Department of Law

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  • ItemEmbargo
    The Material Constitution and Extractive Political Economy
    (Cambridge University Press, 2023-01-15) Lander, Jennifer
    Mongolia’s recent transition to a mineral exporting economy has much to tell us about the relationship between economic change and constitutional transformation. It reveals how the legal construction of markets invite a bevy of transnational economic and legal ‘actors, norms and processes’ which interact with the national constitution. Natural resource extraction, in particular, is charged with the potential to catalyse material constitutional change within the state, by virtue of its profound socio-environmental impacts, the generation of new conflicts over resource control within the state and the exposure of national institutions to transnational investment norms within the context of volatile global commodity markets.
  • ItemOpen Access
    Funerary Rites and Rights of the Dead: Jurisprudence on covid-19 Deaths in Kenya, India and Sri Lanka
    (Brill, 2023-01-12) Nyamutata, Conrad
    Pandemics are associated with exponential mortality rates, creating heavy burdens on communities. The high death rates affect how societies traditionally conduct funerary practices as governments impose regulations on the preparation of bodies and the conduct of the funerals to stem the transmission of the virus. In societies associated with deeply entrenched customary funerary practices, such limitative measures attract defiance. The tensions between public health objectives and funerary traditions have played out in a number of societies resulting in litigation. At the core of the disputes is whether the right to manifest religion or belief can be upheld, and relatedly, whether the dead have rights to dignified burials irrespective of pandemics. During the covid-19 pandemic, some courts had to grapple with these difficult questions. In this paper, I take a jurisprudential excursion on some disputes in Kenya, India and Sri Lanka to assess the adjudication of conflicts which arose from covid-19 pandemic deaths.
  • ItemEmbargo
    Decolonising and decriminalising child marriage in Africa
    (Wiley, 2023-08-25) Nyamutata, Conrad
    Child marriages, often attributed to culture and gender inequality, are prevalent across Africa. Several countries have moved to criminalise the practice. At the core of the criminalisation debate are the fundamental tensions between statutory (state) law on the one hand, and religious and customary law on the other. The growing momentum towards punishment, targeted almost invariably at male offenders, is meant to address the conflict between cultural practices that lead to child marriage and the protection of children's rights. However, some countries have not criminalised child marriage. Thus, the outlawry of child marriages is not universal on the continent. The agitation towards criminalisation—I describe this as ‘popular punitvism’ ‐ as a panacea, is animated by Western penological justifications, principally, deterrence. However, Western criminological and penological theories may not fully account for a phenomenon in other social and geographical spaces. The paper argues for decolonising and decriminalising child marriages in Africa but not legalising it.
  • ItemEmbargo
    Critically-ill children and the international human rights system: assessing the status and role of the UNCRPD in the case of Archie Battersbee
    (Brill, 2024-01-10) Nyamutata, Conrad
    Over the past few years, some parents and clinicians in the UK have argued about decisions on the fate of critically-ill children, with the cases ending in protracted and emotionally-sapping legal disputes. The long -running legal conflicts have played out in the public eye, eliciting conflicting opinions. At the core of the disputes is whether parents or clinicians should determine the appropriate course of action. In the event of the disagreements, the domestic court intervenes guided by the ‘best interests’ principle. A corpus of scholarship, falling on either side of the debate, has captured the contradictions. Until recently, the discourse had focused on the common recourses to domestic courts and the European Court of Human Rights. However, in the recent case of incapacitated 12-year-old Archie Battersbee, his parents sought redress from the international human rights system through the Committee on the Rights of People with Disabilities to stop termination of his life support. The courts barred the involvement of the Committee on the basis that the UK had not incorporated the treaty which birthed the Committee. The case brought into sharp focus the relationship between international law and domestic law. First, this paper asserts that the weight (not) given to international law by the domestic courts was inconsistent with its treatment of international obligations in other cases. Secondly, the position that unincorporated treaties do not have legal effect in domestic proceedings is ambiguous. Finally, the treaty body appeared ill-suited to handle a case of a critically-ill child in the face of the impatient demands of local justice
  • ItemOpen Access
    The ideological construction of Western ISIS-associated females
    (John Benjamins Publishing, 2020-05-04) Nyamutata, Conrad
    Since the outbreak of the war in Syria, some Western women and girls have travelled to the warzone to join the group known as the Islamic State of Iraq and Syria (ISIS) and marry some of the group’s fighters. However, since the collapse of the ‘caliphate’ some of the women and girls have been stranded amid reluctance to accept them back to countries of origin. The women and girls have been the subject of various descriptions and labels. This is a conceptual and theoretical study which examines the ideological construction of females who travelled from Europe and West to join ISIS. The paper uses discourse analysis to examine the use of particular labels in the Western media, drawing primarily from the British press, on the ISIS-associated females seeking return to the West. The paper finds that a naturalized and dominant discourse has developed in the ideological construction of the females
  • ItemOpen Access
    The Decolonisation of Children’s Rights and the Colonial Contours of the Convention on the Rights of the Child
    (Brill, 2020-03-10) Nyamutata, Conrad; Faulkner, Elizabeth
    The United Nations Convention on the Rights of the Child (UNCRC) 1989 has been celebrated for its universal acceptance. However, questions still arise around its provenance and representation. In particular, the Convention is deemed to enshrine Western notions of childhood upon which its rights were constructed. However, the legacy of the colonial contours of the new world order are often excluded within the context of children’s rights. It has been suggested that the new imperialism brandished under the guise of ‘children’s rights’ serves as an effective tool to ‘beat’ the Global South, deflecting from the continued Western dominance within the field of children’s rights. This paper interrogates the power dynamics and colonial legacy upon which views of children are formed, centralising the multitude of issues in the arena of children’s rights in the wake of what can be identified as Hokusai’s wave.
