Accommodating diversity: Is the doctrine of margin of appreciation as applied in the European Court of Human Rights relevant in the African human rights system?
Submitted in partial fulfilment of the requirements of the degree LLM (Human Rights and Democratisation in Africa) Faculty of Law, Centre for Human Rights, University of Pretoria
By Herbert RUBASHA Student No. 26500401
Prepared under the supervision of Prof. Gilles CISTAC At the Faculty of Law, Universidade Eduardo Mondlane, Maputo, Moçambique
27 October 2006
I, Herbert Rubasha, hereby declare that this dissertation is original and has never been presented in any other institution. I also declare that any secondary information used has been duly acknowledged in this dissertation.
I, Prof. Gilles Cistac, have read this dissertation and approved it for examination.
Prof. Gilles Cistac
To my late brother Pilot Matabaro, I would have loved your assuring company and the encouragements you used to show me in every carrier I undertook. I realize though that individual interests could not be more than those of vulnerable thousands who were being massacred. The brotherly lessons were worth lifetime. For moulding my life, I dedicate this work to you.
I could not have achieved the completion of this dissertation without Gods love and grace. I am greatly indebted to the Centre for Human Rights, for allowing me on this wonderful and worthwhile programme, without which it would not have been possible to take part. It has been indeed a valuable experience to savour for a lifetime. My thanks go to my Professors: Professor Viljoen, for the unabated pressure, here we are and set for it; Professor Hansungule, for the unforgettable African perspectives, we became real; and Professor Heyns, for his always candid guidance, we made it. I am grateful also to Martin Nsibirwa, Norman Taku, Jérémie Munyabarame and John Wilson for their endless assistance throughout the program. My sincere appreciation goes to the members of the Faculdade de Direito of Universidade Eduardo Mondlane, Maputo, Moçambique for their keen effort to make the program a success. I thank especially, Aderito, Isabella and Alvino for the support they gave me in their various capacities. Besides, their tips for survival in Maputo were worth to keep me moving on. I would also like to express my gratitude to Prof. Gilles CISTAC under whose supervision this work was prepared. Thanks are also due to all those who have provided their valuable time and input in various ways over the period that has preceded the completion of this work. Tarisai, Hye-Young and Mianko for your ever-listening ears, it was always cheering. To my cherished family for their prayers, love, correspondences and on-line support throughout the program always made a difference. You mean a lot to me. For my classmates of the LLM 2006 you were a family far from home. The bondage can be felt. The Maputo crew Irene, Mariam and Solomon we proudly survived and the companion was treasurable from each of you. To Frank, appreciations for remaining a best friend. The calls, texts……I owe you one. To all my friends and colleagues, whom I could not mention due to the constraint of space, I am truly grateful. God bless you all To Magnus for constructive remarks, to Waruguru for insightful comments, to Tina for assistance gladly granted,
TABLE OF CONTENTS DECLARATION DEDICATION ACKNOWLEDGEMNTS TABLE OF CONTENTS PREFACE LIST OF ABBREVIATIONS i ii iii iv viii ix
CHAPTER 1: INTRODUCTION 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 Background of the study Statement of research problem Objectives of the study Significance of the study Literature survey Methodology Limitations of the study Overview of chapters...
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M Mchugh ‘The Function of Law Making in Judicial Process’, Part I & II, 15 Australian Law Journal (1988) 116
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