The role of Constitutional Courts in Transitional Justice: Colombia and South Africa

2016 ◽  
Vol 9 (15) ◽  
Author(s):  
Nadiehezka Paola Palencia Tejedor
Keyword(s):  
South Africa ◽  
Structural Analysis ◽  
Transitional Justice ◽  
Critical Analysis ◽  
Historical Context ◽  
Constitutional Courts ◽  
Political Background ◽  
Similarities And Differences ◽  
Peace And Reconciliation

This work focuses on a compared analysis of the South Afri- can decision related to the “peace and reconciliation act” of this country’s Parliament, and the Colombian decision regarding the amendment of the constitution called “The juridical framework for the peace.” Turning to the structure, it is developed in three major topics: 1. It provides a brief of the historical context, political background and an overview of the two decisions.2. It gives a structural analysis of the powers that each Court has and the nature of the constitutional mechanism through which both Courts decided the constitutionality of the said norms 3. It presents a critical analysis on the similarities and differences between the two systems and judgments. It presents some con- clusions. 

scholarly journals Critical Analysis of the Oversight Role of the Education Portfolio Committee in Parliament of South Africa

2015 ◽  
Vol 3 (3) ◽  
pp. 72 ◽  
Author(s):  
W. W. Manona
Keyword(s):  
South Africa ◽  
Data Collection ◽  
Critical Analysis ◽  
Good Governance ◽  
Government Expenditure ◽  
Adverse Consequence ◽  
Senior Executives ◽  
Effectiveness And Efficiency ◽  
Ruling Party

There is a prevalent assumption in South Africa that Parliament is guided by the ideals of democracy, accountability, transparency and accessibility. However, there are still gaps and challenges as far as theoversight role of Parliament is concerned, despite the presence of committees that have been established to oversee the executive and relevant structures of government, government activities and public finances. There is widespread maladministration and misuse of government expenditure in government departments. This paper investigates the oversight role of parliamentary committees to determine their relative influence on accountability and democracy in the execution of functions by public functionaries. The aim of the paper is to provide an understanding into inherent problems in the oversight role of Parliament in the democratic dispensation in South Africa, which seems not to have been given serious attention in the academia, considering the pivotal role Parliament plays in the lives of citizens of the country. These oversight committees have selectively held Senior Executives or Ministers accountable for their ineffectiveness, misuse of government expenditure and maladministration. This could be attributed to the fact that oversight in South Africa does not seem to be properly understood and implemented as it should be. Moreover, the influence of the majoritarian authority of the ruling party in committees seems to be colluding with the executive. Failure to take action against cases of omission brings questions on the effectiveness and efficiency of the oversight role of Parliament. The adverse consequence is the delay in the provision of good quality services to poor communities. This paper employed the theoretical approach as a method of data collection. Conclusions have been drawn that the shortcomings of the parliamentary committees compromise accountability and good governance in service delivery.

Creating the Coloured Other in South Africa in Light of the “Jewish Question” in Germany

2020 ◽  
Vol 27 (3-4) ◽  
pp. 202-228
Author(s):  
Handri Walters ◽  
C.S. (Kees) van der Waal
Keyword(s):  
South Africa ◽  
Jewish Question ◽  
New Targets ◽  
Racial Science ◽  
Similarities And Differences

Abstract This article offers a response to Warren Goldstein’s analysis of the racialisation of the “Jewish Question.” By analysing the role of Scripture, Afrikaner nationalism and racial science in the production of apartheid, we argue that the insights shared by Goldstein as related to the “Jewish Question” sparks a fertile reflection on the “Coloured Question” in South Africa. While the outcomes differed, the correlations are to be found in the processes of othering that preceded and accompanied them. We explore the entangled nature of theology, biology, and politics in the racialisation, and subsequent othering, of the coloured category (where resonances with the Jewish example are to be found). By illustrating the similarities and differences between the “Jewish Question” and the “Coloured Question,” what is offered here is a piece to think with as the process of othering finds new targets in an increasingly polarised world.

Introduction

2021 ◽  
pp. 3-30
Author(s):  
Alejandro Linares-Cantillo
Keyword(s):  
Transitional Justice ◽  
Constitutional Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Amendments ◽  
Leading Role ◽  
Comparative Constitutional Law ◽  
The Republic

This introductory chapter provides an overview of the twenty essays compiled for the XIII conference of the Constitutional Court of the Republic of Colombia, which was held in Bogota in January of 2019. The collection is divided into three thematic parts which illustrate five subjects at the spotlight of comparative constitutional law, in light of the growing circulation and intensification of the idea of constitutionalism. The first part examines the evolving and leading role of constitutional courts in constitutional democracies. The second part allows constitutional experiences speak for themselves and discusses tensions and debates in three topics: (A) the growing trend to judicially enforce 'constitutional unamendability' under the doctrine of 'unconstitutional constitutional amendments'; (B) the idea of 'transformative constitutionalism' in the area of social rights enforcement; and (C) the models of transitional justice and their implementation in the Colombian case. Finally, the third part analyses vertical and horizontal movements of constitutional law doctrines and decisions.

