Politics is a process by which groups of people make collective decisions. The term is generally applied to the art or science of running governmental or state affairs, including behavior within civil governments, but also applies to institutions, fields, and special interest groups such as the corporate, academic, and religious segments of society. It consists of "social relations involving authority or power" and refers to the regulation of public affairs within a political unit, and to the methods and tactics used to formulate and apply policy.
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and obligations related to the transfer and title of personal and real property. Trust law applies to assets held for investment and financial security, while tort law allows claims for compensation if a person's rights or property are harmed. If the harm is criminalised in legislation, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies, while international law governs affairs between sovereign states in activities ranging from trade to environmental regulation or military action. Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual.
Legal systems elaborate rights and responsibilities in a variety of ways. A general distinction can be made between civil law jurisdictions, which codify their laws, and common law systems, where judge-made law is not consolidated. In some countries, religion informs the law. Law provides a rich source of scholarly inquiry, into legal history, philosophy, economic analysis or sociology. Law also raises important and complex issues concerning equality, fairness and justice.
Transformation as a process of transmutation from one state to another can apply to an individual or an organisation or the product or service supplied by the organisation.
THE ROLE OF POLITICS AS A KEY IN THE TRANSFORMATION OF AFRICA
With the end of the Cold War and the collapse of the communist model of development, a new international political economic order (NIPEO) inspired by free-enterprise, directed by the private sector and guided by good governance and democracy had manifested itself. It is creating new centres of economic powers and political influence impacting on Africa and the African peoples, making additional demands on the mineral and other resources of the continent, and draining Africa of its valuable human resources, as professional and skilled Africans migrate to other countries in search of better employment or security. It is also a world based on information and knowledge, science and technology, communication and transportation-[ICT]-increasingly open societies, with governance systems that are incrementally becoming more accountable to the people and responsive to their needs and aspirations.
Africa has also undergone tremendous socio-economic and political changes. In the course of the last three decades there has been tremendous transformation in the governance systems of the African countries. Indeed, the decade of the 1990s was a unique period in modern African history. It brought into focus the interfacing of the aspirations and visions of various groups of people, and the frustrations and disappointments of unfulfilled promises of many other people. It witnessed the appearance of a new generation of young citizenry most of who were born after.
The constitutions that ushered in Independence in the 1960s are regarded as ‘social contracts’ between the first generation of African leaders and their colonial masters. Now, in this 21st Century with all its challenges and opportunities a new ‘social contract’ between the people and the state is demanded. A ‘social contract’ that has to take into account the lessons and experiences of the past, the possibilities of the present, the challenges and opportunities the future might offer the global opportunities and possibilities.
The 21st Century African citizen has many needs and aspirations. These range from the basic needs of preserving and sustaining life, peace, security and stability, to the aspirations of improving the quality of life; from basic freedoms and human rights and the rights to participate in the decision-making processes that affect one’s living and livelihood to a sense of well-being and self-esteem. The satisfaction of these needs and aspiration obviously involve all the domains and levels of governance executive, legislature, judiciary, village, district and city councils, as well as the other agencies in the civil society and private sectors and require the mobilization of human and material resources. They also need the appropriate capacities in order to perform their respective functions efficiently and effectively.
Africa is thus faced with two challenges domestic and global. The domestic challenge involves economic growth, promotion of human development and the consolidation of the virtuous circle of good governance; and the global challenges entail the acquisition of global competitiveness, and the achievement of the ‘emergent continent’ status by 2025.
The achievement of these objectives will necessarily entail the mobilization of human and material resources; utilization of science and technology, mechanism and techniques; information and knowledge, expertise and experience; appropriate productive and organizational principles and procedures; rethinking the past and re-inventing the future. However, these activities can take place only in an environment of peace, security and stability; predictability of the public regulatory framework, where people would be free and willing to embark on various creative and productive activities of their choices, creating goods and services, wealth and employment; confident that they would be able to enjoy the fruit of their labour and enterprise and pass it on to their succeeding generations. The creation of such an environment is a major governance and capacity issue.
The following are the key roles of politics in the transformation of Africa:
1. Politics empowers the people. In a democracy it is the people who decide the form and composition of government. It is also the people who ultimately acquiesce to bad governance or insist on good governance. But in order for them to do the latter or resist the former, people need to be empowered with the appropriate knowledge, information and other means of asserting their right to expect accountability and transparency of government and its agencies
2. Politics manages diversities; societal diversities are the enduring realities in Africa. The first generation of African political and military leaders detested the societal diversities and feared their impact on nation building. In the name of unity, nation-building and development diversities were ‘wished away’ and in some cases ‘abolished’ or severely controlled. They were regarded as essentially divisive and obstacles to the unity of post-colonial Africa; and the traditional governance institutions as anachronistic and thus unable to cope with the exigencies of the modern state, the challenges of nation building and economic development. The struggles for diversities are essentially those of political democracy people asserting their identity, and recognition of their cultural rights and traditions. Denial of these rights has been a major cause of violent conflicts in Africa.
