Browsing by Author "Ramalekana, Nomfundo"

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    Constitutional but criminal: an analysis of the ambiguous abortion law in Kenya through the prism of international human rights
    (2024) Onyango, Kevin Robert; Ramalekana, Nomfundo
    Upon the inauguration of the Constitution of Kenya in 2010, women's reproductive health rights seemed poised to witness progressive guarantees that would be in line with international human rights standards – this has not been the case. On the one hand, the Penal Code of Kenya effectively criminalizes abortion. Conversely, Article 26(4) of the Constitution of Kenya, 2010 provides an exception to the general rule criminalizing abortion. Article 26(4) of the Constitution of Kenya provides that abortion is permissible only if a quali ied health professional deems an emergency treatment necessary, or when there is a discernible threat to the life of the mother, or if sanctioned by any other written law. Unfortunately, sections 158, 159 and 160 of the Kenyan Penal Code, which proscribe abortion, have not been amended to be in line with the Constitution of Kenya, 2010. The discordant legal framework has induced ambiguity and confusion regarding abortion law in Kenya. This thesis critically explores the evolution of abortion law in Kenya and analyses how the Courts have, in light of the ambiguity in the legal framework, adjudicated abortion cases. It examines what, if at all, are the human rights implications of criminalizing abortion. Relying on comparative research methodology, the thesis examines the abortion laws in South Africa and Ireland to provide insights on how Kenya can develop its abortion laws to better protect the rights of women and girls and adhere to its human rights obligations. Ultimately, the thesis argues that the inherent ambiguity within Kenya's abortion laws perpetuates the violation of women's and girls' rights and thus ought to be amended.
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    ETD: Analysis of the impact the judicial service commission has on judicial legitimacy in South Africa through the appointment and accountability processes
    (2024) Maujean, Genevieve; Ramalekana, Nomfundo
    Since the advent of the 1994 Constitution, an independent judiciary has been a vital component in upholding constitutional democracy in South Africa. Along with the Constitution came new ways of appointing judges and holding them accountable. This is done by the Judicial Service Commission (JSC). The appointment and accountability processes are both contentious topics in South Africa with much debate being had about the processes selected. The importance of how these processes are undertaken is high due to the influence they have on the perception of the judiciary, and consequently judicial legitimacy. Once judges are appointed through the interview process, they are expected to make their decisions without any outside influence, and if they fail to abide by the judicial standard expected of them, they are required to be held accountable for this misconduct. Judicial independence and accountability play a central role in these processes as well as judicial legitimacy and will have a lot of attention placed on them throughout the discussion. With little up-to-date literature addressing this topic in South Africa, this thesis provides a discussion of what the current status is of these processes and how they impact on the legitimacy of the judiciary. This thesis proposes that the accountability process requires more extensive alterations than the appointment process, however both require more political will of the JSC members in order for them to positively impact on the legitimacy of the judiciary. By drawing on case studies and the processes adopted in Zimbabwe, Kenya and India, this thesis recommends a variety of reforms that aim at improving the way these processes are undertaken by the JSC.
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    Executive Authority and Judicial Intervention: A Lawfare Critique into the President’s Powers of Appointment
    (2023) Hadebe, Lindokuhle; Ramalekana, Nomfundo
    Lawfare has generated significant debate within the South African legal and political circles. The Courts have been lambasted for their adjudication of disputes considered to be ‘political' and falling outside the scope of their judicial authority. The critique has been particularly scathing in cases dealing with the conduct of functionaries of critical constitutional institutions. This dissertation will critically evaluate the validity of this lawfare charge by focusing on the President's constitutional powers to appoint the National Director of Public Prosecutions (NDPP) and Cabinet. The dissertation will evaluate the President's power to appoint such critical constitutional functionaries within the political context of a one-party democracy which emboldens the President's power to appoint any candidate he deems fit with very few internal fetters. I will examine how this largely unconstrained power can be harmful when used for ulterior purposes that subvert constitutional democracy. Rejecting the lawfare critique, I argue that in light of the institutional arrangements of our constitutional democracy, Courts have become an increasingly important branch of government within the trias politica to safeguard and protect democracy and further the rule of law. I will analyse case law that display how the Courts have utilised their judicial authority to curtail irrational decision making and improper conduct by functionaries of key constitutional institutions. Relying on democratic reinforcement theory, I will argue that the Courts' intervention in these cases has been to further constitutionalism and good governance. It is not, as some of the lawfare critics suggest, a breach of the separation of powers principle or an instrument to unduly rob the political branches of their power in an improper way.