Drawing lessons from the protection of taxpayers’ rights in Europe
Posted: 13 November, 2013 Filed under: Eric Ntini Kasoko | Tags: Africa, African Charter of Human and Peoples’ Rights, citizens, Court of Justice, Economic Community of West African, Europe, European Court of Justice, European Court on Human Rights, fundamental rights and freedoms, human rights, international human rights law, investments, law, right to property, rule of law, tax, tax legislation, taxpayers, The National Co-ordinating Group of Departmental Representatives of the Cocoa-Coffee Sector v Côte d’Ivoire Leave a comment
Author: Eric Ntini Kasoko
PhD candidate, University of Liege (Belgium)
“You can have a Lord, you can have a King, but the man to fear is the tax collector”- Sumerian proverb.
Today, fearing the tax man does not seem to hold true when it comes to the protection of taxpayers’ rights in most European countries. Indeed, for several decades now, taxpayers’ rights in Europe have been benefiting from internationalisation of human rights process. Under the impulse of case law from the European Court on Human Rights (ECHR) and the European Court of Justice (ECJ), human rights have become a fundamental part of taxation. While Africa is running the marathon of attracting and boosting private investments, it may be vital to stimulate the interaction of these two areas of law as a means to strengthen the rule of law on the continent.
In Africa, tax is primarily regarded as a civic duty. Article 29 (6) of the African Charter of Human and Peoples’ Rights (hereinafter referred to as “the Charter”) states that “the individual shall also have the duty (…) to pay taxes imposed by law in the interest of the society”. It follows in particular that the state has the right to levy taxes on its citizens, whether individual or corporate. In contrast, citizens are entitled to enjoy property rights in respect of Article 14 of the Charter or any other pertinent instrument relating to international human rights law. Since the state and its citizens have opposing interests, a balance is obviously required between the individual’s right to property and the state’s right of establishing taxes. In others words, in case of a dispute regarding taxation, the judge should be able to censure any excessively high tax burden on citizens.
Corruption in Ethiopia: Causes and remedies
Posted: 4 July, 2013 Filed under: Daniel Behailu Geberamanuel | Tags: Africa, constitution, corruption, credibility, EPRDF, Ethiopia, Federal Ethics and Anti-corruption Commission of Ethiopia, Global Financial Integrity, human rights, independent judiciary, press freedom, rule of law, separation of power, seperation of power 7 Comments
Author: Daniel Behailu Geberamanuel
PhD student at Law Faculty of Giessen University, Germany
It is often heard (from all concerned) that corruption levels in Africa and particularly in Ethiopia are of concern. Corruption is not only a violation of law and order, but a massive cause for the exacerbation of poverty already entrenched in the society. It frustrates any genuine effort exerted towards societal and economic development both by the government and the people. The ill sides of corruption are not to be undermined nor should efforts to fight it be played up as a political game just to prolong the life of a specific regime posing as the “good guy”. The fight against corruption must not be a tactical step for public attention and a ploy to win the sympathy of people. The fight against corruption by all Ethiopian stakeholders should investigate the root causes of corruption to address the problem sustainably for the following reasons: Ethiopia is cultivating tens and thousands of graduates from universities and technical colleges every year and the lack of jobs is becoming a serious concern.
According to a report by Global Financial Integrity, Ethiopia lost close to $12 billion since 2000 to illicit financial outflows. This is simply disaster in the making. The government must be serious in its fight against corruption because the government’s credibility and whatever level of legitimacy it might have been commanding is put to question. Therefore, in the government cadres’ language, “fighting corruption ought to be a survival issue”.
Every time I hear of anti-corruption efforts in my country, my pain is immense and is summed up by a phrase in the Amharic language “sedo masaded”, roughly translated as “trying to arrest after cutting lose”; the question is why “cut lose”? Why not fix the fence? Why not shut the door to thieves and the corrupt? The question for all of us is how to secure the house. The solution lies in “institutionalising the rule of law”; subsequently, if anyone subverts the system, all due processes of the law must ensue and no one should be considered or consider themselves above the law.
