tag:theconversation.com,2011:/ca/topics/rule-of-law-14955/articlesRule of law – The Conversation2024-03-25T15:10:00Ztag:theconversation.com,2011:article/2262012024-03-25T15:10:00Z2024-03-25T15:10:00ZSenegal: Macky Sall’s reputation is dented, but the former president did a lot at home and abroad<p><a href="https://www.britannica.com/biography/Macky-Sall">Macky Sall</a>’s legacy as Senegal’s president since 2012 became more complex in his last year in office. The year was so filled with transgressions that they appeared to have tarnished his reputation indelibly. </p>
<p>For some months he gave the impression to his adversaries and critics that he had <a href="https://www.emerald.com/insight/content/doi/10.1108/OXAN-DB278700/full/html">third-term ambitions</a> – not uncommon in contemporary west African politics. </p>
<p>A public outcry followed his <a href="https://www.aljazeera.com/news/2024/2/3/senegals-macky-sall-postpones-presidential-election">decision</a> on 3 February 2024 to postpone the polls that had originally been scheduled for three weeks later. Then his deputies in the national assembly <a href="https://www.aljazeera.com/news/2024/2/6/senegal-parliament-delays-election-to-december-15-after-chaotic-vote">voted unanimously</a> to postpone the elections and prolong Sall’s term in office until December. </p>
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<a href="https://theconversation.com/macky-sall-throws-senegals-democratic-credentials-into-doubt-222923">Macky Sall throws Senegal's democratic credentials into doubt</a>
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<p>On 6 March, the country’s Constitutional Council <a href="https://www.france24.com/en/tv-shows/eye-on-africa/20240215-senegal-constitutional-council-rules-election-delay-unlawful">ruled</a> that the delay was unconstitutional and that the elections would have to be held before 6 April <strong>before April 2 rather</strong>, when Sall’s presidential term expires. </p>
<p>In compliance, Sall slated Senegal’s election for <a href="https://www.bbc.com/news/world-africa-68497489">24 March</a>. With that decision, the danger of an authoritarian drift in Senegal appears to have been averted. </p>
<p>The time has therefore come for a more reasoned evaluation of his eight years in office.</p>
<p>I’ve been an <a href="https://theconversation.com/profiles/douglas-yates-1462326">observer</a> of Senegalese politics since the late 1990s, doing democracy building for the US Information Agency’s Africa Regional Bureau, teaching African politics to graduate students in Paris, and commenting in the media on developments in Senegalese politics. </p>
<p>Based on my experience, I would argue that Sall’s presidential terms have made some economic, domestic and international achievements worth remembering now, in these days of suspense and doubt. </p>
<p>In my view the legacy of <a href="https://www.presidence.sn/en/presidency/biography">Macky Sall</a> has been saved. Or at least that is how it appears.</p>
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Read more:
<a href="https://theconversation.com/2024-senegal-election-crisis-points-to-deeper-issues-with-macky-sall-and-his-preferred-successor-223035">2024 Senegal election crisis points to deeper issues with Macky Sall and his preferred successor</a>
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<h2>What he leaves behind</h2>
<p>Among his presidential legacies are major infrastructure projects, including airports, a better rail system and industrial parks. </p>
<p>Senegal’s airports were in a deplorable condition when he came to office. The country had 20 airports, but only nine had paved runways. In their poor state, these airports did not attract the major international business flyers who could set up businesses and hire the country’s educated workforce or collaborate with its innovative entrepreneurs.</p>
<p><a href="https://www.nrv-norvia.com/en/projects/blaise-diagne-international-airport">Blaise Diagne International Airport</a>, named after the first black African elected to France’s parliament in 1914, opened in December 2017. The project, which was started in 2007 by his predecessor, Abdoulaye Wade, was completed by Sall. </p>
<p>Located near the capital, Dakar, with easy access via a modern freeway, it has boosted passenger mobility and freight transport. The national airline, <a href="https://flyairsenegal.com/en/home/">Air Senegal</a>, is based here. It reaches more than 20 destinations in 18 countries. </p>
<p>Sall also built the country’s first regional express train, the <a href="https://www.railway-technology.com/projects/dakar-regional-express-train/">Train Express Regional</a>, an airport rail link that connects Dakar with a major new industrial park (also built during Sall’s tenure) and the Blaise Diagne International Airport. </p>
<p>Sall also strengthened the regional airport hubs of the country. He spearheaded the <a href="https://www.transcon.sn/en/project-intro/project-objectives">reconstruction</a> of five regional airports within Senegal. </p>
<p>The Diamniadio Industrial Park, 30km east of Dakar, financed by loans from Eximbank China, was completed in 2023. The park is a flagship industrial project of Sall’s industrialisation strategy for Senegal. </p>
<p>The new park is positioned at the heart of a network of special economic zones, including Diass, Bargny, Sendou and Ndayane. </p>
<p>Enterprises from multiple fields, including pharmaceuticals, electronic appliances and textiles, are setting up offices in the park, which is expected to manufacture high-quality products that meet local needs. </p>
<p>The airports, trains and industrial parks are expected by Sall’s supporters to make a real contribution to Senegal’s transformation from post-colonial peanut exporter to import-substitution manufacturing hub.</p>
<p>In my view, what Sall leaves behind is substantial, particularly when compared with the highly <a href="https://www.npr.org/2010/01/05/122220923/for-many-in-senegal-statue-is-a-monumental-failure">controversial African Renaissance Monument</a> of his predecessor Abdoulaye Wade. The 171-foot-tall bronze statue located on top of a hill towering over Dakar, built by a North Korean firm, has contributed little or no value to the country’s economy.</p>
<p>Sall has also made some contributions to Senegal’s reputation abroad, positioning himself as a respected and influential player on the international stage. As president of the regional economic body Ecowas in <a href="https://www.presidence.sn/en/newsroom/senegals-place-in-ecowas_1122">2015-2016</a>, he made improving economic integration the focus of his term. </p>
<p>He also worked to build closer relations with other international organisations, including the G7, G20 and the African Union. While chairman of the AU from 2022 to 2023 he <a href="https://www.forbesafrica.com/opinion/op-ed/2023/07/30/african-union-must-be-in-the-g20/">lobbied</a> for inclusion of the African Union in the G20, complaining that South Africa was the continent’s only member of any economic forum of international importance. </p>
<p>In his <a href="https://au.int/en/pressreleases/20220920/77th-session-united-nations-general-assembly-address-he-macky-sall">address</a> to the United Nations General Assembly, he championed the cause of the continent. There was no excuse, he said, for failing to ensure consistent African representation in the world’s key decision-making bodies. </p>
<p>He emphasised the importance of increased funding from developed countries for climate adaptation initiatives in developing countries, particularly those in Africa.</p>
<p>Sall’s management of the <a href="https://www.who.int/health-topics/coronavirus#tab=tab_1">COVID crisis</a>, which reached Senegal in March 2020, was his first major test of leadership. Despite its limited resources, Senegal <a href="https://www.devex.com/news/how-senegal-has-set-the-standard-on-covid-19-98266">outperformed</a> many wealthier countries in its COVID pandemic response, thanks to Sall’s leadership.</p>
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Read more:
<a href="https://theconversation.com/senegals-internet-shutdowns-are-another-sign-of-a-democracy-in-peril-207443">Senegal's internet shutdowns are another sign of a democracy in peril</a>
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<h2>Contribution to Senegal’s democratic tradition</h2>
<p>His important legacy will be his participation in the democratic tradition of Senegal. </p>
<p>Firstly, he took on Abdoulaye Wade’s dynastic ambitions to name his son Karim Wade as the heir apparent. Sall then went on to <a href="https://www.lemonde.fr/en/le-monde-africa/article/2024/02/23/senegalese-president-macky-sall-promises-to-step-down-but-does-not-set-election-date_6551927_124.html">respect</a> his two-term limit on the presidency. This means he will soon hand power over to a successor, maintaining a unique and <a href="https://2012-2017.usaid.gov/senegal/newsroom/fact-sheets/senegal-democracy-and-governance-fact-sheet">uninterrupted tradition</a> of power transition in one of west Africa’s most stable democracies. </p>
<p>It hasn’t all been plain sailing. In recent years, the temptation of power seemed to have overwhelmed Sall. He started giving out <a href="https://www.africaintelligence.com/west-africa/2023/03/02/paris-and-washington-fret-over-macky-sall-s-third-term-ambitions,109919519-eve">troubling signs</a> of his desire to remain in office beyond his constitutional mandate.</p>
<p>Then, after testing the waters and finding public opinion was strongly opposed to his violating the limits that he himself had imposed while in the opposition to his predecessor, he <a href="https://www.bbc.com/news/world-africa-66093983">declined</a> to present himself for elections. Instead, he endorsed the candidacy of his <a href="https://www.rfi.fr/en/africa/20231222-senegalese-pm-amadou-ba-named-as-ruling-party-s-presidential-candidate">then-prime minister Amadou Ba</a>. </p>
<p>But this was followed by a series of arrests of his most vocal opponents, in particular the popular social media celebrity <a href="https://www.bbc.com/news/world-africa-68562465">Ousmane Sonko</a>. </p>
<p>More than <a href="https://www.google.com/search?q=How+many+dead+in+Senegal+protests&rlz=1C1ONGR_frFR949FR949&oq=How+many+dead+in+Senegal+protests&gs_lcrp=EgZjaHJvbWUyBggAEEUYOTIHCAEQIRigATIHCAIQIRigAdIBCDQzNDJqMGo3qAIAsAIA&sourceid=chrome&ie=UTF-8">350 protestors</a> were arrested during demonstrations in March 2021 and June 2023. At least 23 died. </p>
<p>Then came his last-minute presidential decree <a href="https://www.lemonde.fr/en/le-monde-africa/article/2024/02/05/senegal-president-macky-sall-postpones-election-and-his-departure-from-the-presidency_6494443_124.html">postponing</a> the election earlier scheduled for 25 February. </p>
<p>This was followed by <a href="https://www.lemonde.fr/en/le-monde-africa/article/2024/02/10/senegal-student-killed-in-protest-against-election-postponement_6510579_124.html">democracy protests</a> and by violent police repression of urban protests, which resulted in civilian deaths. </p>
<p>After protests, Sall made another extraordinary about-turn. He <a href="https://www.aa.com.tr/en/africa/senegals-president-pledges-to-comply-with-constitutional-councils-ruling-hold-presidential-poll-soon/3139996#">announced</a> that he would respect the Constitutional Court decision, which denied him the right to prolong his presidential mandate and required that elections be held before 6 April. </p>
<p>In doing so he preserved the system of checks and balances in Senegal. In addition, his decision to <a href="https://www.france24.com/en/africa/20240315-senegal-s-top-opposition-leaders-sonko-faye-released-from-prison-says-lawyer">release</a> Sonko and his other opponents from prison and grant them amnesty has preserved the space for democratic opposition and civil liberties.</p>
<p>Sall’s legacy as a voice of Africa may offer him a lateral promotion from the presidency of Senegal to the seat of some international organisation.</p><img src="https://counter.theconversation.com/content/226201/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Douglas Yates does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With the conduct of the 24 March elections, Senegal’s President Macky Sall appears to have saved his legacy.Douglas Yates, Professor of Political Science , American Graduate School in Paris (AGS)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2248882024-03-01T18:33:43Z2024-03-01T18:33:43ZGhana’s new anti-homosexuality bill violates everyone’s rights, not just LGBTIQ+ people - expert<p>Ghana’s new <a href="https://edition.cnn.com/2024/02/28/africa/ghana-passes-anti-homosexuality-bill-intl/index.html">anti-homosexuality bill</a> infringes several rights and freedoms, not only of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) people but of heterosexuals too. The bill has been in the works since 2021 when it was tabled in parliament as a <a href="https://www.graphic.com.gh/features/opinion/private-member-s-bill-key-to-parliamentary-effectiveness.html">private member’s bill</a>.</p>
<p>The objective of the <a href="https://cdn.modernghana.com/files/722202192224-0h830n4ayt-lgbt-bill.pdf">Human Sexual Rights and Family Values Bill</a> is</p>
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<p>to provide for human sexual rights and family values and for related matters.</p>
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<p>At the heart of the contention about the proposed law is the question of discrimination, its purpose and its effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.</p>
<p>The title of the bill, obviously, is ironic because the law rather sets out to deny the right to sexuality and related rights to LGBTIQ+ people and to criminalise their actions. The key action which is criminalised is consensual sexual relations between two homosexual adults.</p>
<p>The bill defines such practices, linking them to similar provisions in the <a href="https://ir.parliament.gh/bitstream/handle/123456789/2433/ACT%2030.pdf?sequence=1&isAllowed=y">Criminal and Other Offences Act of Ghana</a>. Interestingly, it also criminalises and denies other acts, such as oral sex, which heterosexual couples also do to homosexuals and lesbians. The LGBTIQ+ community is also prohibited from marriage and from adopting or fostering.</p>
<p>If the president signs the legislation, Ghana will join <a href="http://www.globalequality.org/component/content/article/166">36 African countries</a> where homosexuality is illegal. It’s punishable by death in <a href="https://www.fairplanet.org/story/death-penalty-homosexualty-illegal/">some countries </a>, including Nigeria and Mauritania. So, Africa remains a tough place for LGBTIQ+ people. But there has been some progress in countries like South Africa and <a href="https://healthpolicy-watch.news/mauritius-supreme-court-throws-out-colonial-anti-gay-law/">Mauritius </a> where colonial era laws have been repealed.</p>
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Read more:
<a href="https://theconversation.com/mauritius-is-the-latest-nation-to-decriminalise-same-sex-relations-in-a-divided-continent-215270">Mauritius is the latest nation to decriminalise same-sex relations in a divided continent</a>
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<p>As a scholar of international human rights law, I believe this bill will infringe the right to privacy, right to health, freedom of association and expression, and press freedom. It will also impinge on the rights of teachers, lecturers, civil society activists and citizens who share content on social media platforms that the bill deems illegal. </p>
<h2>Compromising key freedoms</h2>
<p>The bill’s criminalisation of consensual sexual relations between two homosexual adults and imposition of sentence of three years on violators of that provision of the law is prohibitive and disproportionate. The practice should not be criminalised, but if at all, violation should at best attract a non-custodial sentence, for example a fine or community work. The LGBTIQ+ community has the right to be treated with dignity. The fact that someone is gay should not lead to a loss of his/her humanity.</p>
<p>Moreover, since the only way the criminalisation of consensual sex can be enforced is by “peeking through the window”, this will infringe on the right to privacy.</p>
<p>There has been many instances where members of the LGBTIQ+ community, and even those who the society consider as such but are not, have been <a href="https://www.theguardian.com/global-development/2021/jul/13/arrested-abused-and-accused-wave-of-repression-targets-lgbt-ghanaians">arrested </a>and subjected to acts of molestation, abuse, torture and <a href="https://www.hrw.org/news/2021/09/20/ghana-lgbt-activists-face-hardships-after-detention">other forms of violence</a> and <a href="https://www.losangelesblade.com/2024/02/05/man-in-ghana-assaulted-for-being-gay/">extrajudicial measures</a> which constitute a violation of their right to dignity. Some are even killed. The vigilante groups that effect these arrests also have the habit of extorting money from the alleged perpetrators of LGBTIQ+ practices. Where the “suspects” end up at the police station, the police have also resorted to extortion of large sums of money from the suspects before letting them go. </p>
<p>The law seeks to avert such occurrences by imposing a term of imprisonment of between six months to three years for anyone who harasses someone accused of being LGBTIQ+. However, this is a feeble attempt by the sponsors of the bill to appease or assure the LGBTIQ+ community. </p>
<p>The forced disbandment of LGBTIQ+ associations in Ghana, will constitute a violation of the right to freedom of association and freedom of expression, among others. It has been abused in a number of instances and is likely to be further abused even more. The provision that seeks to make owners of digital platforms or physical premises in which LGBTIQ+ groups organise guilty of promoting LGBTIQ+ activities violates the right to freedom of association and expression, among others. </p>
<p>Also, the provision on imposing harsh sentences on teachers and other educators who talk about LGBTIQ+ in the classroom is likely to infringe on the right to academic freedom and the right to education. Further, the imposition of six to 10 years of imprisonment for anyone who produces, procures, or distributes material deemed to be promoting LGBTIQ+ activities is likely to lead to the abuse of the right to freedom of expression, information and education and even press freedom. The same goes with the provision on criminalising the “public show of romantic relations” between people of the same sex, even including cross-dressing.</p>
<p>What is important to also note is that the law is not made to restrict or violate the rights of the LGBTIQ+ community only. Teachers, lecturers, media personnel and civil society activists, people who share content over social media platforms, or broadcast content on LGBTIQ+ are also going to be held criminally responsible.</p>
<h2>Presidential or constitutional challenge</h2>
<p>I propose that President Nana Akufo-Addo should not assent to the law as it is, relying on <a href="https://lawsghana.com/constitution/Republic/constitution_content/113">article 108</a> of the 1992 Constitution since, being a private members bill, it has likely financial implications for the state. Thus, relying on <a href="https://www.hrw.org/news/2021/09/20/ghana-lgbt-activists-face-hardships-after-detention">article 106</a>, he can refer the bill to his highest advisory body (<a href="https://cos.gov.gh/">Council of State</a>) for its advice. Otherwise, he has the power to state in a memo to the Speaker of Parliament any specific provisions of the bill which in his opinion should be reconsidered by Parliament. </p>
<p>If he does not, the matter can be taken to a Human Rights Court by a citizen, relying on <a href="https://lawsghana.com/constitution/Republic/constitution_content/38#:%7E:text=(5)%20The%20rights%2C%20duties,freedom%20and%20dignity%20of%20man.">article 33(5)</a>of the Constitution, which provides that “the rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.” </p>
<p>The other option is to go straight to the Supreme Court to challenge the constitutionality of the bill.</p><img src="https://counter.theconversation.com/content/224888/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kwadwo Appiagyei-Atua does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ghana’s anti-gay bill will affect heterosexual’s tooKwadwo Appiagyei-Atua, Associate Professor of Law, University of GhanaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2243862024-02-28T07:29:57Z2024-02-28T07:29:57ZIt took 16 years but South Africa has impeached a senior judge – who is John Hlophe and what went wrong?<p><em>Former Western Cape judge president John Mandlakayise Hlophe has become one of the first two members of South Africa’s judiciary to be impeached since the country became a constitutional democracy in 1994. A <a href="https://www.parliament.gov.za/press-releases/media-release-national-assembly-adopts-reports-recommending-removal-judges-hlophe-and-motata">vote in parliament</a> in late February 2024 stripped him of his title and barred him from accessing his retirement package. Judges can earn as much as R2 million (over US$100,000) a year in retirement. Narnia Bohler-Muller, a constitutional law expert, answers some questions about the impeachment.</em></p>
<h2>What were the high and low moments of his career?</h2>
<p>Hlophe was the first black judge appointed to the bench <a href="https://www.gov.za/sites/default/files/gcis_documents/BIOGRAPHY%20-%20Judge%20President%20Hlophe-1.pdf">in 1995</a> and also the first who came from an academic background. A mere five years later, in 2000, he became the judge president of the Western Cape High Court. </p>
<p>Hlophe has been both brilliant and controversial – on and off the bench.</p>
<p>The low points included these:</p>
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<li><p>On his appointment as judge president he was also appointed as <a href="https://www.judgesmatter.co.za/conduct/hlophe-tribunal-2008-2019/">a non-executive director of Oasis’s Crescent Retirement Fund</a>, receiving about R500,000 (US$26,000) in consultancy fees, which he did not initially declare to the South African Revenue Service or the justice minister.</p></li>
<li><p><a href="https://www.saflii.org/za/cases/ZASCA/2004/122.html">In 2004</a>, the Supreme Court of Appeal overturned his judgment in favour of the then minister of health after finding that Hlophe had denied pharmaceutical companies the right to a fair hearing by <a href="https://groundup.org.za/article/judge-hlophe-fails-explain-why-judgments-are-extremely-late/">unreasonably delaying</a> his decision on their appeal application. </p></li>
<li><p>In February 2005 Hlophe handed the then justice minister a report <a href="https://www.gcbsa.co.za/law-journals/2005/april/2005-april-vol018-no1-pp24-25.pdf">on alleged racism</a> in the Cape Provincial Division. This document set out a range of allegations against colleagues. He also <a href="https://legalbrief.co.za/story/langa-serving-political-forces-hlophe/">accused</a> the late former chief justice Pius Langa of following a political agenda, and former chief justice Mogoeng Mogoeng of being an <a href="https://www.dailymaverick.co.za/article/2020-07-07-in-unprecedented-counterattack-hlophe-blames-mogoengs-decision-to-send-him-to-misconduct-tribunal-on-anti-muslim-bias/">Islamophobe</a> and a liar. </p></li>
<li><p>In 2007 Hlophe asked government to buy him <a href="https://www.iol.co.za/news/south-africa/from-merc-to-porsche-hlophe-wants-a-new-car-379203">a Porsche</a> in keeping with his status. Judges in South Africa drive Mercedes-Benz cars. A Porsche would have been more expensive and extravagant. </p></li>
<li><p>In <a href="https://www.saflii.org/za/cases/ZAGPHC/2008/289.html">2008</a> the judges of the Constitutional Court filed a complaint of judicial misconduct against Hlophe on the grounds that he had sought to influence the outcome of a matter relating to then deputy president Jacob Zuma’s corruption charges. This was to prove to be the final straw that ended Hlophe’s career.</p></li>
<li><p>In <a href="https://www.judgesmatter.co.za/conduct/hlophe-tribunal-2008-2019/">April 2021</a> the Judicial Conduct Tribunal found Hlophe guilty of gross misconduct. The decision was confirmed by the Judicial Service Commission, which recommended that parliament impeach and ultimately remove him from the bench as per section 177 of the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>. </p></li>
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<p>The process was protracted because Hlophe used what is known as <a href="https://theconversation.com/south-africas-court-system-has-been-abused-by-powerful-people-five-ways-to-stop-it-213586">Stalingrad tactics</a> – wearing down the plaintiff by challenging every aspect of the process and appealing every judgment made.</p>
<p>He used this approach again after the tribunal decision. He challenged both the decision and the process, taking matters to court repeatedly. The case was <a href="https://www.saflii.org/za/cases/ZASCA/2009/36.html">dismissed</a>. The tribunal took 13 years to come to a conclusion – only then did he appeal the decision. Hlophe then lodged an application with the Supreme Court of Appeal but that <a href="https://www.saflii.org/za/cases/ZASCA/2009/36.html">failed</a>.</p>
<p>In July 2022, the Judicial Service Commission recommended that parliament suspend Hlophe. The president did so five months later, <a href="https://www.gov.za/news/media-statements/president-ramaphosa-cyril-suspends-judge-president-hlophe-western-cape#:%7E:text=President%20Cyril%20Ramaphosa%20has%20on,section%20177%20of%20the%20Constitution.">suspending Hlophe</a> from his duties with immediate effect, pending a decision of the National Assembly on his impeachment. Parliament then proceeded with the impeachment vote.</p>
<h2>Why was he impeached and what are the consequences?</h2>
<p>It’s a significant moment after 16 years of waiting.</p>
<p>As far back as 2008 Hlophe proved himself unfit for office. Judges must be beyond reproach and what Hlophe did was unconscionable for a judge president. The oath of office of judges in chapter 17 of the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> requires them to</p>
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<p>administer justice to all persons alike without fear, favour or prejudice, in accordance with the constitution and the law of the republic.</p>
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<p>Hlophe clearly broke his oath of office, going as far as trying to unduly influence fellow members of the judiciary to act unethically. What he did was dishonest. Such conduct can lead to public mistrust in the justice system, and weakens the capacity of judicial systems to guarantee the protection of human rights. </p>
<p>Research done by the Human Sciences Research Council on <a href="https://theconversation.com/suspension-of-two-south-african-judges-has-opened-up-debates-about-bad-working-conditions-and-poor-delivery-of-justice-212021">South African social attitudes</a> shows decreasing trust in the courts from 1998 to 2022. Trust has dropped from a high of 58% in 2004 to 31% in 2022, the lowest it has been. This poses a further risk to South Africans’ hard-earned democratic gains, as trust in the other two spheres of government – legislative and executive – is even lower. </p>
<h2>Never again?</h2>
<p>The Judicial Service Commission recently adopted criteria for assessing and nominating candidates for appointments to the bench. However, it has been <a href="https://www.freedomunderlaw.org/2023/12/07/freedom-under-law-v-jsc-and-others/">challenged</a> for not applying those criteria in a recent round of interviews. </p>
<p>An applicant’s recommended appointment by the commission should send a message to South Africans that they are safe in the hands of the judiciary. </p>
<p>One can only hope that the criteria and guidelines keep unfit candidates off the bench and ensure that the appointment process is not hijacked for political purposes. </p>
<p>In addition, if the commission provides clear reasons for its decisions, that would help to strengthen its authority, and might prevent frivolous, unfounded and protracted legal challenges.</p>
<p>Hlophe broke trust with the judiciary and the public. His impeachment sets an example to other members of the judiciary who may feel tempted to abuse their power.</p><img src="https://counter.theconversation.com/content/224386/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Narnia Bohler-Muller receives funding from numerous governmental and no-governmental funders for HSRC research projects.</span></em></p>John Hlophe’s impeachment sets an example to other members of the judiciary who may feel tempted to abuse their power.Narnia Bohler-Muller, Divisional Executive, Developmental, Capable and Ethical State research division, Human Sciences Research CouncilLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2238402024-02-22T17:42:08Z2024-02-22T17:42:08ZTrump is no Navalny, and prosecution in a democracy is a lot different than persecution in Putin’s Russia<figure><img src="https://images.theconversation.com/files/577170/original/file-20240221-28-m21taj.jpeg?ixlib=rb-1.1.0&rect=39%2C23%2C5258%2C3510&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A memorial to Russian opposition leader Alexei Navalny laid in Saint Petersburg on February 16, 2024. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/flowers-lay-next-to-a-picture-of-late-russian-opposition-news-photo/2008317893?adppopup=true">Olga Maltseva/AFP via Getty Images</a></span></figcaption></figure><p>The <a href="https://www.reuters.com/world/europe/alexei-navalnys-death-what-do-we-know-2024-02-18/">death of Russian dissident Alexei Navalny</a>, announced on Feb. 16, 2024, lays bare to the world the costs of political persecutions. Although his cause of death remains unknown, the 47-year-old died while serving a 19-year sentence in a Siberian penal colony.</p>
<p>“Three days ago, Vladimir Putin killed my husband,” <a href="https://youtu.be/wx3vHdFRvMo?si=nnodKFrIZSmX7M_0">said Navalny’s widow, Yulia Navalnaya</a>, in a Feb. 19 video. </p>
<p>As an <a href="https://www.npr.org/2024/02/16/1231980139/alexei-navalny-who-was-he">anti-corruption activist</a> turned opposition leader, Navalny shone a light on the brutal excesses of President Putin’s regime. Like Navalny, Putin’s political opponents are routinely subjected to sham investigations, detained without due process and often die under suspicious circumstances. Navalny <a href="https://www.theguardian.com/world/2024/feb/16/chemical-burns-poisoning-prison-alexei-navalny-persecution">survived poisoning in 2020</a>.</p>
<p>Not a week since the death and former President Donald Trump already compared himself <a href="https://truthsocial.com/@realDonaldTrump/posts/111958285847100029">favorably to Navalny</a>. “The sudden death of Alexei Navalny has made me more and more aware of what is happening in our Country,” Trump wrote on social media. Prosecutors, the courts and his political opponents, including President Joe Biden, were “leading us down a path to destruction” in “slow, steady progression.”</p>
<p>Facing four criminal indictments encompassing 91 felony counts, Trump has often declared that he is the victim of <a href="https://thehill.com/homenews/campaign/4136508-trump-after-jan-6-arraignment-if-you-cant-beat-him-you-persecute-him/">political persecution</a>. His Republican <a href="https://www.foxnews.com/media/laura-ingraham-trump-america-real-political-prisoner">allies in media</a> <a href="https://thehill.com/homenews/house/4477525-navalny-death-underlines-gop-divisions-in-trump-era/">and government</a> parrot this refrain. </p>
<p>Is there merit to Trump’s claim that the U.S. legal system is little more than the puppet of Putin-like machinations, in which courts are hijacked to knock out political rivals? </p>
<p>I am a scholar who studies the <a href="https://theconversation.com/prosecuting-trump-would-inevitably-be-political-and-other-countries-have-had-mixed-success-in-holding-ex-presidents-accountable-174648">prosecutions of political leaders globally</a>. It is true that such prosecutions have become <a href="https://theconversation.com/prosecuting-a-president-is-divisive-and-sometimes-destabilizing-heres-why-many-countries-do-it-anyway-188565">increasingly common</a> in the past two decades. Often, distinguishing good faith proceedings from bad faith “witch hunts” is not a fact-based exercise, especially for the targets of investigations and among their supporters. </p>
<p>But the law and evidence help to elucidate some themes that lead any reasonable observer to categorically differentiate Navalny – and other victims of bona fide maltreatment – from Trump.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/577173/original/file-20240221-26-9vysi6.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A screenshot of a social media post by Donald Trump that says in part, 'The sudden death of Alexei Navalny has made me more and more aware of what is happening in our Country.'" src="https://images.theconversation.com/files/577173/original/file-20240221-26-9vysi6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/577173/original/file-20240221-26-9vysi6.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/577173/original/file-20240221-26-9vysi6.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/577173/original/file-20240221-26-9vysi6.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/577173/original/file-20240221-26-9vysi6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/577173/original/file-20240221-26-9vysi6.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/577173/original/file-20240221-26-9vysi6.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">After Alexei Navalny’s death, Trump compared his situation being prosecuted with the fate of Navalny.</span>
