do Traditional African Religions Enjoy Equal Treatment?

2008 ◽  
Vol 24 (1) ◽  
pp. 1-20 ◽  
Author(s):  
Jewel Amoah ◽  
Tom Bennett
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Animal Rights ◽  
Cultural Practices ◽  
Modern Human ◽  
African National Congress ◽  
Equal Treatment ◽  
African Culture ◽  
African Religions ◽  
The Sacrifice

On Sunday, January 20, 2007, Tony Yengeni, former Chief Whip of South Africa's governing party, the African National Congress (ANC), celebrated his early release from a four-year prison sentence by slaughtering a bull at his father's house in the Cape Town township of Gugulethu. This time-honored African ritual was performed in order to appease the Yengeni family ancestors. Animal rights activists, however, decried the sacrifice as an act of unnecessary cruelty to the bull, and a public outcry ensued. Leading figures in government circles, including the Minister of Arts and Culture, Pallo Jordan, entered the fray, calling for a proper understanding of African cultural practices. Jody Kollapen, the Chair of the Human Rights Commission, said: “the slaughter of animals by cultures in South Africa was an issue that needed to be dealt with in context. Cultural liberty is an important right. …”That the sacrifice was defended on the ground of African culture was to be expected. More surprising was the way in which everyone involved in the affair ignored what could have been regarded as an event of religious significance. Admittedly, it is far from easy to separate the concepts of religion and culture, and, in certain societies, notably those of pre-colonial Africa, this distinction was unknown. Today in South Africa, however, it is clearly necessary to make such a distinction for human rights litigation, partly because the Constitution specifies religion and culture as two separate rights and partly because it seems that those working under the influence of modern human rights seem to take religion more seriously than culture.

The Paradox of (De)politicisation in a Selected South African Municipality: An Afrocentric Ethical Reflection

Politeia ◽  
2019 ◽  
Vol 38 (2) ◽  
Author(s):  
Kgothatso B. Shai
Keyword(s):  
South Africa ◽  
Local Government ◽  
Rural Areas ◽  
Urban Areas ◽  
Local Governance ◽  
African National Congress ◽  
Limpopo Province ◽  
African Culture ◽  
Government Administration ◽  
Traditional Leadership

South Africa’s local government administration is complex in that both traditional leadership and elected municipal councils play a role in it. Traditional leadership occupies an essential position and status in local government administration, in particular in rural South Africa. However, the contemporary administrative jurisdiction of municipalities cuts across both rural and urban areas. In the rural areas, the conflict over the division of roles between traditional leaders and elected councillors is evident. Due to the influence and dominance of the neo-liberal global order, modernists often accuse traditional leadership of being undemocratic and authoritarian. However, the reality is that elected councils’ administration also leaves much to be desired, and the consequences of their poor administration are not uniformly understood. Since South Africa is a democratic state, it is expected that there should be a clear separation in government institutions between party (i.e., the ruling African National Congress) politics and public administration; a phenomenon that some describe as depoliticisation. Nevertheless, the realities on the ground suggest otherwise. This article, which is based on the theory of Afrocentricity, examines a selected rural municipality (Maruleng) in South Africa’s Limpopo province to critically reflect on the ethics and the value system of African culture in the context of local governance vis-à-vis Westernised governance principles. The aim of this research is achieved through interdisciplinary critical discourse and thematic analysis in its broadest form.

HUMAN RIGHTS AND THE ORIGIN OF MYTHS OF POST-APARTHEID SOUTH AFRICAN FOREIGN POLICY

2020 ◽  
Vol 39 (2) ◽  
Author(s):  
Pablo De Rezende Saturnino Braga
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Foreign Policy ◽  
Cold War ◽  
South African ◽  
World Order ◽  
African National Congress ◽  
Historical Background ◽  
Post Cold War ◽  
Iconic Image

The foreign policy narrative of South Africa is strongly grounded in human rights issues, beginning with the transition from a racial segregation regime to a democracy. The worldwide notoriety of the apartheid South Africa case was one factor that overestimated the expectations of the role the country would play in the world after apartheid. Global circumstances also fostered this perception, due to the optimistic scenario of the post-Cold War world order. The release of Nelson Mandela and the collapse of apartheid became the perfect illustration of the victory of liberal ideas, democracy, and human rights. More than 20 years after the victory of Mandela and the first South African democratic elections, the criticism to the country's foreign policy on human rights is eminently informed by those origin myths, and it generates a variety of analytical distortions. The weight of expectations, coupled with the historical background that led the African National Congress (ANC) to power in South Africa, underestimated the traditional tensions of the relationship between sovereignty and human rights. Post-apartheid South Africa presented an iconic image of a new bastion for the defence of human rights in the post-Cold War world. The legacy of the miraculous transition in South Africa, though, seems to have a deeper influence on the role of the country as a mediator in African crises rather than in a liberal-oriented human rights approach. This is more evident in cases where the African agenda clashes with liberal conceptions of human rights, especially due to the politicisation of the international human rights regime. 