Xenophobia in South Africa: The time for introspection has come
Posted: 13 June, 2013 Filed under: Josua Loots | Tags: Africa, African Union, apartheid, constitution, foreign nationals, human rights, mob violence, rule of law, SAPS, South Africa, South African Constitution, xenophobia, xenophobic violence 9 Comments
Author: Josua Loots
Project Manager, Centre for Human Rights, University of Pretoria
Xenophobia, just like so many other unsettling issues in South Africa, is gradually becoming part of the way in which we are perceived as a society. The newest upsurge in xenophobic violence clearly indicates that we have not made significant progress since the problem surfaced in 2008. More unsettling however, is the unwillingness of South Africans from all levels of society to acknowledge and address the problem – media houses neglect to conduct in-depth investigations, politicians fail to express their concern over the issue, the South African Police Service controversially fuels public perception through its involvement in incidents regarding foreign nationals, and civilians exercise mob executions with self-righteousness and pride.
The South African Constitution offers protection to citizens and non-citizens, and is one of few constitutions in the world that indisputably does so. The preamble of the Constitution reiterates South Africa’s commitment to uphold the rule of law, and this commitment greatly depends on consistent application of the law in South Africa. It is imperative that South Africans understand that our own claims on the protection of and rights entrenched in the Constitution depend on respecting the rights of others. Arbitrary mob killings of foreign nationals during the past five years suggest that South Africans struggle to come to terms that all people are equal before the law. Allegations of foreign nationals being involved in criminal activities often lead to mob justice, which is a dangerous step towards corroding the rule of law, and eventually the Constitution upon which our society so greatly depends.
The politics of the Ethiopian Justice Sector Reform Program: Justice “reform” or “deform”?
Posted: 21 May, 2013 Filed under: Henok G. Gabisa | Tags: development, Ethiopia, freedom, human rights, human rights violations, judges, judicial independence, judicial reform, Judicial Reform Program, judiciary, justice, Justice System Reform Program, law, legislative, rule of law, supremacy 5 Comments
Author: Henok G. Gabisa
International Law Fellow, Washington and Lee School of Law, VA, USA
The African post-colonial period marked a new paradigm of triangular discourse amongst law, justice and development in the international playground. The intellectual metamorphoses of this discourse quickly gained momentum in the mid-60s and was patented the “Movement of Law and Development”. Highly alluring to professors and intellectuals from American law schools, this intellectual movement regarded “law” as an instrument to reform the society and ‘lawyers and judges” as social engineers. With this movement, the narrative was that law is central to the development processes. Then in the early 90s, the movement gave birth to the idea of the “Justice System Reform Program”, also referred to as the “Judicial Reform Program”. The emergence of this idea immediately became a serious agenda in the strategic themes of international financial institutions and bilateral states cooperation structures under the wrestling juxtaposition of “rule of law” and “poverty eradication”. The geographical focus of this idea was only limited to the developing nations of Africa, Asia, Eastern Europe and some Latin American countries.
There are two main rationales behind the theoretical innovation of ‘judicial reform’: a well-established and effective justice system is not only robust enough to confront corruption and violation of rights (with the assumption that courts as custodies of human rights), it can also be relied on to protect the property rights of foreign investors (the concept of development has always been viewed as capitals flowing from north to south-until very recently that the newly rising economies of BRICS- an acronym for the multi-dimensional partnership between Brazil, Russia, Indian, China and South Africa- proved otherwise that capital can also flow from south to south). The ambition of reforming judiciaries in developing countries beseeches building the practical meaning of judicial independence and professional competence that can help build an unwavering system of justice delivery. However, this initiative seems to have totally been lost in translation and taken advantage of for political purposes by the Ethiopian government.
A true glimmer of hope or a mere mirage? Term and age limits in the ‘new’ Ethiopia
Posted: 15 October, 2012 Filed under: Adem Kassie Abebe | Tags: constitution, constitutional amendments, Ethiopia, governance, leadership, rule of law, Terms and age limits 1 Comment
Author: Adem Kassie Abebe
Doctoral candidate, Centre for Human Rights, Faculty of Law, University of Pretoria
After spending more than 21 years at the helm of Ethiopian politics, Meles Zenawi died of an unannounced sickness in August 2012. The absolute dominance of the ruling party, the Ethiopian People’s Revolutionary Democratic Front (EPRDF), facilitated the smooth transition of power to the former Deputy Prime Minister, Halemariam Desalegn. Following the confirmation of Hailemariam as the new Prime Minister, the EPRDF announced that it has imposed, as part of its succession policy, two five-year term limits on all ministerial positions, including the position of the Prime Minster.The Party has also set a maximum age limit on the same positions. Henceforth, a Minister cannot be more than 65 years of age.