<span class="attribution"><a class="source" href="https://truthsocial.com/@realDonaldTrump/posts/111958285847100029">Screenshot Truth Social</a></span>
</figcaption>
</figure>
<h2>Insulating justice</h2>
<p>Legitimate prosecutions involve the rule of law applied, without fear or favor, to alleged violators of statutes or constitutional provisions. Persecutions involve the illegitimate use of law against one’s opponents to gain partisan advantage, also called “<a href="https://www.collinsdictionary.com/us/dictionary/english/lawfare">lawfare</a>.” </p>
<p>Current and former leaders in democracies with a strong rule of law, including the U.S., have little to fear of persecution, even if more are subject to prosecution. </p>
<p>In corruption trials ranging from former <a href="https://www.npr.org/2021/03/01/972453743/former-french-president-sarkozy-found-guilty-of-corruption-sentenced-to-jail">French president Nicolas Sarkozy</a> to <a href="https://www.nytimes.com/2022/11/03/world/middleeast/netanyahu-corruption-charges-israel.html">Israel’s Prime Minister Benjamin Netanyahu</a> and <a href="https://apnews.com/article/politics-legal-proceedings-crime-jacob-zuma-africa-5107230f76bb2ada8593a285d2a0e12a">South Africa’s Jacob Zuma</a>, democracies young and old have proved capable of conducting robust investigations, trials and even detentions of leaders, without officials overstepping constitutional restraints or generating cycles of recrimination.</p>
<p>Whether this world-wide uptick in prosecutions is due to an increasing propensity for executives to commit criminal acts, or reflects improved tools for judicial investigations, matters little. In these cases, <a href="https://www.nytimes.com/article/trump-cases-counts-charges-strengths.html">as in Trump’s</a>, there was significant evidence of criminal behavior. To ignore that would have undermined, not upheld, the rule of law.</p>
<p>There are safeguards unique to democracies to ensure the impartial application of law, even to current or former heads of government. Under many common law and civil law systems, judicial members are non-partisan and enjoy <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-independence-judiciary">independence from the political</a> – executive and legislative – branches. </p>
<p>Most democracies allow constitutional review by the courts of executive and legislative actions across different jurisdictions and appellate levels. These reviews guarantee checks and balances between branches but also within the judiciary to prevent any one prosecutor or judge from running amok. </p>
<p>Some prosecutors or judges are elected in the U.S. Criminal indictments can be issued by grand juries, as in Trump’s cases.</p>
<p>Democracies are also self-correcting. In Brazil, then-former president Lula da Silva was tried after leaving office in 2011 <a href="https://www.bbc.com/news/world-latin-america-10841416">on corruption allegations and subsequently jailed</a>. But the <a href="https://www.britannica.com/biography/Luiz-Inacio-Lula-da-Silva">Supreme Court annulled the sentence</a> because they determined a prosecutor in the case demonstrated political bias. Lula was released from prison and won re-election in 2022. </p>
<h2>Advantages to facing prosecution</h2>
<p>Politicians in democracies who are prosecuted will no doubt cry foul and play the victim card. This helps to shore up political muscle, as seen with <a href="https://www.theguardian.com/world/2022/oct/31/monday-briefing-what-does-lulas-victory-mean-for-the-future-of-brazil">Lula’s 2022 victory</a> and <a href="https://projects.fivethirtyeight.com/polls/president-general/2024/national/">Trump’s 2024 polling among Republicans</a> and <a href="https://abc7chicago.com/2024-new-hampshire-primary-election-results-donald-trump-nikki-haley-hampshir/14355069/">early primary victories</a>.</p>
<p>But for the same reasons, it makes little political sense for their incumbent rivals to weaponize prosecutions. If enough voters think Biden is using prosecutions to sideline Trump, they will surely punish Biden in November. </p>
<p>This is one reason Biden has not spoken about the details of Trump’s cases even as he campaigns against <a href="https://apnews.com/article/democracy-threats-biden-trump-2024-pennsylvania-176e42a3877eaf33160c71d1b73c96cd">Trump as a threat to democracy</a>. </p>
<p>Similarly, Lula is <a href="https://theconversation.com/how-lulas-big-tent-pragmatism-won-over-brazil-again-with-a-little-help-from-a-backlash-to-bolsonaro-223141">not commenting</a> about, or intervening in, prosecutors’ investigation of former President Jair Bolsonaro’s alleged involvement in the 2023 insurrection to prevent the transfer of office to Lula.</p>
<p>But prosecutions can certainly become persecutions in settings where the rule of law is weak, democracy has not taken root or an autocratic ruler feels threatened. </p>
<h2>What persecution looks like</h2>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/577176/original/file-20240221-24-d93yvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A police car outside a house." src="https://images.theconversation.com/files/577176/original/file-20240221-24-d93yvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/577176/original/file-20240221-24-d93yvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/577176/original/file-20240221-24-d93yvv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/577176/original/file-20240221-24-d93yvv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/577176/original/file-20240221-24-d93yvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/577176/original/file-20240221-24-d93yvv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/577176/original/file-20240221-24-d93yvv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A patrol car of the Ugandan police on Jan. 20, 2021, stationed outside the compound of Ugandan opposition leader Bobi Wine, who was under effective house arrest.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/patrol-car-of-the-ugandan-police-is-seen-stationed-outside-news-photo/1230687986?adppopup=true">Sumi Sadurni/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>Today’s world features many petty tyrants of Putin’s ilk, who use the tools of the state to persecute their perceived enemies. Consider Uganda, the focus of the Oscar-nominated documentary “<a href="https://www.imdb.com/title/tt21376900/?ref_=fn_al_tt_1">Bobi Wine: The People’s President</a>,”
which tells the story of Robert Kyagulanyi Ssentamu, known by his stage name “Bobi Wine.” </p>
<p>Wine is a pop star and anti-corruption activist who uses music to rail against the autocratic rule of President Yoweri Museveni, who has been in power since 1986. </p>
<p>Uganda’s elections have long been marred by <a href="https://www.hrw.org/news/2021/01/21/uganda-elections-marred-violence">intimidation, violence and fraud against the opposition</a>. Nonetheless, after winning a seat in parliament, Wine <a href="https://www.npr.org/2021/01/16/956885988/uganda-election-president-yoweri-museveni-declared-winner-as-bobi-wine-alleges-f">ran for president against Museveni in 2021</a>. </p>
<p>Public officials acting at Museveni’s behest <a href="https://abc7ny.com/uganda-bobi-wine-politics/13553858/">targeted Wine and his voters</a> through arbitrary detentions, physical abuse and even attempted assassinations. Unsurprisingly, <a href="https://www.npr.org/2021/01/16/956885988/uganda-election-president-yoweri-museveni-declared-winner-as-bobi-wine-alleges-f">Museveni won an unprecedented sixth term in 2021</a>. Wine
has been put under <a href="https://www.reuters.com/world/africa/uganda-arrests-40-opposition-supporters-their-leader-arrives-2023-10-06/">house arrest since</a>. </p>
<p>Like Navalny, Wine is the subject of actual political persecution. It is hard to take seriously the contention by Trump and <a href="https://twitter.com/newtgingrich/status/1758549909974794336?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Etweet">his allies</a> that Trump is similarly a victim. There is simply no evidence that Biden and prosecutors are engaging in lawfare. Even while under arrest on federal, New York and Georgia charges, Trump can campaign freely. </p>
<p>What should trouble Americans are Trump’s repeated threats in the current campaign to do just what he accuses others of doing: “<a href="https://www.nytimes.com/2024/02/05/us/politics/trump-retribution-presidency.html">retribution” against perceived enemies</a> should he prove victorious in 2024. </p>
<p>Whether Trump wins and follows through on promises of lawfare remains to be seen; but if so, that would undoubtedly risk moving the U.S. away from its established rule of law and closer to Russia and Uganda by opening the door for political persecutions.</p><img src="https://counter.theconversation.com/content/223840/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James D. Long does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Donald Trump says he’s being politically persecuted, like Russian democracy martyr Alexei Navalny, who died while in a Russian prison on Feb. 16. A scholar says there’s no comparison between the men.James D. Long, Professor of Political Science and Co-founder of the Political Economy Forum, University of WashingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2207302024-01-25T16:08:35Z2024-01-25T16:08:35ZWhat can we learn from the history of pre-war Germany to the atmosphere today in the U.S.?<p><em>The Guardian</em> <a href="https://www.theguardian.com/us-news/2024/jan/13/end-of-democracy-bernie-sanders-on-if-trump-wins-and-how-to-stop-him">recently published an interview with U.S. Sen. Bernie Sanders</a> about what happens if Donald Trump wins this year’s presidential election in the United States. </p>
<p>His dire answer: “It will be the end of democracy.”</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.sshrc-crsh.gc.ca/society-societe/icw-ca/index-eng.aspx">Prof. David Dyzenhaus will talk about his research on politics and the rule of law in an interview with Scott White, The Conversation Canada's Editor-in-Chief. Click here to join the event for free by registering.</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The challenge the U.S. faces, Sanders said, “is to be able to show people that government in a democratic society can address their very serious needs. If we do that, we defeat Trump. If we do not, then we are the Weimar Republic of the early 1930s.”</p>
<p>Sanders is of course evoking the extreme political polarization and social discontent of the last three years of Germany’s first experiment with democracy. </p>
<p>That experiment ended with Adolf Hitler’s seizure of power in 1933. </p>
<p>The senator is right that there are frightening echoes of the end game of Weimar in western democracies. But in the U.S., at least, his timing is off. The United States already is the Weimar Republic of the early 1930s.</p>
<h2>Polarization in pre-war Germany</h2>
<p>Naturally, there are some differences. </p>
<p>In Germany, the main fault line of polarization was between the far-right factions, with the Nazi Party the most prominent, and the Communist Party — both of which contested elections with the express intention of destroying democracy if they won power. In contrast, the main division in the U.S. is between Democrats and the far-right groups that dominate Trump’s Republican party. </p>
<p><a href="https://www.law.utoronto.ca/faculty-staff/full-time-faculty/david-dyzenhaus">My expertise</a> is not political science but law, in particular the rule of law. I study the nature of law and its relationship to politics. </p>
<p>I wrote <a href="https://academic.oup.com/book/2553">a book about the problems of the legal and political order in pre-Hitler Germany</a> — and why those circumstances remain highly relevant to contemporary debates about what’s going on in the United States and other western democracies (including debates in <a href="https://www.law.utoronto.ca/news/demise-rule-law-in-canada-professor-david-dyzenhaus-lawyers-daily">Canada</a>).</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman and a man read a poster glued to a post." src="https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=482&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=482&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=482&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=606&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=606&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571267/original/file-20240124-17-ghk9c5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=606&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Berlin citizens read the 1932 emergency powers decree.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The <a href="https://www.theholocaustexplained.org/the-nazi-rise-to-power/the-weimar-republic/the-weimar-constitution/">Weimar Constitution</a> had existed for only 14 years when Hitler forced the German parliament to make his will the ultimate source of legal authority. </p>
<p>His path to power was facilitated by the ease with which Article 48 of the constitution — the emergency powers provision that allowed the president to bypass parliament — could be exploited.</p>
<h2>The resilience of the U.S. Constitution</h2>
<p>In contrast, the U.S. Constitution dates from 1789, which makes it the most established constitution of the oldest democracy. It showed its resilience on Jan. 6, 2021, in the failed attempt by Trump and his supporters to take power by insurrection after he lost the 2020 election to Joe Biden. </p>
<p><a href="https://www.europarl.europa.eu/RegData/etudes/BRIE/2018/628309/EPRS_BRI(2018)628309_EN.pdf">Konrad Adenauer</a>, West Germany’s first president who was elected after the Second World War, later reflected that the problem with Weimar was not its constitution, but that there weren’t enough democrats — meaning politicians, judges, lawyers and others who believed in democracy.</p>
<p>Three years ago in the United States, only a small number of small-d democrats stood between a successful coup and Biden taking office: the Republican-appointed judges who rejected Trump’s attempts in the courts to contest particular elections, the Republican election officials who withstood the pressure to rig the votes in their districts and even Vice-President Mike Pence, though it seems that <a href="https://nymag.com/intelligencer/2021/09/dan-quayle-convinced-mike-pence-to-reject-trumps-coup.html">he wavered dangerously until the last minute</a>.</p>
<p>Weimar democracy was similarly salvageable until the end of 1932, and so the analogy between it and the U.S. in early 2024 is strong.</p>
<p>The role of lawyers and courts in such scenarios can be crucial.</p>
<h2>Coup d'etat in Prussia paved the way</h2>
<p>In 1932, the German federal government — dominated by right-wing aristocrats — used the emergency powers provision of the Weimar constitution to replace the legal state government of Prussia, one of 39 separate states that made up the German republic. <a href="https://doi.org/10.2307/2952263">This coup d’état effectively took over the powers</a> of a state that was the main bastion of democratic resistance to the extreme right-wing forces of the time.</p>
<p>At the time of the coup, the Prussian state government considered armed resistance. But because it felt such action would end in defeat and, as social democrats, they were committed to legality, they chose to challenge the constitutional validity of the decree before the Staatsgerichtshof — the court set up by the Weimar Constitution to resolve constitutional disputes between the federal government and the states in Germany’s federation.</p>
<p>After hearing oral arguments between Oct. 10-17, 1932, the court fudged its decision in a way that effectively upheld the decree in a judgment on Oct. 25.</p>
<p><a href="https://aeon.co/essays/carl-schmitts-legal-theory-legitimises-the-rule-of-the-strongman">This decision is regarded as a significant precursor to Hitler’s seizure of power in 1933</a> and his decision to make himself the ultimate source of legal authority in Germany, thus effectively putting him beyond the reach of the law.</p>
<p>Some of the most prominent legal scholars of the time appeared on both sides of the dispute, <a href="https://www.jstor.org/stable/23735189">including Carl Schmitt</a>, a fascist legal theorist who presented the federal government’s side in the Prussia case and then signed up with the Nazis after 1933.</p>
<h2>Nazi lawyer still admired</h2>
<p>Schmitt was determined throughout his career to use legal arguments to destroy liberal democracy from within. Today, <a href="https://www.nybooks.com/online/2020/01/15/william-barr-the-carl-schmitt-of-our-time/">Schmitt is very popular</a> — along with other right-wing figures from the Weimar period — with the far-right coterie of lawyers who tried to mastermind Trump’s own attempt at a coup in January 2021.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man is featured on the cover of an old academic journal" src="https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=779&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=779&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=779&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=979&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=979&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571266/original/file-20240124-29-wxuqg0.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=979&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">‘The View of the Third Reich’ – lawyer Carl Schmitt on the cover page of the German journal Der Wirtschafts-Ring (The Economic Ring) in 1934.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<p>The U.S. Supreme Court will soon <a href="https://www.cbc.ca/news/world/us-supreme-court-trump-cases-1.7064843">decide current</a> and potential future cases involving Trump’s challenges to the rule of law. For example, Trump has mused that if he is re-elected, <a href="https://www.brennancenter.org/our-work/analysis-opinion/trump-wants-use-military-against-his-domestic-enemies-congress-must-act">he could use the Insurrection Act</a> to suppress any political protests.</p>
<p>The Supreme Court’s decisions on cases involving Trump’s legal authority could be as momentous for the future of democracy in the United States as the decision of Staatsgerichtshof in 1932.</p>
<p>With a majority of conservative judges on the U.S. Supreme Court — including Justice Clarence Thomas, <a href="https://www.pbs.org/newshour/politics/virginia-thomas-the-wife-of-justice-clarence-thomas-agrees-to-interview-with-jan-6-panel">whose wife has been accused of trying to help Trump overturn his election defeat</a> — the portents for democracy and the rule of law are not good.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571242/original/file-20240124-23-tw39ed.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Prof. David Dyzenhaus will talk about his research on politics and the rule of law in an interview with Scott White, The Conversation Canada’s Editor-in-Chief. Click here to join the event for free by registering.</span>
<span class="attribution"><a class="source" href="https://www.sshrc-crsh.gc.ca/society-societe/icw-ca/index-eng.aspx">Prof. David Dyzenhaus will talk about his research on politics and the rule of law in an interview with Scott White, The Conversation Canada's Editor-in-Chief. Click here to join the event for free by registering.</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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</figure><img src="https://counter.theconversation.com/content/220730/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Dyzenhaus receives funding from SSHRC for related research projects</span></em></p>Adolf Hitler’s rise to power was aided by courts and lawyers in pre-war Germany. A similar situation exists today in the United States.David Dyzenhaus, Professor of Law and Philosophy, University of TorontoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2196172023-12-26T20:29:23Z2023-12-26T20:29:23ZNZ report card 2023: near the top of the class in some areas, room for improvement elsewhere<p>End-of-year results aren’t only for school and university students. Countries, too, can be measured for their progress – or lack of it – across numerous categories and subject areas. </p>
<p>This report card provides a snapshot of how New Zealand has fared in 2023. Given the change of government, it will be a useful benchmark for future progress reports. (Somewhat appropriately, the coalition seems keen on standardised testing in education.)</p>
<p>It’s important to remember that this exercise is for fun and debate. International and domestic indices and rankings should be read with a degree of caution – measurements, metrics and numbers from 2023 tell us only so much. </p>
<p>Nevertheless, it’s still possible to trace the nation’s ups and downs. As the year draws to an end, we can use these statistics and rankings to decide whether New Zealand really is the best country in the world – or whether we need to make some additional new year’s resolutions.</p>
<h2>International pass marks</h2>
<p>Overall, the country held its own internationally when it came to democratic values, freedoms and standards. But there was a little slippage.</p>
<p>Despite falling a spot, Transparency International ranked New Zealand <a href="https://www.transparency.org/en/cpi/2022">second-equal</a> (next to Finland) for being relatively corruption-free. </p>
<p>In the Global Peace Index, New Zealand dropped two places, now <a href="https://www.visionofhumanity.org/maps/">fourth-best</a> for safety and security, low domestic and international conflict, and degree of militarisation.</p>
<p>The country held its ground in two categories. Freedom House underlined New Zealand’s near-perfect score of <a href="https://freedomhouse.org/countries/freedom-world/scores">99 out of 100</a> for political and civil liberties – but three Scandinavian countries scored a perfect 100. The <a href="https://www.weforum.org/publications/global-gender-gap-report-2023/">Global Gender Gap Report</a> recorded New Zealand as steady, the fourth-most-gender-equal country. </p>
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Read more:
<a href="https://theconversation.com/is-winston-peters-right-to-call-state-funded-journalism-bribery-or-is-there-a-bigger-threat-to-democracy-218782">Is Winston Peters right to call state-funded journalism ‘bribery’ – or is there a bigger threat to democracy?</a>
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<p>Supplementary work by the United Nations Development Programme shows New Zealand making impressive strides in breaking down <a href="https://www.undp.org/sites/g/files/zskgke326/files/2023-06/gsni202302pdf_0.pdf">gender bias</a>.</p>
<p>The Index for Economic Freedom, which covers everything from property rights to financial freedom, again placed New Zealand <a href="https://www.heritage.org/index/">fifth</a>, but our grade average is falling. We also dropped a place in the World Justice Project’s <a href="https://worldjusticeproject.org/rule-of-law-index/">Rule of Law Index</a> to eighth.</p>
<p>New Zealanders are about as happy as they were last year, still the tenth-most-cheery nation, according to the <a href="https://worldhappiness.report/">World Happiness Report</a>.</p>
<p>The Human Development Index did not report this year (New Zealand was 13th in 2022). But the <a href="https://www.prosperity.com/rankings">Legatum Prosperity Index</a>, another broad measure covering everything from social capital to living conditions, put New Zealand tenth overall – reflecting a slow decline from seventh in 2011.</p>
<p>The Economist’s <a href="https://www.eiu.com/n/campaigns/global-liveability-index-2023/">Global Liveability Index</a> has Auckland at equal tenth, with Wellington racing up the charts to 23rd. (Hamilton, my home, is yet to register.)</p>
<p>While New Zealand registered a gradual slide in the Reporters Without Borders <a href="https://rsf.org/en/index">Press Freedom Index</a>, at 13th position it still ranks highly by comparison with other nations.</p>
<h2>Could do better</h2>
<p>New Zealand has seen some progress around assessment of terror risk. While the national terror threat level has remained at “<a href="https://www.dpmc.govt.nz/our-programmes/national-security/counter-terrorism#:%7E:text=New%2520Zealand's%2520current%2520national%2520terrorism,Zealanders%2520both%2520here%2520and%2520overseas.">low</a>”, the <a href="https://www.visionofhumanity.org/maps/global-terrorism-index/#/">Global Terrorism Index</a> ranked the country 46th – lower than the US, UK and Russia, but higher than Australia at 69th.</p>
<p>The country’s previous drop to 31st in the <a href="https://www.imd.org/centers/wcc/world-competitiveness-center/rankings/world-competitiveness-ranking/">Global Competitiveness Report</a> has stabilised, staying the same in 2023. </p>
<p>On the <a href="https://www.globalinnovationindex.org/Home">Global Innovation Index</a>, we came in 27th out of 132 economies – three spots worse than last year. <a href="https://kof.ethz.ch/en/news-and-events/media/press-releases/2022/12/globalisation-index.html#:%7E:text=The%2520KOF%2520Globalisation%2520Index%2520measures,a%2520long%2520period%2520of%2520time.">The Globalisation Index</a>, which looks at economic, social and political contexts, ranks New Zealand only 42nd.</p>
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Read more:
<a href="https://theconversation.com/cop28-the-climate-summits-first-health-day-points-to-what-needs-to-change-in-nz-218809">COP28: the climate summit’s first Health Day points to what needs to change in NZ</a>
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<p>But the country’s response to climate change is still considered “highly insufficient” by the <a href="https://climateactiontracker.org/">Climate Action Tracker</a>, which measures progress on meeting agreed global warming targets. The <a href="https://ccpi.org/">Climate Change Performance Index</a> is a little more generous, pegging New Zealand at 34th, still down one spot on last year.</p>
<p>New Zealand’s overseas development assistance – low as a percentage of GDP compared to other <a href="https://www.oecd.org/dac/financing-sustainable-development/development-finance-standards/official-development-assistance.htm">OECD countries</a> – had mixed reviews. </p>
<p>The <a href="https://odi.org/en/insights/principled-aid-index-2023-in-a-weaponised-world-smart-development-power-is-not-dead/">Principled Aid Index</a> – which looks at the purposes of aid for global co-operation, public spiritedness and addressing critical development goals – ranks New Zealand a lowly 22 out of 29. </p>
<p>The <a href="https://www.cgdev.org/cdi#/">Commitment to Development Index</a>, which measures aid as well as other policies (from health to trade) of 40 of the world’s most powerful countries, has New Zealand in 19th place.</p>
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Read more:
<a href="https://theconversation.com/nicola-willis-warns-of-fiscal-snakes-and-snails-her-first-mini-budget-will-be-a-test-of-nzs-no-surprises-finance-rules-218920">Nicola Willis warns of fiscal ‘snakes and snails’ – her first mini-budget will be a test of NZ’s no-surprises finance rules</a>
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<h2>Decent economic grades</h2>
<p>The economic numbers at home still tell a generally encouraging story:</p>
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<li><p>unemployment <a href="https://www.stats.govt.nz/indicators/unemployment-rate/">remains low at 3.9%</a>, still below the <a href="https://www.oecd.org/newsroom/unemployment-rates-oecd-updated-november-2023.htm#:%7E:text=14%2520Nov%25202023%2520%252D%2520The%2520OECD,Figure%25202%2520and%2520Table%25201">OECD average of 4.8%.</a></p></li>
<li><p>median weekly earnings from wages and salaries <a href="https://www.stats.govt.nz/news/income-growth-for-wage-and-salary-earners-remains-strong/">continued to rise</a>, by NZ$84 (7.1%) to $1,273 in the year to June</p></li>
<li><p>inflation is rising, but the rate is slowing, <a href="https://www.stats.govt.nz/news/annual-inflation-at-5-6-percent/#:%7E:text=New%2520Zealand's%2520consumers%2520price%2520index,to%2520the%2520June%25202023%2520quarter.">falling to 5.6%</a> in the 12 months to September</p></li>
<li><p>and good or bad news according to one’s perspective, annual house price growth appears to be slowly recovering, with the <a href="https://www.qv.co.nz/price-index/">average price now $907,387</a> – still considerably down from the peak at the turn of 2022.</p></li>
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<p>It’s worth noting, too, that record net migration gain is boosting economic measurements. In the year to October 2023, 245,600 people arrived, with 116,700 departing, for an <a href="https://www.stats.govt.nz/information-releases/international-migration-october-2023/">annual net gain</a> of 128,900 people.</p>
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Read more:
<a href="https://theconversation.com/the-government-hopes-private-investors-will-fund-social-services-the-evidence-isnt-so-optimistic-218512">The government hopes private investors will fund social services – the evidence isn't so optimistic</a>
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<h2>Room for social improvement</h2>
<p>In the year to June, <a href="https://www.newshub.co.nz/home/new-zealand/2023/10/new-zealand-s-suicide-rate-increases-for-first-time-in-years.html">recorded suicides increased</a> to 565, or 10.6 people per 100,000. While an increase from 10.2 in 2022, this is still lower than the average rate over the past 14 years.</p>
<p><a href="https://www.corrections.govt.nz/resources/statistics/quarterly_prison_statistics/prison_stats_september_2023">Incarceration rates</a> began to rise again, climbing to 8,893 by the end of September, moving back towards the 10,000 figure from 2020.</p>
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Read more:
<a href="https://theconversation.com/maori-suicide-rates-remain-too-high-involving-whanau-more-in-coronial-inquiries-should-be-a-priority-217254">Māori suicide rates remain too high – involving whānau more in coronial inquiries should be a priority</a>
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<p>Child poverty appears to be <a href="https://www.stats.govt.nz/news/child-poverty-statistics-show-no-annual-change-in-the-year-ended-june-2022/">stabilising</a>, with some reports suggesting improvements in longer-term trends. While commendable, this needs to be seen in perspective: one in ten children still live in households experiencing material hardship.</p>
<p>The stock of <a href="https://www.hud.govt.nz/stats-and-insights/the-government-housing-dashboard/public-homes/">public housing</a> continues to increase. As of October, there were 80,211 public houses, an increase of 3,940 from June 2022.</p>
<p>In short, New Zealand retains some bragging rights in important areas and is making modest progress in others, but that’s far from the whole picture. The final verdict has to be: a satisfactory to good effort, but considerable room for improvement.</p><img src="https://counter.theconversation.com/content/219617/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Gillespie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>New Zealand was mostly stable in key international rankings and domestic socio-economic measures. But there are signs of slippage in some areas and not enough progress in others.Alexander Gillespie, Professor of Law, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2197772023-12-13T16:31:44Z2023-12-13T16:31:44ZHow the bill to declare Rwanda a ‘safe’ country for refugees could lead to a constitutional crisis<p>Rishi Sunak has had a small win in the ongoing saga of the UK government’s plan to deport asylum seekers to Rwanda. The second reading of the safety of Rwanda (asylum and immigration) bill has <a href="https://www.theguardian.com/uk-news/2023/dec/12/rishi-sunak-survives-rwanda-bill-commons-vote">passed the Commons</a>, despite rightwing Conservative MPs abstaining. </p>
<p>This bill has been proposed as a way to effectively defy the UK Supreme Court’s ruling that the Rwanda plan <a href="https://www.supremecourt.uk/cases/docs/uksc-2023-0093-etc-judgment.pdf">was unlawful</a>. The court found that Rwanda was not a “safe” country to send refugees, because there could be a risk of individuals being returned to their country of origin, where they may suffer ill treatment.</p>
