scholarly journals Editorial introduction to special focus: Assessing the implications of COVID-19 pandemic regulations for human rights and the rule of law in Eastern and Southern Africa

2020 ◽  
Vol 20 (2) ◽  
Author(s):  
Charles Manga Fombad
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Southern Africa ◽  
Editorial Introduction ◽  
Special Focus ◽  
The Rule Of Law ◽  
Eastern And Southern Africa

When Politics Prevail Over the Rule of Law: The Demise of the sadc Tribunal

2021 ◽  
Vol 10 (1) ◽  
pp. 124-154
Author(s):  
Konstantinos D Magliveras ◽  
Gino J Naldi
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Rule Of Law ◽  
Southern Africa ◽  
Land Reform ◽  
Constitutional Court ◽  
High Court ◽  
The Rule Of Law ◽  
Reform Programme ◽  
Southern Africa Development Community

Abstract The article questions whether the Tribunal of the Southern Africa Development Community (sadc) ought to have entertained human rights cases given that the sadc Treaty does not endow it with such jurisdiction. It then analyses its demise in 2010, which was prompted by several rulings against Zimbabwe, whose policy of expropriating land without compensation was held to violate human rights. The pertinent aspects of these cases are reviewed, and the significance of Zimbabwe’s land reform programme is explained. The article elucidates why sadc leaders were prepared to suspend the Tribunal’s operation. This was a combination of alarm that it could evolve into a quasi-regional human rights court but also solidarity with the then President Mugabe, a hero of Africa’s liberation struggle. Finally, the pronouncements of the Constitutional Court of South Africa and the High Court of Tanzania on the lawfulness of the sadc Tribunal’s suspension are considered.

Rule of Law in India

2018 ◽  
Author(s):  
Harish Narasappa
Keyword(s):  
Human Rights ◽  
Dispute Resolution ◽  
Rule Of Law ◽  
Theory And Practice ◽  
The Rule Of Law ◽  
Social Challenges ◽  
Application Of Law ◽  
Primary Element ◽  
The Status ◽  
Dispute Resolution Mechanism

Rule of law is the foundation of modern democracies. It envisages, inter alia, participatory lawmaking, just and certain laws, a bouquet of human rights, certainty and equality in the application of law, accountability to law, an impartial and non-arbitrary government, and an accessible and fair dispute resolution mechanism. This work’s primary goal is to understand and explain the obvious dichotomy that exists between theory and practice in India’s rule of law structure. The book discusses the contours of the rule of law in India, the values and aspirations in its evolution, and its meaning as understood by the various institutions, identifying reason as the primary element in the rule of law mechanism. It later examines the institutional, political, and social challenges to the concepts of equality and certainty, through which it evaluates the status of the rule of law in India.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

Prosecutors and National Security

2021 ◽  
pp. 538-558
Author(s):  
Kent Roach
Keyword(s):  
Human Rights ◽  
National Security ◽  
Rule Of Law ◽  
Ethical Challenges ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
The Third ◽  
Relative Rarity ◽  
The Many ◽  
Operational Aspects

This chapter examines the distinct operational and ethical challenges that prosecutors face in national security and especially terrorism cases. The second part of this chapter focuses on the operational challenges that prosecutors face. These include demands for specialization that may be difficult to fulfill given the relative rarity of national security prosecutions; the availability of special investigative powers not normally available in other criminal cases; exceptionally broad and complex offenses; and the demands of federalism and international cooperation. The third part examines ethical and normative challenges that run throughout the many operational aspects of the prosecutorial role in national security cases. These include the challenges of ensuring that often exceptional national security laws are enforced in a manner consistent with the rule of law and human rights. There are also challenges of maintaining an appropriate balance between legitimate claims of secrecy and legitimate demands for disclosure and between maintaining prosecutorial independence and discretion while recognizing the whole of government and whole of society effects of the many difficult decisions that prosecutors must make in national security cases.

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