INTRODUCTION
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.
CONCLUSION
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.
REFERENCES
Albert
Venn, Dicey (2005). "Parliamentary Sovereignty and Federalism".
Introduction to the Study of the Law of the
Constitution. Adamant Media Corporation.
ISBN 1-4021-8555-3.
Albrow,
Martin (1970). Bureaucracy (Key
Concepts in Political Science).
Anderson, J.N.D. (January 1956).
"Law Reform in the Middle East".
International
Affairs (Royal Institute of International Affairs 1944—) 32 (1): 43–51. doi:10.2307/2607811
Blattberg, Charles, "Political Philosophies and
Political Ideologies," in
Patriotic Elaborations: Essays
in Practical Philosophy,
Montreal and Kingston: McGill-Queen's University Press, 2009.
Press 2000): “the judicial system is intended to be
apolitical, its symbol being that of a blindfolded Lady Justice holding
balanced scales.”
Haggard, Presidents,
Parliaments and Policy, 71
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