Southern African Public Law

The Price They Pay for Their Independence: Understanding the Persecution of Judges in Africa as Retribution for Their Impartiality

Justice Alfred Mavedzenge — Thu, 18 Jul 2024 00:00:00 +0000

Various recent research studies suggest that most judiciaries in Africa are captured by the ruling elites and they are being weaponised to persecute political opponents through judicial prosecution. However, not much has been researched and written about the victimisation of courageous judicial officers in Africa who insist on performing their judicial functions impartially and in the process are persecuted as a form of retribution for their impartiality. Much of the existing literature analyses and frames the victimisation of judicial officers as ‘attacks against the independence of the judiciary’ in Africa. While the victimisation of judicial officers as punishment for their impartiality constitutes violation of the principle of the independence of the judiciary, this paper argues that certain forms of victimisation must be understood as persecution of judicial officers. The paper discusses case studies which demonstrate a pattern of persecutory measures undertaken against impartial judges, not just to undermine their independence but to punish them by inflicting upon them and their families as much harm and pain as is possible. Characterising these forms of victimisation as ‘attacks against the independence of judges’ does not adequately capture and depict the seriousness of this problem. It is mischaracterisation of the problem, which may affect the way in which solutions for this problem are designed. The paper identifies and discusses trends of this problem of persecution of judges in Africa. It presents these trends in three categories namely: (a) political persecution; (b) selective application of judicial ethics to persecute certain judges; and (c) the targeting of women judges for their impartiality.

Exploring the Obligations to Complete Insurance Reforms in Lesotho

Mtendeweka Mhango — Thu, 29 Feb 2024 00:00:00 +0000

In 2014, Lesotho reformed the insurance business sector by adopting the Insurance Act 12 of 2014 and repealing the Insurance Act 18 of 1976. These reforms resulted from the government’s recognition that the Insurance Act of 1976 was outdated and not in keeping with modern insurance principles and practices. This state of affairs made it difficult for the government to regulate and supervise insurance companies. However, in 2019, the Revenue Appeals Tribunal (Tribunal) decided an important case that revealed that the executive branch had not fully implemented these reforms through the Central Bank of Lesotho. In the Insurance Act of 2014, the Central Bank of Lesotho is defined as the Commissioner. There are gaps in the Insurance Act of 2014. This article investigates the gap in the insurance legislation identified by the Tribunal and the obligations of the Commissioner to complete the reforms. It argues that the Commissioner is compelled to fill this gap in the law for at least two reasons. First, the Commissioner has national and international legal obligations to define funeral insurance policies and fully implement the insurance reforms. Second, it is submitted that with the advent of the Pension Funds Act 5 of 2019, the need to complete the insurance reforms is even more significant because this will enable pension funds to cost-effectively procure long-term insurance products, such as funeral benefits, for the advantage of their members and their members’ beneficiaries.

Indigenous Knowledge and Indigenous Participation Within South Africa’s Marine Spatial Planning Regulatory Framework

Denning Metuge — Thu, 29 Feb 2024 00:00:00 +0000

In this article the legislative environment within which South African Marine Spatial Planning legislation (MSP) was developed, will be examined. It aims to establish and support the relevance of indigenous knowledge and the role of indigenous knowledge practitioners in the marine spatial planning process from a legal point of view. It reiterates the state’s positive obligation regarding the development of environmental legislation and considers whether the state has met its obligation within the context of MSP legislation, thereby contributing to the correction of injustices of the past. It finds that South Africa’s MSP legislation falls short of the requirement of reasonableness in environmental legislation to the extent that it does not yet incorporate a requirement for the consideration of indigenous knowledge nor the participation of indigenous knowledge practitioners in MSP decision-making processes. This gap in the legislative framework is regrettable as these practitioners primarily belong to indigenous communities that were subject to marginalisation and exclusion in decision-making in the pre-democratic South African era. The author concludes by recommending amendments that may be made with regard to the MSP instruments to ensure that indigenous knowledge is considered and that indigenous knowledge practitioners participate in the MSP decision-making processes for establishing marine area plans.