  • ItemOpen Access
    Indigenous Rights in Mongolia: Challenges and Opportunities
    (2024) Lander, Jennifer; Hatcher, Pascale; Byambasuren, Tseren
    Since 2019, Jenny and Pascale have been conducting research into the complaints submitted by the herders of Khanbogd and Tsoggtsetsei to the Compliance Advisor Ombudsman (CAO) of the International Finance Corporation (IFC), which is part of the World Bank Group. A key aspect of these complaints was the claim that Mongolian herders are indigenous peoples and should therefore get more rights according to IFC’s own Investment Performance Standards. Our research is based on analysis of the CAO complaints and agreements, alongside interviews with key stakeholders on the Tripartite Council (TPC) (herders, local government, Oyu Tolgoi (OT) and NGOs) and a focus group with herders. After being delayed by COVID-19, we are grateful to Tseren Byambasuren for assisting us to conduct more interviews in Spring 2022. This short brief is intended for herders impacted by Oyu Tolgoi mine in the South Gobi. It lays out the main conclusions of our research and suggests long term avenues for herders to advance their objectives.
  • ItemOpen Access
    Identification by Voice (1)
    (Lexis Nexis, 2023-12-12) Robson, Jeremy; Smith, Harriet
  • ItemEmbargo
    ‘Is he a barrister or not?’ A study on perceived and actual accentism at the Bar of England and Wales
    (Equinox publishing, 2023-12-12) Robson,Jeremy; Braber, Natalie; Jarman, Jane; Ching, Jane; Stevens, Olivia; Pautz Nicholas
    Barristers present formalised legal arguments before courts and tribunals. As a result, considerable focus is placed on their oral skills. However, people are frequently judged by the accent they use. Those with a more standard accent – ‘Received Pronunciation’ (RP) in the UK – can be perceived as more intelligent and eloquent. This creates a barrier to social mobility because accent-based bias can discriminate against those with non-standard accents. This article examines how the public perceives barristers in England and Wales with different accents and investigates experiences of barristers to establish whether accent discrimination disadvantages certain speakers. It includes an online survey of the general public which found that RP and South-East English accents are still seen as more prestigious. In addition, interviews with barristers illustrate how accent discrimination is widespread and affects career progression.
  • ItemMetadata only
    A year on the Block: What have we learned from a shift in delivery? Is block teaching (and learning) the way forward?
    (WONKHE, 2023-09-15) Koenig, Brett
    A year on the Block: What have we learned from a shift in delivery Is block teaching (and learning) the way forward?
  • ItemMetadata only
    Reflections on Learning and Teaching during COVID
    (Higher Education Policy Institute, 2021-03-12) Koenig, Brett
    The use of learning technology as an attempt to supplement traditional teaching methods has been on the rise in higher education for the last decade and has been in existence for centuries. While changes should usually come about in an evolutionary rather than revolutionary way, the pandemic has forced overnight changes onto education.
