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SDG 10

Towards more effective academic liaison between academics, students and practitioners in the field of public administration and management in the North West Province
12 May 2010
North West University

Nealer, Eric

In view of South Africa’s diversity, its unresolved issues of race and complex social legacy, election campaigns are highly sensitive. From a Reformed Christian perspective, a critical question is: To what extent is the political culture infused by the Biblical imperatives of brotherly love, respect and compassion? Given the growing use of adversarial political advertising the following two questions arise and are specifically addressed: • Could it realistically be expected of Christian political communicators in a secular country such as South Africa to communicate with full respect to people at all times, or should they be excused if they try to win at all costs? and • How do political theorists view the issue? In answering these questions, social responsibility and the need for social harmony as precondition for free and fair political activities, as well as a Biblical perspective on communication are addressed. In view of these theoretical points of departure the role of emotional messages is discussed and evaluated. It is argued that all advertising, but specifically political advertising in an emotionally charged atmosphere such as an election campaign, could have a direct negative impact on social harmony and is therefore Biblically unacceptable. Examples from previous South African general elections are discussed and evaluated from a Biblical viewpoint. It is argued that parties should not merely campaign with the aim of winning an election, but rather with the intention of respecting voters while campaigning. Simultaneously they could promote democracy within a fragile social context. Any victory outside of these parameters will not stand the test of a Biblical critique. However, it would seem extremely difficult, if not impossible, to prescribe in any detail which types of negative advertisements are acceptable and which are not.
Edwin S Munger 1922 - 2010: Academic bridge-builder in South Africa.
13 January 2012
North West University

Botha, Frikkie

• Summary: Edwin S. Munger,(1921-2010), professor of Political Geography at Caltech Institute of Technology in Pasadena, California was a renowned specialist on Africa, race and ethnic relations. In his scores of trips to the African continent, he visited every country and lived in South Africa and some others for extended periods. While he expressed opposition to race discrimination and the negative aspects of apartheid measures, he also strongly rejected violence and international pressures to isolate South Africa. He saw such pressures as counterproductive in affecting change. This article deals with his endeavour to build bridges of understanding between and with South Africans so as to bring about change in these policies and as a counter to the growing international pressures to impose harmful sanctions and isolation. It sketches the means by which Munger pursued his objectives through various organisations, among them the leader exchange programmes under US-SALEP, the African Studies Association, Nieman Fellowship Awards and the Cape of Good Hope Foundation.
Change, organisational culture and the development of the South African Military Academy to 2009.
19 January 2012
North West University

Visser, G E;Van Dyk, G A J

This article investigates the impact of change and organisational culture on the growth and development of the South African Military Academy. It explores the impact of Nationalist Party rule since 1948 and black majority rule since 1994 on the institutional culture of the South African military and how that influenced the development of the Military Academy. This is intertwined with an investigation of the nature and impact of the diverging military and academic subcultures at the Academy. The article contends that, together with the historical exclusion of blacks and women from the military, the marginalisation of white English-speaking citizens by Nationalist Party rule denied the Academy the exploitation of a significant portion of the country’s human resource potential in the interest of institutional development. The same happened with the introduction of racial quotas and the marginalisation of whites since 1994. The Military Academy has, furthermore, historically been too reflective of the organisational culture of the South African National Defence Force and its predecessors instead of informing that culture to meet the challenges of military professionalism. The Academy has a potentially vital educational role to play in the South African and Sub-Saharan African militaries, but requires some changes in its organisational culture to fulfil that mission.
The Chinese in South Africa: a historical study of a cultural minority.
06 March 2012
North West University

Harris, Karen L

South African historiography has for the most part been primarily preoccupied with explaining the past in terms of ethnic dimensions. More particularly, race - in its blackwhite paradigm - has been profoundly formative in historical studies of our society. Until fairly recently, the "persistent disinterest in thinking about race and race relations in terms other than black and white" led to various cultural minorities being under represented in the historical record and incorrectly reflected in popular culture. This article briefly considers the lacuna in historiography; outlines some of the research related problems in dealing with a cultural minority; and focuses on the early history of the Chinese community as an example of how such a study adds a different perspective to the larger parameters of South Africa's racially stratified past.
From apartheid to development: science policy and the politics of race in South Africa.
15 March 2012
North West University

Furlong, Patrick J;Ball, Karen

Toe die ANC aan die bewind gekom het, het hulle 'n nuwe wetenskapsbeleid aangekondig wat verbind is tot gemeenskaplike ontwikkeling. Voorstanders het beswaar gemaak dat navorsing voorheen voortgedryf is deur blanke belange, vermom as "objektiewe" wetenskap, en dat dit net blanke voorregte, rassediskriminasie en etniese skeiding bevorder het. Hierdie artikel beweer dat die waarheid egter meer gekompliseerd is. Alhoewel party wetenskaplikes moontlik wel in bewindsverbonde velde gewerk het en in die eerste dekades van die eeu rassistiese teorieë bevorder het wat die opkoms van apartheid bevorder het, het die meeste wetenskaplikes in die apartheidsjare hulle werk as "apolities" beskou. Teen 1994 het die Suid-Afrikaanse wetenskap ongetwyfeld heelwat probleme in die gesig gestaar, sommige wel voortspruitend uit die nalatenskap van apartheid. Maar die regering het nie gewoonlik navorsing uitsluitlik vir blankes bevorder nie. Die enkele opvallende voorbeelde van die misbruik van die wetenskap vir die doeleindes van die apartheidsregering was toenemend hoogs geheime projekte. Amptelike dokumente in die Botha- en post-apartheidsjare vertoon 'n verbasende bestendigheid aangaande die mees doeltreffende gebruik van beperkte staatshulpbronne, vir toegepaste eerder as suiwer navorsing, en tot voordeel van die hele gemeenskap, dikwels met spesiale verwysing na die lot van minderbevoorregte groepe. Die beleidsmakers onder die ou stelsel het reeds baie gemeende probleme in die wetenskapsbeleid erken, en baie haakplekke sal waarskynlik nog steeds voortduur - ook onder 'n meerderheidsregering.
Natal's Indians, the empire and the South African War, 1899 - 1902.
15 March 2012
North West University

Vayed, Goolam

Most early scholars of the South African War focussed almost entirely on the struggle between Afrikaner nationalism and British imperialism in which the role of Blacks was seen as irrelevant. By focussing on Indians, a little-studied group, this micro-study will contribute to the ongoing process of providing a more complete picture of the war years. It seeks to address why Indians, who were subject to oppression by English-speaking whites, volunteered on the side of Britain, the active and non-combatant roles they played in the war, the losses they suffered and the impact of the Indian role to the overall situation. Indians were clearly divided along class lines and these divisions were perpetuated during the war in terms of the manner in which Indians were recruited, their role in the war and their treatment at the conclusion of the war. Indians supported the British because India was part of the British Empire and they felt that this would give them added leverage in their dealings with the British imperial authorities. The undisguised hostility of the Boer Republics towards them also influenced their decision. Under Gandhi's prodding, Indians contributed financially and also formed an ambulance bearer corps, which served between December 1899 and March 1900 under extremely difficult conditions. A grossly understudied area is the plight of Indian refugees from areas of Indian concentration such as Johannesburg, Pretoria, Newcastle, Ladysmith, Dundee, Colenso and Kimberley. Most refugees sought refuge with friends and family in Natal even though the Natal Government tried to prevent them coming. The invading Boers had no clear policy on what to do with Indians in Northern Natal. In most cases they arrested Indians for several weeks but then released them. Boers also used Indians as cooks and cleaners. Indian traders suffered heavy losses as their shops were looted by the invading Boers as well as by British soldiers and ordinary Indian, white and African civilians. The DTC failed to assist the 4 000 Indian refugees in Durban. Durban's Indians had to feed, clothe and support Indian refugees. While Gandhi and the NIC chose to be loyal instead of exploiting the space created by the war to challenge the Government, their loyalty went unrewarded. The Governments of Natal and Transvaal imposed further anti-Indian legislation and the position of Indians deteriorated in the post-war years as the foundation was laid for a modern South Africa based on white racial supremacy. Indians became part of a South Africa whose destiny was shaped by the war. The shapers of this new South Africa were Boer leaders like Botha and Smuts who remembered all too well that Indians had sided with the British.
"In what way are gay men actually harmful to society?" Exploring the evidence on the feasibility of amendments to the Sexual Offences Act 23 of 1957.
11 June 2012
North West University

Grundlingh, Louis

Prompted by a perception that a gay sub-culture developed in the major urban areas of South Africa, and that this formed a threat to state security and to the established mores of society, the Minister of Justice, PC Pelser, appointed a Parliamentary Select Committee in 1968. The essence of the task given to the Select Committee was to provide clarity to the Department of Justice about a definition of homosexual acts as well as the causes, manifestations and extent of these practices. In addition, the Committee had to ascertain whether South African society was ready to decriminalise sodomy and “unnatural” sexual practices. A major concern was whether gay men were a danger to minors. The Committee received numerous written submissions and held regular meetings to hear oral testimonies, which covered a wide spectrum of opinions and issues. Representatives of the South African Police and the Afrikaans churches vehemently opposed homosexuality and homosexual activities. Ministers from the English churches pleaded for tolerance but with very specific preconditions. The position of the lawyers, psychiatrists and psychologists was clear: that homosexuality was not a threat, could not be “cured” and should be accepted. The investigation resulted in widespread debate, revealing facets of the moral dynamics of white South African society in the 1960s. Inter alia, issues such as the right of the state to make laws on morality and intrude on the privacy of individuals, diverse interpretations of the Bible, the level of intolerance for the “other” and the apparent difficulties to enforce any amendments to the Act - as far as homosexuality was concerned - were raised. By emphasising these issues, the intention of this article is to give an indication as to what extent gay white men were tolerated. To realize this, a discussion of the context of a very strong conservative government that underpinned the activities of Select Committee was essential. The upshot was that the deep-rooted conservatism of the state prevailed, finding expression in harsher and specific measures in the Immorality Amendment Act of 1969. The strong arguments from some church representatives, as well as the medical and legal fraternities, were discarded. Clearly the time was not yet ripe for liberalising sexuality in South Africa. Research for this article relied on the extensive testimonies before the Select Commission as published in its final report. In addition, relevant submissions in the Gay and Lesbian Archive at the University of the Witwatersrand helped to form a comprehensive picture and made qualitative analysis possible.
The impact of SADC social protection instruments on the setting up of a minimum social protection floor in Southern African countries
03 September 2012
North West University

Nyenti, M;Mped, L G

The Southern African Development Community (SADC) was formed to promote the political, economic and social wellbeing of the region. Some of the social objectives of the SADC are the promotion of social development and the alleviation of poverty, the enhancement of the quality of life of the peoples of Southern Africa, and the provision of support to the socially disadvantaged. In order to achieve these objectives, SADC member states have concluded a Treaty and various social protection-related instruments which aim to ensure that everyone in the region is provided with basic minimum social protection. Although the formation of the SADC (and the conclusion of some of its social protection-related instruments) preceded both the minimum social protection floor concept and the Social Protection Floor Initiative, the Treaty and instruments can be seen as complying with the requirements of both the concept and the initiative within the region. This article analyses the extent to which the SADC social protection-related instruments fulfil a minimum social floor function at the SADC regional level. The positive and negative aspects of the SADC Treaty and social protectionrelated instruments in this regard are evaluated. In addition, the article reviews the impact of the SADC social protection-related instruments in the setting up of social protection programmes aimed at ensuring a minimum social protection floor in some of the SADC countries. The successes of such country initiatives and the challenges faced are discussed. This is then followed by some concluding observations.
Achieving "decent work" in South Africa?
04 September 2012
North West University

Cohen, T;Moodley, L

The fundamental goal of the International Labour Organisation is the achievement of decent and productive work for both women and men in conditions of freedom, equity, security and human dignity. The South African government has pledged its commitment to the attainment of decent work and sustainable livelihoods for all workers and has undertaken to mainstream decent work imperatives into national development strategies. The four strategic objectives of decent work as identified by the ILO are: i) the promotion of standards and rights at work, to ensure that worker's constitutionally protected rights to dignity, equality and fair labour practices, amongst others, are safeguarded by appropriate legal frameworks; (ii) the promotion of employment creation and income opportunities, with the goal being not just the creation of jobs but the creation of jobs of acceptable quality; (iii) the provision and improvement of social protection and social security, which are regarded as fundamental to the alleviation of poverty, inequality and the burden of care responsibilities; and (iv) the promotion of social dialogue and tripartism. This article considers the progress made towards the attainment of these decent work objectives in South Africa, using five statistical indicators to measure such progress namely: (i) employment opportunities; (ii) adequate earnings and productive work; (iii) stability and security of work; (iv) social protection; and (v) social dialogue and workplace relations. It concludes that high levels of unemployment and a weakened economy in South Africa have given rise to a growing informal sector and an increase in unacceptable working conditions and exploitation. The rights of workers in the formal sector have not filtered down to those in the informal sector, who remains vulnerable and unrepresented. Job creation initiatives have been undermined by the global recession and infrastructural shortcomings and ambitious governmental targets appear to be unachievable, with youth unemployment levels and gender inequalities remaining of grave concern. Social protection programmes fail to provide adequate coverage to the majority of the economically active population. Social dialogue processes and organisational structures fail to accommodate or represent the interests of the informal sector. Until these problems are overcome, the article concludes, it remains unlikely that decent work imperatives will be attained.
Demographic and social factors influencing public opinion on prostitution: an exploratory study in Kwazulu-Natal province, South Africa
15 January 2013
North West University

Pudifin, S;Bosch, S

This paper examines countervailing South African public opinion on the subject of prostitution in South Africa, and identifies the factors which might influence these attitudes. It also investigates the complex relationship between public opinion and the law. Whilst engaging in prostitution constitutes a criminal offence under the Sexual Offences Act 23 of 1957, it is generally ignored by the police, which results in a quasi-legalised reality on the ground. In recent years there has been growing demand for the decriminalisation of prostitution, and as a result the issue is currently under consideration by the South African Law Reform Commission. The Commission released a Discussion Paper on Adult ProSstitution in May 2009, and is expected to make recommendations to parliament for legal reform in this area. An exploratory survey of 512 South Africans revealed interesting correlations between opinion on prostitution and both demographic characteristics (including gender, age, race and education level) and so-called "social" characteristics (including religiosity, belief in the importance of gender equality, the acceptance of rape myths, and a belief that prostitutes have no other options). The survey reveals two key findings in respect of the attitudes of South Africans to prostitution. Firstly, an overwhelming majority of South Africans - from all walks of life - remain strongly morally opposed to prostitution, and would not support legal reforms aimed at decriminalising or legalising prostitution. Secondly, our data confirm that these views are strongly influenced by certain demographic and 'social' variables. In particular, race, gender, religiosity, cohabitation status, and socio-economic status were found to be religiosity, cohabitation status, and socio-economic status were found to be statistically significantly related to opinions on prostitution, while other variables - particularly the belief in the importance of gender equality and the level of education - had no statistically significant relationship with tolerance of prostitution. Given that the proposed legal reforms, which will shortly be tabled before parliament, will 1necessitate the consideration of public opinion, it is imperative that studies such as the one presented in this paper be conducted to gauge the likely response which such proposed reforms might face.
Interpreting South African cultural clashes through Darwinian eyes: Ramsden Balmforth in Cape Town (1902–1911)
18 January 2013
North West University