<p>This is prohibited under international law, including the <a href="https://www.echr.coe.int/documents/d/echr/convention_ENG">European convention on human rights</a> and <a href="https://www.unhcr.org/uk/about-unhcr/who-we-are/1951-refugee-convention">the UN refugee convention</a>. It is also enshrined in domestic UK law through the <a href="https://www.legislation.gov.uk/ukpga/1998/42/contents">Human Rights Act</a>, <a href="https://www.legislation.gov.uk/ukpga/1993/23/contents">the Asylum and Immigration Appeals Act</a>, <a href="https://www.legislation.gov.uk/ukpga/2002/41/contents">the Nationality, Immigration and Asylum Act</a> and <a href="https://www.legislation.gov.uk/ukpga/2004/19/contents">the Asylum and Immigration (Treatment of Claimants etc) Act</a>. </p>
<p>The government has now introduced a revised <a href="https://www.gov.uk/government/speeches/rwanda-treaty">treaty with Rwanda</a>, as well this emergency <a href="https://bills.parliament.uk/bills/3540">legislation</a> which would declare the country to be safe and limit further court challenges.</p>
<h2>Why does the government think it can ‘overrule’ the courts?</h2>
<p>At the centre of these developments is the issue of whether Rwanda is a safe country, as well as who should answer that question, the government or the courts.</p>
<p>This goes to the centre of the UK’s constitutional framework. The bill’s existence depends on the principle of <a href="https://www.parliament.uk/site-information/glossary/parliamentary-sovereignty/">parliamentary sovereignty</a>. This means that parliament can pass any law, and that its lawmaking authority cannot be challenged. </p>
<p>Hypothetically, if the government introduced a bill saying the Earth was flat, and that was passed by parliament, that would become law, but would not change reality. In the same sense, introducing the Rwanda bill does not, in itself, change the reality on the ground. </p>
<p>The government, however, has agreed a new treaty with Rwanda, which it argues does materially change the situation and addresses the court’s concerns. The home secretary has stated that Rwanda has made <a href="https://www.bbc.co.uk/news/uk-politics-67627696">“clear commitments”</a> to the safety of the people who will go there. </p>
<p>Also, under the new agreement, Rwanda will set up an appeal body (composed of judges of mixed nationalities) where refused asylum claims can be reviewed.</p>
<h2>Constitutional principles and the rule of law</h2>
<p>As the UK does not have a <a href="https://consoc.org.uk/the-constitution-explained/the-uk-constitution/">written constitution</a>, addressing the constitutionality of the government’s actions depends on a broad range of sources, including principles defined in common law.</p>
<p>These Rwanda developments have called into question the government’s commitment to the <a href="https://www.lawsociety.org.uk/topics/human-rights/the-rule-of-law-what-does-it-really-mean">rule of law</a>, the principle that <a href="https://www.gov.uk/government/news/attorney-general-delivers-speech-on-the-rule-of-law">no one is above the law, including the government</a>.</p>
<p>The bill does allow for individual cases where a court could decide, based on compelling evidence, that it would be unsafe to send someone to Rwanda (for example, if they were <a href="https://www.bbc.co.uk/news/uk-politics-67680136">pregnant or had rare medical conditions</a>).</p>
<p>However, it effectively “overrules” the court’s previous decision, and prevents domestic courts from reconsidering whether Rwanda is generally safe. It is difficult to see how these proposals respect the <a href="https://binghamcentre.biicl.org/publications/safety-of-rwanda-asylum-and-immigration-bill-a-preliminary-rule-of-law-analysis-for-house-of-commons-second-reading">rule of law</a>.</p>
<p>There is also the issue of <a href="https://researchbriefings.files.parliament.uk/documents/SN06053/SN06053.pdf">separation of powers</a>. The UK theoretically has a system of checks and balance, whereby parliament, government and judges should limit and keep each other in check. </p>
<p>Parliament can make any law it wishes and the courts must dutifully apply it. Similarly, government must respect, preserve and not interfere with judicial independence. Such tensions arose during Brexit litigation, but <a href="https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach-to-constitutional-adjudication/">the decision of the court</a> upheld the sovereignty of parliament. </p>
<p>What is different about the Rwanda proposals is that we are in the territory where parliament could pass something that is so contentious as to be unconstitutional.</p>
<h2>Possible constitutional crisis</h2>
<p>There is precedent for parliament passing legislation to reverse the effect of a court decision. </p>
<p>In 1965 parliament passed the <a href="https://hansard.parliament.uk/commons/1965-02-03/debates/9c473bda-2ba4-47b0-a54d-346af752996a/WarDamageBill">War Damage Act</a> that nullified a <a href="https://www.jstor.org/stable/20689759">court decision</a> regarding compensation for the destruction of oil fields in Burma. While initially the court found that the proprietor should be compensated from public funds, legislation that came later retrospectively limited the government’s financial liability for damage caused during war.</p>
<p>With the Rwanda bill, much broader rule of law and international obligation issues are also engaged. Some have argued that the UK may now be heading for an <a href="https://www.telegraph.co.uk/news/2023/12/12/supreme-court-could-bring-down-the-government/">unprecedented constitutional crisis</a>, particularly if the government amends the bill to impose more draconian measures that would limit judicial oversight. </p>
<p>If the government introduced these kind of measures, <a href="https://www.supremecourt.uk/cases/uksc-2018-0004.html">judges have previously warned</a> that it is “ultimately for the courts, not the legislature, to determine the limits set by the rule of law”. </p>
<h2>What happens next?</h2>
<p>Much of what happens next rests on amendments to the draft law – for example, whether the bill will command support in the House of Lords – as well as whether the prime minister is able to <a href="https://www.theguardian.com/politics/2023/dec/12/collective-of-rightwing-tory-mps-say-they-will-not-support-rwanda-bill">unify splits within his party</a>.</p>
<p>The bill also stops short of disapplying the <a href="https://www.bbc.co.uk/news/uk-67641805">European convention on human rights</a>. It is still possible, then, that the bill could face legal challenges at the European court of human rights, which can determine whether the law is consistent with the UK’s international human rights obligations. </p>
<p>Any attempts to further limit judicial oversight will see the UK potentially stray into unprecedented territory surrounding the rule of law. This could run the risk of forcing courts to do the previously <a href="https://www.theguardian.com/politics/2023/dec/12/collective-of-rightwing-tory-mps-say-they-will-not-support-rwanda-bill">unthinkable</a> in striking down an act of parliament as unconstitutional.</p><img src="https://counter.theconversation.com/content/219777/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Clear does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government is attempting to overrule the supreme court by passing a new law.Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2177232023-11-22T14:36:11Z2023-11-22T14:36:11ZSouth African politicians vs judges: new book defends the constitution<p>In 1994, South Africa became a democracy founded on a supreme constitution. The constitution’s <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">preamble</a> affirms the nation’s quest to</p>
<blockquote>
<p>establish a society based on democratic values, social justice and fundamental human rights. </p>
</blockquote>
<p>The constitution clearly envisioned political accountability and judicial review of executive and legislative actions. But, almost three decades on, this vision is increasingly under virulent criticism by populist politicians.</p>
<p>Dan Mafora’s new <a href="https://www.nb.co.za/en/view-book/?id=9780624093916">book</a>, Capture in the Court – In Defence of Judges and the Constitution, likens the rising rebellion against judges and the constitution to “judicial capture”. He labels this rebellion “anti-constitutionalism” and explains the key factors behind “the less-than-happy relations between the courts and politicians”. </p>
<p>Mafora writes from an insider-outsider perspective. He is a senior researcher at the non-profit <a href="https://za.linkedin.com/company/council-for-the-advancementof-the-south-african-constitution">Council for the Advancement of the South African Constitution</a>, an ex-corporate lawyer, and a former clerk in the <a href="https://collections.concourt.org.za/">Constitutional Court of South Africa</a>.</p>
<p>As someone who has taught the South African bill of rights and <a href="https://www.elgaronline.com/edcollchap/edcoll/9781788113199/9781788113199.00012.xml">written</a> about <a href="https://www.pulp.up.ac.za/component/edocman/constitutionalism-and-democratic-governance-in-africa-contemporary-perspectives-from-sub-saharan-africa">constitutionalism in Africa</a>, I understand the significance of this book. </p>
<p>Although its title seems sensationalist, it is justified by its depressing evidence. As Mafora states:</p>
<blockquote>
<p>It is now not an uncommon occurrence for a former president to claim that we are under a judicial dictatorship, or for a senior leader of the official opposition to claim that the Constitutional Court leaked a judgment to the ANC …</p>
</blockquote>
<p>The ANC (African National Congress) has governed the country since 1994. </p>
<p>In the first decade after the 1994 democratic elections, South Africa was hailed as a beacon of <a href="https://www.britannica.com/topic/constitutionalism">constitutionalism</a>. This is the idea that governmental authority is determined by a supreme constitution enforced by judges. So how did the country <a href="https://ideas.repec.org/a/sae/anname/v681y2019i1p194-208.html">fall</a> from this heady height?</p>
<h2>Rise of anti-constitutionalism</h2>
<p>Mafora attributes the fall to four interwoven elements: </p>
<ul>
<li><p><a href="https://www.collinsdictionary.com/dictionary/english/lawfare">lawfare</a> or the “steady judicialisation of politics”</p></li>
<li><p>misinformation campaigns</p></li>
<li><p>increased public visibility of lawyers and judges</p></li>
<li><p>the sluggish pace of socio-economic transformation. </p></li>
</ul>
<p>Populist politicians claim that <a href="https://theconversation.com/rule-of-law-in-south-africa-protects-even-those-who-scorn-it-175533">judges constrain socio-economic change</a> by protecting neoliberal economic policies, notably <a href="https://theconversation.com/land-reform-in-south-africa-what-the-real-debate-should-be-about-182277">land laws</a>. </p>
<p>Since <a href="https://projects.iq.harvard.edu/johncomaroff/john-comaroff-explains-lawfare">lawfare</a> and misinformation underlie the book’s theme of “judicial capture”, they deserve a closer look.</p>
<p><strong>Lawfare</strong> is commonly understood as the strategic use of legal proceedings to intimidate or restrict the agency of an opponent. In the post-apartheid era, it <a href="https://www.researchgate.net/publication/333571635_%27Lawfare%27_in_South_Africa_and_Its_Effects_on_the_Judiciary">refers to</a></p>
<blockquote>
<p>the use of litigation to resolve contentious political disputes in spite of the existence of many non-curial [non-judicial] constitutional safeguards.</p>
</blockquote>
<p>Mafora traces lawfare to the ANC’s failure on two counts. One was the failure to choose between constitutionalism and “people’s power” during the 1990s <a href="https://theconversation.com/south-africas-1994-miracle-whats-left-159495">negotiations that ended apartheid</a>. The other was its failure to fully promote constitutionalism afterwards. It ideologically linked <a href="https://www.sahistory.org.za/article/peoples-power-1986">“people’s power”</a> to its <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv03005/06lv03132/07lv03140/08lv03145.htm">National Democratic Revolution</a>. This Soviet-inspired concept aimed at realising a social system between capitalism and communism. </p>
<p>The ANC was happy with constitutionalism as long as its outcomes coincided with the goals of the National Democratic Revolution. Failing this, it tried unsuccessfully to manipulate the judiciary to realise these goals. In Mafora’s words, </p>
<blockquote>
<p>Today’s ANC, frankly put, does not truly believe in the idea of a supreme Constitution to which it is bound and under which it ought to function. </p>
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<p>Using many examples, he argues that the ANC’s indifference to constitutionalism has left the constitution vulnerable to opportunistic attacks by politicians. Misinformation plays a huge role in these attacks.</p>
<p><strong>Misinformation:</strong> Information wars occur through chat bots and fake social media handles that spin the narratives of their creators. Misinformation creates doubt over conflicting narratives. It breeds mistrust in the judiciary, especially when judges’ decisions appear to contradict the public’s commonsense understanding of issues. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/are-judges-in-south-africa-under-threat-or-do-they-complain-too-much-45459">Are judges in South Africa under threat or do they complain too much?</a>
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</p>
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<p>The unfortunate result is a perception that the courts rarely act in the interest of the masses. This encourages anti-constitutionalism and loud noises for a return to (apartheid era) parliamentary supremacy.</p>
<p>So, what is the panacea?</p>
<h2>In defence of constitutionalism</h2>
<p>Mafora rightly regards constitutionalism as integral to democratic governance. It underpins </p>
<ul>
<li><p>multi-party democracy </p></li>
<li><p>supremacy of the <a href="https://www.justice.gov.za/constitution/SAConstitution-web-eng-02.pdf">bill of rights</a> </p></li>
<li><p>primacy of the rule of law</p></li>
<li><p>judges’ power to review legislative and executive conduct with due respect for separation of powers and cooperative governance.</p></li>
</ul>
<p>He takes pains to explain these legal concepts, hoping that doing so will improve </p>
<blockquote>
<p>the low level of constitutional literacy among South Africans, [which] renders them vulnerable to both misinformation and disinformation.</p>
</blockquote>
<p>Interestingly, Mafora attempts to debunk accusations that the constitution is colonial. He analyses two schools of thought. </p>
<p>The first holds that the common law is colonial because it was “received” into South Africa through colonial conquest. </p>
<p>The second says the common law is colonial also because it is rooted in European legal tradition. </p>
<p>Mafora thinks that for law to still qualify as colonial, it must reproduce the inequitable relations that defined “colonial law, administration and experience”. He argues that <a href="https://unimelb.libguides.com/c.php?g=929734&p=6718215#:%7E:text=The%20Roman%2DDutch%20law%20common,traced%20to%20this%20civilian%20heritage.">Roman-Dutch law</a>, which was almost entirely private law, lost its colonial baggage in South Africa. </p>
<p>He is right to condemn how public officials use decolonisation for political gains. But in my view, he seems to misunderstand the nature of South Africa’s constitution.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/rule-of-law-in-south-africa-protects-even-those-who-scorn-it-175533">Rule of law in South Africa protects even those who scorn it</a>
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</em>
</p>
<hr>
<p>As I have <a href="https://repository.uwc.ac.za/bitstream/handle/10566/7355/Diala_law_2021.pdf?sequence=1&isAllowed=y">argued</a> elsewhere, colonial patterns of power persist. These make Africans cultural and intellectual clones of Europeans. In this context, is the constitution not part of the Roman-Dutch law, which emerged from European culture? </p>
<h2>A Eurocentric constitution</h2>
<p>Mafora fails to point out how the bill of rights, the cornerstone of South Africa’s constitution, was inspired by the 1948 <a href="https://www.un.org/en/about-us/universal-declaration-of-human-rights">Universal Declaration of Human Rights</a>. Crudely put, the declaration symbolised western nations’ reaction to the <a href="https://www.britannica.com/summary/World-War-II">second world war</a> and centuries of violent conflicts. With zero indigenous African input, it represented western legal culture. </p>
<p>Significantly, South Africa’s constitution <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">claims</a> authority over African customary laws and the colonially imposed European laws regarded as the common law. But given its intellectual roots in European laws, the constitution’s authority over the common law is like regulating itself. So, in my view, the constitution is part of Roman-Dutch law, and therefore part of the colonial heritage.</p>
<p>Mafora’s book is nevertheless important for understanding and managing the relationship between judges, politicians and the constitution. It is timely because South Africa is facing an existential crisis of service delivery, which belies the post-apartheid optimism of good governance.</p><img src="https://counter.theconversation.com/content/217723/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Diala receives funding from the National Research Foundation of South Africa (Grant Number 136532). However, the opinions, findings and recommendations here are his alone.</span></em></p>The governing ANC’s indifference to constitutionalism has left the constitution vulnerable to opportunistic attack by politicians.Anthony Diala, Director, Centre for Legal Integration in Africa, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2175562023-11-20T01:45:01Z2023-11-20T01:45:01ZThe rule of law is fundamental to a free society – so why don’t NZ courts always uphold it?<p>Ever since the 17th century, the <a href="https://www.justice.govt.nz/about/learn-about-the-justice-system/how-the-justice-system-works/the-basis-for-all-law/">rule of law</a> has been regarded as one of the fundamental values of a free society. It means you cannot be forced to do something unless there is a law requiring you to do it. </p>
<p>It also means people in power can coerce you only if there is a rule justifying it. This is the opposite of the “rule of persons”, in which the rulers have arbitrary power: they have the authority to force you to do things simply because they think those things should be done. </p>
<p>In free societies, the courts are the chief institution tasked with upholding the rule of law. It is their job to police government and other officials, to make sure they act only in accordance with the law. </p>
<p>But no one polices the courts. If they uphold the rule of law in their own decisions, that’s fine. But increasingly often, they don’t. And this raises important questions about how we want to be governed as a society.</p>
<h2>The role of judges</h2>
<p>Take, for example, the law of negligence. This is an area of law that allows one person to sue another for injuries that have been carelessly inflicted. To work, the law requires a test that will tell us when a person can sue. </p>
<p>The current approach reads like a set of rules, but basically comes down to <a href="http://www.nzlii.org/nz/cases/NZHC/2016/1945.html">two steps</a>: a judge needs to consider everything that relates to the relationship between the parties; and the judge then needs to consider everything else. </p>
<p>In the end, then, the “rule” is to consider everything. It is surely clear that this not really a rule. It is rather an open discretion pretending to be a rule. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/high-supreme-federal-family-county-what-do-all-our-different-courts-actually-do-193228">High, Supreme, Federal, Family, County – what do all our different courts actually do?</a>
</strong>
</em>
</p>
<hr>
<p>Consider also the law of trusts. This is a difficult and technical area of the law, but we can describe what the New Zealand courts have permitted in simple terms.</p>
<p>Imagine you own some property that I am looking after. I then enter into a relationship. My partner helps me look after the property. Eventually, our relationship breaks down and she wants some reward for the work she has done. </p>
<p>She may well be entitled to reward from me, but the courts in this country have dealt with this problem by allowing partners to claim part ownership of the property (as happened in the case of <a href="http://www.nzlii.org/nz/cases/NZCA/2014/377.html">Murrell v Hamilton</a> in 2014, for example). </p>
<p>The problem is this violates fundamental principles of property law. You owned the house from the beginning. How, then, can what went on in my relationship mean my partner came to own what was your property? </p>
<h2>The ‘rule of persons’</h2>
<p>That this was possible saw one leading legal commentator <a href="https://ojs.victoria.ac.nz/vuwlr/article/view/4791">observe</a> that, “in effect theft was being sanctioned by the courts”. </p>
<p>Why has this happened? Because, although the rules of property law would not permit it, the judges think the outcome is fair. If this is not the “rule of persons”, what is? </p>
<p>There are other examples, but one more will suffice. Imagine I do something horrible to you. If it’s a crime, I can be punished by the criminal law. But the courts have also said that if you sue me, a court may impose a monetary punishment on me that will go to you (effectively a fine). </p>
<p>When will such punishment be justified? Some leading New Zealand judges, including the previous chief justice, have said this punishment is justified not on the basis of some rule, but when a judge finds my behaviour to be sufficiently outrageous. (See, for example, the cases of <a href="http://www.nzlii.org/cgi-bin/LawCite?cit=%5b2001%5d%203%20NZLR%20622?query=bottrill">Bottrill v A</a> from 2001 or <a href="http://www.nzlii.org/nz/cases/NZSC/2010/27.html">Couch v AG</a> from 2010). </p>
<p>In other words, the position is that I can be punished if a judge thinks I behaved badly enough. Could it be any clearer this is the rule of persons and not the rule of law? </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/white-collar-criminals-benefit-from-leniency-provisions-in-nz-law-why-the-disparity-with-other-kinds-of-crime-205283">White-collar criminals benefit from leniency provisions in NZ law – why the disparity with other kinds of crime?</a>
</strong>
</em>
</p>
<hr>
<h2>Rule by experts</h2>
<p>The judges who advanced this view were outvoted by the other judges who presided in those cases. But it would be wrong to conclude all is well. As another <a href="http://www.nzlii.org/nz/cases/NZHC/2023/2258.html">recent case showed</a>, the idea remains attractive to judges.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/560278/original/file-20231120-15-kgp62v.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/560278/original/file-20231120-15-kgp62v.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=923&fit=crop&dpr=1 600w, https://images.theconversation.com/files/560278/original/file-20231120-15-kgp62v.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=923&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/560278/original/file-20231120-15-kgp62v.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=923&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/560278/original/file-20231120-15-kgp62v.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1160&fit=crop&dpr=1 754w, https://images.theconversation.com/files/560278/original/file-20231120-15-kgp62v.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1160&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/560278/original/file-20231120-15-kgp62v.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1160&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>Why does this matter? The rule of law has been under pressure for about a hundred years. As I explain in my recent book, <a href="https://www.e-elgar.com/shop/gbp/freedom-under-the-private-law-9781035314515.html">Freedom under the Private Law</a>, society has become increasingly technocratic during this period, and the experts who govern it often prefer to do what seems right to them, rather than follow established rules.</p>
<p>It may not be surprising, then, if judges have come to see themselves similarly. But if the rule of law in our courts goes, where does it leave us? We will be ruled, rather than ruling ourselves, and this fundamental pillar of our liberty will be gone.</p><img src="https://counter.theconversation.com/content/217556/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Allan Beever does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Court decisions based on a judge’s discretion rather than the letter of the law are increasingly common. But this risks undermining some basic liberties.Allan Beever, Professor of Law, Auckland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2164182023-11-09T13:33:20Z2023-11-09T13:33:20ZChechnya’s boss and Putin’s foot soldier: How Ramzan Kadyrov became such a feared figure in Russia<figure><img src="https://images.theconversation.com/files/557870/original/file-20231106-21-s35xj5.jpg?ixlib=rb-1.1.0&rect=346%2C829%2C6657%2C3812&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Vladimir Putin and Ramzan Kadyrov have a personal relationship based on mutual dependence.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-pool-photograph-distributed-by-sputnik-agency-news-photo/1694572246">Mikhail Metzel/Pool/AFP via Getty Images</a></span></figcaption></figure><p>The leader of the Russian republic of Chechnya, Ramzan Kadyrov, recently <a href="https://www.rferl.org/a/chechnya-anti-semitic-riots-kadyrov-shoot-to-kill/32662418.html">authorized police</a> to shoot to kill pro-Palestinian protesters who might take to the streets of Chechnya. The orders came in the wake of an <a href="https://www.nytimes.com/2023/11/02/world/europe/mob-riot-dagestan-airport-telegram.html">antisemitic riot</a> that broke out on Oct. 29, 2023, in the neighboring Russian republic of <a href="https://www.bbc.com/news/world-europe-20593383">Dagestan</a>. </p>
<p>It is not that Kadyrov doesn’t support the Palestinian cause; <a href="https://www.cnn.com/middleeast/live-news/israel-hamas-war-gaza-10-10-23/h_c7672da9df53b8772328fb478e38b568">he does</a>. Rather, the order demonstrates that he has a tight grip on the previously rebellious republic and is able to exert his omnipotent power – a power that extends far beyond the borders of Chechnya, a predominantly Muslim republic in the North Caucasus. </p>
<p>Kadyrov is both feared and venerated throughout Russia, and <a href="https://www.wsj.com/articles/chechen-warlord-kadyrov-putin-dirty-work-ukraine-11671204557">even more so</a> since the beginning of the full-scale invasion of Ukraine in 2022. Since then, his power and influence have <a href="https://jordanrussiacenter.org/news/ramzan-kadyrov-and-chechnyas-political-stability-amid-the-war-in-ukraine/">increased significantly</a> within the Russian political sphere. This is due to his contributions to the war effort, including the <a href="https://www.rferl.org/a/russia-chechnya-ukraine-war-recruitment-kadyrov-shaming/32124093.html">recruitment of volunteers</a>.</p>
<p>At the same time, he continually <a href="https://www.bbc.com/russian/articles/clw7lrjzx81o">flouts the rule of law</a>. In September 2023, for example, Kadyrov posted a video to his Telegram channel showing his 15-year-old son, Adam, beating <a href="https://www.bbc.com/russian/articles/clw7lrjzx81o">Nikita Zhuravel</a>, a 19-year-old imprisoned for allegedly burning the Quran in front of a mosque. Kadyrov praised Adam for possessing the “adult ideals of honor, dignity and defense of his religion.” Russian federal authorities did not condemn the beating of the defenseless prisoner.</p>
<p>How did the leader of a small North Caucasian republic become such a feared figure in Russia? </p>
<p>As scholars of <a href="https://independent.academia.edu/AnyaFree">Russian history</a> and <a href="https://scholar.google.com/citations?user=Qkj6TgoAAAAJ&hl=en">Chechen politics</a>, we argue that Kadyrov’s power and political legitimacy are based on brute force, lack of accountability, a personal relationship with Putin and the use of Islam for political gain. </p>
<h2>Ruthless rise to power</h2>
<p>Ramzan Kadyrov’s late father, Akhmat Kadyrov, <a href="https://www.theguardian.com/news/2004/may/10/guardianobituaries.russia">was a mufti</a>, or Islamic legal scholar, in Chechnya in the 1990s. He and his son Ramzan were also staunch supporters of Chechen independence. However, Akhmat Kadyrov’s political and religious disagreement with the Chechen pro-independence government after the <a href="https://www.nytimes.com/2019/12/10/world/europe/photos-chechen-war-russia.html">first Chechen war</a> from 1994 to 1996 drew him into the orbit of Vladimir Putin.</p>
<p>Shortly after the beginning of the <a href="https://www.rferl.org/a/the-second-chechen-war-in-photos/30185257.html">second Chechen war</a>, which lasted from 1999 to 2009, Putin – who increased his power and popularity due to <a href="https://www.theguardian.com/commentisfree/2022/mar/03/vladimir-putin-ukraine-war-chechnya">his aggressive role in the conflict</a> – installed Akhmat as the leader of the republic. </p>
<p>When <a href="https://www.nytimes.com/2004/05/10/world/chechnya-bomb-kills-president-a-blow-to-putin.html">Akhmat was assassinated</a> in 2004, Ramzan was 27 years old – three years too young to legally assume the role as leader in Chechnya. He used these years to consolidate his power and ensure his political ascension. To achieve this, he worked on eliminating his political rivals, including those who were <a href="https://jamestown.org/program/movladi-baisarov-killed-in-moscow-2/">once close to his father</a>. <a href="https://www.rferl.org/a/1074746.html">Some were silenced</a>, while others were exiled <a href="https://www.theguardian.com/world/2009/apr/06/kadyrov-yamadayev-chechnya-dubai-kremlin">or murdered</a>. </p>
<p>Ramzan was appointed to lead the republic in 2007 when he turned 30. At that time, Russia was conducting a <a href="https://www.hrw.org/legacy/wr2k4/download/7.pdf">counterterrorism operation</a> in Chechnya using its federal forces. Kadyrov worked diligently to take control of all security-related matters in the republic and eventually succeeded in building a formidable armed force devoted to him personally.</p>
<h2>Violent suppression of dissent</h2>
<p>This highly professional paramilitary force, colloquially known as the “<a href="https://newlinesinstitute.org/state-resilience-fragility/authoritarianism/the-kadyrovtsy-putins-force-multiplier-or-propaganda-tool/">Kadyrovtsy</a>,” is formally integrated into the interior ministry and national guard. </p>
<p>These troops serve as a private army that <a href="https://www.hrw.org/report/2016/08/31/walking-minefield/vicious-crackdown-critics-russias-chechen-republic">suppresses dissent within the republic</a> and eliminates Kadyrov’s opponents beyond its borders. Members of Kadyrov’s inner circle have been linked to assassinations of the Russian opposition leader <a href="https://theconversation.com/nemtsov-murder-chechen-theories-shouldnt-take-heat-off-putin-38736">Boris Nemtsov</a>, journalist <a href="https://www.rferl.org/a/1071891.html">Anna Politkovskaya</a>, human rights activist <a href="https://www.rferl.org/a/Estemirovas_Death_Raises_Questions_About_Kadyrovs_Power/1778269.html">Natalya Estemirova</a> and <a href="https://www.rferl.org/a/1778554.html">others</a>. Kadyrov has denied any involvement.</p>
<p>Kadyrovtsy also fought in the Syrian civil war as part of <a href="https://www.voanews.com/a/russia-chechnya-ground-troops-syria/3634787.html">Russia’s military support</a> for Syrian president Bashar Assad. They have been <a href="https://www.bbc.com/russian/international/2014/05/140529_donetsk_chechens_ivshina">present in Ukraine</a> since the start of hostilities in the Donbas region in 2014 and assumed a larger role <a href="https://www.aljazeera.com/news/2022/8/18/the-real-role-of-pro-russian-chechens-in-ukraine">following the 2022 invasion</a>. This has boosted Kadyrov’s position within the closest circle of Putin’s supporters. </p>
<h2>Zealous loyalty to Putin</h2>
<p>Putin’s ascendance to power in 1999 marked the beginning of the end of the <a href="https://www.aljazeera.com/features/2014/12/11/chechnya-russia-and-20-years-of-conflict">Chechen struggle for independence</a>. Under Putin’s rule, however, Kadyrov and his associates have achieved an unprecedented level of autonomy in the increasingly centralized Russian state. </p>
<p>This autonomy is largely due to the personal relationship between Putin and Kadyrov. Soon after Akhmat Kadyrov’s death, Ramzan famously arrived at the Kremlin <a href="http://en.kremlin.ru/events/president/news/30907">wearing a tracksuit</a>, and Putin sincerely comforted the grief-stricken young man. That meeting laid the foundation for a strong patron-client relationship based on Kadyrov’s <a href="https://www.dw.com/en/putins-foot-soldier-kadyrov-threatens-critics/a-19000569">personal devotion to Putin</a> and the two leaders’ mutual dependence. </p>