The Resilient Constitution

2021 ◽  
pp. 277-309
Author(s):  
David Dyzenhaus ◽  
Alma Diamond
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Extreme Pressure ◽  
The Face ◽  
Justice Process ◽  
The One

This chapter evaluates the so called 'transitional constitution' of South Africa and the 'permanent constitution' of Colombia. Through a comparative approach, it contends that constitutions are better understood in terms of their resilience rather than either being transitional or permanent, and that a 'resilient constitution' is the one capable of springing back even after being subjected to extreme pressure, as long as leaders maintain their commitment to governing within the limits of the law. In this sense, the differences between the Colombian transitional justice and the South African case do not stem primarily from the 'permanence' of its Constitution, but rather from the difficulties and tensions inherent to any transitional justice process, because it derives from some of the very rights it is designed to promote. The chapter then details how the jurisprudence of the Colombian Constitutional Court on transitional matters can be understood as having moved from an understanding of the Constitution as permanent, to one of resilience that does not represent a new power grabbed by the Court. Rather than that, it signals an understanding of the role of the Court in maintaining a constitutional order even in the face of existential threats to it.

scholarly journals The Role of the Courts in Advancing Water Security in South Africa

2021 ◽  
Vol 24 ◽  
pp. 1-35
Author(s):  
Bronwen Qumbu
Keyword(s):  
South Africa ◽  
Critical Analysis ◽  
Water Security ◽  
Case Law ◽  
Legal Framework ◽  
Applicable Law ◽  
Security Issues ◽  
Security Discourse ◽  
Laws And Policies

This article explores the role which courts could play in promoting water security in South Africa. As the country is one of the driest on the continent, its water security issues remain at the forefront of the service delivery conundrum. Therefore, issues of water security often need to be litigated to arrive at a favourable and just outcome. This is where the focus of this article lies. Based on a critical analysis of the legal framework governing water security and relevant case law, the article argues that courts could promote water security by discharging certain duties. Firstly, the courts must uphold the applicable law by weighing the rights and interests that relate to water and must then make reasonable, just and equitable findings. Secondly, the courts must solve water-related disputes between parties by interpreting and applying the applicable laws and policies. It is submitted that by executing these two functions, the courts contribute to a deeper understanding of the water security discourse. Finally, it is argued that through the execution of their traditional judicial functions, courts contribute to the making of law that directly affects water security.

Foreign judges of the Pacific as agents of global constitutionalism

2021 ◽  
Vol 10 (2) ◽  
pp. 351-366
Author(s):  
Anna Dziedzic
Keyword(s):  
Constitutional Law ◽  
Critical Analysis ◽  
Pacific Island ◽  
Constitutional Courts ◽  
Island States ◽  
The Pacific ◽  
Global Constitutionalism ◽  
Pacific Island States ◽  
Citation Practices

AbstractStudies of global constitutionalism have focused on the transnational movement of constitutional law through the citation of foreign judgments. However, little attention has been paid to the movement of constitutional judges themselves. This article considers how the foreign judges who sit on courts of constitutional jurisdiction in Pacific island states can be understood as part of the phenomenon of global constitutionalism. It identifies three ways in which foreign judges can be agents of global constitutionalism: as mechanisms for the diffusion of constitutional ideas, as expressions of global constitutional values and as objects of transnational legal transfer. An empirical analysis comparing the citation practices of local and foreign judges in constitutional cases in nine Pacific states suggests that the use of foreign judges on constitutional courts does contribute to the international movement of constitutional ideas. However, a critical analysis of foreign judges as expressions and objects of global constitutionalism sheds light on a range of tensions in the role of constitutional judges and understandings of global constitutionalism.

scholarly journals Kritik Metode Kontekstualisasi Penafsiran al-Qur’ân Abdullah Saeed

2016 ◽  
Vol 10 (2) ◽  
pp. 465
Author(s):  
Imron Mustofa
Keyword(s):  
Critical Analysis ◽  
Historical Context ◽  
Logical Framework ◽  
Critical Reading ◽  
Critical Attitude ◽  
Islamic Thought ◽  
The World ◽  
Interpretation Process ◽  
Islamic Society

This article examines the growing movement of thought today, which later becomes known as modernist Islamic thought, especially the idea Abdullah Saeed. For him, a critical attitude towards the source and content of knowledge is necessary internal criticism of Islamic society. This study tries to present data relating to the role of reason behind the idea. Critical reading towards logical framework and epistemology is needed to contextualize dogma, tradition, and culture in order to be transformed to the present. This research gives birth to the perspective that the modernization of Islamic thought is a systematic movement regarding Islamic issues in the ever-changing context. Its characteristics is colored by emphasis on rationality free from sectarianism or exclusivism without claiming finality of thinking. Making interconnectivity (historical context) is the main barometer of interpretation process. The article reveals that Saeed’s strategies include four main phases; encounter with the world of the text, critical analysis; meaning for the first recipients and ending with text relating to the up to date context. However, excessive exaltation of contextuality will lead to the emergence of an indigenization of the Qur’an, and even Islam in general.

scholarly journals Building the Rainbow Nation. A critical analysis of the role of architecture in materializing a post-apartheid South African identity

Afrika Focus ◽  
2012 ◽  
Vol 25 (1) ◽  
Author(s):  
Kim Raedt
Keyword(s):  
South Africa ◽  
South African ◽  
Critical Analysis ◽  
Community Services ◽  
African Identity ◽  
Architectural Practice ◽  
The Everyday ◽  
Everyday Reality ◽  
Made In

Soon after apartheid was abolished in 1994, the quest for a new, ‘authentic’ South African identity resulted in the emergence of the "Rainbow Nation" idea, picturing an equal, multicultural and reconciled society. As architecture is considered a crucial element in the promotion of this Rainbow identity, the country witnessed a remarkable "building boom" with its apogee roughly between 1998 and 2010. Huge investments have been made in state-driven projects which place the apartheid memory at the center of the architectural debate – mostly museums and memorials. However, the focus of this paper shall lie on another, less highlighted tendency in current architectural practice. This paper demonstrates that, through the construction of urban community services, South African architects attempt to materialize the Rainbow Nation in a way that might be closer to the everyday reality of society. Key words: architecture, post apartheid, Cape Town, South Africa, identity 

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