Hale, Frederick Allen

The Cape Town minister, literary critic, and reformer, Ramsden Balmforth, sought to promote reconciliation between cultures and ethnic groups in South Africa for four decades after emigrating from England in 1897. Although deeply rooted in the social egalitarianism of the Fabian Society, he nevertheless adopted and propagated modified, social Darwinist views, which he believed, if properly understood, could be applied to reforms in South Africa and ameliorate clashes of cultures there. After unsuccessfully attempting to forestall war in 1899, Balmforth argued for an acceptance of what would soon be known as Afrikaans culture as no less worthy and civilised than that of the British and for the application of a radically adapted version of social Darwinism to conflicts between white and black South Africans.
Determining the effect (the social costs) of exclusion under the South African exclusionary rule: should factual guilt tilt the scales in favour of the admission of unconstitutionally obtained evidence?
31 January 2013
North West University

Ally, D

Section 35(5) of the Constitution of the Republic of South Africa, 1996 governs the exclusion of unconstitutionally obtained evidence in criminal trials. Three groups of factors must be considered to assess whether unconstitutionally obtained evidence should either be excluded or admitted. This contribution is focussed on the third group of factors (also known as the "effect of exclusion", or the "social costs of exclusion") which consists of the "seriousness of the charge faced by the accused", and the "importance of the evidence to secure a conviction". This group of factors is concerned with the public interest in crime control. Some scholars argue that the "public mood" should be a weighty factor when our courts consider this group of factors. Against this background this article considers three issues: First, whether considerable weight should be attached to the "current mood" of society when our courts weigh and balance this group of factors against other relevant factors; secondly, whether a consideration of the "seriousness of the charge" and the "importance of the evidence for a successful prosecution" could possibly encroach upon the presumption of innocence; and, thirdly, whether factual guilt should be allowed to tip the scales in favour of the admission of unconstitutionally obtained evidence when the evidence is crucial for a conviction on a serious charge.
Indigenous "Africans" and transnational "Pan-Netherlanders": past and present in the "re-construction" of post-1994 Afrikaner identity.
04 March 2013
North West University

Furlong, Patrick J

This article explores two strategies to “re-imagine” Afrikaner identity in a post-apartheid South Africa in which white Afrikaners, once politically and culturally dominant, have become increasingly marginalized. One, using the early meaning of “Afrikaner” as “African”, claims “indigenous” status, pressing for limited autonomy as an African “tribe,” championing language rights for all Afrikaans-speakers regardless of color, or embracing a larger “African” identity, even joining the ruling African National Congress (ANC). The other seeks to rebuild old links, broken under apartheid, to Flemish and especially Dutch cousins, joined in a pan-Netherlandic community. The article explores how, although in recent times the parochial and essentialist “official” Afrikaner nationalist understanding of Afrikaner “ethnogenesis” had stressed its shaping by the “original” “white” settlers’ struggles with Africans and British latecomers, denying multiracial ancestry and even downplaying broader, European (particularly Low Country) influences, a closer examination shows that that this narrower model long contended with more multicultural and transnational approaches. The evolution of these rival views of Afrikaner identity and responses from the Low Countries and some ANC leaders to these alternative models suggest that such ethnic “re-construction” could help recast Afrikaner self-definition in promising contemporary yet historically grounded terms, provided in the case of pan-Netherlandism that it is not hijacked by the extreme Right, but instead presents Afrikaners as a bridge between Europe and Africa.
Driving corporate social responsibility (CSR) through the companies act: an overview of the role of the social and ethics committee
20 May 2013
North West University

Kloppers, Henk J

The corporate social responsibility (CSR) movement can be described as a bundle of trends comprising regulatory frameworks aimed at improving corporate practices and leading to changes in these practices, the mobilisation of corporate role players to support the development of states, and a management trend the purpose of which is to enhance the legitimacy of a business. Government is regarded as one of the most important driving forces behind the CSR agenda and it has a particularly important role to play in the creation of an enabling CSR environment. In general, advocates of legislative involvement in framing the CSR policy highlight the failure of existing voluntary systems as one of the main reasons why the state should play a more important role in the facilitation of CSR. Although governments realise the importance of encouraging socially responsible business, it should be noted that CSR should not replace regulation or legislation concerning social rights. Furthermore CSR should not be seen as shifting (or outsourcing) the state's responsibility for the provision of basic services (such as education or the provision of health services) to the private sector and thus "privatising" the state's responsibilities. However, the legacies of apartheid remain firmly entrenched in the social problems facing South Africa and it seems as if the Government is unable to deliver the social and physical infrastructure required to effect the desired transformation, thus necessitating the engagement of the private sector. The role of Government in establishing a CSR policy framework and driving CSR has become increasingly important. The (perceived) failure of the welfare state has given further impetus to the move of governments toward tapping into the resources of the private sector (through their CSR) in order to address socio-economic challenges. A purely voluntary approach to CSR without any legislative intervention will not succeed – a clear public policy requiring the implementation of socially responsible practices by the entire private sector is a necessity. Governments in general are increasingly beginning to view CSR as cost-effective means to enhance their sustainable development strategies, and as a part of their national competitiveness strategies to attract foreign direct investment. Given South Africa's history, legislation should be viewed as one of the main instruments enabling the Government to address the private sector's social, environmental and economic outreach activities. Against this background, this contribution identifies the regulations released in terms of the Companies Act 71 of 2008 in which the issue of the social and ethics committee is dealt with, as an important measure taken by Government to create a possible CSR platform. This contribution argues that the requirements regarding the creation of a social and ethics committee have the potential to embed the CSR notion in the corporate conscience. The aim of the contribution is to provide an overview of the role of the social and ethics committee, as envisaged by the Companies Regulations, 2011, as a potential driver of CSR.
The paradox of migration and the interest of the atomistic nation-states: the Southern African perspective
23 May 2013
North West University

Ngandwe, Phazha Jimmy

The "paradox of migration and the interests of the atomistic nation-states" interrogates the phenomenon of migration in general and in the Southern African Development Community in particular. The point of departure of the paper is the African Union and the Southern African Development Community’s legal framework on migration, as read with the national legal instruments of the different member states. Its focal point is the raison d’être of this phenomenon of migration and the corresponding approaches and attitudes of the nation-states within which migration takes place inter se. This includes the psycho-social impact of migration. Internationally as well as regionally, States are concerned with issues of sovereignty, the preservation of the welfare of the citizenry, ensuring social cohesion social, cultural and economic development including job creation, and fighting against transnational organised crime, including terrorism. The theme of the paper is that whereas migration should form the bedrock of regionalism and globalisation, the negative attitudes of the nation-states to migration are more often than not at variance with the objectives of regionalism and globalisation. The central question of the research is how states can discharge their duties and obligations vis-à-vis their nationals without perpetuating the bottlenecks to and the stigma that attaches to migration and thereby upsetting the international as well as regional integration objectives of the free movement of people. This is the issue that the paper is intended to explore. The main areas of concern are that the negative attitudes of the nation-states are manifested in the hostile treatment of migrants at all ports of entry, including illegal or ungazetted points of entry, within the nationstates in general, and in their labour markets in particular. This research therefore explores the paradoxical nature of the duties and responsibilities of states within the migration and mobility discourse. The paper will conclude by making practical recommendations aimed at influencing policy and law.
Mapping free Indian migration to Natal through a biographical lens, 1880-1930.
03 September 2013
North West University

Hiralal, Kalpana

The history of indentured Indians has been well documented in South African historiography in terms of migration and settlement. Shipping lists, which meticulously recorded the biographical details of each labourer, together with Indian immigrant reports, provide a wealth of information on the early migratory and labour experiences of indentured Indians. Regrettably, similar documentation regarding passenger or free Indian migration to Natal is absent in the South African archival records. This article adopts a biographical approach as a methodological tool to map the identification practices involved in the migration of passenger or free Indian immigrants to Natal between 1880 and 1930. Both the colonial and Union governments sought to regulate the entry of these immigrants through a system of identity documents. Passage tickets, domicile certificates, affidavits, Certificates of Identity and passports not only facilitated and hindered both individual and family migration, but also show how citizenship was defined, and migration controls were instituted and administered to free immigrants. Thus, as British subjects, free Indian immigrants were not really free but had to constantly, defend and reclaim their civic rights, and attest and verify their identity as the colonial and later the Union government sought new and creative ways to restrict and prohibit their entry. This article illustrates the usefulness of a biographical approach to migration studies, in not only highlighting individual but collective immigrant experiences, which provide a way of capturing the diversity, complexity and the transformational nature of free Indian migration to Natal.
Address to commemorate the 2013 Martin Luther King day at the Law Faculty, University of Michigan
15 October 2013
North West University

Govender, Karthy

The paper commences by considering the similarity between Dr King, MK Gandhi and Nelson Mandela and argues that they are high mimetic figures who inspire us to be better. Their legacy and memory operate as a yardstick by which we can evaluate the conduct of those exercising public and private power over us. Each remains dominant in his respective society decades after passing on or leaving public life, and the paper suggests that very little societal value is had by deconstructing their lives and judging facets of their lives through the prism of latter day morality. We gain more by leaving their high mimetic status undisturbed. There is a clear link between their various struggles with King being heavily influenced by the writings and thinking of Gandhi, who commenced his career as a liberation activist in South Africa. King was instrumental in commencing the discourse on economic sanctions to force the Apartheid government to change and the Indian government had a long and committed relationship with the ANC. The second half of the paper turns to an analysis of how Dr King's legacy impacted directly and indirectly on developments in South Africa. One of the key objectives of the Civil Rights movement in the USA was to attain substantive equality and to improve the quality of life of all. The paper then turns to assessing the extent to which democratic South Africa has achieved these objectives and concludes that the picture is mixed. Important pioneering changes such as enabling gays and lesbians to marry have taught important lessons about taking rights seriously. However, despite important advancements, neither poverty nor inequality has been appreciably reduced. One of the major failures has been the inability to provide appropriate, effective and relevant education to African children in public schools. Effectively educating previously disadvantaged persons represents one of the few means at our disposal of reducing inequality and breaking the cycle of poverty. Fortunately, there is a general awareness in the country that something needs to be done about this crisis urgently. The paper notes comments by President Zuma that the level of wealth in white households is six times that of black households. The critique is that comments of this nature do not demonstrate an acknowledgment by the ANC that, after 19 years in power, they must also accept responsibility for statistics such as this.
Cutting the apron strings: the South African experience of decolonisation
29 January 2014
North West University

Devenish, G E

Decolonisation is a recurring constitutional and political theme in the process of change and reform in South Africa’s history during the 20th century. The constitutional emancipation of the erstwhile Union of South Africa and the subsequent internal decolonisation of designated black ethnic population and cultural groups, are two kindred processes which have interesting similarities, but also important differences. The former involved British Imperialism, the latter involved Afrikaner Nationalism and African Nationalism. The former was a natural, legitimate and spontaneous process, the latter was an artificial process that was induced by Afrikaner Nationalism, that was spurned internationally and domestically by the the international community of nations and indigenous people of South Africa respectively. The article examines the legitimacy of the process of the decolonisation of the Union of South Africa resulting in its independence, followed by the adoption of a republican form of government. In contrast, a comparison is made with the controversial and questionable evolution of the Bantustans, which emerged out of the erstwhile native reserves, a stratagem designed in effect to thwart the liberation struggle for a truly democratic form of government for all the people of South Africa. This pseudo decolonisation was an analogous process to that of genuine decolonisation. The former involved political fragmentation, whatever it was designated, that in effect, denied to the indigenous people, freedom and liberation for decades. As an odyssey it was a very protracted and painful process. Ultimately, in a belated and circuitous manner, after the inordinate suffering and oppression of South Africa’s indigenous people, a genuine democracy in a unified and consolidated state for all the people of South Africa was to transpire. This was liberation and not decolonisation, and was the final stage in the historic and traumatic process for South Africa. It is also argued that only with the inception of the Interim Constitution, following the first historic democratic election of 27 April 1994, did South Africa and its people adopt an authentic democratic and republican constitution.
A critical investigation of the relevance and potential of IDPs as a local governance instrument for pursuing social justice in South Africa
12 March 2014
North West University

Fuo, Oliver Njuh

Unlike the situation in the past, when local government’s role was limited to service delivery, local government is now constitutionally mandated to play an expanded developmental role. As a “co-responsible” sphere of government, local government is obliged to contribute towards realising the transformative constitutional mandate aimed at social justice. South African scholars and jurists share the view that social justice is primarily concerned with the eradication of poverty and extreme inequalities in access to basic services, and aims to ensure that poor people command sufficient material resources to facilitate their equal participation in socio-political life. In order to enable municipalities to fulfil their broad constitutional mandate, the system of integrated development planning (IDPs) came into effect in South Africa in 2000. Each municipality is obliged to design, adopt and implement an integrated development plan in order to achieve its expanded constitutional mandate. The IDP is considered to be the chief legally prescribed governance instrument for South African municipalities. The purpose of this article is to explore and critically investigate the relevance and potential of IDPs in contributing towards the achievement of social justice in South Africa. This article argues inter alia that the multitude of sectors that converge in an IDP makes it directly relevant and gives it enormous potential to contribute towards social justice because, depending on the context, municipalities could include and implement strategies that specifically respond to diverse areas of human need. In this regard, the legal and policy frameworks for IDPs provide a structured scheme that could be used by municipalities to prioritise and meet the basic needs of especially the poor. Despite its potential, it is argued that the ability of IDPs to respond to the basic needs of the poor is largely constrained by a series of implementation challenges partly attributed to the underlying legal and policy framework.
Race as/and the trace of the ghost: jurisprudential escapism, horizontal anxiety and the right to be racist in BoE trust limited
12 March 2014
North West University