<p>In return for Kadyrov’s zealous loyalty and his largely successful efforts in <a href="https://ibs.colorado.edu/johno/pub/NCaucasus.pdf">suppressing the North Caucasian insurgency</a>, Putin ceded nearly complete control of Chechnya. He also provided <a href="https://www.proekt.media/en/investigation-en/kadyrov-krotov-eng/">large economic subsidies to Chechnya</a>, enabling Kadyrov to rebuild the republic destroyed by two wars. In the process, Kadyrov became a very wealthy man himself and <a href="https://www.proekt.media/en/investigation-en/kadyrov-krotov-eng/">enriched his close associates</a>. </p>
<h2>Islam as a political tool</h2>
<p>Kadyrov grew up in a religious family that adhered to the North Caucasian traditional form of Islam called <a href="https://www.britannica.com/topic/Sufism">Sufism</a>. Under Kadyrov, Sufism in Chechnya flourished and became the only acceptable form of Islam. </p>
<p>Within Chechnya, Kadyrov uses religion to galvanize supporters and demonstrate his political power. He promotes Islamic values by <a href="https://www.reuters.com/article/us-russia-chechnya-mosque/russias-chechnya-inaugurates-what-it-says-is-europes-largest-mosque-idUSKCN1VD1I1">building mosques</a> and <a href="https://www.buzzfeednews.com/article/hayesbrown/13-pictures-of-life-inside-chechnyas-religious-training-scho">religious schools</a>. He also dictates religious public conduct for the population, including <a href="https://www.hrw.org/report/2011/03/10/you-dress-according-their-rules/enforcement-islamic-dress-code-women-chechnya">a strict dress code</a>. </p>
<p>This public re-Islamization of the region after a long period of secular communist rule is convenient for Putin as well. It enables the Russian president to demonstrate respect for Islam and gain trust within the Muslim world. </p>
<p>Kadyrov, meanwhile, also uses Islam to <a href="https://www.wilsoncenter.org/blog-post/ramzan-kadyrov-chechen-strategist-russias-middle-east-policy">boost his profile on the international stage</a> and bolster his political standing in Russia. On Oct. 25, 2023, during Israel’s bombardment of Gaza in the wake of Hamas’ attack on Israel, he expressed <a href="https://t.me/RKadyrov_95/4042">his full support</a> for the Palestinian struggle and offered to send his “units” for a peacekeeping mission.</p>
<p>Kadyrov also argues that Chechen units in Ukraine are participating in a <a href="https://t.me/RKadyrov_95/3033">holy jihad</a> against the “Western Satanist ideology.” He regularly <a href="https://t.me/RKadyrov_95/4087">posts videos</a> from Chechen mosques where attendants pray for victory in Ukraine and liberation of the Palestinians.</p>
<h2>‘I am the boss!’</h2>
<p>Kadyrov has managed to construct an increasingly hierarchical and oppressive political system, one that revolves around the <a href="https://www.gazeta.ru/social/2021/11/28/14256193.shtml">cult of personality of his late father</a> and Ramzan himself. He presides over Chechnya – which waged two wars against Russia in the past 30 years in pursuit of independence – with impunity.</p>
<p>“I am the boss! I am at the steering wheel!” Kadyrov boldly <a href="https://www.youtube.com/watch?v=uFoxpC-cNxw">proclaimed in 2011</a>, a mere four years after Putin installed him as the republic’s president. Since then, he has repeatedly <a href="https://www.kavkazr.com/a/pohischeniya-pytki-kuljt-lichnosti-itogi-2021-goda-v-chechne/31628535.html">defied human rights and the rule of law</a>. His supporters have engaged in <a href="https://www.rferl.org/a/chechnya-abductions-20-civilians-kadyrov-russia/32215422.html">abductions</a>, <a href="https://www.rferl.org/a/russia-chechnya-prison-kadyrov/32246562.html">torture</a> and <a href="https://www.rferl.org/a/caucasus-report-kadyrov-envoy-implicated-extortion/26706398.html">extortion of money</a> from the Chechen population. </p>
<p><a href="https://www.hrw.org/ru/report/2016/08/30/293356">Russian law seems powerless</a> to hold Kadyrov accountable, a fact the Chechen strongman underscored in 2015. In response to a covert operation by the Russian police in Chechnya, Kadyrov ordered Chechen law enforcement to <a href="https://www.theguardian.com/world/2015/apr/23/chechnya-leader-ramzan-kadyrov-security-forces-fire-on-russian-troops">shoot anyone</a> – even federal forces – who entered the republic without prior notice.</p>
<p>In addition to his near-absolute power within Chechnya, Kadyrov wields unprecedented authority in Russia at large. Chechen security forces operate with apparent impunity, <a href="https://www.hrw.org/news/2022/01/21/chechen-police-abduct-woman-retaliation-against-her-sons">kidnapping people</a> from across the Russian Federation. Victims include <a href="https://www.hrw.org/news/2019/05/08/russia-new-anti-gay-crackdown-chechnya">members of the LGBTQ community</a>, whom Kadyrov deems <a href="https://www.rferl.org/a/kadyrov-dismisses-us-too-weak-be-russia-enemy-hbo-interview-bashes-gays/28617697.html">“nonhuman” and “devils.”</a></p>
<p>At a time of <a href="https://www.wsj.com/world/russia/prigozhin-is-gone-but-the-causes-of-russias-growing-instability-persist-b944c2c">rising instability</a> within Russia, which is entangled in the disastrous war in Ukraine, Kadyrov maintains his strong grip on power in his republic. While other regional leaders are <a href="https://carnegieendowment.org/politika/88810">temporary managers</a>, regularly replaced from Moscow, Kadyrov’s power is deeply entrenched.</p>
<p>Kadyrov sees any public display of discontent as a challenge to his authority, and he is ready to <a href="https://www.hrw.org/news/2023/07/04/journalist-rights-lawyer-brutally-attacked-chechnya">brutally suppress it</a>, as he threatens to do with any pro-Palestinian protests. While he remains loyal to Putin, he has his own agenda and cannot afford to be seen as weak. His outrageous public breaches of the law, as well as societal and political norms, present a unique challenge – and, at times, liability – for the Putinist political system, of which Kadyrov is a pillar.</p><img src="https://counter.theconversation.com/content/216418/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The leader of Chechnya rules with brute force, impunity and near autonomy. Why doesn’t Vladimir Putin rein him in?Anya Free, Faculty Associate of History, Arizona State UniversityMarat Iliyasov, Visiting Scholar at the Institute for European, Russian and Eurasian Studies, George Washington UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2165852023-11-01T09:53:14Z2023-11-01T09:53:14ZWhy the attorney general’s power to deal with contempt of court is a conflict of interest<p>The UK home secretary, Suella Braverman, is the most recent government minister to be accused of potential <a href="https://uk.news.yahoo.com/home-secretary-may-committed-contempt-133843582.html">contempt of court</a>. Following a decision to charge a firearms officer with murder for the shooting of Chris Kaba in September 2022, Braverman tweeted that officers “mustn’t fear ending up in the dock for carrying out their duties”. </p>
<p>These comments suggest that the decision to prosecute the officer is a mistake. And according to former <a href="https://www.independent.co.uk/voices/suella-braverman-chris-kaba-tweets-police-firearms-b2417962.html">chief prosecutor Nazir Afzal</a> and several other experts, these comments risk affecting the fairness of the forthcoming trial, making them a possible contempt of court.</p>
<p>Braverman has not been officially accused of contempt, and the attorney general, who is responsible for bringing legal proceedings, has not commented. But, as I argue <a href="https://doi.org/10.1017/lst.2023.26">in recent research</a> the fact that the attorney general would have to bring proceedings at all is a problem in itself.</p>
<p>In the current system in England and Wales, the person who has the power to decide whether to bring serious legal proceedings for contempt of court (including against a politician) is themselves a politician. The attorney general – a position Suella Braverman previously held – is a government minister appointed to their role by the prime minister. They exercise a number of government functions, including a <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2018/1856.html&query=(yaxley)+AND+(lennon)">virtually exclusive power</a> to decide whether to bring proceedings under the Contempt of Court Act 1981.</p>
<p>The <a href="https://www.legislation.gov.uk/ukpga/1981/49">act</a> states that a contempt occurs if a broadcast or publication (including social media posts) “creates a substantial risk that the course of justice” of active legal proceedings will be seriously impeded or prejudiced.</p>
<p>This is a serious matter. A person found to have committed contempt may be imprisoned for up to two years and may be given an unlimited fine. Given that several politicians in recent years have made questionable statements that have, at least, come close to interfering with legal proceedings, it’s clear that the current system is not enough to hold them to account.</p>
<h2>Politicians and contempt of court</h2>
<p>There have been a number of incidents where politicians have been involved in potential contempt of court. In 2016, a tweet by the then-health secretary, Jeremy Hunt, suggested the defendants in a manslaughter trial were culpable for a patient’s death. There is no indication that the then-attorney general, Jeremy Wright, considered bringing contempt proceedings against Hunt. But the risk of prejudice was such that the trial judge ordered the tweet to be <a href="http://www.telegraph.co.uk/news/uknews/law-and-order/12123076/Health-Secretary-Jeremy-Hunt-reprimanded-by-judge-over-manslaughter-trial-Tweet.html">immediately deleted</a>. </p>
<p>Braverman’s predecessor as home secretary, Priti Patel, was accused of contempt of court on two occasions, in 2020 and 2021. Patel tweeted suggesting that those accused of <a href="https://evolvepolitics.com/priti-patel-accused-of-contempt-of-court-after-assuming-guilt-of-suspected-criminal-just-months-after-almost-causing-similar-case-to-collapse/">people smuggling were guilty</a> even though that had not been established in court. Again, the risk was that criminal proceedings may be prejudiced by the tweets. It is worth noting here that Braverman herself was the attorney general during both of these incidents. </p>
<p>Former prime minister David Cameron was involved in two instances of potential contempt. In one, he gave an interview <a href="https://www.telegraph.co.uk/news/uknews/law-and-order/10528136/Nigella-Lawson-Barristers-tried-to-have-trial-halted-over-David-Cameron-intervention.html">expressing support</a> for the celebrity cook Nigella Lawson while she was the main prosecution witness in a fraud trial. One of the defence barristers said that Cameron’s comments meant that the prime minister was <a href="https://www.theguardian.com/politics/2013/dec/20/david-cameron-team-nigella-lawson-quote-trial">“essentially a character witness for Miss Lawson”</a> and asked for the trial to be halted, although this request was declined.</p>
<p>In the second, Cameron was rebuked by a judge for his comments about former News of the World editor Andy Coulson, made while a jury was still considering a criminal charge against Coulson for <a href="https://www.bbc.co.uk/news/uk-politics-28014035">phone hacking</a>. Cameron made a public apology for hiring Coulson as his director of communications, saying that Coulson had given him <a href="https://www.thedrum.com/opinion/2014/06/25/phone-hacking-trial-judge-rebukes-david-cameron-coulson-statement">false assurances</a>. This, the judge said, may have affected Coulson’s <a href="https://www.bbc.co.uk/news/uk-politics-28021211">credibility with the jury</a>. </p>
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<h2>Who should bring actions for contempt?</h2>
<p>It is the potential for these various statements and social media posts to prejudice a trial that makes them a contempt of court concern. And the fact that they involve politicians is what makes the attorney general’s role – in deciding whether to begin contempt proceedings – a potential conflict of interest.</p>
<p>This is particularly the case when the person accused of contempt is the prime minister, as they appoint the attorney general. In the case of Cameron’s statement on Andy Coulson, <a href="https://www.bbc.co.uk/news/uk-politics-28014035">he was advised</a> by the attorney general of the time, Dominic Grieve. Could Grieve have impartially decided whether to bring contempt proceedings related to an apology he advised on?</p>
<p>It is time to remove from the attorney general the power to decide whether or not to bring proceedings for contempt. The power could be exercised by an independent official, such as the director of public prosecutions, or some other non-politician. This is the case in Northern Ireland, where the attorney general must exercise their functions “<a href="https://www.legislation.gov.uk/ukpga/2002/26/section/22">independently of any other person</a>”.</p>
<p>The fact that such an important decision to bring proceedings for contempt of court is made by a politician – especially when the contempt may have been committed by a fellow politician – brings its legitimacy and impartiality into question.</p><img src="https://counter.theconversation.com/content/216585/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John McGarry does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Contempt of court is a serious matter. It shouldn’t be a politicised issue.John McGarry, Senior Lecturer in Law, Department of Law / Centre for Crime, Justice and Security, Staffordshire UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2113592023-08-11T09:59:21Z2023-08-11T09:59:21ZZuma prison case casts doubt on South Africa’s medical parole law<figure><img src="https://images.theconversation.com/files/542153/original/file-20230810-24-d1htt4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African president Jacob Zuma in court over corruption charges in 2018.</span> <span class="attribution"><span class="source">Nic Botha/Pool/AFP via Getty Images </span></span></figcaption></figure><p>The Constitutional Court <a href="https://hsf.org.za/litigation/cases/the-helen-suzman-foundation-v-national-commissioner-of-correctional-services-and-others-case-no-2021-46468/judgments/09-cc-order-13072023.pdf">order</a> relating to a case involving former President Jacob Zuma has illuminated some of the flaws in the law governing medical parole in South Africa. This is despite <a href="https://www.gov.za/sites/default/files/gcis_document/201409/35277rg9739gon323.pdf">amendments in 2012</a> to ensure equality before the law, uphold offenders’ rights to dignity and healthcare when they suffer from serious physical health problems.</p>
<p>Zuma’s case has cast doubts upon the efficacy of the law in achieving these objectives. In short, his parole tested the buoyancy of the law in facilitating the medical release of offenders without political or other interference. He eventually <a href="https://www.gov.za/speeches/decision-national-commissioner-mr-makgothi-samuel-thobakgale-incarceration-term-mr-zuma-11">returned to jail</a> on the morning of 11 August, but was immediately <a href="https://www.sabcnews.com/sabcnews/zuma-will-not-serve-the-remainder-of-his-sentence-due-to-remission-process/">released on remission of sentence</a>. </p>
<p>The Constitutional Court rejected the Department of Correctional Services’ application for leave to appeal against the 2022 <a href="http://www.saflii.org/za/cases/ZASCA/2022/159.html">judgment of the Supreme Court of Appeal (SCA)</a>. The SCA had found that Zuma was unlawfully granted medical parole against the advice of the Medical Parole Advisory Board. </p>
<p>Zuma (81) was sentenced to 15 months’ imprisonment for contempt of court after he failed to comply with the Constitutional Court’s order requiring him to appear before the <a href="https://www.statecapture.org.za/">State Capture Commission</a>, which probed mass corruption on his watch. Less than two months after his admission to prison, he was released on medical parole.</p>
<p>The NGOs, <a href="https://hsf.org.za/news/press-releases/press-release-gauteng-high-court-hands-down-judgment-in-mr-zumas-medical-parole-case">Helen Suzman Foundation</a>, <a href="https://afriforum.co.za/en/">AfriForum</a>, and the opposition Democratic Alliance brought separate urgent applications to the High Court to have the parole decision declared unlawful. The foundation also wanted Zuma to serve the full term of his sentence in prison, and that his time on medical parole not be counted as time served. For convenience, all three applications were heard together. </p>
<p>The High Court in Pretoria <a href="https://hsf.org.za/mailer-downloads/judgment-cn-2021-45997-cn-2021-46468-cn-2021-46701-15-dec-2021-matojane-j.pdf">ruled </a> in 2021 that Zuma was indeed granted medical parole unlawfully, as the Medical Parole Advisory Board did not recommend it in his case because he was not terminally ill as required by the law. He was therefore to return to prison. And the time he was out of prison on medical parole should not have been counted as time served. The correctional services department appealed against the High Court’s order to the Supreme Court of Appeal, which dismissed the appeal.</p>
<p>It, however, also ruled that the question of whether or not the time Zuma spent on unlawful medical parole should count towards his time served must be determined by the correctional services department. The department applied to the Constitutional Court for leave to appeal against the supreme court’s judgement. The apex court rejected this application. The judgement of the appeal court must therefore be enforced and Zuma would have to return to prison. </p>
<p>Medical parole in South Africa is governed by <a href="http://www.dcs.gov.za/wp-content/uploads/2018/05/CORRECTIONAL-SERVICES-ACT-111-of-1998.pdf#page=62">Section 79</a> of the <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a111-98.pdf">Correctional Services Act</a>, together with Regulation 29A of the Correctional Services <a href="https://www.gov.za/sites/default/files/gcis_document/201409/35277rg9739gon323.pdf#page=55">Regulations</a>. </p>
<p>Zuma’s <a href="https://www.bbc.com/news/world-africa-58454726">release on medical grounds</a> in September 2021 highlighted at least three potentially fatal flaws in these laws. The first and second flaws relate to the role of the Medical Parole Advisory Board and the Commissioner of Correctional Services, respectively. The third defect concerns the question of what ought to be done about the time an offender spent outside prison if he was unlawfully granted medical parole. </p>
<p>As a law academic with a research interest in <a href="https://scholar.google.com/citations?user=NIuc0vQAAAAJ&hl=en">correctional issues</a>, I have tracked developments in this area of the law. I believe that section 79 of the <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a111-98.pdf">Correctional Services Act</a> is open to political manipulation. In the main, the powers and functions of the Medical Parole Advisory Board require elaboration. Additionally, the principle that medical parole can only be considered by the commissioner if the board has confirmed the illness or incapacity of the offender, and if the correctional facility cannot provide the appropriate care, must be expressly included in the law.</p>
<h2>The process and gaps in law</h2>
<p>A medical parole application must be accompanied by a medical report which recommends placement on medical parole. This report must be submitted to the <a href="https://repository.uwc.ac.za/xmlui/bitstream/handle/10566/518/AlbertusMedicalParole2012.pdf?sequence=3&isAllowed=y">Medical Parole Advisory Board</a>. The board comprises ten medical practitioners, who must provide an independent medical report to the commissioner. </p>
<p>In this regard their role is clear. They must <a href="http://www.dcs.gov.za/wp-content/uploads/2018/05/CORRECTIONAL-SERVICES-ACT-111-of-1998.pdf#page=62">determine</a> if an </p>
<blockquote>
<p>offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care. </p>
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<p>If the board finds that an offender is not terminally ill or incapacitated, as was the case with Zuma, that ought to be the end of the matter as the main requirement for medical parole does not exist. It is the absence of a statement to this effect in section 79, which may leads to exploitation.</p>
<p>Where the Medical Parole Advisory Board finds that an offender is terminally ill or incapacitated, this does not mean that medical parole must automatically be granted. The correctional regulations require the board to make a recommendation, on the “appropriateness to grant medical parole in accordance with section 79” and <a href="http://www.dcs.gov.za/wp-content/uploads/2016/08/Correctional-Services-Regulations-2004-as-amended-on-25-April-2012.pdf#page=53">Regulation 29A (7)</a> of the correctional services department.</p>
<p>It’s not clear what “appropriateness” means. And it must be remembered that offenders ought not to be released <a href="http://www.scielo.org.za/scielo.php?script=sci_abstract&pid=S1682-58532020000400001&lng=en">due to ill health only</a>. If an offender can be cared for in a dignified manner in prison, he should not be released. However, section 79 does not make this clear.</p>
<p>Logically, the board is in a position to decide the medical aspects of an application and to guide the commissioner on the care and conditions which are consistent with optimising the quality of life of offenders. The commissioner should then consider whether the prison facility has the means to follow such guidance in caring for an offender.</p>
<p>Unfortunately, the law does not require the board to offer such guidance. Nor does it require the commissioner to determine if the means to care for an offender exist in the prison. These gaps in the law are exacerbated by the omission to specify whether the commissioner has the power to ignore the recommendation of the board, as in Zuma’s application.</p>
<p>Furthermore, section 79 tasks the commissioner with determining the risk of re-offending and if appropriate care is available in the community to which the offender will be released. If afforded medical guidance regarding the necessities to care for the offender, the determination of the availability of appropriate care may not be too onerous. </p>
<p>The same can, however, not be said about determining the risk of re-offending. Section 79 provides a list of factors in assessing such risk. These factors, among other things, include the offence(s), sentencing remarks of the court and the criminal past of an offender. While they may all seem relevant in assessing future criminality, there is no indication as to how they should be weighed up. This is a task which should involve clinical evaluations by <a href="https://journalofethics.ama-assn.org/article/predicting-risk-future-dangerousness/2012-06">forensic psychiatrists</a>, but the legislation does not require this.</p>
<h2>Unfortunate omission</h2>
<p>The weaknesses in section 79 may explain the <a href="http://jics.dcs.gov.za/jics/?page_id=142">low number</a> of successful medical parole applications in recent years. For example, if an offender is lawfully released on medical parole, but their health improves or even if they are cured, they cannot be forced to <a href="https://etd.uwc.ac.za/xmlui/handle/11394/7577">return</a> to prison. </p>
<p>Contrarily, if an offender was unlawfully released on medical parole, they must return to prison to serve their time, as became clear in Zuma’s case. However, the question of whether the time spent outside prison on unlawful medical parole should be regarded as time served, still looms. </p>
<p>It is unfortunate that the Supreme Court of Appeal referred this question back to the Department of Correctional Services – the very department that flagrantly violated the law. In this regard the High Court’s finding that it has the power to enforce the sentence term should have been confirmed by the SCA to ensure equality before the law.</p><img src="https://counter.theconversation.com/content/211359/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chesne Albertus does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If an offender is lawfully released on medical parole, but their health improves or even if they are cured, they cannot be forced to return to prison.Chesne Albertus, Senior Lecturer in Criminal Justice and Procedure, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2081312023-06-27T14:46:18Z2023-06-27T14:46:18ZAfrican women lawyers: numbers are up but report sheds light on obstacles to leadership in the profession<figure><img src="https://images.theconversation.com/files/533408/original/file-20230622-17-pbx68s.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Increases in the number of women lawyers does not equate institutional change in the legal profession. </span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p>The African continent currently leads the world in the number of women chief justices and presidents of constitutional courts. Several countries across the continent have almost <a href="https://chambers.com/topics/gender-diversity-statistics-in-africa">equal numbers</a> of women and men at the bar. </p>
<p>Some countries, such as Cape Verde, Zambia, South Africa, Namibia and Sierra Leone, have had women as presidents of the bar association or law society. In the legal academy, some countries have recorded success with women as deans of law faculties and heads of departments. And across the continent, the <a href="https://www.africanwomeninlaw.com/_files/ugd/229dcd_04c074c8235b40138829028406fbef98.pdf#page=48">number of women</a> called to the bar is increasing each year. </p>
<p>Still, challenges remain, narrowing the opportunity structures for women to lead in some countries. As a <a href="https://profiles.howard.edu/josephine-jarpa-dawuni">lawyer and professor</a> I have <a href="https://www.routledge.com/International-Courts-and-the-African-Woman-Judge-Unveiled-Narratives/Dawuni-Kuenyehia-Kirk-McDonald/p/book/9781138215146">authored several books</a> on women in the legal profession in Africa. I am also the founder of the <a href="https://www.africanwomeninlaw.com/">Institute for African Women in Law</a>, an organisation committed to supporting women in law across Africa and the diaspora. </p>
<p>As part of my work, I coordinated <a href="https://www.africanwomeninlaw.com/_files/ugd/229dcd_04c074c8235b40138829028406fbef98.pdf">a project</a> examining the barriers to women’s leadership in the legal profession in Kenya, Senegal, Nigeria and South Africa. </p>
<p>Findings from the Women in Law and Leadership <a href="https://www.africanwomeninlaw.com/womeninleadership">study</a> show that progress is uneven across the judiciary, bar and academia. The reports show that increases in the number of women will not automatically lead to institutional change. The masculine foundations on which the legal traditions and legal profession were built and continue to operate must be acknowledged and called out. </p>
<p>Raychelle Awuor Omamo, the first (and so far only) woman to chair the Law Society of Kenya, commented on these findings:</p>
<blockquote>
<p>This report makes evidence-based rather than anecdotal recommendations … I believe if taken seriously, this report’s recommendations can catapult more women advocates in Kenya to the highest levels possible in the legal profession, both nationally and internationally. </p>
</blockquote>
<p>The findings from all four nations show that accelerating women’s equitable leadership in law requires targeted initiatives at the individual, structural, institutional and philanthropic levels. Systems change slowly, but women cannot wait for slow systems. Advancing women in leadership should be a priority for all advocates for human rights, the rule of law, and justice. </p>
<h2>Barriers to leadership</h2>
<p>The research combined qualitative and quantitative data sources to analyse the research questions. To centre women’s voices in law, we used in‑depth interviews, focus groups and key informant discussions.</p>
<p>We found that 60% of respondents at the bar in Kenya attributed their career stagnation to gender stereotypes. There is a view that women’s caregiving roles as wives and mothers reduce their productivity. </p>
<p>In Nigeria, similar sentiments were expressed. Over 70% of respondents
pointed to sexual harassment and unequal pay as factors affecting their professional advancement. </p>
<p>In South Africa, lingering racialised perceptions of black women as “incompetent” continue to restrict their upward mobility at the bar. </p>
<p>In Senegal, historical, cultural and religious expectations of women’s societal roles have kept women out of the legal professions or held them back. The high levels of attrition from the legal pipeline occur at the university level with girls choosing marriage over career.</p>
<p>These challenges are real and dotted along the entire career journey. In endorsing the reports, the first woman deputy chief justice of South Africa, <a href="https://theconversation.com/south-africa-has-its-first-woman-deputy-chief-justice-heres-who-she-is-176896">Mandisa Maya</a>, shared her experience:</p>
<blockquote>
<p>As a woman on the bench, I encountered my own barriers in rising to where I am today. But those barriers play out differently for different women and change over time. Therefore, the barriers this report identifies shed light on the old, new and emerging obstacles to women’s retention and promotion.</p>
</blockquote>
<p>Overall, data from the reports shows a gradual increase in the number of women in the legal professions in<a href="https://www.africanwomeninlaw.com/_files/ugd/229dcd_cefe201bff954472b45a04da6a8c036f.pdf#page=16"> Kenya</a>, Nigeria and South Africa. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/533655/original/file-20230623-15-ylf6i4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/533655/original/file-20230623-15-ylf6i4.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=291&fit=crop&dpr=1 600w, https://images.theconversation.com/files/533655/original/file-20230623-15-ylf6i4.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=291&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/533655/original/file-20230623-15-ylf6i4.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=291&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/533655/original/file-20230623-15-ylf6i4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=366&fit=crop&dpr=1 754w, https://images.theconversation.com/files/533655/original/file-20230623-15-ylf6i4.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=366&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/533655/original/file-20230623-15-ylf6i4.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=366&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>In Senegal, men continue to dominate the bar, bench and academia. As of June 2022, of the <a href="https://www.africanwomeninlaw.com/_files/ugd/229dcd_a625575fee9f42e0889172151858da84.pdf#page=32">418 lawyers registered</a>, only 67 (16%) were women. These numbers may not reflect all lawyers called to the Senegalese bar. Some are trained in France, and most often work in France and other jurisdictions outside Senegal. </p>
<h2>Moving forward</h2>
<p>The numerical representation of women is not the biggest challenge in most countries. The focus must shift from the numbers to the representation in leadership. </p>
<p>Some <a href="https://blogs.thomsonreuters.com/legal-uk/wp-content/uploads/sites/14/2019/06/Current-approaches-to-improving-gender-diversity-at-senior-levels-in-law-firms-and-correlated-success.pdf">analysts</a> make a “business case” for more women in leadership. They argue that gender-diverse companies will bring more clients and increase the bottom line.</p>
<p>I offer a simple counter-argument: women lawyers and women’s rights advocates should not have to make “a case” for women’s representation in leadership positions. There is no shortage of qualified women in the legal professions. What is needed is a shift in systems, institutional practices, norms and perceptions to accommodate more women in leadership positions. </p>
<p>The legal institutional gatekeepers such as bar associations, law societies and law schools must acknowledge women as equal peers and acknowledge their contributions as essential to the survival of the workplace. </p>
<p>At the structural level, the legal sector must change its gender-biased perceptions and stereotypes about women’s work ethic and invest in professional training opportunities to support women’s leadership skills. </p>
<p>At the institutional and organisational levels, the legal sector must create equitable working opportunities. It must provide equal pay for equal work, eradicate gender stereotypes, provide professional training opportunities to support women’s leadership skills as individuals and support women of childbearing age.</p>
<p>Despite the low numbers in leadership, women are acquiring higher education, developing niches in legal practice, branching out to international positions and bringing back the knowledge and experience acquired to support and mentor other women. Systems change is possible if financial investments are directed at supporting women and women‑led organisations across Africa and the African diaspora.</p><img src="https://counter.theconversation.com/content/208131/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Josephine Jarpa Dawuni works for/consults to Institute for African Women in Law.