  • ItemEmbargo
    Case Commentary: Insanity: R. v Usman Court of Appeal (Criminal Division)
    (Sweet and Maxwell, 2023-09-20) Mackay, Ronnie
    A commentary on the Court of Appeal's decision in R v Usman
  • ItemOpen Access
    Legal Neuroexceptionalism: Framing a Concept
    (European Journal of Law and Technology, 0023-10-26) Hallinan, Dara; Akintoye, Simisola; Eke, Damian Okaibedi; Stahl, Bernd Carsten
    In the past few decades, there have been significant advances in the sciences concerned with the brain and its functions. As science has advanced, the scientific and practical utility of neurodata – data concerning the structure and function of individuals’ brains – has also grown. This expansion in utility, however, has brought with it ever-increasing ethical and legal scrutiny on the legitimate use of neurodata. There is every reason to believe that the expansion in the scientific and practical utility of neurodata, as well as the increased attention given to attendant ethical and legal concerns, will continue apace. It seems likely certain forthcoming legal discussions will concern questions as to whether the collection and use of neurodata should be subject to specific and novel legislation: questions of legal neuroexceptionalism. There has to date, however, been little conceptual exploration of the concept of legal neuroexceptionalism itself – although certain substantive legal neuroexceptionalist claims have been put forward. In this regard, this paper sets out to consider the following question: what does it mean to make a legal neuroexceptionalist claim? In this regard, the paper offers the following preliminary, abstract, proposition: to make a legal neuroexceptionalist claim means making two forms of sub-claim: i) neurodata are somehow exceptional; and ii) these exceptional qualities mandate responses in the form of specific and novel legislation. The paper then further explores each of these two forms of sub-claim in detail.
  • ItemMetadata only
    Do the educational profile, gender, and professional experience of audit committee financial experts improve financial reporting quality?
    (Elsevier, 2023-09-26) Komal, Bushra; Ezeani, Ernest; Usman, Muhammad; Kwabi, Frank; Ye, Chengang
    Going beyond the mere presence of the audit committee financial experts (ACFEs) within the audit committee, we examine whether the educational profile, gender, and professional experience of ACFEs reduces the extent of earnings management. Using a sample of Chinese listed companies, we find evidence suggesting that ACFEs with postgraduate qualifications and other professional certifications mitigate earnings management. Female ACFEs with postgraduate qualifications are more effective in mitigating earnings management than their male counterparts. Also, the professional experience of ACFEs helps them reduce the extent of earnings management. Results are more pronounced in the case of female ACFEs with more professional experience. In addition, we found that ACFEs working in privately-owned Chinese firms better mitigate earnings management compared to those in state-owned Chinese firms. Overall, our results remain robust after controlling for potential endogeneity problems and using alternative earnings management proxies. Our study provides implications for regulators about necessary policy reforms regarding audit committee composition and recommends that companies appoint female ACFEs in China.
  • ItemEmbargo
    Infanticide and Diminished Responsibility–Reviewing the Relationship
    (Bloomsbury, 2023-10-19) Mackay, Ronnie
    The relationship between infanticide and the original diminished responsibility plea was examined in depth by the Law Commission in its work on murder, manslaughter and infanticide. As part of its work, that relationship was investigated in my empirical study commissioned by the Law Commission. The Law Commission concluded that , while infanticide should be left unaltered, diminished responsibility should be the subject of reform. In further exploring that relationship this chapter will consider whether and how infanticide may have been impacted by the changes to the diminished responsibility plea which have resulted in a new plea which is markedly different from its earlier counterpart. In doing so , the chapter will discuss recent cases where both infanticide and the new diminished responsibility plea have been pleaded together as a defence strategy. It will be argued that doing so presents a jury with a complex and difficult task when attempting to reach a verdict. The chapter’s conclusion will suggest a possible solution to assist juries in trials of this type.
  • ItemEmbargo
    Law, Music and Semiotics
    (Edward Elgar Publishing, 2023-11-27) Shaw, Julia J. A.
    Music and Law is part of the broader field of Law and the Humanities, and shares common attributes with Law and Literature and Poetry and Law. All three comprise alternative articulations and critiques of the legal culture, yet music is one of the few objects with the capacity to directly impact behaviour and mental state, whether knowingly or unconsciously. Songs are often credited with providing ‘the soundtrack of our lives’ and as an object in the world, as an object of study, or within an interdisciplinary context, music animates social relatedness, and this is one of its principal functions. Listening to music can alert the sensibilities to a multiplicity of dissident perspectives and sensuous content from which to inform personal life choices and, importantly, awaken the capacity for compassion and moral judgement. Accordingly, the ensuing aural free play of the imagination can radically transform individual and collective thoughts and feelings about important moral and legal questions, such as the visible and invisible consequences of regulation, and the role of justice in relation to otherness, inclusion, and exclusion. This chapter explores the complex intertwining of these two distinct yet analogous disciplinary fields, law and music, in the context of propositions that (1) law is an art as much as a science; (2) all human life needs rhythm and harmony; and (3) an imagination is an essential legal apparatus. In a similar vein, and in response to a query on how to prepare for a successful career in law, US Supreme Court Justice Felix Frankfurter famously advised “no less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great paintings ... and listening to great music”.
