Band 6, Heft 3-4

Both the ICCPR and the African Charter embody, as a primary principle, the right of a peoples' to freely dispose of their natural wealth and resources (article 1(2) and article 21(1) respectively). Whilst hotly debated as to its legal and political status, operationalising a right could enable agrarian communities to contest the disposal of their mineral wealth. However, such a right ought to be embodied in the constitution, where its alterability is perhaps less subject to political change. Without constitutional standing for collectives to assert claims over land, the State could potentially lease or sell mineral rights (sometimes to multiple extractors at once) irrespective of the environmental, labour and economic considerations. The secession of South Sudan is demonstrative of the South Sudanese peoples' active reclamation of their natural (and substantial mineral) wealth. This article is a critique of whether the new Transitional Constitution of South Sudan (TCRSS) effectively embodies and operationalises article 1(2) of the ICCPR. It concludes that the TCRSS is dedicated to articulating and protecting (competing) agrarian interests in land and natural resources and in so doing demonstrates the reality of multiple and overlapping mineral and land interests.

In wake of a coup d′état in 1958, the Supreme Court of Pakistan is asked to decide on its legality. The court, faced with lack of precedent, relies on Hans Kelsen's legal positivism. Over the next five decades the key theoretical basis of the decision is summoned in several other cases in different post-colonial states. This essay develops a critique of the application of Kelsen's theory. The aim of the critique, as well as an added theoretical contribution, is that I engage Carl Schmitt's critique of Kelsen. Accordingly, I redeem the 1920s debate between Kelsen and Schmitt in order to caste critical light on the court decisions. Moreover, I engage Schmitt's own constitutional theory in order to provide an alternative answer to the question of constitutional disruption. The task is twofold: first, to evaluate Kelsen's (liberal) constitutional theory, which purportedly seeks to answer the non-liberal or non-democratic challenge posed by constitutional disruption and dictatorship, and second, to explore the democratic element in the non-liberal theory of Schmitt. My conclusion is that although Kelsen gives politically correct principle of “the efficacy of change” as the basis of legality of constitutional disruption, however, the main steps in his theory do not support the principle. Moreover, the principle draws him away from his liberal constitutionalism. On the other hand, Schmitt's explanation of the same principle based as it is in a non-liberal or realist theory, answers well the question of disruption and dictatorship. Thus the courts that engage Kelsen remain hardpressed to defend their decisions, while those other courts that challenge Kelsen come close to Schmitt.

Consociationalism is frequently adopted as a tool to resolve conflicts in deeply divided societies. It is increasingly considered only a transitional arrangement, because it is an impediment to democracy and social peace in the long-term. It is therefore relevant to explore the possibilities to end consociational arrangements. Bosnia and Herzegovina has by all accounts a dysfunctional and discriminatory political system based on ethnic representation. Corporate consociational provisions of the constitution were found to be in violation of the European Convention of Human Rights in the Sejdić and Finci case. This thesis seeks to understand the legal and political effects of that judgment and the prospects of ending the corporate consociational arrangements in Bosnia and Herzegovina, in order to allow for politics that are not solely based on ethnicity. The prospect for constitutional reform are discussed based on previous attempts at constitutional reform in Bosnia and Herzegovina; the Dutch, Austrian and South African experiences; and insights from theory of democratic transitions.