National Science Foundation grant</span></em></p>Philanthropic investments must support the capacity of women in law and leadership.Josephine Jarpa Dawuni, Associate Professor, Howard UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2048182023-05-10T13:24:09Z2023-05-10T13:24:09ZNamibia and South Africa’s ruling parties share a heroic history - but their 2024 electoral prospects look weak<figure><img src="https://images.theconversation.com/files/524080/original/file-20230503-15-wxlrrh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Presidents Hage Geingob, left, and Cyril Ramaphosa at the Union Buildings in Tshwane.
</span> <span class="attribution"><span class="source">GCIS</span></span></figcaption></figure><p>Namibian president Hage Geingob used his <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-state-visit-president-hage-geingob-republic-namibia-20-apr-2023">recent state visit</a> to South Africa to also address a meeting of the national executive committee of the governing party, the African National Congress (<a href="https://www.anc1912.org.za/">ANC</a>). This underscored the ANC’s historic ties to Namibia’s governing party, South West Africa People’s Organisation (<a href="https://www.politicalpartydb.org/wp-content/uploads/Statutes/Namibia/Namibia_Swapo_1998.pdf">Swapo</a>).</p>
<p><a href="https://www.iol.co.za/the-star/news/no-phala-phala-talk-between-ramaphosa-and-hage-geingob-2ca0db5e-074f-44d2-838f-05f39fd54b2c">According to President Cyril Ramaphosa</a>, who also heads the ANC, the party had a “wonderful engagement” with Geingob, who <a href="https://www.facebook.com/DrHageGeingob/">posted on Facebook</a>:</p>
<blockquote>
<p>As former liberation movements, we learn from one another, a manifestation of the deep bonds of solidarity formed during our struggle against oppression.</p>
</blockquote>
<p>As political scientists and sociologists, we both followed individually and jointly the performance of the two organisations since the days of the liberation struggles. We have continuously analysed and commented on trends in their governance of the countries.</p>
<p>In our view, the nostalgic reminiscences of the parties’ days as liberation movements serve as a heroic patriotic history turned into a form of <a href="https://www.tandfonline.com/doi/abs/10.1080/03056244.2018.1500360">populism</a>. Such romanticism uses the merits of the past to cover failures in the present. It also is a potential threat to the achievements of <a href="https://journals.sagepub.com/doi/10.1177/000203971404900105">constitutionalism</a>. </p>
<p>Geingob’s visit came at a time when both governments under the former liberation movements, Swapo and the ANC, face an erosion of their political legitimacy. With elections in 2024 <a href="https://www.eisa.org/calendar2024.php">in both countries</a>, their challenges are similar.</p>
<p>Both face tough choices about how best to handle the challenges when entering the election year. They have, since moving into office, disappointed expectations, not least in their <a href="https://theconversation.com/why-31-years-after-independence-namibians-arent-in-a-festive-mood-157151">failures</a> to fight <a href="https://www.ufs.ac.za/docs/default-source/news-documents/opinion_politicsandcorruption_gb1.pdf?sfvrsn=3cd06c20_0">corruption</a>. Voters in South Africa and Namibia will in 2024 pass their verdict at the ballot boxes.</p>
<p>How they perform will shape the future of democracy in both countries.</p>
<h2>History with lasting bonds</h2>
<p>South African-Namibian relations have a special history. </p>
<p>After the <a href="https://www.britannica.com/event/World-War-I">first world war</a>, the <a href="https://www.britannica.com/event/Treaty-of-Versailles-1919">Treaty of Versailles</a> officially ended the war between Germany and the Allied powers. It turned the German colony South West Africa into a <a href="https://www.britannica.com/topic/mandate-League-of-Nations#ref13450">C-mandate of the new League of Nations</a>. Its administration was delegated to South Africa. It effectively <a href="https://open.uct.ac.za/bitstream/item/9690/thesis_hum_1997_getz_tr.pdf?sequence=1">annexed</a> the territory and <a href="https://www.unmultimedia.org/avlibrary/asset/2040/2040311/">entrenched apartheid</a>. </p>
<p>This led the national liberation movement <a href="https://www.britannica.com/topic/SWAPO-Party-of-Namibia">Swapo</a> to take up arms. Recognised by the UN General Assembly as the
<a href="https://digitallibrary.un.org/record/189617?ln=en">“sole and authentic representative of the Namibian people”</a>, Swapo and the ANC, which had likewise launched an armed struggle, became <a href="https://www.sahistory.org.za/sites/default/files/Thula_Simpson_abstract.pdf">close allies</a>. Both received <a href="https://www.jstor.org/stable/40283233?seq=8">wide international support</a>.</p>
<h2>From liberation movements to governments</h2>
<p>Under UN supervised elections <a href="http://archive.ipu.org/parline-e/reports/arc/2225_89.htm">in November 1989</a>, Swapo obtained an absolute majority (58%). Independence was proclaimed on 21 March 1990. The date was chosen by the elected Constituent Assembly in recognition of <a href="https://www.britannica.com/event/Sharpeville-massacre">the Sharpeville massacre</a> in 1961 – when apartheid police murdered 69 unarmed black people protesting against being forced to carry <a href="https://www.facebook.com/ApartheidMuseumSA/posts/heres-what-a-dompas-which-literally-means-dumb-pass-looked-like-during-the-apart/10157134498674628/">identity documents</a> controlling their movement. Released only weeks earlier from prison, Nelson Mandela attended the ceremony as the <a href="https://kapweine.ch/en/independence-from-namibia/">celebrated guest of honour</a>.</p>
<p>Apartheid in South Africa came officially to an end through the result of the first democratic elections in 1994. Like Swapo, the ANC emerged as the <a href="https://www.eisa.org/wep/sou1994results1.htm">majority party (62.7%)</a>. It indicated the success of the democratic settlements in both countries that Swapo and the ANC led processes leading to the drawing up of final constitutions. These embedded accepted democratic principles: free and regular elections, independent judiciaries, bills of fundamental human rights, and the separation of powers of the three branches of government.</p>
<p>Since then, both countries have continued to rank among the top African democracies. Regular elections were largely free and fair. Judiciaries have remained independent and have served as a check on executive power. Both parties initially increased their majorities. Crucially, however, the parliaments dominated by <a href="https://ippr.org.na/wp-content/uploads/2010/06/IPPR%20Opinion%20No%2021%20-parliament.....pdf">Swapo</a> and the <a href="https://theconversation.com/south-africas-parliament-fails-to-hold-the-executive-to-account-history-shows-what-can-happen-192889">ANC</a> have failed to hold governments to account on major issues.</p>
<h2>Popularity in decline</h2>
<p>Support for the ANC peaked at nearly 70% in the third democratic election <a href="https://www.jstor.org/stable/40607814">in 2009</a>, but by the 5th election <a href="https://www.sahistory.org.za/article/south-africas-2019-general-election-post-analysis">in 2019</a>, it had fallen to 57.5%. Even this was regarded as a triumph, put down to the personal <a href="https://www.ipsos.com/en-za/cyril-ramaphosa-popular-amongst-south-africans-political-parties-questionable">popularity of its latest leader, Cyril Ramaphosa</a>.</p>
<p>In the run-up to the elections in 2024, surveys predict the ANC will lose its absolute majority, and be forced to <a href="https://www.theafricareport.com/234405/south-africa-shock-poll-shows-anc-heading-towards-2024-coalition/">form a coalition to remain in power</a>. It is also anticipated that it will lose its majority <a href="https://www.iol.co.za/mercury/news/anc-prospects-are-dim-for-2024-elections-c5f442f2-7913-454d-a38f-e041e475a2db">in several provinces</a>. It may even lose Gauteng, the country’s economic hub, and KwaZulu-Natal. It has long lost control of the Western Cape to the opposition <a href="https://www.eisa.org/pdf/JAE9.2Africa.pdf">Democratic Alliance</a>.</p>
<p>In Namibia, Swapo has fared comparatively better. By <a href="https://mg.co.za/article/2014-12-02-namibias-swapo-win-elections-geingob-voted-as-president/">2014</a>, it had consolidated its political dominance into a whopping 80% of votes for the National Assembly, and 86% of votes for its directly elected <a href="https://www.researchgate.net/publication/290429183_From_Nujoma_to_Geingob_25_years_of_presidential_democracy">presidential candidate Hage Geingob</a>. But the National Assembly and presidential elections <a href="https://www.tandfonline.com/doi/full/10.1080/00358533.2020.1717090">in 2019</a> marked a turning point. With 65.5% the party lost its two-third majority.</p>
<p>For both, ANC and <a href="https://www.researchgate.net/publication/352737011_Namibia's_Regional_and_Local_Authority_Elections_2020_Democracy_beyond_SWAPO">Swapo</a>, the loss of control over the regional, provincial and <a href="http://democracyinafrica.org/democracy-beyond-swapo-in-namibia/">local levels of government</a> has turned politics into a matter of alliances, with shifting coalitions. Politics has become a negotiated commodity.</p>
<p>Principles are regularly traded for power, eroding the trust which citizens place in politicians and democracy. For all that they continue to dominate central government. But, their dominance is being steadily eroded by their lacklustre performance in power and failures in delivery of basic services. <a href="https://f3magazine.unicri.it/?p=402">State capture</a> has become a form of governance.</p>
<h2>2024 and the limits to liberation</h2>
<p>It is too early for any reliable predictions regarding the 2024 election results. While many assume that the ANC will lose its absolute majority, it has an uncanny ability to defy expectations. But even if it squeaks home, its credibility is likely to be further damaged. Unless he is shuffled aside by the ANC (a possibility whispered quietly in dark corners as the brightness of his image dims), Ramaphosa is likely to remain in office as South Africa’s president. But he could be <a href="https://theconversation.com/south-africa-votes-in-2024-could-a-coalition-between-major-parties-anc-and-eff-run-the-country-204141">compelled to lead a coalition government</a>.</p>
<p>Swapo’s electoral prospects seem less bleak, even though it is thought that the opposition will make gains. Geingob’s two terms as state president ends. <a href="https://www.africanews.com/2023/03/13/namibian-president-names-netumbo-nandi-ndaitwah-woman-successor//">Netumbo Nandi-Ndaitwah</a> Swapo’s first female candidate, might become the head of state. But in both countries, those holding office will face an uphill battle.</p>
<p>Numerous <a href="https://www.hsrcpress.ac.za/books/limits-to-liberation-in-southern-africa">analyses</a> have explored how former liberation movements in southern Africa have failed the ideals of the liberation struggle when in power, even becoming undemocratic and increasingly corrupt. They have transited <a href="https://www.thebrenthurstfoundation.org/news/when-liberation-movements-don-t-liberate-and-what-africans-can-do-about-it/">from dominance to decline</a>. In many ways, this was to be expected.</p>
<p>Few parties can retain power for decades without losing their popularity. Yet in southern Africa, liberation movements’ loss of popularity is combined with accusations that they have betrayed the promises of freedom. They have <a href="https://www.tandfonline.com/doi/abs/10.1080/02589346.2017.1282337">displayed a democratic deficit</a>. By dismissing accountability for the lack of delivery they have squandered their trust and support. </p>
<p>How Swapo and the ANC respond to any further decline will define the future of democracy. Opposition parties are expected to play an increasing role. But the former liberation movements might benefit from their <a href="https://www.eisa.org/pdf/JAE5.1Chiroro.pdf">fragmentation and dilemma</a>. After all, opposition parties have so far offered <a href="https://theconversation.com/south-african-voters-are-disillusioned-but-they-havent-found-an-alternative-to-the-anc-171239">little if any credible alternatives</a> which promise more well-being for the ordinary people.</p><img src="https://counter.theconversation.com/content/204818/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Henning Melber is a member of Swapo since 1974. </span></em></p><p class="fine-print"><em><span>Roger Southall does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>How Swapo and the ANC respond to any further decline in electoral support will define the future of democracy in both countries.Henning Melber, Extraordinary Professor, Department of Political Sciences, University of PretoriaRoger Southall, Professor of Sociology, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2032182023-04-06T12:08:35Z2023-04-06T12:08:35ZTrump’s latest personal attacks on judges could further weaken people’s declining trust in American rule of law<figure><img src="https://images.theconversation.com/files/519653/original/file-20230405-14-ikcyz1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump arrives at the Manhattan Criminal Courthouse on April 4, 2023, before his arraignment. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1250781316/photo/topshot-us-politics-trump-indictment.jpg?s=612x612&w=gi&k=20&c=I3u5rvs60DqqaqFP2vww4C8zLbH9OezJU37hQ-vKRgI=">Ed Jones/AFP via Getty Images</a></span></figcaption></figure><p>When former President Donald Trump was arraigned in a Manhattan criminal court on April 4, 2023, Judge Juan Merchan warned him to “refrain” from making social media posts that <a href="https://thehill.com/regulation/court-battles/3934302-judge-warns-trump-to-refrain-from-social-media-posts-that-could-incite-violence/">could incite violence</a> or “<a href="https://www.washingtonpost.com/national-security/2023/04/04/trump-judge-threats-violence/">jeopardize the rule of law</a>.” </p>
<p>Hours before his arraignment, Trump <a href="https://finance.yahoo.com/news/judge-warns-trump-social-media-210658480.html">reposted a since-deleted photo</a> that featured him with a baseball bat alongside Manhattan District Attorney Alvin Bragg. </p>
<p>After Trump pleaded not guilty and was released from custody, <a href="https://www.newsweek.com/trump-threaten-judge-incite-violence-1792620">he attacked Merchan</a> and the judge’s family during a speech at Mar-a-Lago.</p>
<p>This isn’t the first time Trump has criticized those trying to hold him accountable.</p>
<p>He <a href="https://truthsocial.com/@realDonaldTrump/posts/110132429947452820">previously harshly</a> <a href="https://truthsocial.com/@realDonaldTrump/posts/110114627876562286">spoke out against Bragg</a>, the <a href="https://truthsocial.com/@realDonaldTrump/posts/110119997656460229">prosecutor leading</a> the criminal case against him, <a href="https://www.nydailynews.com/news/politics/us-elections-government/ny-trump-hush-money-alvin-bragg-indictment-20230403-wwzgelua6fgfblrm666mqsp7i4-story.html">calling him “corrupt</a>” and a “radical left, Soros backed, district attorney.” </p>
<p>And he has <a href="https://www.usnews.com/news/best-states/new-york/articles/2023-04-03/who-is-juan-merchan-the-ny-judge-handling-trumps-case">targeted Merchan</a>, claiming that the judge “hates” the former president and that he “strongarmed” one of Trump’s associates into taking a plea deal. </p>
<p>Trump has also questioned the integrity of the <a href="https://truthsocial.com/@realDonaldTrump/posts/110114592721226234">U.S. legal</a> <a href="https://truthsocial.com/@realDonaldTrump/posts/110132429947452820">system</a> itself, writing that it’s “impossible” for him to <a href="https://truthsocial.com/@realDonaldTrump/posts/110114973678557189">get a fair trial</a> in New York City, presumably because the city’s population is <a href="https://www.pewresearch.org/religion/religious-landscape-study/metro-area/new-york-city-metro-area/party-affiliation/">heavily Democratic</a>. </p>
<p><a href="https://scholar.google.com/citations?user=Kdr4x8oAAAAJ&hl=en">We are scholars</a> of the <a href="https://scholar.google.com/citations?user=LSH7a20AAAAJ&hl=en">presidency and U.S. courts</a>. In our 2019 book, “<a href="https://www.cambridge.org/core/books/president-and-the-supreme-court/128A794F67DD778EC4405DBE7A4DA653">The President and the Supreme Court: Going Public on Judicial Decisions from Washington to Trump</a>,” we studied how presidents talk about court cases in their public statements. </p>
<p>We found that presidents criticize judicial decisions infrequently. And when they do, they tend to respectfully object to the decisions courts make rather than try to undermine their legitimacy or attack individual judges. </p>
<p>Trump, however, is not known to follow norms and does not abide by this one.</p>
<p>Here are three things to know about how Trump’s words regarding his criminal indictment can undermine the rule of law and confidence in the U.S. judicial system.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/519651/original/file-20230405-28-owx4wt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a dark blue suit is seen lit up with artificial lights as he walks surrounded by several men." src="https://images.theconversation.com/files/519651/original/file-20230405-28-owx4wt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519651/original/file-20230405-28-owx4wt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519651/original/file-20230405-28-owx4wt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519651/original/file-20230405-28-owx4wt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519651/original/file-20230405-28-owx4wt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519651/original/file-20230405-28-owx4wt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519651/original/file-20230405-28-owx4wt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump greets supporters at Mar-a-Lago on April 4, 2023, hours after he pleaded not guilty to 34 felony counts.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1479878029/photo/former-president-donald-trump-holds-a-press-conference-at-mar-a-lago-after-being-arraigned-in.jpg?s=612x612&w=gi&k=20&c=NiFI-WSiQsV--UL9nduLo2LM-9tra_4fWirN-4_2m7g=">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>1. Trump’s attacks are bad for the rule of law</h2>
<p>For a few different reasons, the language Trump uses to criticize those he perceives to be his legal enemies often has racist or sexist undertones and can undermine faith in the U.S. legal system. </p>
<p>Indeed, <a href="https://doi.org/10.1111/psq.12596">some studies</a> <a href="https://digitalcommons.law.uidaho.edu/cgi/viewcontent.cgi?article=1281&context=faculty_scholarship">suggest that</a> Trump’s attacks on legal and political institutions may do just that. </p>
<p>For instance, <a href="https://doi.org/10.1080/19331681.2020.1805389">research demonstrates</a> that public approval of the Supreme Court dropped following Trump’s tweets calling U.S. District Judge James L. Robart a “so-called judge” after he <a href="https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html">halted Trump’s travel ban</a> in February 2017.</p>
<p>We think that the country is not well situated to absorb further decreases in <a href="https://www.nytimes.com/2016/06/04/us/politics/donald-trump-constitution-power.html">support for the rule of law</a>. Americans’ faith in legal institutions has dropped dramatically in recent years because of various complex factors, including controversial <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Supreme Court decisions</a>.</p>
<p><a href="https://news.gallup.com/poll/4732/supreme-court.aspx#:%7E:text=Line%20chart.,is%20the%20highest%20such%20reading.">Public disapproval</a> of the Supreme Court is at all-time high, with 58% of Americans disapproving of the court as of September 2022. This marks an increase of 18% of <a href="https://news.gallup.com/poll/4732/supreme-court.aspx">Americans who disapproved of the court</a> from a decade earlier. </p>
<p>Similarly, <a href="https://news.gallup.com/poll/1597/confidence-institutions.aspx">people’s confidence</a> in the criminal justice system has dropped over the past several years, with 43% of Americans indicating in 2022 they have very little confidence in the way the country handles crime. When former President Barack Obama’s term began in 2009, only 25% of people said the same.</p>
<p>If public support for the rule of law weathers the storm and serves as a check on Trump’s brand of vindictive politics – as it has been on past <a href="https://www.cambridge.org/core/books/no-blank-check/0FE4E2FC0D017DC70566FDFE94B89007">abuses of presidential power</a> – then American legal institutions will prevail. </p>
<p>But if Trump’s relentless, aggressive attacks convince large swaths of the public that he is being unfairly treated, this may lead to their questioning all kinds of other legal decisions. The end result may be a further drop in confidence in the rule of law, at least among Trump’s supporters. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1639020505217880065"}"></div></p>
<h2>2. These attacks can be dangerous</h2>
<p>Physical threats on judges and other court personnel are at an <a href="https://www.usmarshals.gov/sites/default/files/media/document/PUB-2-2021-Annual-Report.pdf">all-time high</a>. </p>
<p>Some of this increase can be linked to Trump’s time in the White House, if not his behavior directly. Over the course of his presidency, the U.S. Marshals Service <a href="https://www.usmarshals.gov/sites/default/files/media/document/PUB-2-2021-Annual-Report.pdf">reports</a> that inappropriate communications and threats against judges, prosecutors and other protected persons increased by about 50% – from 2,847 in 2017 to 4,261 in 2020. </p>
<p>Robart received <a href="https://www.seattletimes.com/seattle-news/seattle-federal-judge-recalls-deluge-of-threats-after-striking-down-trump-travel-ban-in-2017/">a wave of threats</a> after he granted a restraining order against Trump’s travel ban in 2017 and Trump tweeted about Robart. In response to Trump’s public attacks, Robart’s personal information was leaked on the internet and the judge received more than 100 <a href="https://www.americanbar.org/news/abanews/aba-news-archives/2019/08/as-threats-intensify-judges-urge/">death</a> <a href="https://www.cbsnews.com/news/federal-judge-threats-attack-60-minutes-2021-05-30/">threats</a>.</p>
<h2>3. Trump’s criticisms are in a league of their own</h2>
<p>When both Republican and Democratic presidents have criticized legal decisions they <a href="https://www.cambridge.org/core/books/president-and-the-supreme-court/128A794F67DD778EC4405DBE7A4DA653">don’t like</a>, they have generally followed a common playbook. Typically, presidents express respect for the judicial branch and the rule of law and explain their disagreement. They do not single out people and resort to personal attacks.</p>
<p>President Bill Clinton, who <a href="https://www.npr.org/2023/04/03/1167662256/past-presidents-while-never-indicted-have-faced-legal-woes-of-their-own">faced indictment</a> for lying to a grand jury in 1998, followed this playbook when he took responsibility for his “personal failure” during an <a href="https://www.presidency.ucsb.edu/documents/address-the-nation-testimony-before-the-independent-counsels-grand-jury">address to the nation</a>, and referred questions about the investigation to his lawyers. Although he opposed an independent prosecutor, he never criticized the prosecutor’s legitimacy. </p>
<p>Conversely, Trump <a href="https://www.brennancenter.org/our-work/research-reports/his-own-words-presidents-attacks-courts">routinely violated this norm</a> by <a href="https://www.law.com/nationallawjournal/2019/11/07/this-is-not-normal-us-judge-denounces-trumps-attacks-on-judiciary/?slreturn=20230305120716">personally attacking individual judges</a> and courts instead of expressing principled disagreements about their decisions based on a different understanding of law. </p>
<p>His propensity to attack the legal system even predates his presidency. </p>
<p>In 2014, he tweeted that the South African judge in the Oscar Pistorius case was “<a href="https://www.independent.co.uk/news/people/donald-trump-vs-carl-pistorius-selfrighteous-trump-brands-judge-masipa-a-moron-over-pistorius-sentencing-9808850.html">a moron</a>.” Pistorius, an accomplished runner, <a href="https://www.bbc.com/news/world-africa-34993002">was found guilty</a> of murdering his girlfriend. </p>
<p>During the 2016 presidential campaign, Trump used racially tinged language <a href="https://www.brennancenter.org/our-work/research-reports/his-own-words-presidents-attacks-courts">when attacking</a> the judge set to overhear the <a href="https://www.washingtonpost.com/politics/source-trump-nearing-settlement-in-trump-university-fraud-cases/2016/11/18/8dc047c0-ada0-11e6-a31b-4b6397e625d0_story.html">fraud trial of Trump University</a>. Trump claimed that District Judge Gonzalo Curiel would be biased against him because <a href="https://www.npr.org/2016/06/07/481140881/who-is-judge-gonzalo-curiel-the-man-trump-attacked-for-his-mexican-ancestry">he was of Mexican descent</a> and Trump was planning to build a wall between the U.S. and Mexico. </p>
<p>Given Trump’s long history of these type of vicious personal attacks on members of the legal community, it seems unlikely that we will see a radically different Trump now that he faces criminal charges for the first time in his career. </p>
<p>While this may help <a href="https://thehill.com/blogs/blog-briefing-room/3932960-trump-attorney-touts-fundraising-numbers-get-yourself-indicted-and-you-raise-a-lot-of-money/">Trump raise</a> <a href="https://www.usatoday.com/story/news/politics/2023/04/04/fake-mugshot-donald-trump-fundraising/11600725002/">more money</a> for his presidential campaign, it may cost the country some faith in the rule of law, while putting legal officials in danger.</p><img src="https://counter.theconversation.com/content/203218/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Presidents have historically criticized judicial decisions. But Trump is taking it a step further with potentially dangerous personal attacks on judges.Paul M. Collins Jr., Professor of Legal Studies and Political Science, UMass AmherstMatthew Eshbaugh-Soha, Professor of American Politics, University of North TexasLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2017892023-03-29T15:13:28Z2023-03-29T15:13:28ZDoes democracy fuel corruption? Most Ghanaians don’t think so<figure><img src="https://images.theconversation.com/files/516620/original/file-20230321-28-cxeomc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The High Court in Accra, Ghana's capital. Strengthening the judiciary would ensure a better democratic outcome.</span> <span class="attribution"><span class="source">MyLoupe/Universal Images Group via Getty Images</span></span></figcaption></figure><p>Does democracy breed corruption – particularly in developing countries? </p>
<p>There are strong advocates of the theory. And strong detractors. </p>
<p>Some studies conclude that democracy aggravates corruption. For instance, noted scholar of public policy <a href="https://www.cambridge.org/core/books/abs/democracy-inequality-and-corruption/democracy-inequality-and-corruption/12039E2DE074F0097F7BB6EC842F2699#">Jong-Sung You’s</a> work explores the relationships between democracy, inequality and corruption. He <a href="https://www.cambridge.org/core/books/abs/democracy-inequality-and-corruption/democracy-inequality-and-corruption/12039E2DE074F0097F7BB6EC842F2699#">shows</a>in a study of three East Asian countries that democracy can worsen corruption when a country has high levels of inequality. This, in turn, increases clientelism and patronage politics and state capture. </p>
<p>Other studies show that democracy can help combat corruption. One <a href="https://doi.org/10.1080/00220380802468579">study</a> by academic Michael Rock, using data from multiple countries shows that corruption initially increased following democratisation. But that it declined later as the age of democracy increases – the turning point is between 10 to 12 years. </p>
<p>This ‘age of democracy’ theory indicates that as democracy gets older, it allows time for the rule of law to be strengthened and transparent and accountable institutions to take hold which are capable of controlling corruption. </p>
<p>Ghana provides an interesting case study. It has been a democracy for the last <a href="https://doi.org/10.1080/13510347.2023.2173178">29 years</a>. At the same time, corruption remains a monumental <a href="https://www.unodc.org/documents/corruption/Publications/2022/GHANA_-_Corruption_survey_report_-_20.07.2022.pdf">challenge</a>. </p>
<p>In a recent <a href="https://doi.org/10.1080/13510347.2023.2173178">paper </a> I explored the issue. I interviewed Ghanaian politicians, academics, anti-corruption activists, and journalists about whether democracy fuels corruption in Ghana. </p>
<p>A fifth of those interviewed argued that democracy fuels corruption in Ghana while about 80% disagreed. But most believed that the way democracy is practised is to blame for corruption – not democracy itself. </p>
<p>My study does not suggest there is less corruption in a dictatorship compared to democracy. Instead, I conclude that corruption is still prevalent in Ghana 29 years after democratic elections because the country has a flawed democracy. There has been a failure to establish and implement robust accountability mechanisms to control corruption effectively.</p>
<h2>Democracy fuels corruption</h2>
<p>My study drew on 25 in-depth interviews with politicians, academics, anti-corruption activists and media personnel. A number of arguments were put forward by the 20% who believe that democracy leads to more corruption. One was that democracy allows some people to gain power and amass illegitimate wealth without consequences. </p>
<p>A politician said:</p>
<blockquote>