These diversities do, moreover, enrich life, and constitute a huge reservoir of talents, traditions, skills, enterprise and experience, that if appropriately managed could be converted into creative and productive forces, as well as building blocks for new societies and governance systems, thus contributing to the uniqueness of the Emergent Africa in the 21st century!!
3. Politics mobilizes human and material resources. Effective
responses to the domestic and global challenges would necessarily
require the mobilization of human and material resources. Africa’s
greatest assets are the people. They need to be liberated, mobilized
and empowered: allowed to exercise their individual freedoms;
provided with the opportunities to be educated, to learn new skills,
acquire the necessary information and knowledge; and to engage
themselves in creative or productive activities of their choice in
pursuit of their interests. Moreover, to stop the brain drain, and relieve
the drained brains.
4. Politics promotes and sustains an open society. In the past governments and large business organizations kept a very tight lid on the information and knowledge for different reasons: the business organization in order to be productive and competitive than their rivals; and the governments purportedly for national security. Information and knowledge was shared among the selected few. The governments kept most of their people in the dark. And the top management left most of their employees ignorant of what was taking place in the organization. In this age of information and knowledge based governance systems and economies to be productive and competitive organizations must have well-informed and knowledgeable work force; and for governments to be efficient and effective in the delivery of services and generally maintaining good governance they, too, have to share information and knowledge with the citizens. Information and knowledge societies concentrate on the utilization of the human capital, continuously expanding the information and knowledge and imparting them on the individual or the group. It is the empowering of the individual to do his/her best at whatever level that distinguishes the information and knowledge societies and economies from the previous economies.
THE ROLE OF LAW IN AFRICAN TRANSFORMATION
There are inter alia two significant factors that have contributed to the radical transformation of South Africa's role in the field of international criminal justice in the decade between 1994 and 2004. First, the re-emergence of South Africa as a respected member of the body of nation states, and secondly the increase in the mobility of humans together with the increase of crime with a transnational element and more particularly, international terrorism. Traditionally all crime was regarded as local in character. This approach is no longer recognised as reflecting reality in an ever increasingly interdependent and globalising world.
In the context of extradition Justice Goldstone for the Constitutional Court stated:
The need for extradition has increased because of the ever-growing frequency with which criminals take advantage of modern technology, both to perpetrate serious crime and to evade arrest by fleeing to other lands.
This comment must be considered in the light of the fact that extraditing a person constitutes an invasion of fundamental human rights. This also applies to the execution of searches and seizures and the issuing of subpoenae, which have also been held to constitute an invasion of rights. The tension in domestic systems between the law and order approach and human rights protection is mirrored on the international plane.
Apartheid and isolation
Prior to 1994, many states declined to interact with South Africa in general and more specifically in the investigation and prosecution of crime. States, which had extradition arrangements with South Africa, cancelled them during apartheid and few states were willing to enter into new extradition agreements with South Africa. This changed in 1994 and the past decade has seen many States enter into new arrangements for extradition with South Africa. This development accelerated in May 2003 when South Africa acceded to the European Convention on Extradition, and thus became party to extradition agreements with a further fifty states.
Transborder movement globally of human beings has increased dramatically over the past decade. Also, South Africa has become a desirable state for fugitives to hide in.
The executive branch has actively assisted foreign states with the investigation and prosecution of crime. South Africa has received many more requests for assistance in criminal matters and extradition than in previous years. It has extradited and attempted to extradite many more persons in the past decade than in previous decades. Indeed, governments, and the South African government is no exception, do not wish their own countries to be, or be perceived as safe havens for the criminals of the world. The fact that a foreign State requesting a fugitive in South Africa was not a party to an extradition agreement with South Africa was not a legal bar to South Africa surrendering the fugitive. The Extradition Act permitted – and permits - the surrender in extradition of persons to foreign states not a party to an extradition agreement with South Africa if the President consents on an ad hoc basis to the extradition.
Having emerged from political isolation South Africa has negotiated and entered into a number of extradition agreements in recent years and on 12 February 2003 acceded to the European Convention on Extradition and in doing so became party to a further fifty states.
The developments in the first decade of South Africa's democracy in the field of international co-operation in criminal matters will be dwarfed by the developments in the next decades. The commendable desire to assist foreign States by way of extradition or otherwise must not allow for lawlessness on the part of the executive. A challenge for the Courts will be to insist on lawful conduct and protect human rights without hindering legitimate attempts by the executive at the prevention and prosecution of international crime.
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