Modiri, Joel M

This contribution draws on critical race theory and critical legal theory in order to read and critique the Supreme Court of Appeal judgment of Erasmus AJA in BoE Trust Limited 2013 3 SA 236 (SCA). It will specifically focus on the contested jurisprudential and racial politics reflected in the reasoning followed in the judgement. It specifically takes issue with the way in which the judge avoided dealing directly with the constitutional and political implications of racially-exclusive testamentary provisions. Three specific features of the judgment are highlighted in the note as problematic: first, the rhetorical moves and ‘legal interpretive techniques’ by which the judge escaped the basic legal texts governing the situation in which a racially discriminatory provision is included in a will, as well as the substantive reasoning and normative choices that those texts necessarily invite. Secondly, how the escape from those legal texts evinces, or perhaps even facilitated, a certain evasion of, or anxiety towards the horizontal application of the Bill of Rights which explicitly proscribes overt (racial) discrimination by private non-state actors. And thirdly, how by following a formalist legal approach, one in which the basic assumptions of liberal legalism and capitalism are viewed as natural, normal and immutable, the judgment lacks a decisive rejection of racism. The judgment’s uncritical adulation of the common law of succession (and specifically the principle of freedom of testation) and its negation of a more substantive, constitutionally-infused mode of reasoning and adjudication generally reflects a conservative or traditional view of law. It is suggested that this view of law is problematic in our current post-apartheid context for two central reasons: it stands in tension with the project of transformative constitutionalism and prevents the coming into being of a more critical race jurisprudence for postapartheid South Africa.
Youth between identity and the market: Historical narratives among South African university students in a History “bridging” lecture room.
19 May 2014
North West University

Waetjen, Thembisa

The way youth speak about the past can offer important clues to how they conceptualise and emotionally negotiate the present, specifically their sense of place in a changing world and the security of their future within it. This article considers the case of youth admitted to a university through a ‘bridging’ programme to reflect on dilemmas of identity and class mobility facing South African youth. Based on participant-observation, working with a world history curriculum designed for educationally disadvantaged students, the researcher illustrates how widelycirculating public discourses about race and history have infused the moral and generational pressures black students report to be a constant source of tension in their lives. Their social positioning on the cusp of upward social mobility in a nation characterised by persistent, racialised economic inequalities is experienced both as a privilege and a burden. Tensions between, on the one hand, a proclaimed loyalty to communitarian interests and identities and, on the other, a desire to showcase full participation in new cultures of consumer materialism are resolved through dichotomous ways of speaking about the past. In these narratives, “History” is the term utilised for speaking of a past of traumatic events, black victimisation and social legacies which must be overcome; “tradition” is a word invoked to empower a positive sense of continuity and to fix a seemingly more secure and generous location in the present. Both languages of the past offer narrative resources for students who are negotiating a rapidly changing national and global context.
Identity in South Africa: examining self-descriptions across ethnic groups
27 June 2014
North West University

Adams, Byron G.;Van de Vijver, Fons J.R.;De Bruin, Gideon P.

We examined identity indicators in free self-descriptions of African, Coloured, Indian, and White ethnic groups in South Africa. Based on trait theory, independence-interdependence, and individualism-collectivism, we predicted that the individualistic White group would have more independent and context-free identity descriptions than the other, more collectivistic groups. We did not expect differences across the four groups in terms of Ideological, Religious, Spiritual and Ethnic aspects of identity. Loglinear analyses of the coded self-descriptions largely confirmed expectations for the African and White groups, but less so for the Coloured and Indian groups. Overall, the study found a large number of cross-cultural similarities with independent, individualistic, context-free and Dispositional Descriptions prevalent in all groups. The most salient difference between the African and White groups was that the African group was more likely than the White group to specify target persons in relational self-descriptions. This suggests a stronger in-group-out-group distinction in the African group.
The historical context of Land Reform in South Africa and early policies
28 July 2014
North West University

Kloppers, Henk J;Pienaar, Gerrit J

The need for the current land reform programme arose from the racially discriminatory laws and practices which were in place for the largest part of the twentieth century, especially those related to land ownership. The application of these discriminatory laws and practices resulted in extreme inequalities in relation to land ownership and land use. This article provides an overview of the most prominent legislation which provides the framework for the policy of racially-based territorial segregation. It further discusses the legislative measures and policies which were instituted during the period from 1991 to 1997, aimed at abolishing racially-based laws and practices related to land and which eventually provided the basis to the current land reform programme.
Introducing CSR - the missing ingredient in the Land Reform recipe?
28 July 2014
North West University

Kloppers, Henk J

In reaction to the unequal land ownership brought about by decades of apartheid, the first democratically elected government embarked on an extensive land reform programme - a programme consisting of the three constitutionally protected pillars: restitution, redistribution and tenure reform. The aim of this programme is not only to provide for restitution to persons who lost their land as a result of racially based measures, but also provide previously disadvantaged South Africans with access to land in order to address the unequal land ownership. This research focuses on the restitution and redistribution pillars of the land reform programme. The progress made in terms of both these sub-programmes has been disappointing. With reference to redistribution the government has set the target to redistribute 30% of white owned commercial agricultural land to black persons by 2014. To date, less than 10% of this target has been achieved and all indications are that the overwhelming majority of land which has been redistributed is not being used productively or have fallen into a state of total neglect. The state of the redistributed land can be attributed to a variety of causes, with the main cause being the government's inability to provide proper post-settlement support to land reform beneficiaries. Against this background it is clear that alternative options have to be identified in order to improve the result of land reform. This article identifies corporate social responsibility (CSR) as one of the missing ingredients in the recipe for a successful land reform programme. The article introduces CSR and discusses the business case for CSR; identifies its benefits; considers its possible limitations; and examines the major drivers behind the notion. From the discussion of these topics it will become evident that an assumption of social responsibility by businesses in especially the agricultural sector might contribute to an improved land reform programme.
Anti-Indianism in Kwazulu-Natal: Historical and contemporary realities.
11 December 2014
North West University

Singh, Anand

Indo-African relations in KwaZulu-Natal are about competition and rivalry for limited resources and privileges not only between these two segments, but by all four categories1 that make up South African society. It has been conditioned by White hegemony and the politics of divide-and-rule among the four classified racial groups who were stratified along a line of differentiated privileges. With Whites always on the top, Coloureds and Indians oscillated between 2nd and 3rd positions according to imputed criteria for the purposes of analysis by researchers, and Africans were always considered the least privileged. Ever since their arrival in 1860, Indians moved from being most welcomed and appreciated to most detested and unwanted among their White forbears. The reasons for this lay in the juxtaposition of their labour significantly and appreciatively boosting productivity in the colonial economy within a short space of time, and the unwanted challenges that post-indentured Indians provided to the nascent White entrepreneurial class who struggled to keep pace with their competence in petty trading. Similar situations of unwelcome politics of competition have bedevilled Indo-African relations in the 20th century and have filtered into the 21st century in ways that do require constructive analysis to contemporary conditions. This paper analyses three periods of anti-Indianism since 1860 viz. the latter period of the 19th century when Whites turned against Indians, the 1949 African-Indian clashes, and recent anti-Indian sentiments by a small segment of Africans in KwaZulu- Natal. This paper argues that if South Africans do not rise to challenge such sentiments, they will rise to dangerously engulf us.
Muslim women’s identities in South Africa: A Zanzibari perspective in KwaZulu-Natal.
11 December 2014
North West University

Vahed, Goolam

This article examines how Zanzibari women in KwaZulu-Natal are negotiating their identities within the context of local and global realities. In South Africa, while the post-apartheid period gave birth to non-racial democracy, South Africa is haunted by high unemployment, widespread poverty and poor service delivery. Globally, this period has witnessed increased conflict since the 9/11 attacks on the Twin Towers in New York and the subsequent War on Terror which has led some to suggest that the irreconcilable fault lines of religion and culture have ushered in a clash of civilisations. This article examines the identities of Zanzibari women in the context of these rapidly changing local, national and international conditions. It also speaks to the local context of apartheid race engineering as the Zanzibari experience underscores the contingent nature of race as a category of identity. The article argues that while religion is important in the lives of the women, their identities are shaped by the complex interplay between religion, politics, class, race, language, community, and geography. An analysis based solely on religious laws and “race” deflects from a nuanced one that takes into account social and economic conditions when it comes to historicising identity
'n Nuwe benadering tot grondhervorming as n ontwikkelingsfaktor in die Suid–Afrikaanse politieke landskap
19 March 2015
North West University

Van der Elst, Herman

In its 1994 election manifesto (the Reconstruction and Development Programme - RDP) the African National Congress (ANC), undertook, if elected, to ensure that pro-active land reform takes place in post-apartheid South Africa. The RDP elaborated on the legacy of apartheid as a key cause of the current skewed pattern of land ownership in South Africa as well as the importance of ownership of land for the African people. For this reason the manifesto emphasised that land reform must be one of the key transformation priorities for the new Government in order to rectify the wrongs of the past. In terms of post-apartheid land reform arrangements there would be a specific focus on the following aspects: • Returning land to those that lost their property as a result of apartheid legislation since 1913; • Redistributing land to those that were denied the opportunity to become land owners or right of residence. Against the background of these objectives the post-apartheid land reform aim of the RDP was to ensure the enforcement of justice, poverty relief to the poorest of the poor and the creation of a situation of sustainable development. In 2012 the reality is, however, that land reform has only partially been effective. Eighty seven per cent of all arable land is still owned by white commercial farmers, redistribution is slow and sustainable development is not taking place. The majority of the South African population, in specifically the rural areas, are still exposed to extreme poverty and continued underdevelopment. At the ANC's June 2012 policy conference this partial effectiveness of land reform since 1994 was recognised. To overcome this situation a so-called new approach to land reform was called for. There was consensus that the functional processes of land reform must be changed drastically. This must be done in order to speed up the pace of redistribution, simultaneously ensuring that sustainable development and poverty reduction continue after land has been transferred to beneficiaries. The urgency of implementing the new approach was expressed as follows in the land reform policy discussion document of June 2012 (South Africa 2012:2) : "Land reform must represent a radical and rapid break from the past without significantly disrupting production and food security. " At this stage the exact format, content and implications of this "radical and rapid break" is, however, uncertain. In the advent of the ANC's December 2012 leadership elections it can be expected with certainty that many key aspects of the current land reform arrangements will be reviewed, changed or even scrapped in order to speed up the process. This assumption also serves as rationale behind this research. It is firstly the purpose of this article to analyse descriptively the unfolding, scope and progress of land reform in South Africa since 1994. In order to achieve this objective the article focuses on the following key aspects: • The rationale behind the current format of land reform; • The land reform policy and legislative objectives; • The land reform implementation procedures; • A holistic perspective on the progress made thus far; and • The identification of the weaknesses and strong points of land reform since 1994. Through this analysis the article will secondly identify the shortcomings in the current process. Against the above-mentioned background an attempt will lastly be made to provide a scenario perspective with regard to the unfolding of this so-called new approach. An emphasis will be placed on the identification of possible key functional policy and implementation arrangements that might change after 2012.
Liturgical guidelines for congregations to have a voice in the serious problem of economical inequality in South Africa
30 June 2015
North West University

De Klerk, Barend J.

It is part of the calling of the church to address issues of justice and peace, and to care for the poor and the marginalised in society, because the church is the body of Christ and therefore the heart and hands of Christ in this world. In this article, the problem statement is: ‘How can liturgical guidelines help churches to become involved in the economic inequality and the consequent poverty in our society?’ Richard Osmer articulates a practical theological method that is largely employed in this research. South Africa is the world’s most unequal nation. The South African economy grew steadily from 1992 to 2008, but the benefits were distributed unequally, such that income inequality actually worsened. It is necessary to get a truthful starting point for the church to address this need − and the best way will be to discover the identity of the church. The church’s identity is described in the liturgical sense in three phases of involvement in society, namely (1) the gathering and sending of the local congregation; (2) the liturgical responsibility with the ecumenical church; and (3) the possible cooperation with those who do not share the Christian faith.
Local communities and health disaster management in the mining sector
24 July 2015
North West University

Cronje, Freek;Reyneke, Suzanne;Van Wyk, David

Mining activities throughout the Southern African Development Community (SADC) have impacted on the health and safety of mining communities for many decades. Despite the economic contribution of mining to surrounding communities, a huge amount of social and environmental harm is associated with the industry. In this regard, mining companies have, on the one hand, contributed toward improved social development by providing jobs, paying taxes and earning foreign exchange. On the other hand, they have been linked publicly to poor labour conditions, corruption, pollution incidents, health and safety failings, as well as disrespect of human rights. The objectives of this study are to give an overview of social and natural factors relating to health disasters in selected communities in the mining environment. Regarding the findings, this paper focuses on the social and natural factors involved in the creation of health disasters. The social factors include poverty, unemployment, poor housing and infrastructure, prostitution and a high influx of unaccompanied migrant labour. Major health issues in this regard, which will be highlighted, are the extraordinary high incidence rate of HIV and STIs (sexually transmitted infections), addiction and mental illness. The environmental (natural) threats to health that will be discussed in the study are harmful particles in the air and water, excessive noise and overcrowded and unhygienic living conditions. In conclusion, the paper also finds that communities need to be ‘fenced in’ in terms of health disaster management instead of being excluded. Specific recommendations to mining companies to reduce health and safety disasters will be made to conclude the paper.
The employment equity act, 1998 (and other myths about the pursuit of "equality", "equity" and "dignity" in post-apartheid South Africa) (part 2)
12 January 2016
North West University

Louw, Andre M

The author critically examines the organising principle of the affirmative action provisions of the Employment Equity Act (or EEA), as well as the implications of the recent judgment by the Constitutional Court in its first case involving the application of affirmative action in the employment context (and in terms of the EEA) – SAPS v Solidarity obo Barnard. While reiterating the need for restitutionary measures such as affirmative action in South Africa, the author concludes – probably quite controversially - that the EEA's treatment of affirmative action has nothing to do with the equality right in the Bill of Rights, and that the Act pursues a different (and omnipresent) social engineering agenda by the state. The author calls for this realisation to prompt future affirmative action cases arising from the application of this Act to be removed from the scheme of (and potential defences available under) the equality jurisprudence, and for the courts to critically interrogate the constitutionality of the EEA's affirmative action scheme within its own context. The author believes that Chapter III of the Act is unconstitutional in this sense, and he calls for the scrapping of its provisions. He also calls for a (more) constitutionally-compliant exposition from the Constitutional Court of the parameters of legitimate affirmative action under the Bill of Rights, and adds his voice to the numerous calls for reconsideration of the "rationality test" expounded in Minister of Finance v van Heerden. More generally, the author considers the apparently all-pervasive application of the government ideology of the pursuit of demographic representivity in "transformation" of employment and other contexts (expressing grave doubts about its constitutionality along the way). In Part 1 of this piece (which precedes this article in this edition), the author considers the constitutional requirements for a legitimate affirmative action programme or measure. He then examines the affirmative action scheme of the Employment Equity Act, and explains his views on why such scheme is, in fact, unconstitutional. This article forms Part 2 of this piece and the author continues to critically evaluate the Constitutional Court judgment in the Barnard case, and he highlights the biggest areas of disappointment of this judgment within the context of South Africa's equality jurisprudence. After a very brief consideration of the recent amendments to the Employment Equity Act, the author concludes by providing reasons why the Act's approach to affirmative action needs to be rejected, and soon.
The radicalisation of a Swedish ecclesiastical critic of apartheid-Gunnar Helander
19 April 2016
North West University