<p>It looks like a group of friends come together to form a political party, maybe I will say, with the sole interest of looting the state with little intention of solving people’s problems. But unfortunately, we have only two main parties always positioned for power, and it is always family and friends, like a cartel, always come together, steal, and go and another will come.</p>
</blockquote>
<p>Others commented that politicians who win power through the polls loot state coffers to pay off past campaign expenses, finance future elections, and accumulate wealth for future use should they lose power. </p>
<p>This group also reported that political parties in power often shielded their corrupt members to protect party reputation and boost electability. This resulted in impunity.</p>
<p>Some also argued that securing justice in Ghana’s democratic system was hard to achieve. This allowed lawlessness and corruption to thrive. </p>
<p>As another politician said: </p>
<blockquote>
<p>Everybody is finding a way to see a judge and pay something, and the prosecutor fails to go to court or drops cases, making people continue to misappropriate public funds because they know they can get away with it.</p>
</blockquote>
<p>This points to the fact that the rule of law and checks and balances in government are weak. </p>
<h2>Democracy isn’t the problem</h2>
<p>A range of arguments were put forward among the 80% who believed democracy could not be blamed for persistent corruption. In their view, democracy has helped promote information flow, shedding more light on corruption than in authoritarian regimes. </p>
<p>A media practitioner said: </p>
<blockquote>
<p>Whether military or civilian rule, corruption is there. I don’t think democracy in itself has contributed to the problem of corruption. Suppose we lived in a country where there was no democracy, if a monarchy or a military ruler that did something wrong in government, you couldn’t freely come out to talk about it. Democracy has instead helped us talk about it and bring corruption issues to bare, at least in the public domain.</p>
</blockquote>
<p>A political scientist and anti-corruption activist put it this way:</p>
<blockquote>
<p>No one can say those authoritarian regimes do not see or harbour corrupt practices except that in authoritarian regimes or dictatorship, information flow is limited, so you don’t get to know.</p>
</blockquote>
<p>The fact that democratic freedoms had facilitated information flow and shed light on corruption had created an erroneous impression that democracy fuelled corruption more than authoritarian regimes. </p>
<h2>The practice is what counts</h2>
<p>In response to the question on whether democracy has helped fuel corruption in Ghana, one respondent, a political science scholar, said:</p>
<blockquote>
<p>I don’t think so. It is rather the corrupt practice of democracy that brings about corruption. The corrupt practice of democracy that brings about winner-takes-all politics – we have won, it is our time to chop {enjoy} – that is what brings about corruption. But democracy itself wouldn’t bring about corruption.</p>
</blockquote>
<p>Another interviewee commented:</p>
<blockquote>
<p>The politics of democracy fuel corruption, but it is not the democratic system of government that fuels corruption. It is the way we do it {democracy}, the way we practise that sometimes fuels corruption.</p>
</blockquote>
<p>Other participants commented that monetisation of elections and the lack of transparency in political party funding produced corrupt leaders. This made it difficult to combat corruption.</p>
<p>Also, according to interviewees, Ghana’s 1992 constitution provided insufficient checks and balances. For example, the electoral system enables a winner-takes-all politics in which the group, or party, that wins at the polls (and their allies) are able to monopolise resources. </p>
<h2>Next steps</h2>
<p>For democracy to reduce corruption, several measures are needed. These views echo arguments made by scholars <a href="https://doi.org/10.1080/13510347.2015.1081896">Landry Signé and Koiffi Korha</a>. </p>
<p>Research participants emphasised addressing extreme executive power while strengthening the rule of law and horizontal accountability institutions. These include the legislature, the judiciary, and auditing and anti-corruption bodies.</p>
<p>Participants also recommended sustained public pressure on whoever is in power to ensure political commitment to combating corruption.</p><img src="https://counter.theconversation.com/content/201789/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joseph Yaw Asomah does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ghana’s flawed democracy has failed to establish mechanisms to effectively control corruption.Joseph Yaw Asomah, Assistant Professor, University of ManitobaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2025282023-03-28T09:52:54Z2023-03-28T09:52:54ZICC arrest warrant for Vladimir Putin: a king-size dilemma for South Africa<figure><img src="https://images.theconversation.com/files/517651/original/file-20230327-27-lar6a3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Presidents Cyril Ramaphosa and Vladimir Putin at the first Russia-Africa Summit in Sochi, Russia, in 2019.
</span> <span class="attribution"><span class="source">Photos: GCIS</span></span></figcaption></figure><p>The International Criminal Court (ICC) <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">has issued an international arrest warrant</a> for Russian president Vladimir Putin for alleged war crimes regarding the unlawful deportation of children from Ukraine to Russia. Such acts are war crimes under two articles of the <a href="https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf">Rome Statute</a>, which established the court.</p>
<p>ICC arrest warrants against <a href="https://theconversation.com/putin-and-the-icc-history-shows-just-how-hard-it-is-to-bring-a-head-of-state-to-justice-202247">sitting heads of state are rare</a>. </p>
<p>Putin faces arrest if he sets foot in any of the <a href="https://asp.icc-cpi.int/states-parties">123 signatory states</a> to the statute. Of these, 33 are African states. The issue could come to a head in August when South Africa is set to host the 15th summit of the Brazil, Russia, India, China and South Africa (BRICS) bloc in <a href="https://www.gov.za/speeches/president-cyril-9-mar-2023-0000#:%7E:text=South%20Africa%20is%20chairing%20the,22%20to%2024%20August%202023">Durban</a>.</p>
<p>As the head of a member state Putin has been invited to attend. But as a member of the court, South Africa is obliged under Article 86 of the ICC statute and <a href="https://www.justice.gov.za/legislation/acts/2002-027.pdf">domestic law</a> to cooperate fully by arresting the Russian president. </p>
<p>This is not the first time the country has faced such a dilemma. </p>
<p>In 2015 Sudanese president <a href="https://www.bbc.com/news/world-africa-33125108">Omar Al Bashir visited the country</a> to attend a summit of <a href="https://www.gov.za/speeches/25th-african-union-summit-7-15-jun#:%7E:text=South%20Africa%20is%20hosting%20the,5%20June">African Union heads of state</a>. In terms of South Africa’s ICC obligations, it was obliged to arrest Al Bashir, who had been <a href="https://www.icc-cpi.int/darfur/albashir">indicted</a> for violations of international humanitarian law and human rights law in Sudan’s Darfur region. The government, then under the presidency of Jacob Zuma, refused to arrest him, <a href="https://issafrica.org/iss-today/clutching-at-straws-sas-reasons-for-not-arresting-al-bashir">citing immunity from prosecution for sitting heads of state under international law</a>.</p>
<p>The arrest warrant for Putin has put President Cyril Ramaphosa’s government between a rock and a hard place. Complying with its domestic and international obligations by executing the arrest warrant would alienate Russia. This would have bilateral consequences – the country is still considered a friend by the ruling African National Congress based on the Soviet Union’s support during the struggle against apartheid – as well as ramifications within the BRICS, given <a href="https://edition.cnn.com/2023/03/20/europe/xi-putin-china-russia-visit-monday-intl-hnk/index.html">Moscow’s strong ties with Beijing</a>. </p>
<p>It is not unreasonable to argue that Ramaphosa’s government would want to tread carefully to avoid any such tensions. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/five-essential-reads-on-russia-africa-relations-187568">Five essential reads on Russia-Africa relations</a>
</strong>
</em>
</p>
<hr>
<p>On the other hand, welcoming Putin, thus <a href="https://www.washingtonpost.com/business/south-africas-indulgence-of-putin-is-unsustainable/2023/02/03/e0b461b8-a381-11ed-8b47-9863fda8e494_story.html">underscoring South Africa’s independent foreign policy</a>, would see the country lose international credibility. </p>
<p>One likely effect is that South Africa might lose preferential trade terms. For example, it could jeopardise its treatment of exports to the US under the <a href="https://ustr.gov/issue-areas/trade-development/preference-programs/african-growth-and-opportunity-act-agoa">African Growth and Opportunity Act (AGOA)</a>. AGOA has been used recently as a punishing tool against Ethiopia, The Gambia and Mali for “unconstitutional change in governments” and <a href="https://ustr.gov/about-us/policy-offices/press-office/press-releases/2022/january/us-terminates-agoa-trade-preference-program-ethiopia-mali-and-guinea">“gross violations of internationally recognised human rights</a>”.</p>
<p>Importantly, <a href="https://www.businesslive.co.za/fm/opinion/2023-03-16-francois-fouche-trading-down-south-africas-game-of-russian-roulette/">South Africa’s trade with the US far exceeds that with Russia</a>.</p>
<h2>The dilemma</h2>
<p>When the Zuma administration refused to arrest Al Bashir, it landed the government in judicial hot water. South Africa’s Supreme Court of Appeal <a href="http://www.saflii.org/za/cases/ZASCA/2016/17.html">found</a> that it had violated both international and domestic law.</p>
<p>Following the ruling of the Supreme Court of Appeal, Zuma’s government notified the United Nations secretary general of its intention <a href="https://www.pgaction.org/news/stand-against-impunity-south-africa.html">to withdraw from the Rome Statute</a>. This ill advised move was challenged in the High Court in Pretoria. It <a href="https://hsf.org.za/publications/hsf-briefs/withdrawal-from-icc-high-court-judgment">ruled</a> that the notice of withdrawal was unconstitutional due to the absence of prior parliamentary approval. Consequently, the government <a href="https://www.pgaction.org/ilhr/rome-statute/south-africa.html">“withdrew from the withdrawal”</a>.</p>
<p>In 2017, the <a href="https://www.icc-cpi.int/court-record/icc-02/05-01/09-302">ICC found</a> that South Africa had failed in its obligations under the Rome Statute towards the court by not arresting and surrendering Al Bashir. The court, however, decided not to pursue the matter further for <a href="https://theconversation.com/icc-ruling-on-south-africa-and-al-bashir-pragmatism-wins-the-day-81500">pragmatic reasons</a>. It also reasoned that to refer South Africa to the United Nations Security Council for noncompliance <a href="https://www.southernafricalitigationcentre.org/2017/07/07/news-release-icc-finding-on-south-africas-non-compliance-falls-short/">“would not be an effective way to foster future cooperation”</a>.</p>
<p>In the event that Putin attended the upcoming BRICS summit and Ramaphosa’s government did not arrest him, it would mean that South Africa was flouting domestic legislation as well as its own constitution. Article 165 (5) of the country’s <a href="https://www.concourt.org.za/images/phocadownload/the_text/Slimline-Constitution-Web-Version.pdf">constitution</a> makes it clear that the government is bound by court orders and decisions. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/al-bashir-what-the-law-says-about-south-africas-duties-43498">Al-Bashir: what the law says about South Africa's duties</a>
</strong>
</em>
</p>
<hr>
<p>How should South Africa respond to the dilemma?</p>
<p>At present the government’s response is not clear. On the one hand, Ramaphosa’s spokesperson <a href="https://www.reuters.com/world/africa/south-africa-aware-legal-obligations-regarding-putin-visit-2023-03-19/">said</a> that the country was aware of its obligations to arrest Putin and surrender him to the ICC. </p>
<p>On the other hand, Naledi Pandor, the foreign relations minister, confirmed the <a href="https://www.sowetanlive.co.za/news/south-africa/2023-03-23-russias-vladimir-putin-invited-to-attend-brics-summit-in-sa-pandor-confirms/">invitation to Putin to attend the BRICS meeting</a>. She noted that cabinet would have to decide on how to respond in view of the ICC warrant.</p>
<p>The government would want to balance its ICC obligations, domestic responsibilities and its historically friendly relations with Russia carefully. Unless it is hellbent on defying its own court decisions and laws, there are options available to avoid another round of international condemnation, and that would help it avoid potential court battles by civil society for noncompliance with the country’s own laws and court decisions. </p>
<h2>Options</h2>
<p>Firstly, South Africa should continue to extend an invitation for Russia to attend the summit. But, through diplomatic channels, request that the Russian delegation be led by its foreign minister, Sergei Lavrov. Lavrov has in essence become the face of Russia on the <a href="https://www.politico.eu/article/russia-foreign-minister-sergei-lavrov-western-leaders-militarize-southeast-asia-asean-g20-bali-indonesia/">international stage</a> since the start of the war in Ukraine. </p>
<p>Secondly, during the COVID pandemic, it became clear that physical presence at international gatherings for heads of states could be substituted with virtual attendance. The UN General Assembly set a good benchmark for this when heads of state <a href="https://www.aljazeera.com/news/2022/9/20/what-you-need-to-know-about-the-unga-summit">submitted video statements due to pandemic restrictions</a>. Putin could attend the BRICS summit virtually. </p>
<p>The need to sign summit documentation by the heads of state is not an impediment to virtual attendance. Putin can sign the documents electronically or after the summit, if a non-electronic signature is required.</p>
<p>The ball is now in the South African government’s court. The hope is that it makes the right decision, one which is in the best interests of the country and its people – not Russia or the likes of the US, especially as neither major power is a signatory to the ICC’s statute. Neither should prescribe to South Africa what it should decide. </p>
<p>Most importantly, the government must not trample on its own laws and court decisions. Compliance with the constitution must be the priority. Making a decision that is in the interests of South Africa and its people would also provide guidance to the other 32 African ICC signatory states, should they ever be faced with a similar dilemma in the future.</p>
<p><em>This article was co-authored with Sasha-Lee Stephanie Afrika (LLD), Attorney of the High Court of South Africa and former lecturer at Stellenbosch University and University of Johannesburg.</em></p><img src="https://counter.theconversation.com/content/202528/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sascha-Dominik (Dov) Bachmann does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government must not trample on its own laws and court decisions. Compliance with the constitution must be the priority.Sascha-Dominik (Dov) Bachmann, Professor in Law and Co-Convener National Security Hub (University of Canberra) and Research Fellow (adjunct) - The Security Institute for Governance and Leadership in Africa, Faculty of Military Science, Stellenbosch University- NATO Fellow Asia-Pacific, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2011102023-03-08T08:19:44Z2023-03-08T08:19:44ZPower cuts: South Africa’s state of disaster is being contested in court - COVID rulings give clues as to the outcome<figure><img src="https://images.theconversation.com/files/513911/original/file-20230307-26-zxg9ew.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Demonstrations against South African power supplier ESKOM in 2015.</span> <span class="attribution"><span class="source">Ihsaan Haffejee/Anadolu Agency/Getty Images</span></span></figcaption></figure><p>South Africa has declared <a href="https://www.gov.za/sites/default/files/gcis_document/202302/48152rg11550gon3095.pdf">a second national state of disaster</a> in less than three years. </p>
<p><a href="https://www.gov.za/sites/default/files/gcis_document/202003/43096gon313.pdf">The first</a> was the COVID-19 disaster declaration in March 2020. This allowed the government to pass sweeping lockdown regulations that encroached on human rights – directly and indirectly - including the rights to dignity, privacy, freedom and security of the person and the right to choose and practise a trade or occupation freely. </p>
<p>More recently it issued another disaster declaration in response to the country’s severe electricity supply constraints. The country is experiencing the <a href="https://businesstech.co.za/news/energy/630667/south-africas-horror-year-of-load-shedding-heres-how-it-compares/">worst power cuts on record</a> as the national utility, Eskom, implements longer and more frequent scheduled blackouts, referred to as loadshedding. The outages are having severe social, economic and ecological effects. The declaration aims to address the effects of the power outages and to avert the possible progression to a “total blackout”.</p>
<p>These loadshedding regulations are not likely to encroach on human rights to the same extent as the COVID measures did as they do not restrict movement or trade. </p>
<p>But they come at a time when memory of the overreach of the lockdown regulations is still fresh. Citizens are also enraged at the government’s failure to deal with a 15-year-old electricity crisis and worsening corruption which contributed to it. </p>
<p>The regulations in response to the pandemic were challenged in a number of court cases. Two (involving three decisions) challenged the prohibition of the sale of tobacco products. <a href="http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAGPPHC/2020/246.html&query=disaster%20management%20act%20AND%20cigarette%26%2365533%3B">One case was brought by the Fair-Trade Independent Tobacco Association</a>. It was heard in the Pretoria High Court. Another was brought by <a href="http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAWCHC/2020/180.html&query=disaster%20management%20act%20AND%20cigarette%26%2365533%3B">British American Tobacco (BAT)</a>. This case was heard first in the Western Cape High Court and <a href="http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZASCA/2022/89.html&query=disaster%20management%20act%20AND%20tobacco">subsequently in the Supreme Court of Appeal</a>.</p>
<p>The Minister of Cooperative Governance and Traditional Affairs was a respondent in both cases.</p>
<p>All the cases engaged with arguments relating to the principle of legality, which underlies South Africa’s constitutional democracy. (The <a href="https://theconversation.com/rule-of-law-has-moved-centre-stage-in-lockdown-what-it-is-and-why-it-matters-139045**%20is%20a%20foundational%20constitutional%20value.">rule of law</a> guards against the arbitrary exercise of state power, because it requires a rational relationship between the exercise of government power and the purpose for which such power is exercised (the “rational connection” test).</p>
<p>The way in which the courts dealt with legality in the COVID-19 tobacco cases will bind other courts in their deliberations on the same or similar issues. This is in line with the principle of judicial precedent.</p>
<p>At <a href="https://www.businesslive.co.za/bd/national/2023-02-14-da-goes-to-court-to-stop-declaration-of-state-of-disaster-on-eskom/">least</a> <a href="https://www.news24.com/news24/southafrica/news/electricity-crisis-solidarity-heads-to-court-to-have-state-of-disaster-declared-unlawful-20230214">three</a> <a href="https://www.outa.co.za/blog/newsroom-1/post/outa-goes-to-court-to-overturn-the-electricity-state-of-disaster-1234">organisations</a> have announced that they will challenge the latest disaster declaration in court. </p>
<p>Based on the COVID-19 tobacco cases, the courts considering challenges to the load-shedding disaster will need to decide whether there is a “necessary and objective connection” between the steps government has taken and what it aims to achieve. This sets a high standard of proof for the government. </p>
<h2>The arguments</h2>
<p>But a legal challenge to the load-shedding declaration or regulations is not restricted to an argument based on legality. The organisations challenging them could argue, for example, that the definition of “disaster” in the <a href="https://www.gov.za/documents/disaster-management-act">Disaster Management Act</a> does not extend to a government-caused load-shedding crisis. They could argue that other legislation should be used to deal with the electricity crisis.</p>
<p>However, as argued elsewhere, these arguments <a href="https://www.linkedin.com/pulse/unpacking-disaster-declaration-part-ii-does-serve-legitimate-field/?trackingId=37igS%2BgLsYc%2F2YVWp2V2Ow%3D%3D">may not succeed</a>.</p>
<p>Organisations may also rely on infringement of human rights as a cause of action. But this is unlikely to hold water as the measures proposed in the load-shedding declarations are not restrictive in the sense that the lockdown regulations were.</p>
<p>Notwithstanding these other possible approaches, a cause of action based on legality is likely to feature strongly in the forthcoming cases. Courts will be asked to determine the rational connection between the declaration and its regulations and the overarching legitimate government purpose (alleviating, for example, the effects of the power cuts).</p>
<p>There could, however, be different interpretations of the quality of rationality required, particularly if the minister relies heavily on section 27(2)(n) of the <a href="https://www.gov.za/documents/disaster-management-act">disaster management law</a>. This section allows her to make regulations or issue directions concerning “other steps that may be necessary to prevent an escalation of the disaster”. </p>
<p>Because load-shedding is not a disaster in the ordinary sense, this particular power arguably underlies many of the measures in the new regulations.</p>
<p>In the COVID tobacco cases, the courts considered the quality of rationality required for the exercise of powers in section 27.</p>
<p>The Fair Trade court was sympathetic towards the executive. Its judgement set a low bar for the Minister of Cooperative Governance and Traditional Affairs to prove that her decision to ban the sale of tobacco products was rational. It held that to prove the rational relationship between tobacco prohibition and the government purpose (to protect human life and health and reduce potential strain on the healthcare system), the minister needed only to show a “sufficient rational basis” for her action. </p>
<p>The evidence on which she relied did not have to cogently and conclusively
establish a direct link between tobacco prohibition and the stated government purpose. </p>
<p>In taking this stance, the court in the Fair Trade case opted for a broad interpretation of the word “necessary” in section 27(2)(n).</p>
<p>The courts in the BAT cases took a different view and set the bar much higher. The Western Cape High Court disagreed with the Fair Trade court, and held that the Constitutional Court’s approach in <a href="http://www.saflii.org/za/cases/ZACC/2015/10.html">Pheko & Others v Ekurhuleni Metropolitan Municipality</a> applied. In the Pheko case (which dealt with the declaration of a local, and not a national, disaster), the Constitutional Court held that the use of “necessary” in the similarly worded section 55 of the Disaster Management Act had to be given a narrow construction.</p>
<p>In the BAT case, the High Court <a href="http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAWCHC/2020/180.html&query=disaster%20management%20act%20AND%20cigarette%26%2365533%3B">held that</a> the minister had to show that the regulation was necessary, and not merely sufficiently rational. Courts also needed to assess this evidence objectively, not on the basis of whether the minister subjectively believed a measure was necessary. </p>
<p>Using this test, the court declared the tobacco prohibition invalid.</p>
<p>The Supreme Court of Appeal confirmed the stance of the Western Cape High Court, and thus over-ruled the approach in Fair Trade. </p>
<p>As court challenges to the load-shedding disaster declaration and its regulations mount, parties should take note that the higher bar of a necessary and objective connection set out in Pheko and the BAT cases applies. Challengers will have to prove that there is no necessary and objective connection between government’s action and its purpose, even if the minister thinks there is. The legality of the load-shedding declaration and its implementing regulations will stand or fall on the basis of this test.</p><img src="https://counter.theconversation.com/content/201110/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tracy-Lynn Field receives funding from the National Research Foundation. She is affiliated with the Centre for Environmental Rights (CER) as board chair and non-executive director. The CER champions the constitutional environmental right and is currently involved in litigation against Mineral Commodities Ltd in relation to its heavy mineral sands operations on South Africa's west coast.</span></em></p>South Africa’s courts are likely to set a high bar in cases brought against the government’s most recent state of disaster declaration.Tracy-Lynn Field, Professor of Environmental and Sustainability Law, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1993112023-02-15T08:38:29Z2023-02-15T08:38:29ZInvisible Trillions review: global capitalism operates beyond the rule of law and threatens democracy<figure><img src="https://images.theconversation.com/files/508894/original/file-20230208-15-42994g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Achieving greater transparency and accountability in democratic governance and in capitalist economics must occur simultaneously. </span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Secrecy has become as important for corporations as transparent and taxable profits used to be, according to Raymond W. Baker in his new <a href="https://www.goodreads.com/book/show/60978837-invisible-trillions">book</a> Invisible Trillions. Global capitalism, he argues, operates beyond the rule of law. This contributes to extreme inequality that threatens liberal democracy.</p>
<p>Deals in the financial secrecy system account for half of global economic operations. This is far beyond illicit transfers of funds through corporate under-pricing and overpricing of exports and imports, or the drug and other criminal networks 50 years ago. Tax havens, “shell companies”, anonymous trust accounts, fake foundations and new digitised money laundering technologies have proliferated. Add to that falsified trade. All of this is facilitated by international lawyers, accountants and financial strategists based mostly in rich countries. </p>
<p>The book’s timely contribution is how financial secrecy threatens both free enterprise and political freedoms. Both are critical to dealing with current inequalities afflicting humanity and to meeting challenges in public health, climate, and elsewhere.</p>
<p>Baker indicts the United States as the biggest user of the financial secrecy system, and the biggest recipient of dirty money from around the world. A key indication of the cost of this is that gaps between top and average wages in the US have shot up from 20 to 1 in 1960 to 350 to one today. Had this not occurred, Baker told me he estimates, the middle class would now be better off by US$50 trillion. </p>
<h2>Pioneering work</h2>
<p>A <a href="https://www.amazon.com/Capitalisms-Achilles-Heel-Free-Market-System/dp/1119086612">pioneer</a> in exposing illicit financial flows, Baker is a member of the <a href="https://au.int/sites/default/files/documents/40545-doc-IFFs_REPORT.pdf">High-Level Panel</a> on the subject commissioned by the African Union (AU) and UN Economic Commission for Africa. It was chaired by former South African president Thabo Mbeki from 2011 to 2015. It is suspended pending further funding. Invisible Trillions should spur renewed work by the panel.</p>
<p>The panel’s <a href="https://au.int/sites/default/files/documents/40545-doc-IFFs_REPORT.pdf">2015 report</a> estimated that in the previous half-century, Africa lost over a US$ trillion in illicit money flows. This is about what Africa received in official development assistance over the same period. Baker made a similar finding in his <a href="https://www.amazon.com/Capitalisms-Achilles-Heel-Free-Market-System/dp/1119086612">2005 book</a>, Capitalism’s Achilles Heel. </p>
<p>He began his career as an entrepreneur in Nigeria after independence, applying his 1960 Harvard MBA to launch several successful local businesses in the 1960s and 1970s. After relocating to Washington, DC in the 1980s, he became a guest fellow at the <a href="https://www.brookings.edu/">Brookings Institution</a>. He eventually founded <a href="https://gfintegrity.org/">Global Financial Integrity</a> in 2006. The research institute continues to produce seminal research and policy analysis on all aspects of the secretive world of illicit financial flows.</p>
<h2>Clean up must begin from above</h2>
<p>Baker is cogently critical not only of the complicity of the US and its corporations, but also law firms, auditors and consulting companies that abet tax avoidance, concentration of wealth, and corruption of government officials. He accuses the US and China, which together account <a href="https://statisticstimes.com/economy/united-states-vs-china-economy.php">for over 40% of the world’s nominal GNP</a>, of knowingly exploiting secrecy in global economic relations. </p>