The Illusion of the Ugandan Constitution
Posted: 27 September, 2012 Filed under: Busingye Kabumba | Tags: constitution, constitutional law, democracy, Museveni, National Resistance Movement, rule of law, Uganda 25 Comments
Author: Busingye Kabumba
Lecturer-in-Law, Human Rights and Peace Centre (HURIPEC), Faculty of Law, Makerere University; Consulting Partner with M/S Development Law Associates
For the past few years, it has been my privilege to teach Constitutional Law at Makerere, the nation’s oldest University. As it is a first year course, I am one of the first teachers who meet with the young impressionable minds that are similarly privileged to gain admission to the law programme. In the course of class discussions, it quickly becomes obvious that even these fresh minds are cynical about the state of constitutionalism in our country, an impression that is only made stronger when we begin to delve into the text and the promise of the 1995 constitution and to compare this not only with our Constitutional history but with the present reality of how the country is being governed. I try as much as possible in these discussions to refrain from infusing my own views into these debates, my intention being to demonstrate the method of constitutional argument and to encourage critical thinking and reflection rather than suggest that there is a ‘right’ answer – which indeed, many times, there is not. This is often frustrating for the students whose constant refrain is: ‘But what is your view?’
I do not agree with what [Malema has] to say but I will defend to the death [his] right to say it – Voltaire
Posted: 19 September, 2012 Filed under: Kenneth Sithebe | Tags: Bill of Rights, freedom of movement, limitation clause, Malema, Marikana, right to assemble, rule of law 3 Comments
Author: Kenneth Sithebe
Student Assistant, Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria
The rule of law is the overarching concern as regards the events in Marikana- after other issues such as: the arrest and charge of the miners only to be released later (see article by Killander on AfricLaw), human dignity, the right to assemble and the right to life were raised. It was appalling to see a South African turned away from a lawful gathering under dubious legal grounds (Regulation of Gatherings Act 205 of 1993) and on the pretence that he ‘might’ incite striking miners to commit a criminal offence. Julius Malema was turned away by police at the Wonderkop stadium, Marikana after he tried to attend a gathering by the striking miners, and possibly to address them.
Nine Judicial Executions in The Gambia Undermine the Rule of Law
Posted: 30 August, 2012 Filed under: Andrew Novak | Tags: Amnesty International, constitution, coup, death penalty, death row, executions, rule of law, The Gambia, treason 6 Comments
Author: Andrew Novak
Adjunct Professor of African Law, American University Washington College of Law
Late at night on 23 August2012 the President of The Gambia, Yahya Jammeh, ordered the executions of nine death row inmates despite international condemnation and even division in his own cabinet. At least three of the death sentences were for the crime of treason; the remaining cases involved murder. Two of the nine were Senegalese nationals, and at least one had been on death row since before the current death penalty law entered into force. These cases are constitutionally troubling and may erode the rule of law in The Gambia, Sub-Saharan Africa’s smallest mainland country with a population of 1,3-million.
Leading the way for other African Judiciaries: A Kenyan Case Study
Posted: 8 May, 2012 Filed under: Ivy Kihara | Tags: executive, International Criminal Court, judiciary, Kenya, Omar Al-Bashir, rule of law, separation of power 7 Comments
Author: Ivy Kihara
Operations Manager, InformAction; Advocate of the High Court of Kenya
In November 2011 a Kenyan High Court Judge made history. Justice Nicholas Ombija made a controversial ruling issuing an arrest warrant for President Omar Al- Bashir of Sudan in the event he visits the Republic of Kenya. The arrest warrant was held as valid pending a full Appeal on Tuesday 20 December 2011 by the Kenya Court of Appeal after the Attorney General, Githu Muigai, rushed to court claiming that Judge Ombija’s ruling was creating ‘international anxiety in International circles’. The Attorney General of Kenya appealed the ruling on the arrest warrant and also applied for a stay on the arrest. The stay was denied pending hearing of the appeal. ICJ-Kenya has raised a preliminary objection citing that the Attorney General of Kenya under the 2010 constitution is not the competent representative of the Kenya Government in criminal cases like the All Bashir case. His decision upheld, Justice Ombija issued a provisional arrest warrant for President Bashir on Monday 23 January 2012. It was served on the Minister of Internal Security, Geroge Saitoti, ordering him to arrest President Bashir and hand him over to the ICC if he steps on Kenyan soil.
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