Hale, Frederick

From the 1950s through the 1980s, both the government of Sweden and various non-governmental agencies in that country stood at the forefront of the international campaign against apartheid. To a considerable extent, representatives of the Church of Sweden Mission were involved in this struggle. Among them was Gunnar Helander (1915-2006), a missionary in Natal and on the Witwatersrand from 1938 until 1956. After he returned permanently to Sweden, his role escalated and became known internationally, especially due to his prominence in the leadership of the International Defence and Aid Fund. Between 1949 and 1986 Helander wrote seven novels set in South Africa. In these works one can trace the unfolding of his position on apartheid, which evolved from mild criticism of race relations in South Africa to advocacy of international subversion of the P.W. Botha regime
Ubuntugogy for the 21st century
29 April 2016
North West University

Van der Walt, Johannes Lodewicus

The state of community life in general, and of education in particular, in Africa south of the Sahara (henceforth also referred to as the sub-continent) seems to indicate that Africans have failed somewhat in their efforts to provide for themselves lives of good quality. Malala's (1) complaint that the African century has failed to dawn can be ascribed inter alia to the fact that sub-continental Africans seem not to have mastered the art of peaceful coexistence. (2) Life in this part of the world has for decades now been characterized by wars, violence, soaring crime rates and delinquent behavior, also in the more subtle forms of sexism, xenophobia, selfishness, collapse of family life, a growing gap between the rich and the poor, corruption and racism. (3) Such conditions are detrimental to the quality of personal and communal life. (4) Similar conditions prevail in schools. In many areas, life in schools has been characterized by violence, destruction of property, laziness, a lack of punctuality, weak performance, learner and teacher delinquency and self-centredness--in brief, by a general lack of moral literacy. (5) This portrayal of life on the sub-continent does not sit well with the precepts of the traditional African philosophy of life known as Ubuntu (in the Nguni languages; Botho in the Sotho languages, Hunhu in Shona, Bisoite in Lingala-Baluba, Ujamaa in Kiswahili, Harambee in Kenya). (6) According to Ubuntu, a person is who s/he is only because of the existence of others and because of his/her coexistence with them. If this is indeed the world-view according to which the people of the sub-continent live, why do we then find the inhabitants of the Sudan, Zimbabwe, Kenya, South Africa, Liberia, the Democratic Republic of the Congo, the Ivory Coast, Sierra Leone, Western Sahara, Ethiopia, Eritrea, Somalia and Guinea-Bissau (to mention only a few of the hotspots) to seemingly have lost sight of this sentiment? Why has Ubuntu failed to inspire the people of the sub-continent towards peaceful coexistence and democracy? Failure to live according to the precepts of Ubuntu constitutes a threat to the freedom of the people. (7) Similar perpetrations also occur in other parts of the world. They are a function of how the respective life-views impact on people, their morality and their behavior. Unfortunately, we have to confine our attention to the situation in Africa. It is not the purpose of this article to harp on the negative conditions prevailing on the sub-continent or on the perceived failure of its inhabitants to live according to the tenets of Ubuntu. Neither is its purpose to once again proclaim the already well-known virtues of Ubuntu as a potential contributor to enhanced quality of life. Instead, the purpose of this paper is to consider the possibility of Ubuntugogy being a more suitable approach for sub-Saharan Africa than typical Western-style colonial education. While having borrowed the term 'Ubuntugogy' from Bangura, (8) I shall follow his lead only partially. I shall argue that two sets of changes have to be made to render Ubuntugogy more amenable to the demands of the modem, globalized, urbanized and industrialized circumstances on the African subcontinent. Firstly, Ubuntu, that is the life-view that forms the sub-stratum of Ubuntugogy, has to be updated, modernized or reconstructed to put it more in line with the demands of 21st century life. Secondly, while the notion of Ubuntugogy in itself remains attractive as a return to the classic past of Africa, it also needs filling with more appropriate content. It needs a global format to be able to address the needs of modern sub-continental Africans. (9) Because of their traditional tribal limitations, a simple return to Ubuntu and Ubuntugogy will not pass muster in modern African societies. Pedagogical input from the northern hemisphere has to be included in the new approach. Ubuntu and Ubuntugogy also need filling with new moral content. …
Interracial communication in South Africa: is cultural convergence possible?
07 June 2016
North West University

Schutte, P.J.

As the media confirms the growing gap between citizens with different ethnic or racial origins in certain European countries, the lack of meaningful intercultural interaction within the Rainbow Nation in South Africa is even worse when recent occurrences are taken into consideration. Acting on erroneous perceptions and irresponsible labelling of people can pose a significant danger to tolerance and peaceful co-existence in South Africa; it could even be a threat to democracy. This article endeavours to reflect on the “climate” which would enhance or prevent interracial communication, in particular. The qualitative and post-structural approach of Iben Jensen (2008) has been applied. The aim of the model is to allow the researcher to “think through an intercultural communication process and reflect upon it from a new perspective”. The proposition can be made that the possibility of meaningful interracial communication is slim, unless the races take the different contexts within a democracy into consideration, not misuse the power or lack of power of their position, avoid stereotyping, put the past behind them, communicate in a cultural sensitive manner about “emotional topics” and ask the question: Do pronouncements and the meaning attached to them change if it is communicated by someone from another race?
The contribution of labour law and non–discrimination law to empowerment and social justice in an unequal society: a South African perspective
10 June 2016
North West University

Smit, Nicola

The tragic events at the Marikana mine ( North-West Province, South Africa) in 2012 again underlined the vast inequalities that persist in South African society. Significant income differentials and disparities in quality of life remain pervasive in society, regardless of the fact that the statutory framework addresses unfair discrimination during recruitment, employment and termination. The South African regulatory framework extends beyond the workplace as a result of the Constitution that includes a Bill of Rights, along with generally applicable equality provisions, skills developments legislation, black economic empowerment legislation and sector-specific codes of conduct and charters. Regardless of this vast regulatory system, the achievement of equality or, arguably, a socially just society remains an elusive ideal for many South Africans. This contribution provides a brief overview of the statutory framework for promoting equality and preventing and eliminating unfair discrimination in South African workplaces. The contribution will highlight certain challenges that remain in the area of labour equality laws with regard to conceptual and application issues, and will argue that labour law in itself cannot address the problems facing a highly unequal society such as South Africa. However, where there are other non-discrimination laws and empowering statutes in place, greater emphasis must be placed on the coordination and integration of all relevant statutory instruments and on cultivating fundamental values and rights across the wide spectrum of society
The impact of minority status in the application of affirmative action: NAIDOO v MINISTER of SAFETY and SECURITY 2013 5 BLLR 490 (LC)
27 July 2016
North West University

Papacostantis, Helen;Mushariwa, Muriel

Affirmative action measures within the workplace seek to ensure equal employment opportunities and create a workforce that is representative of South African society. Accordingly, employers need to ensure that the substantive goal of equality is achieved when implementing affirmative action. One of the challenges faced by employers is the choice of beneficiary from designated groups which is diverse and unequal within itself. This paper seeks to address this challenge by looking at the definition given to beneficiaries of affirmative action and the concept of multi layered disadvantage within the Employment Equity Act. The paper will focus on the decision in Naidoo v Minister of Safety and Security and National Commissioner of the South African Police Service which is an example of the disadvantages experienced by members of the designated groups who are also part of a minority group within the designated groups. Particular focus will be placed on the disadvantages experienced by a black female who is also part of a minority. This paper highlights the multi-layered nature of disadvantage experienced by such members of the designated groups and the need to ensure that new forms of disadvantage are not created in the implementation of affirmative action policies by using a situation sensitive approach. It argues that affirmative action as a means to an end needs to evolve with the understanding that it functions within an ever changing social and economic environment. If such changes are ignored the true beneficiaries of affirmative action will not be given recognition and the desired end of creating a workforce representative of South African society together with the goal of substantive equality cannot be realised.
The rhetorical markers of nation–building in presidential speeches
06 August 2016
North West University

Chaka, Phillip Mpho

Twenty years ago South Africa's transition to democracy was characterised by numerous attempts to de-racialise and bring together a diverse society, which had lived through many years of forced segregation and racial antagonism. Part of this transition involved writing a new Constitution, and engaging in endeavours such as the Truth and Reconciliation Commission, the National Conference on Racism in 2000 and the World Conference Against Racism and Xenophobia in 2001. These national projects were aimed at promoting an awareness of the atrocities that occurred under apartheid. On a smaller scale, laws were introduced in various sectors of society, such as education and the workplace, with the intention to promote equality and create an atmosphere of tolerance and non-discrimination. The situation calls for continuous analysis and examination of the course of events rather than despair. It is the opinion of the researcher that only through vigorous steps taken necessary adjustments could be made in the crafting of effective paths to national unity and development for the benefit of all South Africans.This paper explores the broad theoretical issue of nation-building agenda in the South African political and media discourse. The paper also asks whether the nation-building sentiment has been influenced by the political discourse related to the process of nation-building and democratisation in South Africa since 1994. The paper specifically addresses questions as to how Presidential speeches reflect, stand for, envisage and legitimise nation-building in discourse; what the rhetorical markers for nation-building in the speeches are; and how such speeches represent change, power contestations and envisage operationalisation for unity and prosperity. In particular, the paper attempts to examine the presence of the national democratic ideals in the nation-building elites' discourse in South Africa, using the Presidential rhetoric as the main indicator of the nation-building direction of a country and also to assess the three main terms of Nelson Mandela, Thabo Mbeki and Jacob Zuma's leadership. In order to assess if the Presidential rhetoric has changed with regards to the main nation-building directions, the researcher will conduct a textual and discourse analysis of the selected sample of the speeches given throughout their term in office.
“Making History compulsory”: Politically inspired or pedagogically justifiable?
17 August 2016
North West University

Davids, M Noor

While recognising the contested nature of History as a school subject, this article explores the political context and practical implications of making History compulsory until Grade 12. After twenty one years of democracy, South African society lacks social cohesion, a sense of nationhood and is experiencing occurrences of xenophobia. To address these concerns, the Department of Basic Education (DBE) established the History Ministerial Task Team (HMTT) to oversee the implementation of compulsory History in the Further Education and Training (FET) phase. The terms of reference of the task team include: the strengthening of History content; a review of the content in the General Education and Training (GET) band; its implication for teacher education, professional development and textbooks. The campaign to make History compulsory was promoted by the South African Democratic Teachers Union (SADTU) and intensified after the outbreak of xenophobic attacks in 2008. To maintain the academic and professional status of History teaching, this article attempts to answer the question: what is the purpose of History as a school subject? To respond to this question, Barton and Levstik’s model: “the purposes of History teaching”, is employed as a framework to evaluate the proposal. By conducting a review of the post-apartheid History curriculum with special reference to complex phenomena such as nation-building and xenophobia, this article argues for attention to be given to the improvement of teachers’ pedagogical practice and historical knowledge rather than policy reform which may be destabilising a large segment of the school system. The anticipated HMTT report is alerted against gratuitous political interference and to some practical implications of its work for educational practice.
An analysis of climate change, poverty and human security in South Africa
21 October 2016
North West University

Chikulo, Bornwell Chishala

In South Africa, climate change mitigation poses significant challenges to the South African Government because it has to juggle the climate change imperatives , with the critical issues of poverty and human security, as well as a host of daunting development challenges inherited from the Apartheid regime. This paper utilizes a qualitative methodology to collect and analyse data on climate change, poverty and human security nexus in South Africa. It outlines the development challenges and development policy responses targeting poverty and human security. The analysis of the causes and effects, as well as the impact of climate change, is followed by a discussion of the delivery of basic social services and the resultant public disaffection leading to violent service protests. A significant proportion of South Africans, especially the poor, have to contend with poverty, a lack of basic social services and unemployment which are being compounded by climate change. The final section of the paper argues that despite significant service delivery milestones, little progress has been made on the central objective of reducing poverty and inequality. Consequently, although a lot has been achieved in terms of the legislation, policies, programmes, and provision of basic services for the poor, the challenge facing the South African Government is how to link the objectives of poverty alleviation policy with those of climate change and human security priorities within a sustainable development framework. The paper recommends that in order to reduce poverty and increase the poor people’s capacity to adapt or respond to climate change the government will need to: firstly , mainstream or integrate climate change adaptation with sustainable development policies; and secondly, improve the capacity of local authorities to effectively deliver services to their communities . This paper has been motivated by the explosion of service delivery protests around the country, which have become violent and increasingly xenophobic resulting in attacks on African nationals and foreign –owned small businesses in the townships and informal settlements.
Dooyeweerd's philosophy entails no support for Apartheid whatsoever
01 March 2017
North West University