<p>Little wonder that 193 members of the United Nations have pledged to halt illicit financial flows, but with little discernible effect. Meanwhile, the COVID pandemic, the war in Ukraine and climate change worsen inequality within and among nations.</p>
<p>Concise and accessible, Invisible Trillions has three parts:</p>
<ul>
<li><p>Democratic Capitalism at Risk</p></li>
<li><p>Corroding the Commons</p></li>
<li><p>Renewing Democratic Capitalism.</p></li>
</ul>
<h2>Rogue capitalism</h2>
<p>I found Baker’s criticisms of capitalism in the US to be reasonable, his indictments of corruption and authoritarianism illuminating, and his emphasis on fairness, justice, equity and human rights hopeful. America’s leading democracy scholar, <a href="https://politicalscience.stanford.edu/people/larry-diamond">Larry Diamond of Stanford University</a>, wrote the book’s foreword. As he asserts:</p>
<blockquote>
<p>Only radical improvements across the globe in financial transparency and accountability and in regulatory capacity and integrity can break this cycle of political decay and despair. </p>
</blockquote>
<p>Baker, however, carefully avoids analysis of the <a href="https://www.washingtonpost.com/outlook/2018/11/06/united-states-isnt-democracy-and-was-never-intended-be/">structural deficiencies</a> of US democracy. He defers to others to build on his analysis of how secretive concentrations of wealth became possible with the complicity of banks, corporations and “complicit governments” in key chapters of Part II.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/508892/original/file-20230208-26-mlr1kw.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/508892/original/file-20230208-26-mlr1kw.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=669&fit=crop&dpr=1 600w, https://images.theconversation.com/files/508892/original/file-20230208-26-mlr1kw.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=669&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/508892/original/file-20230208-26-mlr1kw.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=669&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/508892/original/file-20230208-26-mlr1kw.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=840&fit=crop&dpr=1 754w, https://images.theconversation.com/files/508892/original/file-20230208-26-mlr1kw.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=840&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/508892/original/file-20230208-26-mlr1kw.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=840&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>Although the book is mainly about the “rogue capitalism” of the US, it includes the impact of secrecy on economic behaviour further afield, using seven country case studies. Featured are the two dictatorships – Russia and China – plus a flawed pluralistic democracy, South Africa, an example of <a href="https://theconversation.com/south-africas-state-capture-commission-nears-its-end-after-four-years-was-it-worth-it-182898">state capture</a>. Other examples of where secrecy serves autocrats are Guatemala, Venezuela, Myanmar and Iran.</p>
<p>The South African case shows well the role played by foreign corporations, international lawyers and public relations firms in corruption. Baker concludes Part II with a very short chapter, “Hiding in Silos”. It is critical of western attempts to spread the rule of law while ignoring</p>
<blockquote>
<p>the degree to which the capitalist system (is) operating increasingly beyond the rule of law.</p>
</blockquote>
<p>This sets up Part III, in which he proposes ways and means for “Renewing Democratic Capitalism”.</p>
<h2>Renewing democratic capitalism</h2>
<p>In Baker’s view, democracy is self-correcting, but capitalism is not. His main message is: reform capitalism or forfeit democracy.</p>
<p>His suggestions focus on the US and its potential for either causing disaster or preventing it. This will depend, he argues, on the US government requiring greater transparency, accountability and governance reforms by corporations.</p>
<p>He advocates forcing banks and other financial institutions to once again separate lending and investing. And audit firms should not offer costly financial advice – another conflict of interest.</p>
<p>Baker recommends government action on increasing minimum wages to $15 an hour, ensuring universal healthcare, waiving student debt, and a reckoning with “race”. He also urges a reducing inequality among nations. In sum, an agenda much like that of the Biden administration.</p>
<p>Unless national Democratic majorities continue to grow and press effectively for <a href="https://www.amacad.org/ourcommonpurpose/report">bi-partisan democratic reforms</a>, it is difficult to imagine the country playing the kind of constructive democratic role at home or abroad that Baker calls for.</p><img src="https://counter.theconversation.com/content/199311/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John J Stremlau does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Raymond W. Baker says the estimated hundreds of billions of dollars in hidden wealth a decade ago has skyrocketed to trillions today.John J Stremlau, Honorary Professor of International Relations, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1992192023-02-08T11:00:18Z2023-02-08T11:00:18ZState capture in South Africa: time to think differently about redress and recovering the stolen loot<figure><img src="https://images.theconversation.com/files/508584/original/file-20230207-13-4il90j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Matshela Koko, former acting group CEO of Eskom, testifies at the state capture commission in 2021. </span> <span class="attribution"><span class="source"> Luba Lesolle/ Gallo Images via Getty Images</span></span></figcaption></figure><p>South Africans are plunged into darkness daily by <a href="https://www.dailymaverick.co.za/article/2022-12-12-dark-dumb-and-dangerous-inside-south-africas-perfect-electrical-storm/">rolling power cuts</a>. These are a stark reminder of the destruction that years of state capture wreaked on Eskom, the state-owned <a href="https://www.gov.za/documents/judicial-commission-inquiry-state-capture-report-part-4-volume-4-29-apr-2022-0000">power utility</a>. </p>
<p>Eskom’s inability to meet the energy needs of citizens and the economy is now the undeniable example of how state capture made parastatals and other state institutions ineffective. The country urgently needs action to recover the stolen funds and fix the economy. </p>
<p>So far, President Cyril Ramaphosa has offered only a few general targets, and outcomes have been dissatisfying. For example, the “<a href="https://www.thepresidency.gov.za/speeches/address-president-cyril-ramaphosa-response-state-capture-commission-report%2C-union-buildings%2C-tshwane">total of R2.9 billion</a>” that he said law enforcement agencies have recovered is only a small fraction of the estimated <a href="https://www.moneyweb.co.za/news/south-africa/state-capture-scorecard-r500bn-looted-zero-assets-recovered/">R500 billion</a> stolen through state capture. Impunity lies at the root of this mess.</p>
<p>The culture of impunity has lingered since the presidency of <a href="https://pari.org.za/betrayal-promise-report/">Jacob Zuma</a>. If it is to be replaced with a new era of integrity and accountability, a lot more needs to be done. But what, and how exactly?</p>
<p>In my <a href="https://journals.co.za/doi/full/10.2989/CCR.2022.0001">paper</a> I answer this question by proposing a workable, constitutionally congruent plan. I lay the foundations for a new anti-corruption redress system which would help government to recover the money and restore dignity to the people of South Africa.</p>
<p>The starting point in my argument is that the constitutional <a href="https://civicsacademy.co.za/what-is-the-separation-of-powers/">separation of powers</a> – the division of state authority and core functions – includes a fourth branch of state. It’s best described as the “integrity and accountability branch” and it should include the <a href="https://journals.co.za/doi/full/10.2989/CCR.2022.0001">prosecuting authority</a>. </p>
<p>When the special role of the prosecuting authority is thus understood, prosecutorial policy can be harnessed to begin recovering the illegal profits of state capture. This should start urgently – pending the necessary legislative intervention – with the use of the internationally recognised redress tool, the non-trial resolution. This tool can be adjusted to fit the South African constitutional context.</p>
<h2>Non-trial resolutions reimagined</h2>
<p>Non-trial resolutions are mechanisms to resolve corruption cases without the need for a full criminal trial. Criminal trials entail an onerous burden of proof, “beyond reasonable doubt”. They also tend to be protracted and costly to run. Economic corruption cases are especially difficult to prosecute, given the complex nature of the fraud, which tends to cross international borders. </p>
<p>Non-trial resolutions take various forms and are used <a href="https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/workinggroup2/2021-September-6-10/CAC-COSP-WG.2-2021-CRP.1.pdf">extensively internationally</a>. They include a plea bargain, a deferred prosecution agreement, a non-prosecution agreement and a more <a href="https://assets-global.website-files.com/5e0bd9edab846816e263d633/5f15e0a4a35dd9b7abd817b1_FACTI%20BP6%20Foreign%20bribery.pdf">informal declination to prosecute</a> (for example, by way of letter).</p>
<p>To ensure localised fit and legitimacy, these instruments should collectively be termed “anti-corruption redress” mechanisms. In my <a href="https://journals.co.za/doi/full/10.2989/CCR.2022.0001">article</a>, I explain how and why it would be constitutional to start concluding such non-trial resolutions with state capture offenders pending the legislative introduction of the anti-corruption redress system I propose. </p>
<p>For now, prosecutorial policy (for example, by way of directives) could be issued to make use of a potentially valuable section of the <a href="https://www.justice.gov.za/legislation/acts/1998-032.pdf">National Prosecuting Authority Act, 1998</a>: section 38. It allows the prosecuting authority to use specialists (such as forensic and legal experts) in “specific cases”. </p>
<p>State capture is surely a “specific case” deserving special attention. Section 38 could thus be used to conclude deferred prosecution agreements, or other types of anti-corruption redress agreements. These would be concluded with people or entities who report their illegal profits themselves, or who are identified by whistle-blowers. This way, money can start flowing back into the public purse sooner rather than later.</p>
<p>These agreements would set out the redress deliverables (such as paying back the money back by a certain date and rehabilitating the pillaged entity) and other rights and obligations of the parties. At this stage, no penalties for wrongdoing should be imposed – that needs legislative backing because the law presumes innocence.</p>
<p>But, to reiterate, recouping the ill-gotten profits of state capture can start (via prosecutorial policy). This component of my proposal is inspired by former Constitutional Court judge Johan Froneman’s formulation of the “no profit, no loss principle” in the <a href="http://www.saflii.org/za/cases/ZACC/2015/7hoa.pdf">2014 case of All Pay 2</a>. </p>
<p>The nub of this principle is that although penalties cannot be imposed without the proper application of the law, public accountability means that there is no right to profits unlawfully gained. The Zondo Commission <a href="https://www.statecapture.org.za/site/information/reports">reports</a> provide details of who gained illegally.</p>
<h2>Legislative reform</h2>
<p>While the disgorgement (surrender) of the illegal profits gets underway as described above, the foundations can be laid for more comprehensive legislative reform. This is the third component of my proposal. I suggest that the country doesn’t need entirely new legislation on non-trial resolutions as suggested in the <a href="https://www.statecapture.org.za/site/files/announcements/673/OCR_version_-_State_Capture_Commission_Report_Part_1_Vol_I.pdf">Zondo reports</a>. </p>
<p>Rather, it should simply amend section 38 of the <a href="https://www.gov.za/documents/national-prosecuting-authority-act#:%7E:text=The%20National%20Prosecuting%20Authority%20Act,provide%20for%20matters%20connected%20therewith">National Prosecuting Authority Act, 1998</a> to introduce the fully fledged anti-corruption redress system. As part of this system, there would be an anti-corruption redress body – perhaps a commission as a subset of the prosecuting authority’s existing <a href="https://www.npa.gov.za/specialised-commercial-crime-unit">Specialised Commercial Crimes Unit</a>. It would need to be staffed with the right mix of experts. Cases would be determined on the lower civil standard of proof: “a balance of probabilities”. </p>
<p>The legislative intervention should provide for administrative fines (basically civil monetary penalties). These should be a percentage of the unlawful benefit the party gained from the corrupt deal. Administrative fines are already used in the country’s <a href="https://www.gov.za/documents/competition-act-guidelines-determination-administrative-penalties-prohibited-practices-17">competition</a> and <a href="https://cer.org.za/wp-content/uploads/2011/11/Fourie-M-SAJELP-Paper-June-2009-Final.pdf">environmental</a> law regimes. They can improve deterrence and enhance redress. </p>
<p>The proposed commission would determine the appropriate redress measures in a given case. It would weigh factors in the “redress balance” such as the extent of the harm, repeat offending, willingness to make reparations and good faith. So, for example, there might be an agreement to defer (delay) criminal prosecution if the offender displays good faith, cooperates and meets all repayment (and other reparation) obligations. The findings of the commission would be <a href="https://journals.co.za/doi/full/10.2989/CCR.2022.0001">open to review by a tribunal of record</a> – much like the competition tribunal.</p>
<p>In conclusion, the proposed anti-corruption redress system is fundamentally about the right mix of retributive and restorative justice to restore the dignity of the people of South Africa. It would help rebuild public trust in government, reduce impunity and usher in an era of enhanced integrity and accountability. Now is the time to make this happen.</p><img src="https://counter.theconversation.com/content/199219/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lauren Kohn received funding from the Oppenheimer Memorial Trust for her Doctoral Project. </span></em></p>The culture of impunity that has lingered since the presidency of Jacob Zuma has to give way to a new era of integrity and accountability.Lauren Kohn, Scholar & Legal Expert: Administrative & Constitutional Law, Department of Public Law (UCT); Attorney of the High Court of SA; Young Research Fellow (UCT); Founder: www.SALegalAdvice.co.za, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1985782023-02-07T13:33:49Z2023-02-07T13:33:49ZLarge numbers of Americans want a strong, rough, anti-democratic leader<figure><img src="https://images.theconversation.com/files/507422/original/file-20230131-12-8h4a1r.jpg?ixlib=rb-1.1.0&rect=4%2C8%2C2991%2C1985&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Many Americans, many of them Republicans, seek leaders who would violate basic principles of democracy.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpRally/f347757471f444fa94616d07038d354e/photo">AP Photo/Ben Gray</a></span></figcaption></figure><p>It might be comforting to think that American democracy has made it past the Jan. 6, 2021, insurrection. But <a href="https://doi.org/10.1017/S1537592722003206">our research</a> shows that a wide range of the American people, of all political stripes, seek leaders who are fundamentally anti-democratic.</p>
<p>It’s true that many who participated in the insurrection are facing consequences, including <a href="https://www.washingtonpost.com/dc-md-va/2022/12/16/jensen-qanon-jan6-attack/">prison time</a>. Many candidates for state office who falsely claimed that Donald Trump won the 2020 presidential election <a href="https://www.nbcnews.com/politics/2022-election/election-deniers-overwhelmingly-lost-battleground-states-rcna57058">lost their races</a>. And the congressional committee investigating the insurrection <a href="https://www.washingtonpost.com/politics/2022/12/19/trump-referrals-jan-6-committee/">voted to refer</a> Trump to the Department of Justice for criminal charges.</p>
<p>But more than 100 members of Congress who <a href="https://www.npr.org/sections/insurrection-at-the-capitol/2021/01/07/954380156/here-are-the-republicans-who-objected-to-the-electoral-college-count">objected</a> to the results of a free and fair election won their reelection campaigns. And at least seven people who attended the “Stop the Steal” rally on Jan. 6 have been elected to <a href="https://www.washingtonpost.com/politics/2021/11/03/least-seven-jan-6-rallygoers-won-public-office-election-day/">state legislatures</a> and two have been elected to <a href="https://www.washingtonpost.com/politics/2022/11/15/derrick-van-orden-jan-6-congress/">Congress</a>. </p>
<p>As <a href="https://scholar.google.com/citations?user=oTq7_YIAAAAJ&hl=en&oi=ao">scholars</a> <a href="https://scholar.google.com/citations?hl=en&user=Ndefs_gAAAAJ">interested</a> <a href="https://sites.allegheny.edu/politicalsci/faculty/brian-harward/">in</a> how committed citizens are to democracy, we wanted to measure whether regular Americans want someone who will abide by democratic traditions and practices or dispense with them. </p>
<p>Using a nationally representative sample of 1,500 respondents, we found that <a href="https://doi.org/10.1017/S1537592722003206">a large proportion of Americans</a> are willing to support leaders who would violate democratic principles. </p>
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<h2>Support for anti-democratic leaders</h2>
<p>About two decades ago, an important study found that <a href="https://doi.org/10.1017/CBO9780511613722">roughly 1 in 4 Americans</a> supported leaders who are uncompromising and take decisive action. These people said they would also prefer nonelected experts to make decisions. Our study replicates this finding nearly 20 years later but sheds light on a troubling reason for this preference.</p>
<p>At the Allegheny College Center for Political Participation, we, with our former student <a href="https://www.linkedin.com/in/candaisy-crawford-ab0141112/">Candaisy Crawford</a>, asked people about their willingness to support leaders who promised to protect them by any means necessary, even if that meant violating expected standards of behavior in a democracy, a set of principles often called “democratic norms.” We <a href="https://doi.org/10.1017/S1537592722003206">developed these questions</a> based on existing research about the strategies that leaders with anti-democratic tendencies use to build public support. </p>
<p>In Venezuela, for instance, democratic decline happened gradually. Early on, Venezuela’s former president Hugo Chavez was known for using <a href="https://www.cambridge.org/core/books/abs/populism-in-europe-and-the-americas/populism-and-democracy-in-venezuela-under-hugo-chavez/FA3183273C9744A9A70FE4EBF71EB826">nationalist</a> language and calling opponents epithets like “<a href="https://www.theguardian.com/world/1999/dec/17/alexbellos">rancid oligarchs” and “squealing pigs</a>.” Later, he <a href="https://www.hrw.org/report/2008/09/18/decade-under-chavez/political-intolerance-and-lost-opportunities-advancing-human">blacklisted</a> those who sought his removal from office through a democratically conducted referendum. Eventually, he went further, <a href="https://www.reuters.com/article/us-venezuela-amnesty-cases/factbox-jailed-and-exiled-opponents-of-venezuelas-chavez-idUSBRE8B60RU20121207">arresting and exiling</a> his political opponents. </p>
<p>These types of tactics have also been used in <a href="https://www.penguinrandomhouse.com/books/562246/how-democracies-die-by-steven-levitsky-and-daniel-ziblatt/">other nations</a>, such as Turkey and Hungary, by leaders who rose to power through democratic elections.</p>
<p>In our study, we asked about behaviors that foreshadow the early stages of democratic decline. For example, we asked citizens whether they thought that “the only way our country can solve its current problems is by supporting tough leaders who will crack down on those who undermine American values.” We also asked about explicit violations of democratic principles, like shutting down news organizations and “bending the rules to get things done.”</p>
<p>By design, some of these questions allow citizens to use their own interpretations of actions like “crackdowns” and “bending the rules.” These types of practices can take a number of different specific forms, as the cases of Venezuela, Turkey and Hungary illustrate. Our aim was to determine whether citizens were inclined toward leaders who seek power by promising retribution toward some groups and benefits for others, because this rhetorical strategy is often a precursor to explicit violations of democratic institutions.</p>
<p>Likewise, the phrasing of our questions is designed to allow respondents to rely on their own ideas about the meaning of “American values,” and “people like you.” Our interest was in what people would enable leaders to do to protect their idea of America and the Americans with whom they identify.</p>
<p>We found that people who want this type of protective but anti-democratic style of leadership were by far the most inclined to want leaders who would take uncompromising, decisive action. These people did not merely want their side to win a political competition for power. They were literally willing to say they would “bend the rules” to do it, a clear violation of the democratic ideal that everyone must follow the same rules.</p>
<p>For each item, we found that at least a third of the people we polled agreed or strongly agreed with these subtle or explicit violations of democratic norms. </p>
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<h2>Across the political spectrum</h2>
<p>Anti-democratic statements are embraced by members of both U.S. parties, but more commonly by Republicans.</p>
<p>For example, around 90% of Republicans would support tough leaders who crack down on groups that “undermine American values” – however the survey respondents define those values. More than half of Democrats take the same position. Perhaps even more notably, nearly half of citizens who strongly support the Republican Party and over a third of those who strongly support the Democratic Party endorse the view that it is acceptable to “bend the rules” for people like themselves to achieve political goals.</p>
<p>This echoes other research that has found Americans, on both sides of the political aisle, are <a href="https://doi.org/10.1017/S0003055420000052">willing to sacrifice</a> democratic principles and practices if it means their political party wins elections.</p>
<h2>An appetite for protection</h2>
<p>The key to understanding these views, we believe, is <a href="https://global.oup.com/academic/product/the-securitarian-personality-9780190096489?cc=us&lang=en&">a desire for protection</a>.</p>
<p>Many Americans view those in the other party as existential <a href="https://www.pewresearch.org/politics/2014/06/12/political-polarization-in-the-american-public/pp-2014-06-12-polarization-0-02/">threats to the country</a> – and <a href="https://www.pewresearch.org/politics/2022/08/09/as-partisan-hostility-grows-signs-of-frustration-with-the-two-party-system/">closed-minded, dishonest, immoral and unintelligent</a> too. All this coexists with growing evidence that more people are willing to <a href="https://theconversation.com/how-a-divided-america-including-the-15-who-are-maga-republicans-splits-on-qanon-racism-and-armed-patrols-at-polling-places-193378">support political violence</a> under <a href="https://press.uchicago.edu/ucp/books/book/chicago/R/bo163195227.html">certain circumstances</a>.</p>
<p>Many citizens prefer leaders who are willing to undermine democracy if it means protecting people like themselves from groups that threaten their values or status. Although most Americans do not subscribe to these beliefs, a substantial portion of the country does. </p>
<p>Leaders who actively promise anti-democratic action may come and go, but we fear the appetite of many Americans for such actions may always be a persistent threat.</p><img src="https://counter.theconversation.com/content/198578/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tarah Williams receives funding from the Public Religion Research Institute (PRRI) as a Public Fellow.</span></em></p><p class="fine-print"><em><span>Andrew Bloeser and Brian Harward do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A large proportion of Americans is willing to support leaders who would violate democratic principles.Tarah Williams, Assistant Professor of Political Science, Allegheny CollegeAndrew Bloeser, Associate Professor of Political Science; Director, Center for Political Participation, Allegheny CollegeBrian Harward, Professor of Political Science, Allegheny CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1965592023-01-12T13:21:28Z2023-01-12T13:21:28ZTrump is facing various criminal charges – here’s what we can learn from legal cases against Nixon and Clinton<figure><img src="https://images.theconversation.com/files/504070/original/file-20230111-14-t9gpgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump waves to people during a New Year's event at his Mar-a-Lago home in December 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1453537376/photo/donald-trump-addresses-the-press-on-new-years-eve-at-mar-a-lago-mansion.jpg?s=1024x1024&w=gi&k=20&c=ZPmora_FI5LKPZ9ezZ3DTxKoHRFR0iuAkvGdPSewxJ4=">Joe Raedle/Getty Images</a></span></figcaption></figure><p>A <a href="https://www.cnn.com/2023/01/09/politics/fulton-county-grand-jury-trump-election/index.html">Georgia special grand jury has finished its work</a> investigating whether former president Donald Trump and his allies committed crimes when trying to overturn the 2020 election results.</p>
<p>While special grand juries cannot themselves issue indictments, they can recommend district attorneys do so. This and other recent news about Trump’s mounting legal problems has led to a number of legal experts and <a href="https://www.washingtonpost.com/opinions/2023/01/10/georgia-fulton-investigation-trump-indictment/">political observers</a> saying that Trump could soon be indicted.</p>
<p>Trump, meanwhile, faces several other criminal investigations that could also result in indictments. The Department of Justice is <a href="https://www.vox.com/policy-and-politics/23306941/donald-trump-crimes-criminal-investigation-mar-a-lago-fbi-january-6-election-georgia-new-york">investigating Trump</a> for retaining government documents in violation of several federal laws. </p>
<p>And the House Select Committee to Investigate the January 6th Attack on the United States Capitol <a href="https://apnews.com/article/january-6-final-hearing-investigation-wraps-0bceb95826c1c836023d2810ccbeccca">referred Trump</a> to the Department of Justice in December 2022, <a href="https://www.npr.org/2022/12/23/1145160544/jan-6-report-committee-donald-trump">citing multiple likely</a> criminal violations in his role of orchestrating an attack on the Capitol. The Department of Justice’s special counsel is now investigating. </p>
<p>Trump, who may become the first former president of the United States to be indicted by a court of law, is not the first modern president with <a href="https://www.wsj.com/articles/which-presidents-have-been-tied-to-a-crime-a-history-1534943720">legal problems</a>. But the question of whether a president – sitting or former – should be charged with a crime has come up three times in the last half-century. </p>
<p>As a <a href="https://law.wayne.edu/profile/ew9862">legal scholar</a>, I understand the important questions raised about the rule of law within U.S. democracy by the possible indictment of a former president. </p>
<p>The <a href="http://rolalliance.org/rol-alliance-impact/rule-of-law-democracy/">rule of law</a> means that no one is above the law. It ensures that the rules are made by and for the people. Those rules are enforced equally and adjudicated through well-established procedures. For the rule of law to prevail, any decision to indict a former president – or not to – has to be credible, independent and supported by evidence.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white man with a blue suit walks past a row of American flags with the words 'Make America Great again' on a banner above the flags." src="https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Former President Donald Trump speaks at an event in his Mar-a-Lago home in November 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1441806213/photo/former-u-s-president-donald-trump-makes-an-announcement-at-his-florida-home.jpg?s=612x612&w=gi&k=20&c=R2vt8_lclk72suKPt3eLn75Rak5i1LT6SIe18wHUig0=">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>Being a current or former president matters</h2>
<p><a href="http://www.processhistory.org/presidential-misconduct-historians-and-history/">Presidential misconduct</a> is not new. </p>
<p>Presidents have engaged in unlawful activity. Some have even run into legal problems while in office. But their legal problems are often settled by the time they leave office and fade from the public’s memory. </p>
<p>The perseverance of Trump’s legal problems raises important new questions about how to deal with misconduct by a former president.</p>