Law and Economic Development in South Africa: An Assessment through the General Theory of Law and Development

2019 ◽  
Vol 12 (2) ◽  
pp. 377-401 ◽  
Author(s):  
T. K. Pooe
Keyword(s):  
South Africa ◽  
Economic Development ◽  
Human Rights ◽  
Social Justice ◽  
General Theory ◽  
Local Governments ◽  
Local Economic Development ◽  
African National Congress ◽  
Law And Development ◽  
Theory Of Law

Abstract The ascension of the African National Congress into formal politics through its electoral victory in 1994 resulted in South Africa adopting one of the world’s most heralded social justice and human rights-based documents, the 1996 Constitution. Yet, two-decades of ANC governance this paper argues has not led to the types of economic development needed to advance the formerly oppressed African majority, Colored and Indian populations. This lackluster economic development is even more troubling when one considers the giant economic development steps Asian developmental states have made, without a human rights and social justice approach. It is the contention of this paper that the newly presented General Theory of Law and Development allows for a new type of analysis exploring the reasons why South Africa’s economic development trajectory has been so lackluster, when so many authorities praise the South African legal framework. In making this argument using the General Theory South Africa’s local governments sphere and local economic development will be the subject of analysis.

Advocating Positive Traditional Culture to Eradicate Harmful Aspects of Traditional Culture for Gender Equality in Africa

Obiter ◽  
2020 ◽  
Vol 41 (1) ◽  
pp. 45-62
Author(s):  
Norah Hashim Msuya
Keyword(s):  
Human Rights ◽  
Gender Equality ◽  
Cultural Practices ◽  
Traditional Culture ◽  
Traditional Practices ◽  
African Culture ◽  
African Countries ◽  
International Human Rights ◽  
International Human ◽  
Harmful Traditional Practices

The struggle for equality for all and the abolition of discriminatory, harmful cultural practices affecting women has been occurring in the world for some time now. Most African countries outlaw harmful, discriminatory traditional practices, although they persist, causing the violation of domestic and international human rights laws. Outside efforts to eliminate these practices are often met with suspicion or hostility from communities, because Africans generally believe that these are their valuable, traditional practices. The aim of this article is to discuss alleviating harmful traditional practices suppressing gender equality in Africa by practically supplementing the law. The study examines African culture versus gender equality historically to pinpoint colonialism’s influence in current gender equality. Colonial administration influenced lives politically, economically and socially, including culture and traditions. Efforts to eradicate harmful traditional practices are most effective when originating from within the culture, as focussing on international human rights is often perceived as culturally imperialistic in African countries.

The Decline, but not Demise, of Multiculturalism

2007 ◽  
Vol 40 (3) ◽  
pp. 763-810 ◽  
Author(s):  
Amnon Rubinstein
Keyword(s):  
Human Rights ◽  
Cultural Practices ◽  
Religious Tradition ◽  
Equal Treatment ◽  
Religious Communities ◽  
Cultural Tradition ◽  
Public Places ◽  
American Law ◽  
The Usa ◽  
The Individual

This article discusses the decline of the multicultural doctrine that has governed Western political philosophy and practice in the last part of the 20thcentury. This decline is felt in the USA as well as in EU countries and manifests itself in new cultural restrictions on immigration policy, in stricter loyalty tests for immigrants who seek naturalization and in statutes regulating behavior in public places (such as the anti-veil acts in Europe) and proscribing deviant acts based on religious tradition (such as the American law criminalizing female genital circumcision). This decline is also accompanied by rethinking the theoretical foundations of the multicultural approach. This rethinking was accelerated by the onset of the Islamist—as distinct from Moslem—crisis, but started before the 9/11 events.The article surveys the state of multiculturalism in a number of Western countries and pays special attention to the cases of the USA, Britain, France, and the Netherlands. The case of Israel is discussed separately because of its unique features as a society plagued by a national conflict. In all these countries the principal issue is how to tolerate intolerant communities, how to treat religious communities whose tenets clash with the democratic and liberal values of the host country and how to balance the rights of the individual against the rights of the cultural group to which that individual belongs.The author challenges the notion that all cultures are entitled to equal treatment and excludes from this ambit cultures that clash with the values of democracy and human rights. The author denies the notion that consent of the sufferer validates such cultural practices and demonstrates this by referring to the former Hindu practice of Seti—burning a widow alive, with her consent. Such consent is irrevocable and is always subject that it was given under social and cultural duress.The main brunt of this article is that the norms of democracy, equality, and human rights are not a culture in the ordinary sense of the word, as they are distinct from all traditional cultures and are the result of an intellectual construct founded upon the autonomy of the individual and on a rejection of traditional culture. This is the reason why these liberal norms should supersede any custom, even when based on cultural tradition, when there is a clash between the two. When there is no such clash, a compromise solution ought to be reached resorting to traditional judicial means of balancing contradictory values.