Strauss, Danie

In an article on Afrikaner nationalism, apartheid and the perversion of critique, Rèné Eloff argues that E.A. Venter and H.J. Strauss drew upon the philosophy of Herman Dooyeweerd to justify separate development and that the foundational moment of Dooyeweerd's philosophy involves an interpretive violence that accommodates this interpretation, accompanied by a political violence which is accommodated by the mystical foundation of its authority. This article is a response to what Eloff attempts to argue. Unfortunately Eloff's article is burdened by ambiguities, lack of factual data, non sequitur arguments and in particular, regarding the transcendental critique, not realizing the difference between the structural intention of the transcendental critique and its misunderstanding by him in terms of a genetic perspective. In addition he does not realize that Derrida's ideas of the "institutional presupposition" and the mystical foundation of its authority are confusing the distinction of structure and direction. Eloff employs the genetic idea of the "foundational moment" of Dooyeweerd's philosophy, through which the latter supposedly could be linked to Apartheid, but does not succeed in achieving his aim. Although available to him, Eloff did not take notice of the analysis of the article of Derrida (on Law and Justice: the mystical foundation of authority) by the author of this response-article. In it Derrida's view of Law and Justice is analyzed in detail while even highlighting shared convictions between Derrida and Dooyeweerd. In another publication of Derrida (not quoted by Eloff) we find an appeal to the same philosophical method used by Dooyeweerd (and Einstein), namely the transcendental-empirical method. Shortcomings in Eloff's argumentation made it necessary to investigate the relationship between Dooyeweerd and Kant in some more detail, and to follow it up with an assessment of the relationship between Dooyeweerd and Derrida (showing that Derrida's thought is motivated by the humanistic motive of nature and freedom and that he not only confuses the distinctness of structure and direction, but also embodies in his thought the fusion of the directional antithesis between good and evil by identifying it with structural traits of reality). The irrationalistic element in Derrida's law-idea puts him, rather than Dooyeweerd, in a position to could have supported Apartheid. What Eloff says about Dooyeweerd's transcendental critique misses the key argument of the transcendental critique, based upon Dooyeweerd's view of the Gegenstand-relation, namely the issue of a supra-modal central point of orientation for the inter-modal synthesis. It turns out that there is no single statement in Dooyeweerd's transcendental critique from which anything supporting the Apartheid dispensation could be validly inferred. The only alternative option, namely to attempt to show that Dooyeweerd's idea of law and the state entails or supports the assumptions and practice of Apartheid, is doomed to failure from the outset, because Dooyeweerd's idea of the state and the nature of civil private law and public law rejects emphatically any encroachment upon the freedom and equality of its citizens. Although Eloff's account of the political views of E.A. Venter and H.J. Strauss is basically correct, it is not properly informed in many respects. Of the two main influences on their political conceptions only one is mentioned explicitly, namely the ideology of a "volk". The colonialist idea of guardianship (voogdyskap) as such is left unmentioned
Section 27 of the insolvency act 24 of 1936 as a violation of the equality clause of the constitution of South Africa: a critical analysis
08 May 2017
North West University

Mabe, Zingaphi

This paper examines section 27 of the Insolvency Act 24 of 1936 within the context of the right to equality in section 9 of the Constitution of the Republic of South Africa, 1996 (the Constitution). Section 27 of the Insolvency Act protects benefits arising from an antenuptial contract and given by a man to his wife or to a child born of their marriage, from being set aside as dispositions without value during sequestration proceedings. It excludes men, same-sex partners, children born outside of wedlock and children born to same-sex partners from keeping benefits given to them in an antenuptial contract. It affords such a privilege only to a wife or a child born in the marriage. The right to equality in the Constitution seeks to provide equal benefits before the law to persons in the same or similar positions by prohibiting unfair discrimination. This paper points out that the limitations in section 27 make it vulnerable to constitutional review under section 9(3) of the Constitution on the grounds of marital status, sexual orientation and birth. Certain proposals have been made to develop section 27 to be consistent with the Constitution by amending the definition of spouse in section 21(13) of the Insolvency Act. Such proposals will be considered to illustrate the progress made in reforming the section and to establish whether the reform measures proposed will protect all those affected by the discrimination arising from section 27. The paper concludes that if the proposals are implemented in a future Insolvency Act, they will eliminate the discriminatory effect section 27 has on husbands and wives, civil unions, and children adopted by civil union partners. However, as regards the right to birth, the proposals extend the benefit only to children born of a customary marriage or union, children who are adopted by partners in a civil union, or children who are born to parents who live together as partners in a partnership. Children born outside of marriage or to parents who do not live together in a relationship as partners are still excluded. It is submitted, therefore, that the proposal still distinguishes between the rights afforded to children and still violates the right to birth in section 9(3) of the Constitution.
Prognostic validation of a non-laboratory and a laboratory based cardiovascular disease risk score in multiple regions of the world
16 April 2018
North West University

Joseph, Philip;Kruger, Annamarie;Ibrahim, Quazi;Yusuf, Salim;Lee, Shun Fu

O bjective t o evaluate the performance of the non- laboratory i nterheart risk score ( n l - i hrs ) to predict incident cardiovascular disease ( c V D) across seven major geographic regions of the world. t h e secondary objective was to evaluate the performance of the fasting cholesterol- based i hrs (F c - i hrs ) . Methods U sing measures of discrimination and calibration, we tested the performance of the n l - i hrs (n=100 4 75) and F c - i hrs (n=107 8 63) for predicting incident c V D in a community-based, prospective study across seven geographic regions: s o uth a s ia, c h ina, s o utheast a s ia, Middle e a st, e u rope/ n o rth a m erica, s o uth a m erica and a f rica. c V D was defined as the composite of cardiovascular death, myocardial infarction, stroke, heart failure or coronary revascularisation. r e sults M ean age of the study population was 50.53 ( s D 9.79) years and mean follow-up was 4.89 ( s D 2.24) years. t h e n l - i hrs had moderate to good discrimination for incident c V D across geographic regions (concordance statistic ( c - statistic) ranging from 0.64 to 0.74), although recalibration was necessary in all regions, which improved its performance in the overall cohort (increase in c - statistic from 0.69 to 0.72, p<0.001). r e gional recalibration was also necessary for the F c - i hrs , which also improved its overall discrimination (increase in c - statistic from 0.71 to 0.74, p<0.001). i n 85 0 78 participants with complete data for both scores, discrimination was only modestly better with the F c - i hrs compared with the n l - i hrs (0.74 vs 0.73, p<0.001). Conclusions e x ternal validations of the n l - i hrs and F c - i hrs suggest that regionally recalibrated versions of both can be useful for estimating c V D risk across a diverse range of community-based populations. c V D prediction using a non-laboratory score can provide similar accuracy to laboratory-based methods
Hate Speech Provisions and Provisos: A Response to Marais and Pretorius and Proposals for Reform
16 April 2018
North West University

Botha, J C;Govindjee, A

This article responds to some of the issues raised by Marais and Pretorius in their 2015 article titled "A Contextual Analysis of the Hate Speech Provisions of the Equality Act" published in 2015(18)4 PER 901. In particular, the authors in the present response deal with a) the relationship between the prohibition of unfair discrimination and the regulation of hate speech; b) Marais and Pretorius' interpretation of aspects of the section 10(1) hate speech test; c) the role and interpretation of the proviso in section 12; and d) the constitutionality of section 10(1), as read with the proviso. For each of these issues, the authors first summarise Marais and Pretorius' contentions and then reply thereto. The authors also propose amendments to the threshold test for hate speech in terms of section 10(1) and suggest the enactment of new hate speech-specific defences.
The Employment Status of Magistrates in South Africa and the Concept of Judicial Independence
16 April 2018
North West University

Diedericks, L

Protection in terms of labour law is primarily available only to persons with status as employees. In South Africa the courts have over the years developed different tests to establish who is an employee and therefore entitled to the protection afforded by labour law. These tests have been incorporated into legislation. The Labour Relations Act 66 of 1995 provides for a definition and presumption of who is an employee. The Act also excludes certain categories of persons from its application and ambit. Although magistrates have not expressly been excluded from the application of the Act, it has been held that they are not employees, because such a categorisation would infringe the principle of judicial independence as guaranteed by the Constitution of the Republic of South Africa, 1996. The purpose of this contribution is to evaluate whether magistrates could be categorised as employees in terms of the traditional tests of employment and still be able to maintain judicial independence as required by the South African Constitution.
Reviewing the suitability of affirmative action and the inherent requirements of the job as grounds of justification to equal pay claims in terms of the employment equity act 55 of 1998
15 June 2018
North West University

Ebrahim, Shamier

The Employment Equity Act 55 of 1998 ("EEA") has been amended to include a specific provision dealing with equal pay claims in the form of section 6(4). Section 6(4) of the EEA prohibits unfair discrimination in terms and conditions of employment between employees performing the same or substantially the same work or work of equal value. The Minister of Labour has issued Regulations and a Code to assist with the implementation of the principle of equal pay. Both the Regulations and the Code set out the criteria for assessing work of equal value as well as the grounds of justification to a claim of equal pay for work of equal value (factors justifying differentiation in terms and conditions of employment). The EEA refers to two grounds of justification in respect of unfair discrimination claims, namely affirmative action and the inherent requirements of the job. There is support for the view that these grounds of justification are not suitable to equal pay claims. There is a contrary view that these grounds of justification can apply to equal pay claims. The Labour Courts have not had the opportunity to analyse these grounds of justification in the context of equal pay claims. It is thus necessary to analyse these grounds of justification in order to ascertain whether they provide justifications proper to equal pay claims. The purpose of this article is to analyse the grounds of justification of pay discrimination as contained in South African law, the Conventions and Materials of the International Labour Organisation and the equal pay laws of the United Kingdom. Lastly, an analysis will be undertaken to determine whether affirmative action and the inherent requirements of the job provide justifications proper to equal pay claims.
Cooperatives in South Africa: a review
19 June 2018
North West University

Rena, Ravinder

Objectives: The main objective of this paper is to explore the contribution of cooperatives in economic development of South Africa in post-independence period. It examines how the cooperatives help the members to attain the economic goals. Methods/Statistical Analysis: This article is based on the qualitative research approach and presented in the format of a literature review on the ways in which cooperatives began to play an important role in economic development process. Findings: From the literature review, it was found that, by developing and promoting cooperatives in South Africa create sound platform that is useful especially in the development of rural and semi-urban areas of the country. The role of cooperatives especially in agriculture sector will provide a momentum for the rural development. Further, big business development in South Africa and contribute towards social protection in the country. Managerial implications and Improvements: This article provides an in-depth discussion on cooperatives and their role in uplifting the rural and urban masses of South African in a sustainable manner. Analysis of the literature on cooperatives provides a unique business opportunity to its members those who are committed with positive energy to contribute for the development of South Africa.
Blackhood as a category in contemporary discourses on Black Studies : an existentialist philosophical defence
19 October 2022
North West University

Lamola, M. John

Background: An era and academic milieu that clamour at post-racialist and globalist theoretical frameworks juxtaposed with evidence of growing anti-black dehumanizing racism, and the persistence of psycho-social alienation of black learners in multi-racial educational institutions. Aim: To engage in a critical philosophical–phenomenological and political review of the experience of being-black-in-the-world as a factor that justifies the establishment and maintenance of Black Studies programmes. The article seeks to contribute to the debate on the vagaries accompanying the institutionalisation of culturo-epistemic exclusive spaces for socially suppressed selfhoods in a postmodern academy. Setting: Racialised social environments as affecting Higher Education, with post-apartheid South Africa as a case. Methods: Existential Philosophy, Black Consciousness and Paulo Freire’s philosophy of education. Results: The category of blackness as derived from a Fanonian existential phenomenology and Steve Biko’s perspective, contrasted against Achille Mbembe’s semiological–hermeneutic and cosmopolitan treatment of blackness, is an existential–ontological reality that should function as a cardinal category in educational planning, justifying specialised learning and knowledgeexchange spaces for the re-humanisation of black existence. Conclusion: The experience of black existential reality, conceived from blackhood as an external recognition and an internally self-negotiated consciousness within the social immanence of whiteness, justifies the institutionalisation of learning spaces and programmes that are aimed at nurturing antiracist black self-realisation, namely Black Studies.
“To build a just and fair society”: Fosatu and the vision of a new South Africa, ca.1970s-1980s
02 November 2022
North West University

Gwande, Victor M.

popularised the utopia of building a rainbow nation. The idea was to bring together all people of South Africa, in all their diversity, to work towards a new, common, non-racial and equal society. Indeed, the vision of these two struggle heroes was codified and became a core value of South Africa’s 1996 Constitution. Using the case of the Federation of South African Trade Unions (Fosatu) active in the period 1979-1985, this article demonstrates that the notion of the rainbow nation has a long history predating the Tutu and Mandela moments. Among other objectives, Fosatu sought to create a just, fair, non-racial and apolitical society, albeit led by workers. This article, therefore, argues that rather than seeing Fosatu as an orthodox trade union underpinned by a “workerist” tradition and “economism” as is advanced in the existing literature, it can also be seen as an antecedent and advocate of a free society, creating and expanding the “public sphere” and realm of freedom and democracy in South Africa during apartheid. In emphasising worker control or giving power to members of a union, Fosatu sowed the seeds of participatory democracy that came to characterise South Africa, epitomised by a post-1994 parliamentary democracy. In this way, Fosatu foreshadowed the aspirations of the new, just and fair South Africa envisioned by Tutu and Mandela. Broadly speaking, the story of Fosatu’s aspirations and struggles has a wider and comparative significance in understanding the makings and role of civil society in the democratic struggle from a global south perspective. This article relies on narratives, correspondence and debates extracted from Fosatu papers and archives.
TRADITIONAL APPROACHES AND LEADERSHIP PERSPECTIVES ON SUSTAINABLE ENVIRONMENTAL CONSERVATION PRACTICES IN AFRICA
21 November 2022
North West University

Saurombe, Hazvineyi;Du Plessis, Yvonne;Saurombe, Talkmore

Environmental sustainability has become a priority agenda globally, with World bodies such as the UN, UNESCO and World Bank encouraging environmental restoration with various incentives for all nations (UNCTAD, 2019; Kiran, 2015). The Sustainable Development Goals (SDGs) agreed at the Rio+20 UN Conference on Sustainable Development refl ect the linkages between poverty reduction, natural resource management and development, as well as local and global environmental challenges to collectively manage shared global environmental risks and to build resilience across all types of countries to contribute to inclusive and sustainable development, taking into account complex issues such as the interactions between food, water and energy security (OECD, 2015).Environmental sustainability is not a new subject, but rather, as stated by Field Museum, (2019); communities and early civilisations’ understanding of sustainability traces to the distant past and links with the Zhou dynasty in China (1100-171), as well as the Egyptian, Mesopotamian Greeks and Romans (Du Pisani, 2006). It is notable that the most serious problems facing the world today, such as water and food supply crises, extreme volatility in energy and food prices, rising greenhouse gas emissions, severe income disparity, chronic fi scal imbalances and terrorism (World Economic Forum, 2012) either stem from environmental mismanagement or inequality, or both (OECD, 2012). This demands the need for the implementation of the Green Growth Development agenda (African Development Bank, 2012) in which sustainable development projects are supported on the African continent. According to the AfDB (2013: 60),“Africa should seize opportunities for greener, more sustainable growth to become more resilient in the face of climate change. By incorporating green principles in development plans, African countries will extend access to water, energy and transport, boost agricultural productivity and create new jobs and expertise; they will also build sustainable cities and develop their natural resources while reducing waste
Indian South Africans as a middleman minority : historical and contemporary perspectives
26 April 2023
North West University

Johnson, Vernon D.