<p>This matters, because federal law treats former presidents differently from sitting presidents. Former presidents do not retain all the legal advantages of being president. For example, former presidents can try to assert executive privilege to shield certain documents and information from Congress, courts and the public to protect the nation, but courts <a href="https://www.theusconstitution.org/litigation/thompson-v-trump/">have limited their</a> ability to do so. </p>
<p>The question of whether a sitting president can be indicted remains unresolved. In 2000, the Department of Justice <a href="https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution">adopted a policy</a> against indicting a sitting president. The policy protects presidents while they are in office so they can fulfill their constitutional duties. </p>
<p>But it is tradition, not law or policy, that has kept former presidents from indictment in <a href="https://www.theatlantic.com/ideas/archive/2020/10/case-criminally-investigating-ex-president/616804/">the past 240 years</a>. </p>
<p>The legal arguments against indicting a sitting president – namely that it would undermine the capacity of the executive branch to perform its constitutional functions – lose weight once a president leaves office. A former president becomes a private citizen and no longer has any duties under the Constitution.</p>
<h2>Legal trouble for sitting presidents</h2>
<p>A few presidents have faced legal problems while in office, including Republican Richard Nixon and Democrat Bill Clinton. </p>
<p>Nixon famously ran into legal trouble after his <a href="https://www.britannica.com/event/Watergate-Scandal">reelection campaign</a> burglarized and bugged the Democratic National Committee’s headquarters in June 1972 – and he subsequently participated in the effort to cover up the scandal. </p>
<p>Nixon resigned in 1974 before the House of Representatives could have potentially impeached him – or the Senate could have convicted him and removed him from office <a href="https://www.vox.com/2014/8/7/5970967/what-was-watergate-scandal-nixon">for his crimes</a> of obstruction of justice, abuse of power and contempt of Congress.</p>
<p><a href="https://www.britannica.com/biography/Leon-Jaworski">Special Prosecutor Leon Jaworski</a>, who was investigating the Watergate scandal, struggled with the question of whether a court can indict a sitting president. </p>
<p>The U.S. Constitution does not say that the president is immune from ordinary processes of the criminal law. It does, however, provide for impeachment and removal from office. </p>
<p>Some believe that because the Constitution establishes an <a href="https://www.lawfareblog.com/indicting-and-prosecuting-sitting-president">impeachment process</a> to address presidential misconduct, it should take precedent over a criminal indictment. Others worry that indictment would interfere with a president’s ability to fulfill his or her constitutional duties.</p>
<p>Jaworski left this legal question open and chose not to indict Nixon in 1974. He transmitted the evidence he had gathered on Nixon’s involvement in Watergate to the House so it could pursue impeachment proceedings. </p>
<p>The grand jury that was also investigating the Watergate scandal, however, <a href="https://www.nytimes.com/1974/06/07/archives/jury-named-nixon-a-coconspirator-but-didnt-indict-st-clair-confirms.html">voted in June 1974</a> to name Nixon as an unindicted co-conspirator in an alleged conspiracy to obstruct justice. It also recommended indicting seven men involved in the crime.</p>
<p>Nixon’s successor, President Gerald Ford, then faced the question of how to deal with Nixon’s misconduct after his predecessor resigned the office. Ford didn’t have the power to indict, but he could pardon Nixon for his alleged crimes. Ford decided that it was in the best interest of the country to <a href="https://www.history.com/this-day-in-history/ford-pardons-nixon">move on</a> from the Watergate scandal and to not allow prosecutors to indict Nixon. </p>
<p>Shortly after Nixon’s resignation, Ford <a href="https://www.history.com/this-day-in-history/ford-pardons-nixon">granted a full</a>, free and absolute pardon to Nixon in September 1974 for all offenses committed during his tenure as president. Ford’s pardon ensured that Nixon would not face indictment as a former president.</p>
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<a href="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo shows two men sitting in arm chairs facing each other." src="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Richard Nixon speaks with journalist David Frost in 1977, three years after Nixon resigned.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/50426386/photo/frost-interviews-nixon.jpg?s=612x612&w=gi&k=20&c=ghRZcU4BWKy-fprsduiqPDQybzP0A86zbemPw8rP1os=">John Bryson/Getty Images</a></span>
</figcaption>
</figure>
<h2>Another kind of legal trouble</h2>
<p>Clinton was never indicted, but he faced serious consequences for his presidential misconduct. His legal problems related to his treatment of and relationships with several women who were not his wife. </p>
<p>Clinton was accused of lying in court proceedings in a sexual harassment case filed against him. His alleged lying led to his impeachment for lying under oath to a federal grand jury and obstruction of justice. The Senate voted not to convict him, and thus he was not removed from office. A <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/contempt041399.htm">federal district judge</a> held Clinton in contempt of court for making false statements in deposition testimony in the case. </p>
<p>Unlike Nixon, Clinton paid a price for his presidential misconduct. An Arkansas Supreme Court <a href="https://www.washingtonpost.com/archive/politics/2000/07/01/arkansas-court-panel-sues-clinton/9226bfa2-3297-453a-b680-d8a34b1f98f8/">committee sued him</a> for his behavior while in office and asked that Clinton be disbarred for his behavior.</p>
<p>Clinton <a href="https://www.washingtonpost.com/archive/politics/2001/01/20/in-a-deal-clinton-avoids-indictment/bb80cc4c-e72c-40c1-bb72-55b2b81c3065/">settled</a> the suit by agreeing to a five year suspension of his law license, a $25,000 fine and public acknowledgment that he had violated the Arkansas Rules of Professional Conduct. He accepted a punishment far harsher than the reprimand normally given in similar situations, but escaped criminal prosecution. </p>
<h2>Preserving the rule of law</h2>
<p>Trump now faces multiple criminal investigations that could result in an indictment. No former president has faced so many possible indictments. </p>
<p>Any decision for or against indicting Trump could threaten the rule of law if it is not carefully considered and supported by the evidence. As weighty and historic as the decisions about indicting Trump may seem, they reflect the country’s larger struggle in navigating how to deal with presidential misconduct.</p>
<p>The next steps in Trump’s legal saga will be key in determining how our democracy decides to hold former presidents accountable for their misconduct.</p><img src="https://counter.theconversation.com/content/196559/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kirsten Matoy Carlson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump isn’t the first modern president with legal problems, but he would be the first former president to be indicted for alleged crimes.Kirsten Matoy Carlson, Professor of Law and Adjunct Professor of Political Science, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1960552022-12-08T13:04:08Z2022-12-08T13:04:08ZJanusz Walus parole: South Africa’s constitutional court was right - but failed the sensitivity test<figure><img src="https://images.theconversation.com/files/499534/original/file-20221207-11743-v1gh9q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protests outside the constitutional court at its decision to grant parole to Chris Hani's killer, Janusz Walus.
</span> <span class="attribution"><span class="source">Fani Mahuntsi/Gallo Images via Getty Images</span></span></figcaption></figure><p>On 21 November 2022 the Constitutional Court of South Africa <a href="https://collections.concourt.org.za/bitstream/id/62084/%5bJudgment%5d%20CCT%20221-21%20Janusz%20Jakub%20Walus%20v%20Minister%20of%20Justice%20and%20Corre....pdf">ordered</a> the release on parole of Janusz Walus, the Polish national who <a href="https://www.bbc.com/news/world-africa-63700284">assassinated Chris Hani on 10 April 1993</a>. Hani was the secretary-general of the South African Communist Party, and one of the leading anti-apartheid stalwarts. The court’s decision, understandably, caused outrage, anger and controversy in the country, in particular for <a href="https://www.enca.com/news/watch-outrage-over-hani-killers-release">the Hani family</a>. </p>
<p>Hani’s assassination nearly caused the country to descend into civil war. But this was averted. Walus subsequently received the death penalty. The dawn of democracy in the country in 1994, and the subsequent <a href="http://www.saflii.org/za/cases/ZACC/1995/3.html">abolition of the death penalty in South Africa</a>, saw his death sentence commuted to <a href="https://www.africanews.com/2022/11/22/south-africa-janusz-walus-killer-of-anti-apartheid-leader-chris-hani-to-be-released-on-par//">life in prison</a> in 2000.</p>
<p>As fate would have it, a decision by <a href="https://www.supremecourtofappeal.org.za/index.php/component/jdownloads/send/38-judgments-2022/3920-national-commissioner-of-correctional-services-and-another-v-democratic-alliance-and-others-with-south-african-institute-of-race-relations-intervening-as-amicus-curiae-33-2022-2022-zasca-159-21-november-2022?Itemid=0">the Supreme Court of Appeal</a> revoked the medical parole of Jacob Zuma, the third democratically elected president, on the same day as the Walus decision. Zuma had been sentenced to 15 months’ imprisonment <a href="https://cdn.24.co.za/files/Cms/General/d/11313/b8ee947ddd3e4a79a0cc5dcfa6f4abfd.pdf">for contempt of court</a> by the Constitutional Court – the same court which now ordered Walus’ release. This added more controversy to an already tense situation. </p>
<p>Unlike Walus, who killed a prominent anti-apartheid hero, and whose release has been considered a threat to political stability in the country all these years, Zuma is considered a liberation struggle hero by millions in the country. There was <a href="https://theconversation.com/south-africas-deadly-july-2021-riots-may-recur-if-theres-no-change-186397">deadly unrest in July 2021</a> after he was jailed.</p>
<p>Against this background, we argue that the Constitutional Court’s decision to release Walus was legally sound. But it could have done a better job of communicating its decision sensitively.</p>
<p>These two opposing parole decisions have the potential to result in societal instability caused by those who feel – understandably – aggrieved by both decisions.</p>
<h2>Zuma and Walus parole decisions</h2>
<p>The decisions have also created wrong perceptions of the fairness of the application of the law. The Constitutional Court has been accused of being an <a href="https://twitter.com/EFFSouthAfrica/status/1594707886336352257/photo/1">“instrument that reinforces white supremacy”</a>. A <a href="https://www.iol.co.za/saturday-star/news/janusz-walus-parole-is-justice-served-after-three-decades-behind-bars-27f76ac4-0aa8-4b40-bdd7-2db6d1a530df">poll</a> by the national television channel Newzroom Afrika found that 41.8% of the people surveyed felt that Walus’ release was “a great injustice” and 32.7% felt that “the family were let down”. </p>
<p><a href="https://www.sowetanlive.co.za/news/south-africa/2022-11-21-sending-zuma-back-to-jail-serves-no-rehabilitation-purpose-eff/">A number of arguments</a> question the rationality of the Supreme Court judgement on Zuma. Some wondered what purpose it would serve to send an 80-year-old man back to jail. Others argued that it would be good for the stability of the country if he were sent back to jail because Zuma had blatantly ignored the legitimacy of South Africa’s justice system. He had ignored a court order to testify at the Zondo inquiry into corruption and state capture during his presidency and <a href="https://www.reuters.com/world/africa/south-africas-top-court-says-ex-leader-zuma-contempt-absences-2021-06-29/">was sentenced to 15 months in prison</a>. </p>
<p>Furthermore, all those South Africans who revere Zuma might reason that his medical parole should not have been revoked as his offence was much less egregious than Walus’ crime.</p>
<p>Meanwhile Walus, whose crime nearly derailed negotiations on democracy, benefits not once but twice from South Africa’s democratic dispensation. Firstly, his death sentence was commuted because the constitution grants everyone the right to life. Secondly, he walks free because the courts uphold the rule of law above anything. </p>
<p>It’s clear from reading the Constitutional Court judgement that the court meticulously applied South African law that regulates parole for offenders – the <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a111-98.pdf">Correctional Services Act 111</a> of 1998, the <a href="https://www.gov.za/sites/default/files/gcis_document/201505/act-8-1959.pdf">Correctional Services Act 8 of 1959</a> (dealing with people who were sentenced before the new parole dispensation became effective) and the <a href="https://www.justice.gov.za/legislation/acts/1977-051.pdf">Criminal Procedure Act 51</a> of 1977. </p>
<p>Law professor Jamil Mujuzi has aptly explained <a href="https://theconversation.com/janusz-walus-and-parole-for-prisoners-serving-life-sentences-in-south-africa-the-weaknesses-of-the-courts-decision-195403?utm_term=Autofeed&utm_medium=Social&utm_source=Twitter#Echobox=1669831920">South Africa’s parole system for prisoners serving a life sentence</a>. The relevant legislation fully adheres to the internationally recognised principle that criminal law is not retroactive.</p>
<p>In adhering so closely to the parole laws, the Constitutional Court has demonstrated that applying the rule of law is its main concern. </p>
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Read more:
<a href="https://theconversation.com/janusz-walus-and-parole-for-prisoners-serving-life-sentences-in-south-africa-the-weaknesses-of-the-courts-decision-195403">Janusz Walus and parole for prisoners serving life sentences in South Africa: the weaknesses of the court's decision</a>
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<p><a href="https://www.iol.co.za/news/south-africa/gauteng/general-council-of-the-bar-calls-on-south-africans-to-respect-rule-of-law-amid-outcry-over-ruling-to-free-hani-killer-janusz-walus-on-parole-193110c9-976a-48e9-9c23-bca55ca031e0">All South Africans</a> should agree that the rule of law should always prevail in the courts. Any deviation could have had wide repercussions for the application of the law.</p>
<h2>What the Constitutional Court could have done differently</h2>
<p>However, the court could have communicated its reasons in a more compassionate way. As Arthur Dobrin, Professor Emeritus of University Studies, Hofstra University, <a href="https://www.psychologytoday.com/au/blog/am-i-right/201108/why-the-law-cant-do-without-compassion">wrote</a>:</p>
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<p>Law is rooted in ethics and the impetus for ethics is empathy. </p>
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<p>In order to speak to the public and serve society, the courts have to show compassion. This might have made the impact of the decision feel less extreme to those who feel that justice was not served. </p>
<p>In line with the age-old proverb that <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1326348/">justice is blind</a>, judges in the democratic world tend to apply the law without fear or favour or allowing any emotions which could potentially cloud their judgements. This maxim ensures that the law is applied in an impartial way.</p>
<p>Some situations, however, require judges to give more attention to the potential societal consequences of their decisions. These situations require judges to show a sense of <a href="https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1166&context=uclr">empathy during adjudication</a>.</p>
<p>It can safely, and with respect, be argued that all 11 members of the Constitutional Court knew that a decision to release Walus on parole would be very painful to millions of South Africans. Thus, the court should have prepared better and more empathetic ways to communicate the reasons for its decision, as many South Africans are not well versed in the law. </p>
<p>It could have explained more simply the laws applicable to Walus’ position and the reasons why he qualified for parole. </p>
<p>This would have given the public a much clearer understanding of how the court came to its decision, and what considerations it had given to public opinion.</p>
<p>Furthermore, the court could have allowed the Hani family a more visible platform through a victim impact statement. This would have stated their position on the granting of the parole. The statement could have been made part of the main judgement. </p>
<p>As argued by Wits University honorary professor <a href="https://obiter.mandela.ac.za/article/view/12327">Monde Makiwane</a>, it is long overdue for South Africa to embrace victim impact statements in its criminal justice system. </p>
<p>Even though the Hani family would not have agreed with the court, at least the public would have seen that everything was done to get the family involved. Perception can have real impact and greater involvement of the family might have softened the blow.</p>
<p><em>This article was co-authored with Sasha-Lee Stephanie Afrika (LLD), Attorney of the High Court of South Africa and former lecturer at Stellenbosch University and University of Johannesburg.</em></p><img src="https://counter.theconversation.com/content/196055/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sascha-Dominik (Dov) Bachmann does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The court should have given the public a much clearer understanding of how it came to its decision, and what consideration it had given to public opinion.Sascha-Dominik (Dov) Bachmann, Professor in Law and Co-Convener National Security Hub (University of Canberra) and Research Fellow (adjunct) - The Security Institute for Governance and Leadership in Africa, Faculty of Military Science, Stellenbosch University- NATO Fellow Asia-Pacific, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1959472022-12-07T09:48:53Z2022-12-07T09:48:53ZContempt of court in Nigeria - what the cases of three convicted security officials tell us<figure><img src="https://images.theconversation.com/files/499280/original/file-20221206-22-coaikw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A court order must be obeyed until it is set aside on appeal.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/cover-about-law-statue-of-god-of-justice-themis-royalty-free-image/962077642?phrase=justice%20in%20nigeria&adppopup=true">Getty Images </a></span></figcaption></figure><p><em>Three security chiefs in Nigeria were convicted of contempt of court in November 2022 after failing to comply with various court orders. This is the first time that officials at this level have been held to account in this way. The <a href="https://www.efcc.gov.ng/">Electronic and Financial Crimes Commission</a> chairman, the inspector general of <a href="https://www.npf.gov.ng/">police</a> and the chief of <a href="https://army.mil.ng/">army staff</a> all ignored orders to rectify errors they made in their duties. The Conversation Africa asked constitutional law expert Abiodun Odusote to weigh in on the implications of flouting court orders.</em> </p>
<p><strong>What is contempt of court and under what circumstances can a public officer be convicted for contempt in Nigeria?</strong></p>
<p>Contempt of court is an affront to the authority and dignity of the court. One form it can take is disrespectful behaviour in the presence of the court – like rude gestures, shouting or interrupting the judge.</p>
<p>Another form it can take is breach of a written court order, including wilful disobedience or disregard of a court order. The person violating the court order is convicted of contempt and sentenced to terms of imprisonment or payment of a fine. </p>
<p>Like any other Nigerian, public officers have no immunity against contempt proceedings. The only exceptions are those who enjoy constitutional immunity while in office, including the president, the vice president, and governors and their deputies.</p>
<p><strong>What is your view on the convictions of the three security chiefs in November?</strong></p>
<p>The convictions are good for the rule of law and democracy. Democracy and the rule of law <a href="https://core.ac.uk/download/pdf/234674757.pdf">are inseparable concepts</a> that make it possible for modern societies to function effectively and thus guarantee peace, harmony and egalitarianism. The rule of law allows democracy to thrive because law is the collective will of society, making possible equal rights, social order and justice. </p>
<p>I’m happy the courts have had enough of top government functionaries who fail to comply with court orders. </p>
<p>The chairman of the Economic and Financial Crimes Commission was originally ordered by the court to return to an applicant his Range Rover and the sum of N40 million (US$89,680). The commission had accused the applicant of corrupt practices. The chairman failed to obey the court order and was therefore <a href="https://www.channelstv.com/2022/11/08/contempt-court-convicts-efcc-chairman-directs-igp-to-execute-order/">convicted for contempt</a>. </p>
<p>The inspector general was sentenced to three months in jail for <a href="https://punchng.com/breaking-court-sentences-igp-to-three-months-in-prison/">disobeying a court order</a> to reinstate and compensate a police officer who had been unlawfully retired. </p>
<p>The chief of army staff <a href="https://punchng.com/court-orders-arrest-imprisonment-of-army-chief/">was also jailed for contempt</a> for failure to obey a court order issued on 12 October 2022 in a suit between a citizen and the governor of Niger state, north-central Nigeria.</p>
<p>The police <a href="https://tribuneonlineng.com/igps-imprisonment-police-not-aware-of-court-order-reinstating-dismissed-officer-fpro/">claim</a> not to have been aware of the court order. This seems unlikely, because of the legal process that has to be carried out. </p>
<p>Before contempt proceedings can begin, the registrar of court issues two forms. The first form notifies the person of the court’s order. The notice says that flouting a court order is criminal and that it may attract sanctions from the court. The second form notifies the person that a contempt proceeding is about to be initiated against him. It gives the person the opportunity to comply with the order of the court to avoid sanction. </p>
<p><strong>Under what circumstances can people not comply with court orders in Nigeria?</strong></p>
<p>A court order must be obeyed until it is set aside on appeal. The <a href="https://lawcarenigeria.com/nigerian-electricity-regulatory-commission-v-barrister-toluwani-yemi-adebiyi-2017-3/">court held</a> in Nigerian Electricity Regulatory Commission v Barrister Toluwani Yemi Adebiyi (2017) that a person who has been convicted for contempt may ask for permission to appeal against the conviction and give reasons for the appeal. He may argue that the judge did not follow proper procedure in convicting him, or that the court does not have the power to convict him, or that the court exceeded its powers in convicting him. </p>
<p><strong>What does ignoring orders indicate for the rule of law in Nigeria?</strong></p>
<p>Ignoring any order of the court undermines democracy and the rule of law. No one should be above the law. Orders of the court should be obeyed immediately until set aside. Disobedience of a court order is an affront to the rule of law and democracy. <a href="http://www.placng.org/lawsofnigeria/laws/S6.pdf">Section 72 of the Sheriffs and Civil Process Act</a> provides that the court can detain a person in prison until he or she has obeyed whatever parts of the order are supposed to be performed immediately.</p>
<p>So the consequences of ignoring a court order are grievous. It is even worse to ignore a contempt order. A contempt order is an order of a court after a party has been found guilty of ignoring court orders. It actually baffles me how this can happen, because the person who is found to be in contempt of court should ordinarily attend the court session when the order of the court is to be pronounced, and should be taken to the correctional facility on conviction and sentencing. Any appeal should be filed after the conviction order has been complied with.</p><img src="https://counter.theconversation.com/content/195947/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Abiodun Odusote does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ignoring any order of the court undermines democracy and the rule of law. No one should be above the law.Abiodun Odusote, Senior Lecturer, University of LagosLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1957382022-12-01T12:22:26Z2022-12-01T12:22:26ZSouth Africa’s President Ramaphosa could be impeached - 3 essential reads on the Phala Phala scandal<figure><img src="https://images.theconversation.com/files/498464/original/file-20221201-24-bknlao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's President Cyril Ramaphosa.
</span> <span class="attribution"><span class="source">Photo by JUSTIN TALLIS/AFP via Getty Images</span></span></figcaption></figure><p>South Africa’s President Cyril Ramaphosa may have <a href="https://www.dailymaverick.co.za/article/2022-11-30-sa-politics-in-turmoil-as-panel-says-president-ramaphosa-must-face-impeachment/">an impeachment case to answer</a>. This was the finding of the independent parliamentary panel probing the scandal over the theft of thousands of US dollars stashed illegally on his farm, Phala Phala. The three person panel, headed by former chief justice <a href="https://www.concourt.org.za/index.php/judges/former-judges/11-former-judges/66-chief-justice-sandile-ngcobo">Sandile Ngcobo</a>, found that the president might have breached the constitution and engaged in corrupt activities.</p>
<p>The panel handed its report to the speaker of parliament for the National Assembly to debate ahead of the president’s possible impeachment at a special sitting of parliament. </p>
<p>The Phala Phala affair threatens to derail Ramaphosa’s chances of winning a second term as president of the African National Congress (ANC) at its <a href="https://www.anc1912.org.za/#">national conference</a> in December – and then becoming national president again. </p>
<p>Academics writing for The Conversation Africa have explored the issues.</p>
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<p>Dirk Kotze argues that the Phala Phala scandal has seriously dented Ramaphosa’s credibility. He sets out how Ramaphosa’s business interests are threatening to jeopardise his presidency, with dire consequences for the country given the important economic and political reforms he is pursuing. </p>
<p>Ramaphosa’s first reform agenda is an economic reconstruction and <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-south-africa%E2%80%99s-economic-reconstruction-and-recovery-plan-15-oct">recovery plan</a>. This includes solving persistent power cuts that have devastated the country’s economy. The second task is to unite the highly <a href="https://www.dailymaverick.co.za/article/2018-01-09-ancs-106th-ramaphosas-push-for-unity-continues/">factionalised governing party</a>, the African National Congress, which he leads. </p>
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Read more:
<a href="https://theconversation.com/south-african-president-cyril-ramaphosas-credibility-has-been-dented-putting-his-reform-agenda-in-jeopardy-189802">South African president Cyril Ramaphosa’s credibility has been dented, putting his reform agenda in jeopardy</a>
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<p>The Phala Phala scandal is not just a threat for Ramaphosa, but could seriously hurt his party’s prospects as it faces gruelling national and provincial elections in 2024. </p>
<p>Support for the party, which has dominated South Africa’s politics since democracy in 1994, has been sliding steadily in the last two decades. According to Susan Booysen, the ANC contested the last general elections in 2019 with only Ramaphosa as the trump card. “The ANC built its 2019 election campaign around Ramaphosa, after polls showed that he was the only leader who continued to enjoy substantial credibility among voters.” </p>
<p>But his image as anti-corruption champion – and vote winner – is now in doubt because of the Phala Phala scandal. </p>
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Read more:
<a href="https://theconversation.com/ramaphosa-scandal-looks-set-to-intensify-the-ancs-slide-ushering-in-a-new-era-of-politics-185719">Ramaphosa scandal looks set to intensify the ANC's slide, ushering in a new era of politics</a>
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<p>Richard Calland says this is a historic moment for the country. It would be the first time a president’s fitness for office was assessed since parliament adopted the rules for impeachment in 2018, following a Constitutional Court judgment. He explains the impeachment process, observing that the way the panel applies the law will set an important precedent. </p>
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Read more:
<a href="https://theconversation.com/how-to-impeach-a-president-ramaphosa-case-puts-new-rules-to-the-test-in-south-africa-195390">How to impeach a president: Ramaphosa case puts new rules to the test in South Africa</a>
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<img src="https://counter.theconversation.com/content/195738/count.gif" alt="The Conversation" width="1" height="1" />
The impeachment process could derail Ramaphosa’s political career and seriously hurt the governing ANC’s electoral prospects in 2024.Thabo Leshilo, Politics + SocietyLicensed as Creative Commons – attribution, no derivatives.