Conclusion

2020 ◽  
pp. 193-220
Author(s):  
Imraan Coovadia
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Animal Rights ◽  
Old Regime ◽  
Democratic Government ◽  
History Of

The conclusion explores the ways in which, in the transition between the old regime and a democratic government, J.M. Coetzee turned the radical tradition in South Africa and the history of colonialism and decolonization into subjects of his storytelling, and in so doing criticized and reformulated revolutionary thought. The conclusion explores Coetzee’s relationship with Tolstoy, as well as with Gandhi, comparing Tolstoy’s writing on animal butchery with Coetzee’s essays and novels including Age of Iron and Foe. The conclusion also considers the tension between human rights and animal rights in a colonial and postcolonial context, examining the role of dogs in Gandhi’s and Coetzee’s work.

Has it Reinvented Iron Law? South Africa’s Social Industrialisation, not Iron Industrialisation

2018 ◽  
Vol 11 (2) ◽  
pp. 467-511 ◽  
Author(s):  
T. K. Pooe
Keyword(s):  
South Africa ◽  
Economic Development ◽  
Human Rights ◽  
South African ◽  
Large Scale ◽  
Local Economic Development ◽  
African State ◽  
African National Congress ◽  
Action Plans ◽  
Law And Development

Abstract This paper examines whether the current South African legal framework and subsequent policies post-1994 encourage and have emphatically fostered industrialisation in South Africa primarily and Southern Africa more generally. The primary contention of this paper is that the South African State, unlike fellow Southern African States, has a long history with industrialisation and should have laid the foundations for Southern Africa’s large scale industrialisation trajectory. However, the post-1994 government vision for South Africa has never had a Law and Development philosophy that prioritises and fosters industrialisation. Industrial Promotion in Africa, is understood as being concerned with drafting, strategically implementing and investing in industrially minded action plans. Through the prism of Local Economic Development policy and legislation in the Sedibeng region, this paper contends that industrialisation is still a farfetched endeavour despite industrially minded policies like the New Growth Path and the Industrial Policy Action Plans in South Africa. Moreover, South Africa’s industrialisation agenda is compromised by the Law and Development philosophy of the African National Congress led government. At the core of this philosophy is an overestimation of social justice activity like Human Rights promotion at the expense of Asian Developmental States’ non-human rights approach to economic development activity, like industrialisation in rural and township regions of South Africa.

Toward a Progressive Realisation of Socio-economic Rights in Ghana: A Socio-legal Analysis

2017 ◽  
Vol 25 (1) ◽  
pp. 91-113
Author(s):  
Nana Tawiah Okyir
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Social Movements ◽  
Supreme Court ◽  
State Policy ◽  
National Development ◽  
Building Blocks ◽  
Judicial Activism ◽  
Economic Rights ◽  
The Supreme Court