Beginning in the 1940s, a literature on middleman minorities emerged to demystify the intermediary economic niche that Jews had occupied in medieval Europe. They were viewed as ethnic entrepreneurs occupying the economic status gap. In the 1960s, scholars began to apply middleman minority theory to colonial societies and to American society. More recently, Coloureds in South Africa have been identified as a middleman minority of another type: semiprivileged proletarians occupying an economic status gap in labour between whites and Africans. A political status gap between whites and Africans, both seeking alliances to achieve hegemony, is also occupied by Coloureds. Among South African Indians, one finds ethnic entrepreneurs: a small shopkeeping and trading class from South Asia. But there are also Indian semi-privileged proletarians who emerged from the indentured labour population in the early twentieth century. This article employs a historical institutional approach to analyse political tensions among Indians, and examines the cleavage between Indians and other races over political rights vis-a vis the South African state. It also offers a typology contrasting ethnic entrepreneurs with semi-privileged proletarians in terms of the differing economic status gaps they occupy. Furthermore, it illustrates how Indians occupy a political status gap in a complex settler colonial society like South Africa.
Jan Smuts and the Bulhoek Massacre : race and state violence in the making of South Africa, 1919-1920s
26 April 2023
North West University

Ngqulunga, Bongani

The purpose of this article is to examine the role played by General JC Smuts, the prime minister of the Union of South Africa at the time, in the incident known as the Bulhoek Massacre which took place in May 1921. The discussion locates the Bulhoek incident in the broader context of Smuts’s attitude towards black people in South Africa. It explores his ideas and views on the subject of race, and scrutinises the policies that the government introduced under his premiership. It shows how he steered the country towards shoring up minority government and the political and economic exclusion, marginalisation and domination of African people in South Africa. In this it follows on the works of many other historians who have written in this vein and contend that the Bulhoek Massacre is the exemplar of Smuts’s views on the matter of race in South Africa.
Colour-blind attitudes of students at the North-West University, Potchefstroom Campus
03 May 2023
North West University

Ayford, Jaime-Lee;Zaaiman, Johan

Background: Colour-blind attitudes deny racial dynamics and can lead to resistance to transformation because there seems to be no need for it. This study investigated these attitudes amongst students at a university campus engaged with implementing its transformation agenda. Aim: Using a survey, the research determined the prevalence of colour-blind attitudes amongst students and evaluated the social factors that may have contributed to these attitudes. Setting: The research was conducted amongst undergraduates at the North-West University, Potchefstroom Campus, South Africa, in 2017. Methods: A literature review was conducted around the occurrence of colour-blind attitudes amongst students and the associated social factors. Race, gender, racial prejudice, just-world beliefs and social dominance orientation in particular were found to contribute to colour-blind attitudes. A quantitative survey was then conducted amongst a quota sample of 300 students. The data collected on the social factors and colour-blind attitudes were statistically analysed. Results: The students’ colour-blind attitudes were found to be moderate. The social factor of race correlated significantly with colour-blind attitudes, but gender did not. Racial prejudice presented a medium correlation with colour-blind attitudes but just-world beliefs and social dominance orientation only a small correlation. Conclusion: Colour-blind attitudes at the campus were related to race and racial prejudice. This demonstrates the need for students to be offered room to openly discuss and engage with race and issues concerning race. The difference between the findings in this study and extant literature indicates a necessity for further qualitative research to gain a more comprehensive understanding about racial issues amongst students at the North-West University, Potchefstroom Campus.
Aren't You Latino: Building Bridges upon Common Misperceptions
01 January 2000
University of Pennsylvania

Romero, Victor C.

This article addresses minority on minority oppression and itragroup animosity. The author discusses ways in which communities of color can use common misperceptions to their advantage as a bridge to building a larger community.
Racial Profiling: Driving While Mexican and Affirmative Action
01 January 2001
University of Pennsylvania

Romero, Victor C.

This Essay will focus on "racial profiling" not just in the way people think about the term - that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black" - but also in the context of "affirmative action - namely, using race as a factor in employment and educational decisions. More broadly, then, I want us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual" which moves us slightly away from more pejorative notions of the phrase that have seeped into the national consciousness.
On Elián and Aliens: A Political Solution to the Plenary Power Problem
01 January 2001
University of Pennsylvania

Romero, Victor C.

The poignant story of a little boy fished out of the sea after losing his mother to the elements captured the country's imagination and ignited a political firestorm. The Elián González saga drew conflicting opinions from nearly every branch of American local, state, and federal governments. This article takes no specific position on Elián's situation. Rather, this artivle values the González story for putting a human face on often faceless legal issues. More specifically, Elián's saga raises the following important question: When should the right of the human being to be treated as an individual trump the right of government to decide how to effectively manage the influx of groups of people into this country through the immigration laws? Part I of this article describes the difficulty in trying to effect substantive constitutional changes in immigration policy through judicial action. Part II presents a political alternative to the judicial solution. Part II also suggests and rebuts criticisms of the political proposal. Finally, this article concludes by briefly returning to the Elián González case to put the issues raised in proper perspective.
The Selective Deportation of Same-Gender Partners: In Search of the "Rara Avis"
01 January 2002
University of Pennsylvania

Romero, Victor C.

This article seeks to explore the possibility that a selective deportation of a same-gender partner who has overstayed her visa constitutes an outrageous case under the AADC test. Its modest goal is to discourage the INS from ever pursuing such a strategy, knowing that there are probably many who believe that same-gender overstays, even if civilly united in Vermont, are not the ideal candidates for "suspect class" status under U.S. constitutional law. That notwithstanding, common sense and sound doctrine suggest that, despite the many anti-gay and anti-immigrant decisions handed down over the last twenty years, the Court will not hesitate to halt egregious government conduct when the plaintiff is being deprived of equal rights and there is no legitimate countervailing reason to justify the discrimination. In the hypothetical mass deportation of same-gender overstays, this Article applies such an approach while breathing life into the as-yet-unidentified "outrageous" exception test created by the AADC Court.
Charter Insights for American Equality Jurisprudence
01 January 2002
University of Pennsylvania

Ross, Stephen F.

Although both the Canadian Charter and the United States Constitutions protect persons from denial of equal protection of the law, the interpretation of the broad language of the two equality guarantees has been quite different. The Supreme Court of Canada has adopted an approach of substantive equality, concluding that section 15 is designed to prevent the loss of human dignity that accompanies discrimination based on disadvantage and stereotype. At least with regard to race, a majority of the justices on the United States Supreme Court adhere to a jurisprudence of formal equality, concluding that the Fifth and Fourteenth Amendments prohibit - absent compelling justifications - any formal distinction, regardless of whether differential treatment results from racism or a sincere desire to ameliorate prior conditions of racial equality. This paper suggests that Canadian equality jurisprudence has developed over the last twenty years into a workable constitutional doctrine that deserves attention and, indeed, emulation in the United States. Although from a purely descriptive perspective there are a variety of historical and value-based differences between American and Canadian society that can explain the different constitutional doctrines developed in each country, the paper considers and rejects the hypothesis that these differences are so significant as to render Canadian insights irrelevant to the American context. The paper concludes that the Canadian approach is more faithful to a jurisprudence sensitive to the limited judicial activism called for by the landmark American decision in Carolene Products.
Devolution and Discrimination
01 January 2003
University of Pennsylvania

Romero, Victor C.

This essay explores the issue of whether discrimination against two historically disadvantaged groups - racial minorities, on the one hand, and gays and lesbians, on the other - might increase or decrease should the federal immigration power devolve to the individual states. I conclude that while the lack of uniformity that accompanies immigration law devolution might lead to undesirable results in welfare reform and criminal law enforcement, and would likely not stem the tide of racism, it might lead to the opening of opportunities for gay Americans to petition their binational partners for immigration benefits. Such a development would turn the state of Vermont into a solitary haven for binational same-gender unions, thereby improving upon the federal immigration code's desire to keep families together by extending the breadth of its reach to include others usually excluded. Devolution in that case would lead to more protection for immigrants than what is currently available under the status quo
DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage
01 January 2003
University of Pennsylvania

Kaye, David H.;Smith, Michael E.

Over the past decade, law enforcement authorities have amassed huge collections of DNA samples and the identifying profiles derived from them. Large DNA databanks routinely help to identify the guilty and to exonerate the innocent, but as the databanks grow, so do fears about civil liberties. Perhaps the most controversial policy issue in the creation of these databases is the question of coverage: Whose DNA profiles should be stored in them? The possibilities extend from convicted violent sex offenders to all convicted felons, to everyone arrested, to the entire population. This Article questions the rationales for drawing the line at all convicted offenders or at all arrestees. It suggests that such coverage results in sampling DNA disproportionately from racial minorities, which exacerbates racial tensions and undermines the preventative and investigative value of the databases. It argues that a population-wide database with strict privacy protections may supply the better answer to the coverage question, and to the privacy concerns raised by any government program to take and analyze individuals' DNA.Part I discusses two theories that might dictate which offenders should be included in these databases. The first theory holds that by virtue of a conviction, offenders forfeit the Fourth Amendment right to be free from unreasonable searches and seizures. This forfeiture-of-rights theory would confine the databases to convicted offenders, but it cannot be squared with settled constitutional principles. The second theory holds that because convicted offenders are more likely to re-offend than are other groups, they pose a special risk that justifies the incursion on their Fourth Amendment rights. Although this recidivism theory may seem more protective of individual liberties, it fails to constrict coverage to convicted offenders or even to arrestees.Part II considers extensions of coverage to various groups of people who have not been convicted of crimes. It suggests that the Constitution may permit DNA to be collected from persons who have only been arrested, and even from certain groups of persons who have neither been convicted nor arrested.Part III questions the desirability of limiting database coverage to convicted offenders, or to convicted offenders plus arrestees (or "suspects"). It notes that by restricting coverage to these groups, we are fast producing a racially distorted system in which, however lawfully the DNA samples are taken, they are taken disproportionately from members of racial minorities. We conclude that a population-wide database would be more effective and more fair than any system in which conviction or arrest is the threshold for database inclusion. We also indicate how such a system can be structured to protect personal privacy.
The Child Citizenship Act and the Family Reunification Act: Valuing the Citizen Child as Well as the Citizen Parent
01 January 2003
University of Pennsylvania

Romero, Victor C.

Leading civil rights advocates today lament the degree to which current immigration law fails to maintain family unity. The recent passage of the Child Citizenship Act of 2000 is a rare bipartisan step in the right direction because it grants automatic citizenship to foreign-born children of U.S. citizens upon receipt of their permanent resident status and finalization of their adoption. Congress now has before it the Family Reunification Act of 2001, which aims to restore certain procedural safeguards relaxed in 1996 to ensure that foreign-born parents are not summarily separated from their children, many of whom may be U.S. citizens. Because it usually takes both children and parents to create a family, my hope is that Congress will look just as favorably upon the seemingly more complex, but actually less extraordinary, measures suggested in the Family Reunification Act as it did with the Child Citizenship Act of 2000. My fear, however, is that despite its promised gains, embedded within the Child Citizenship Act of 2000 are assumptions that will make passage of key parts of the Family Reunification Act difficult if not impossible. One of these assumptions is that criminal adult legal permanent residents (LPRs) are presumptively deportable unless they happen to be a citizen's adopted child.
Critical Race Theory in Three Acts: Racial Profiling, Affirmative Action, and the Diversity Visa Lottery
01 January 2003
University of Pennsylvania

Romero, Victor C.

The usual debates surrounding multiculturalism pit individual rights against group grievances in a variety of contexts including racial profiling, affirmative action, and the diversity visa lottery, often with seemingly contradictory results. Liberals often favor affirmative action but decry both racial profiling and the diversity visa lottery, while many conservatives hold the opposite view. Critical race theory provides a unique alternative to stock liberal and conservative arguments, allowing one to draw meaningful and persuasive distinctions among these seminal issues surrounding law enforcement, education, and immigration policy.
Proxies for Loyalty in Constitutional Immigration Law: Citizenship and Race after September 11
01 January 2003
University of Pennsylvania

Romero, Victor C.

The purpose of this article is to share some thoughts about using citizenship and race as proxies for loyalty in constitutional immigration discourse within two contexts: one historical and one current. The current context is the profiling of Muslim and Arab immigrants post-September 11, and the historical context is the distinction the Constitution draws between birthright and naturalized citizens in the Presidential Eligibility Clause.
Decoupling 'Terrorist' from 'Immigrant': An Enhanced Role for the Federal Courts Post 9/11
01 January 2003
University of Pennsylvania

Romero, Victor C.

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in targeting noncitizens is criminal prosecution for terrorism and subversion. Second, we can well expect that Ashcroft will dispatch criminal law enforcement and immigration agents that might be tempted, at the margin, to play fast and loose with suspects' civil liberties, as evidenced by the FBI's deceptive practices in over 75 post-9/11 cases. Third, history is replete with examples of federal government zealotry, and the federal courts would do well not to bow to majority sentiment especially when racial, ethnic, religious, gender, and age stereotypes are reinforced at the expense of the egalitarian ideal. The legacy of Brown v. Board of Education should be that the Supreme Court will never reaffirm Korematsu's principles. And fourth, controlling political overreaching enhances our standing abroad.
Race, Immigration, and the Department of Homeland Security
01 January 2004
University of Pennsylvania

Romero, Victor C.

Despite the wisdom of separating the service and enforcement functions of our immigration bureau, the new tripartite system under the auspices of the Department of Homeland Security risks fueling the "immigrant Arab as terrorist" stereotype, rather than helping to re-establish the reality that noncitizen terrorists, like U.S. citizen ones, are a rare species.
Are Filipina/os Asians or Latina/os?: Reclaiming the Anti-Subordination Objective of Equal Protection After Grutter and Gratz
01 January 2005
University of Pennsylvania

Romero, Victor C.