  • ItemEmbargo
    Mater Semper (In)Certus Est: A South African Perspective on McConnell v Registrar General for England and Wales The South African Law Journal 2021 (2) Vol 138 397-422
    (Juta, 2021-05-20) Mills, Lize
    In two recent decisions by English courts, it was established that the man who gave birth to his child should be registered as the ‘mother’ of that child. The courts found that, despite the fact that the Gender Recognition Act provides that a person who had changed sex and received ‘a full gender recognition certificate’ is considered ‘for all purposes’ to be a person of ‘the acquired gender’, this person still has to be registered on his child’s birth certificate as belonging to the opposite sex. This article describes and evaluates the reasons for these decisions and compares the English position to those of a number of jurisdictions, including that of South Africa. It argues that the legal context in this country provides for a more pragmatic and equitable approach to the rights of both trans parents and their children.
  • ItemEmbargo
    Parental Responsibilities and Rights during the ‘Gender Reassignment’ Decision-Making Process of Intersex Infants
    (Brill| Nijhoff, 2021-09-29) Mills, Lize; Thompson, Sabrina
    It is estimated that approximately two million infants displaying intersex characteristics, are born every year. Such children are often subjected to medical intervention during the early years of their lives since it is socially considered “necessary” to allocate a conclusive sex to an intersex child. Although it is broadly observed that there are only three instances where “gender re-assignment surgery” for intersex infants is medically necessary, the majority of surgeries are cosmetic, unnecessary and performed with the stated aim of making it easier for intersex children to grow up to be “normal”. Parents of intersex children are faced with the agonising choice as to whether or not to consent to their intersex baby undergoing sex alteration surgery. Relying predominantly on the information provided to them by medical experts, parents are not always fully informed as to the potential physical and psychological risks attached to this type of surgery at this time of children’s lives. This paper seeks to discuss the role and duty of parents during this decision-making process, by evaluating the obligations prescribed by Article 5 of the Convention of the Rights of the Child.
  • ItemEmbargo
    What it means to be a parent: implications for family law and the law of intestate succession
    (Juta, 2021-08-30) Mills, Lize
    On 16 November 2020, the Gauteng Division (Pretoria) of the High Court of South Africa ordered that a biological father of a child who had passed away, was not to be considered the child’s parent and subsequently not entitled to inherit from that child in terms of the Intestate Succession Act, 81 of 1987. The Court found that, since the parental responsibilities and rights of the biological father had been terminated in terms of the Children’s Act, the father could also not be considered to be a “parent” in terms of section 1(1)(d) the ISA. Instead, the maternal grandmother, who was granted parental responsibilities and rights in terms of the Children’s Act over her grandson, was declared to be entitled to share in his intestate estate, and did so on an equal basis with the mother of the child. This note aims to evaluate the reasons for this decision and discuss the possible impact thereof on the South African family law, as well as the law of intestate succession. We will argue that, although the decision by the Court was perhaps fair and just, it was not necessarily one that is correct in law. We will also briefly refer to alternative options that were at the court’s disposal and that could have achieved the same equitable result
  • ItemOpen Access
    Born from bad memories: considering the best interests of children conceived through rape and incest
    (Journal for Juridical Science, 2023-06-30) Mills, Lize
    Despite the fact that, globally, possibly hundreds of thousands of babies each year are conceived and born as a result of rape and incest, there is hardly any research as to what should be considered to be in the best interests of such children. In South Africa, the Children’s Act 38 of 2005 stipulates that children, born as a result of rape and incest, will be denied a relationship with their biological father, since he automatically is not regarded as a parent in these instances. This is not the default position in a few other jurisdictions. The article seeks to explore the rationale for the South African legal position and determines whether the legislative framework provides fairness, justice, and certainty in this regard. It examines what the best interests of children born as a result of rape and incest are, and whether these interests are considered to be of paramount importance, in line with the country’s international and constitutional obligations. Hereafter, the contexts of rape and incest are analysed separately, explaining that the circumstances during conception, and possibly after the birth of the child, differ. It is argued that, in the case of rape, the South African approach promotes the best interests and rights of the child and balances these rights with those of the child’s biological mother and father, although the position in the case of consensual statutory rape is potentially problematic. However, the same cannot be said where children are born as a result of certain instances of incestuous relationships. Since further uncertainties exist as to several other related aspects pertaining to rape and incest, the author calls for legislative reform to take place following further research into these issues.