This article argues for the strengthening and entrenchment of socio-economic rights provisions in Ghana's jurisprudence. The purpose of this entrenchment is to engender judicial activism in promoting more creative pathways for enforcing socio-economic rights in Ghana. The article traces the development of socio-economic rights in Ghana's jurisprudence, especially the influence of the requirements of the international rights movement, particularly of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The article delves into the constitutional history of Ghana and its impact on the evolution of rights in the country. Of particular historical emphasis is the emergence of socio-economic rights under the Directive Principles of State Policy in the 1979 Constitution. However, the significance of the socio-economic rights only became profound with the return to democratic rule under the 1992 Constitution, again under a distinct chapter on Directive Principles of State Policy. However, unlike its counterpart, the chapter on the Fundamental Human Rights and Freedoms, which is directly enforceable, the Directive Principles of State Policy were not. It took the Supreme Court of Ghana a series of landmark decisions until finally, in 2008, it arrived at a presumption of justiciability in respect of all of the provisions in the 1992 Constitution. It is evident that prior to this, the Supreme Court was not willing to apply the same standards of adjudication and enforcement as it ordinarily applies in respect of rights under the chapter on Fundamental Human Rights and Freedoms. Having surmounted the non-justiciability hurdle, what is left is for the courts to begin to vigorously pursue an agenda that puts socio-economic rights at the centre of Ghana's rights adjudication framework. The article draws on comparative experiences from India and South Africa to showcase the extent of judicial creativity in rights adjudication. In India, the courts have been able to work around provisions restricting the enforcement of Directive Principles by often connecting them to Fundamental Freedoms. In South Africa, there is no hierarchy between civil and political rights on the one hand and socio-economic rights on the other; for that reason, the courts give equal ventilation to both sets of rights. The article further analyses these examples in the light of ongoing constitutional reforms in Ghana. It argues that these reforms fall short of the activism required to propel socio-economic rights adjudication to the forefront in Ghana's jurisprudence. In this regard, the article proposes social movements as a viable tool for socio-economic rights advocacy by recounting its success in previous controversial issues in Ghana. The article also connects this to other important building blocks like building socio-economic rights into a national development blueprint. Overall, the article calls for an imaginative socio-economic rights enforcement approach that is predicated on legislation, judicial activism, social movements and a national development blueprint aimed at delivering a qualitative life for the Ghanaian.

Humanitarianism, Human Rights and Biopolitics in the British Empire, 1890–1902

2016 ◽  
Vol 9 (1) ◽  
pp. 96-115 ◽  
Author(s):  
Anna Clark
Keyword(s):  
South Africa ◽  
Nineteenth Century ◽  
Human Rights ◽  
British Empire ◽  
Concentration Camps ◽  
Boer War ◽  
Personal Rights

The 1890s were a key time for debates about imperial humanitarianism and human rights in India and South Africa. This article first argues that claims of humanitarianism can be understood as biopolitics when they involved the management and disciplining of populations. This article examines the historiography that analyses British efforts to contain the Bombay plague in 1897 and the Boer War concentration camps as forms of discipline extending control over colonized subjects. Secondly, human rights language could be used to oppose biopolitical management. While scholars have criticized liberal human rights language for its universalism, this article argues that nineteenth-century liberals did not believe that rights were universal; they had to be earned. It was radical activists who drew on notions of universal rights to oppose imperial intervention and criticize the camps in India and South Africa. These activists included two groups: the Personal Rights Association and the Humanitarian League; and the individuals Josephine Butler, Sol Plaatje, Narayan Meghaji Lokhande, and Bal Gandadhar Tilak. However, these critics also debated amongst themselves how far human rights should extend.

A Call for Public Participation in the Treaty-making Process in South Africa: What can South Africa Learn from the Kingdom of Thailand?

2020 ◽  
Vol 53 (1) ◽  
Author(s):  
Retselisitsoe Phooko
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Public Participation ◽  
International Treaty ◽  
Legal Implications ◽  
Future Situation ◽  
Rules Of Procedure ◽  
The Republic ◽  
The Government ◽  
Personal Jurisdiction

On 2 August 2002 South Africa signed the Southern African Development Community (SADC) Protocol on Tribunal and the Rules of Procedure Thereof, thus effectively recognising and accepting the jurisdiction of the SADC Tribunal. Among the cases received by the SADC Tribunal was a complaint involving allegations of human rights violations by the government of Zimbabwe. It ruled that the government of Zimbabwe had violated human rights. Consequently, Zimbabwe mounted a politico-legal challenge against the existence of the Tribunal. This resulted in the review of the role and functions of the Tribunal in 2011 which resulted in the Tribunal being barred from receiving new cases or proceeding with the cases that were already before it. Furthermore, on 18 August 2014, the SADC Summit adopted and signed the 2014 Protocol on the Tribunal in the SADC which disturbingly limits personal jurisdiction by denying individual access to the envisaged Tribunal, thus reducing it to an inter-state judicial forum. This article critically looks at the decision of 18 August 2014, specifically the legal implications of the Republic of South Africa’s signing of the 2014 Protocol outside the permissible procedure contained in article 37 of the SADC Protocol on the Tribunal. It proposes that South Africa should correct this democratic deficit by introducing public participation in treaty-making processes in order to prevent a future situation where the executive unilaterally withdraws from an international treaty that is meant to protect human rights at a regional level. To achieve this, this article makes a comparative study between South Africa and the Kingdom of Thailand to learn of any best practices from the latter.

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