In this piece, I explore two avenues of political action - self-identification for affirmative action purposes and longer-term solutions to educational inequity - in an attempt to develop a coherent and effective post-Grutter and Gratz strategy for promoting equal educational opportunities consistent with the demands of equal protection. I use the experiences of Filipina/o-Americans as a vehicle for exploring these issues. I hope to show that diversity as the underlying goal of affirmative action fails to capture the core of modern equal protection jurisprudence implicit in Brown v. Board of Education and Loving v. Virginia: that treating all races equally requires that policymakers take steps to undermine white supremacy - that the cornerstone of equality is the elimination of subordination. After Grutter and Gratz, we would do well to recover and lift up that anti-subordination ideal, and I contend that Filipina/o-Americans are particularly well-positioned to lead a coalitional effort toward that end.
Immigration: Mind Over Matter
01 January 2005
University of Pennsylvania

Wadhia, Shoba S

This article examines the current field of debate and legislation on immigration reform and related due process issues. "Comprehensive Immigration Reform" is an expression in the immigration debate and embraces five tenets. First, reform addresses the eleven million people who are living in the United States without documentation and specifically provide them with an incentive to make themselves known to the government, register for some kind of work visa, and if they wish, get on the path to permanent residence. Second, reform embodies what lobbyists in Washington, D.C. call the "future flow," which corresponds to the flow of people who enter the United States based on the labor demands of the United States market and the desire by many to earn a decent living or reunited with a loved one. Third, reform deals with the archaic family and employment immigration quotas in the Immigration and Nationality Act (INA) that have led to unconscionable waiting lines for immigrants who are eligible to apply for legal status based on a family or employer relationship, but who are unable to receive the actual visa because the statutory caps have been met. For example, children and spouses of lawful permanent residents from Mexico must wait for more than seven years before they can be reunited with their family in the United States. Fourth, reform takes on a targeted enforcement plan that operates in tandem with our tradition as a nation of immigrants. Finally, reform imparts a package of safeguards and protections to ensure that immigrants do no displace United States workers who are willing and able to perform a particular job, and that all workers, immigrants and United States born alike, receive equal wages, worker conditions, and bargaining rights.
Alienated: Immigrant Rights, the Constitution, and Equality in America
01 February 2005
University of Pennsylvania

Romero, Victor C.

Throughout American history, the government has used U.S. citizenship and immigration law to protect privileged groups from less privileged ones, using citizenship as a "legitimate" proxy for otherwise invidious, and often unconstitutional, discrimination on the basis of race. While racial discrimination is rarely legally acceptable today, profiling on the basis of citizenship is still largely unchecked, and has in fact arguable increased in the wake of the September 11 terror attacks on the United States. In this thoughtful examination of the intersection between American immigration and constitutional law, Victor C. Romero draws our attention to a "constitutional immigration law paradox" that reserves certain rights for U.S. citizens only, while simultaneously purporting to treat all people fairly under constitutional law regardless of citizenship. - From the Publisher
The Encyclopedia of American Civil Liberties
01 January 2006
University of Pennsylvania

Finkelman, Paul;Romero, Victor C.

Victor Romero contributed the following encyclopedia entries: "Civil Liberties of Aliens"; "Race and Immigration"; "Criminal Law/Civil Liberties and Noncitizens in the U.S."; "Illegitimacy and Immigration"; "Homosexuality and Immigration"; "Ambach v. Norwick"; "United States v. Verdugo-Urquidez"; "Fiallo v. Bell"; "INS v,. Chadha"; and "In re Griffiths." This Encyclopedia on American history and law is the first devoted to examining the issues of civil liberties and their relevance to major current events while providing a historical context and a philosophical discussion of the evolution of civil liberties. - From the Publisher
Antitrust and Inefficient Joint Ventures: Why Sports Leagues Should Look More Like Mcdonald's and Less Like the United Nations
01 January 2006
University of Pennsylvania

Ross, Stephen F.;Szymanski, Stefan

Antitrust law generally favors joint ventures that allow separate firms to integrate economic functions while continuing to compete as independent entities. In evaluating the risks to competition that joint ventures could pose, insufficient attention has been paid to the risk that joint ventures with market power may be structured so that the parties, acting in their independent self interest, will prevent the venture from providing innovative goods and services responsive to consumer demand. In these cases, it may be better if a single firm provided services rather than having them provided jointly.We illustrate this problem by challenging the conventional wisdom that sports leagues must be organized and run by clubs participating in the sporting competition. The fastest-growing competition in the United States is organized by NASCAR, a distinct business entity that is not controlled by the drivers who participate in stock car races. We suggest that the club-run sports leagues in the major North American sports impose significant costs on sports fans in a variety of markets. If instead, relevant rules were decided by an independent Board of Directors of "NFL, Inc., " "MLB, LLC, " or the like, we suggest that franchise allocation, broadcast rights, effective club management, marketing and sponsorship, and labor markets would be regulated more efficiently and more responsively to consumer demand.Our analysis blames significant transactions costs for the inability of club owners who run leagues to reach efficient, consumer-responsive results. These same transaction costs may prevent an efficient restructuring of sports leagues. Thus, we apply conventional antitrust doctrine in innovative ways to argue that courts could view the current structure as an unlawful refusal of club owners to participate in a sporting competition that they themselves cannot control, which we argue unreasonably restrain trades and unlawfully maintains monopoly power.
The Policy and Politics of Immigrant Rights
01 January 2007
University of Pennsylvania

Wadhia, Shoba S

This article examines how immigration policies over the past decade have affected immigrant rights, scrutinizes administrative and legislative efforts to improve or eliminate these measures, and makes recommendations for advancing a due process agenda in the future. The first part of this article analyzes administrative and legislative proposals under four themes: 1) checks and balances, 2) punishment does not fit the crime, 3) judicial review, and 4) detention. The second part of this article identifies efforts to redress measures emanating from the 1996 immigration laws and policies issued after September 11, 2001. For example, it analyzes legislation introduced in the House of Representatives and the Senate to restore discretion, efforts to engage the Department of Homeland Security on the complaint process and treatment of immigration detainees, and Supreme Court decisions raising issues on the interpretation of "aggravated felony." Part three of this article summarizes the legislative debate around "comprehensive immigration reform" and attempts made by select Senators in 2006 to add basic safeguards in the legislation, such as expanded protections for asylum seekers; discretionary waivers for immigrants who can show strong equities and facts in their cases; and restrictions on retroactively applying new immigration penalties. Part four of this article describes why some efforts to restore basic protections for immigrants have been challenging for advocates and Members of Congress, and makes recommendations for moving a due process agenda forward.
Under Arrest: Immigrants' Rights and the Rule of Law
01 January 2008
University of Pennsylvania

Wadhia, Shoba S

The discussion is broken down into four parts. First, I will review some basic historical points and terminology. Second, I will describe some of the government's immigration enforcement policies following the comprehensive immigration reform ("CIR") debate and the human consequences and concerns behind such policies. Third, I will describe the relevant legal authorities for arresting and detaining noncitizens. Finally, I will provide some recommendations for moving forward.
Criminal Procedure in Perspective
01 January 2008
University of Pennsylvania

Kinports, Kit

This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view - the police officer's or the defendant's - it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue or by the attributes of subjective and objective tests themselves. The Article then centers on the one Supreme Court opinion in this area to address the question of "subjective" objective standards, Yarborough v. Alvarado, 541 U.S. 652 (2004), where the Court intimates that a minor defendant's age might not be a relevant factor in applying the objective "reasonable suspect" test used to define custody for purposes of Miranda. The Article criticizes the Court's simplistic suggestion that considering any of a defendant's characteristics may automatically turn an objective inquiry into a subjective one, and then discusses the issue of age that the Court faced in Alvarado as well as the questions of race that pervade our criminal justice system. In the end, the Article does not advocate that the Court choose one perspective for all criminal procedure cases, or even necessarily for all cases interpreting a particular constitutional provision, but instead that the Court adopt a principled approach to the question of perspective based on the interests a particular constitutional protection is designed to further. The constitutional provisions intended to deter abusive police practices should focus on the party to be deterred, the police, and in order to maximize their deterrent impact ought to incorporate both subjective and objective considerations. On the other hand, the perspective that should control when interpreting constitutional doctrines whose goal is to promote voluntary decisionmaking and/or dispel coercion depends on whether one subscribes to the "consent model" or the "coercion model." The consent model, which is aimed at preserving the defendant's right to make a free and unconstrained choice, should turn on the defendant's point of view. The coercion model, by contrast, is meant to discourage the police from using improperly coercive techniques and thus, like the deterrence-based constitutional rights, ought to focus on the police. Unless the Court takes the preliminary step of articulating a consistent position on the issue of perspective for criminal procedure cases, we can continue to expect oversimplified decisions like Alvarado rather than meaningful contributions to the controversies surrounding the reasonable person standard.
U.S. Immigration Policy: Contract or Human Rights Law?
01 January 2008
University of Pennsylvania

Romero, Victor C.

The current immigration debate often reflects a tension between affirming the individual rights of migrants against the power of a nation to control its borders. An examination of U.S. Supreme Court precedent reveals that, from our earliest immigration history to the present time, our immigration policy has functioned more like contract law than human rights law, with the Court deferring to the power of Congress to define the terms of that contract at the expense of the immigrant's freedom.
Everyday Law for Immigrants
01 December 2008
University of Pennsylvania

Romero, Victor C.

Immigration is one of the most controversial topics of the decade. Citizens and pundits from across the political spectrum argue for major and disparate changes to American immigration law. Yet few know what American immigration law actually is and how it functions. Everyday Law for Immigrants is an ideal guide for U.S. citizens who want a better understanding of our immigration laws as well as for migrants who make the United States their home. Romero deftly and comprehensively explains the basic challenges immigrants and foreign nationals face, not only within formal immigration policy, but also within American domestic law generally, including rules promulgated by federal, state, and local entities that affect noncitizens. A concise and accessible primer for interested citizens, noncitizens, and their advocates, this book provides a bird's eye view of U.S. immigration history, practice, and procedure, and constructively addresses the many legal issues in areas such as education, housing, and employment that affect foreigners who reside here. - From the Publisher
The Role of Prosecutorial Discretion in Immigration Law
01 January 2010
University of Pennsylvania

Wadhia, Shoba S

The concept of "prosecutorial discretion" appears in the immigration statute, agency memoranda and court decisions about select immigration enforcement decisions. Prosecutorial discretion extends to decisions about which offenses or populations to target; whom to stop, interrogate, and arrest; whether to detain or release a noncitizen; whether to initiate removal proceedings; and whether to execute a removal order; among other decisions. Similar to the criminal context, prosecutorial discretion in the immigration context is an important tool for achieving cost-effective law enforcement and relief for individuals who present desirable qualities or humanitarian circumstances. Yet there is a dearth of literature on the role of prosecutorial discretion in immigration law. This article describes the theory, history, and current standard of prosecutorial discretion in immigration matters. Drawing on important and relevant lessons from the criminal and administrative law paradigms, this article shows why the existing model of prosecutorial discretion in immigration affairs is inadequate and in some instances misguided. Recognizing the striking impact of arbitrary immigration enforcement decisions on undocumented noncitizens and their families, this article advocates for a bolder standard on prosecutorial discretion and greater mechanisms for oversight and accountability when such standards are ignored. Moreover, this article recommends that the Department of Homeland Security recognize select acts of prosecutorial discretion as a substantive rule, where the actions operate as a de facto benefit to individuals who satisfy an identifiable set of criteria and favorable equities. This article is divided into five sections: 1) Legal Background and History, 2) Lessons from Criminal Law, 3) Lessons from Administrative Law, 4) Limitations of Prosecutorial Discretion, and 5) Recommendations. Some overlap was unavoidable.
Decriminalizing Border Crossings
01 January 2010
University of Pennsylvania

Romero, Victor C.

An international border crosser should only be deemed a criminal if the United States government can prove that, with requisite criminal intent, she engaged in an act aside from crossing the border that would constitute a crime. No longer should crossing the border be a strict liability criminal offense. Doing so will restore balance to the civil immigration system, conserve scarce enforcement resources to target truly criminal behavior, enhance our standing abroad, and help heal our racially-polarized discourse on immigration policy.
Christian Realism and Immigration Reform
01 January 2010
University of Pennsylvania

Romero, Victor C.

Drawing upon President Barack Obama’s admiration of Reinhold Niebuhr’s work, this Essay outlines a Protestant, Christian realist approach toward immigration policy, with specific focus on the role of the executive in providing providential leadership. Embracing realism in its political, moral, and theological dimensions, Christian realism offers a pragmatic, yet optimistic, alternative to secular liberalism’s faith in reason by striving instead to adhere to God’s guidance on matters, taking into account the fundamentally flawed nature of man. The specific policy prescriptions described here mirror the twin virtues of Christian realism by promoting the hope in pursuit of the peaceable kingdom and the humility to acknowledge the fallibility of man in crafting the less-than-perfect, penultimate answer. Opportunities for exercising effective executive leadership will be discussed, from negotiating the proper role of states and localities to the promotion of comprehensive immigration reform, preferring immigrant integration to stringent law enforcement as the better means to further hospitality to the stranger.
Business as Usual: Immigration and the National Security Exception
01 January 2010
University of Pennsylvania

Wadhia, Shoba S

Javaid Iqbal is a native and citizen of Pakistan and a Muslim. After moving to the United States, Iqbal worked as a cable television installer on Long Island. Iqbal was one among hundreds of men apprehended and detained by the United States Department of Justice in the weeks that followed the September 11, 2001 attacks. Iqbal was held in a federal prison in Brooklyn, New York called the Metropolitan Detention Center (MDC), for more than one year. In January 2002, Iqbal was transferred to the maximum security section of the jail known as the Administrative Maximum Special Housing Unit (ADMAX SHU). Following his deportation to Pakistan, Iqbal filed a federal lawsuit in the District Court for the Eastern District of New York against several federal government officials, including the former Attorney General John Ashcroft and the former head of Federal Bureau for Investigations Robert S. Mueller III, claiming that they were responsible for the abuses he suffered while at MDC. While at MDC, Iqbal alleged that he suffered the following abuses “numerous instances of excessive force and verbal abuse, unlawful strip and body cavity-searches, the denial of medical treatment, the denial of adequate nutrition, extended detention in solitary confinement, the denial of adequate exercise, and deliberate interference with [his] rights to counsel and to exercise of [his] sincere religious beliefs,” among other things. Iqbal alleged that he was singled out for mistreatment based on race, religion and national origin and also “subjected to a pattern and practice of cruel, inhuman, and degrading treatment in violation of the United States Constitution, federal statutory law, and customary international law.” Over the government’s objections that Iqbal’s legal claim was insufficiently stated and that in any event they were entitled to “qualified immunity” both the district court and the Second Court of Appeals found that Iqbal’s allegations were adequate. The Supreme Court granted certiorari in Iqbal, and in reversing the Second Circuit, concluded that Iqbal failed to allege a “plausible” link between the officials’ conduct and the abuses he said he had suffered. Specifically, the Court found that under Twombly, Iqbal’s complaint “has not nudged his claims of invidious discrimination across the line from conceivable to plausible.” Since the Supreme Court’s decision was handed down on May 18, 2009, there has been a flurry of news articles, trade journals, blogs, law reviews and even proposed legislation responding to the striking impact of Iqbal on the future of the notice pleading standard. Characterizing Twombly as a “Rule 8 plus” standard, law professor Anthony Renzo argues that since the new standard requires a level of specification that only the government possesses the effect of the Iqbal decision is that plaintiffs are paralyzed from seeking judicial remedies when senior level government officials have breached the Constitution. This Article draws attention to the role of immigration in Iqbal, and argues that far from creating a new standard in the immigration realm, the Iqbal decision perpetuates a longstanding “Business As Usual” standard that permits the federal government to create and sustain laws that selectively discriminate against foreign nationals during times of national security, with minimal accountability. More specifically, the “Business As Usual” standard can be defined by the sum of the Article’s parts, namely 1) an overreaching set of laws adopted by Executive and/or Legislative branch during times of national security; 2) a tangible set of harms falling on particular foreign nationals as a consequence of these laws; 3) blanket permission to the government to sustain such laws without any evidence of improved national security or stated benefits; 4) less than successful attempts by government ombudsmen to ameliorate the above-stated harms; and 5) extreme deference by the courts to the “political branches” in recognition of the plenary power doctrine.
Interrogating Iqbal: Intent, Inertia, and (a Lack of) Imagination
01 January 2010
University of Pennsylvania

Romero, Victor C.

In Ashcroft v. Iqbal, the Court reaffirmed the long-standing equal protection doctrine that government actors can only be held liable for discriminatory conduct when they purposefully rely on a forbidden characteristic, such as race or gender, in promulgating policy; to simply know that minorities and women will be adversely affected by the law does not deny these groups equal protection under the law. This Essay interrogates this doctrine by taking a closer look at Iqbal and Feeney, the thirty-year-old precedent the majority cited as the source of its antidiscrimination standard. Because Feeney was cited in neither of the lower court opinions, its reappearance in Iqbal signals the Court’s reluctance to intervene in matters (even tangentially) related to national security even if the government’s allocation of burdens and benefits perpetuates societal racial and gender privileges. In Feeney, the Court upheld a Massachusetts law granting benefits to war veterans, even though the state legislature was aware that less than two percent of the veterans at the time were women, owing in part to women’s exclusion from military service; thirty years later, the Iqbal Court dismissed constitutional claims against two high ranking federal officials responsible for orchestrating modern-day round-ups of noncitizens from so-called terrorist-breeding states, even though these officials knew their policies would disproportionately burden individuals of a certain racial, religious, and citizenship background. Both cases illustrate the inertia that has befallen the Court as it appears unwilling to engage in the traditional balancing of government interests against individual rights on the theory that the disaffected minorities must essentially prove that lawmakers bore them the equivalent of ill will or animus - in Feeney’s words, reiterated verbatim in Iqbal: that the decisionmakers chose a course of action “because of, not merely in spite of, [the action’s] adverse effects upon an identifiable group.” By taking a closer look at the challenged laws in Feeney and Iqbal, by examining the Court’s choice to defer to the political branches’ decisions to press ahead despite the laws’ effects upon minority groups, and by reminding ourselves of times when the Court’s imagination and innovative thinking stretched beyond the confines of formal rational basis review, this Essay explores the limits inherent in deferring to political actors, especially when we know they are consciously perpetuating privilege, furthering discrimination by default. Even in matters that arguably relate to national security and foreign policy, the Court should never shirk its responsibility to closely scrutinize discriminatory governmental policies that were deliberately adopted.
The 9/11 Effect and its Legacy on U.S. Immigration Laws: Essays, Remarks, and Photographs
16 September 2011
University of Pennsylvania

Penn State Law Immigrants' Rights Clinic;Penn State School of International Affairs

An anthology of 9/11 reflections released today by the Penn State Law Center for Immigrants’ Rights and the Penn State School of International Affairs concentrates on the impact of the attacks on the lives of immigrants and immigration policy, providing both a report card and ideas for the future.
Response, the Obama Administration, In Defense of DACA, Deferred Action, and the DREAM Act
01 January 2012
University of Pennsylvania

Wadhia, Shoba S

This essay responds to “The Obama Administration, the DREAM Act and the Take Care Clause” by Robert J. Delahunty and John C. Yoo. Though I credit Yoo and Delahunty for considering the relationship between the DACA program and the President’s duties under the “Take Care” clause, they miss the mark in at least three ways: 1) Contrary to ignoring immigration enforcement, the Obama Administration has executed the immigration laws faithfully and forcefully; 2) Far from being a new policy that undercuts statutory law, prosecutorial discretion actions like DACA have been pursued by other presidents, and part of the immigration system for at least 35 years; 3) Despite the unsurprising fact that some people who could qualify for the congressionally-created DREAM Act possess the kinds of equities that make them attractive for a prosecutorial discretion program like DACA, it is simply inaccurate to equate the limbo status offered with a grant under DACA to the secure status that attaches to those eligible under the congressional solution known as the DREAM Act. These three points are analyzed in greater detail in this essay. While the DACA program “feels” like something more or greater in scope than previous acts of prosecutorial discretion, the authority being exercised by the agency is no greater or different. It is dangerous to argue that the potential size of the class that stands to benefit from DACA or the greater transparency somehow makes the DACA program legally unsound or different. Conceivably, a future Administration could place a cap on the number of applications that can be approved under DACA but this is a policy question, not a constitutional one.
Sharing Secrets: Examining Deferred Action and Transparancy in Immigration Law
01 January 2012
University of Pennsylvania

Wadhia, Shoba S

This Article is about deferred action and transparency in related immigration cases falling under the jurisdiction of the Department of Homeland Security (DHS). While scholars from other genres have written extensively on the topic of prosecutorial discretion, the subject is largely absent from immigration scholarship, with the exception of early research conducted by Leon Wildes in the late 1970s and early 2000s, and a law review article I published in 2010 outlining the origins of prosecutorial discretion in immigration law and related lessons that can be drawn from administrative law and criminal law. That article ends with specific recommendations for the agency that include both codifying deferred action into a regulation and recognizing it as a formal benefit as opposed to a matter of “administrative convenience,” streamlining the array of existing memoranda of prosecutorial discretion floating within each DHS agency, and increasing oversight of prosecutorial discretion to ensure that officers and agencies that fail to exercise prosecutorial discretion by targeting and enforcing the laws against low-priority individuals are held accountable. In this Article, and building upon recommendations published in The Role of Prosecutorial Discretion in Immigration Law, I describe the state of prosecutorial discretion and deferred action in particular by surveying the political climate, public reaction, and advocacy efforts in the last two years. I also chronicle my repeated Freedom of Information Act (FOIA) requests to DHS for information about deferred action, and the stumbling blocks I encountered during this 19-month journey. The Article will show that while deferred action is one of the very few discretionary remedies available for noncitizens with compelling equities, it currently operates as a secret program accessible only to elite lawyers and advocates. Moreover, the secrecy of the program has created the (mis)perception by some that deferred action can be used as a tool to legalize the undocumented immigrant population or ignore congressional will. This article explains why transparency about deferred action is important and makes related recommendations that include, but are not limited to, subjecting the program to rulemaking under the Administrative Procedures Act, issuing written decisions when deferred action is denied, posting information about the application process, and maintaining statistics about deferred action decisions. Without these remedies, noncitizens that possess similarly relevant equities will face unequal hardships. Background: The Department of Homeland Security is a cabinet-level agency with jurisdiction over many immigration functions. The Department has jurisdiction over immigration “services” such as asylum, citizenship, and green card applications; border-related enforcement actions such as border patrol and inspections; and interior enforcement activities, such as the detention and removal of noncitizens. The immigration court system is called the Executive Office for Immigration Review and rests within the Department of Justice. Removal proceedings are initiated by DHS and operate as adversarial hearings at which U.S. Immigration and Customs Enforcement attorneys represent the DHS. On the other hand, noncitizens are entitled to find their own lawyers at no expense to the government. Many noncitizens in removal proceedings are unrepresented because the proceeding itself is considered “civil” and without guaranteed safeguards like court-appointed counsel. At a removal proceeding, an Immigration Judge reviews allegations and charges with the noncitizen defendant, enters pleas, and if appropriate presides over applications for relief from removal such as asylum, adjustment of status, and cancellation of removal. The noncitizen bears the burden of proving that she is eligible for such relief. Decisions by the Immigration Judge may be appealed with the Board of Immigration Appeals. Not every noncitizen residing or entering the United States without legal authority is placed in removal proceedings. Some are removed expeditiously by the Department through other means, while others are considered for prosecutorial discretion. A favorable exercise of “prosecutorial discretion” identifies the Department of Homeland Security’s authority to not assert the full scope of the agency’s enforcement authority in each and every case. The Department’s motivations for exercising prosecutorial discretion are largely economic and humanitarian. According to the agency’s own statistics, ICE has the resources to remove less than 4% of the total undocumented population. Moreover, many individuals and groups who present redeeming qualities such as lengthy residence, employment or family ties in the U.S., and/or intellectual, military, or professional promise are living in the U.S. vulnerable to immigration enforcement and without a statutory vehicle for legal status. In the first two years of the Obama Administration, such humanitarian cases have swelled in the wake of congressional stalemates over even discrete immigration reforms. At one time prosecutorial discretion was called “nonpriority” and later “deferred action,” but today, prosecutorial discretion is associated with many different actions by the government. For example, a DHS officer can exercise favorable discretion by granting a temporary stay of removal, joining in a motion to terminate removal proceedings, granting an order of supervision, cancelling a Notice to Appear, or granting deferred action. Prosecutorial discretion can also be exercised during different points in the enforcement process, including, but not limited to, interrogation, arrest, charging, detention, trial, and removal.
Gypsies, Tramps & Thieves: What Europe's Romanies Can Teach the United States about Crime-Motivated Immigration Reform
23 April 2012
University of Pennsylvania

Sievers, Allie

This comment proposes that the United States could learn a great deal about the dangers of extreme immigration policy-making by looking to the European states and their dealings with the Romani, specifically the French expulsions of the Romani in 2010. Through this lens, this comment analyzes flaws in the U.S.’ crime-motivated immigration enforcement programs, and argues that the U.S. needs to move quickly to remedy flaws in immigration enforcement before it repeats many of the mistakes that led to the current condition of Europe’s Romanies and creates its own class of un-integrated ethnic minorities.
The NSEERS Effect: A Decade of Racial Profiling, Fear, and Secrecy
04 June 2012
University of Pennsylvania

Penn State Law Immigrants' Rights Clinic;Rights Working Group

n the wake of the tragic attacks of September 11, 2011, the landscape of immigration law and policy in the United States changed dramatically as the government scrambled to create counterterrorism programs to respond to potential national security threats. One program is the National Security Entry-Exit Registration System (NSEERS) or "special registration" that was initiated by the Department of Justice in 2002 and inherited by the Department of Homeland Security in 2003. NSEERS served as a tool that allowed the government to systematically target Arabs, Middle Easterners, Muslims, and South Asians from designated countries for advanced scrutiny. ...The purpose of this report is to analyze the impact of NSEERS in its current form and make recommendations for meaningful reform.
The Immigration Prosecutor and the Judge: Examining the Role of the Judiciary in Prosecutorial Discretion Decisions
01 January 2013
University of Pennsylvania

Wadhia, Shoba S

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these sections; and the effects of reading a decade-plus shelf of memoranda by the immigration agency declaring that no prosecutorial discretion provides a procedural or substantive benefit or a right. The role of prosecutorial discretion in immigration matters is well established, and generally refers to the agency’s determination about whether or not the immigration laws should be enforced against a particular individual or group of persons. The theory of prosecutorial discretion rests on both humanitarian and monetary considerations. First, prosecutorial discretion recognizes that certain noncitizens bearing positive attributes and qualities have no formal relief available under the immigration laws. Second, prosecutorial discretion acknowledges that the number of noncitizens who are technically “deportable” under the immigration laws is much larger than the immigration agency can successfully handle with its available resources. More specifically, prosecutorial discretion may be exercised by DHS at any stage of immigration enforcement, including, but not limited to, interrogation, arrest, charging, detention, removal proceedings, on appeal, or after a removal order has become final. Building upon my research on the role prosecutorial discretion in immigration law, this Article examines the role of the judiciary in prosecutorial discretion decisions. This Article begins with providing an overview about the immigration process generally, and of prosecutorial discretion in particular. Part II examines the normative arguments about judicial review over immigration decisions. Part III of this Article describes the legal framework for judicial review of agency actions generally and prosecutorial discretion decisions particularly. Part IV examines a handful of federal circuit court decisions applying the judicial review scheme outlined in the governing statutes to discretionary immigration decisions, and challenges the appropriateness of applying Heckler v. Chaney to every prosecutorial discretion decision in the immigration context. Part V analyzes the potential for judicial review over select prosecutorial discretion decisions and offers related recommendations.
Reading (into) Windsor: Presidential Leadership, Marriage Equality, and Immigration Policy
01 January 2013
University of Pennsylvania

Romero, Victor C.

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as opposite-sex ones is a model of presidential leadership on what would otherwise be a controversial issue. While some might be concerned that the executive branch is overstepping its bounds by creating a de facto national immigration policy in the absence of specific congressional fiat and in the midst of a robust national debate over marriage equality, President Obama's directive embraces the promise of integrative egalitarianism, the hallmark of our post-Brown equality jurisprudence, by setting forth an inclusive, uniform federal policy that enhances, rather than diminishes, equality for all.
My Great FOIA Adventure and Discoveries of Deferred Action Cases at ICE
01 January 2013
University of Pennsylvania

Wadhia, Shoba S

This Article describes my adventures in FOIA litigation and analyzes deferred action data collected informally by 24 ICE field offices between October 1, 2011, and June 30, 2012. This Article also offers recommendations for the agency on data collection, recordkeeping, and transparency in deferred action cases. Deferred action is a form of prosecutorial discretion that can be granted at any stage of the immigration enforcement process and historically has been applied both to people who meet group characteristics and on an individual basis in compelling humanitarian circumstances. The theory behind deferred action and prosecutorial discretion more generally is to enable an agency to prioritize its limited resources and also protect the most sympathetic cases from removal. The benefits associated with deferred action are not merely conjectural, as a grant can enable the noncitizen to apply for work authorization if she can show economic necessity and, in some cases, receive a state driver’s license and limited benefits from a state. While scholarship is rife with details about the history and evolution of deferred action in immigration law, the data regarding individuals who are processed for deferred action and transparency about the deferred action program by the agency has been lacking. Moreover, the enhanced tools the USCIS has created for sharing information about DACA (Deferred Action for Childhood Arrivals) and steps by Immigration and Customs Enforcement (ICE) to track deferred action cases offers a new paradigm through which to discuss why transparency matters.
Ethnic Conflict: An Organizational Perspective
19 April 2013
University of Pennsylvania

Asal, Victor;Wilkenfeld, Jonathan

To talk about the behavior of others is to generalize especially if that behavior is perceived to be negative. As researchers who have studied ethnic discrimination and ethnic conflict for close to two decades, we have noticed, anecdotally at least, that this penchant for generalization is rampant in discussions of ethnic politics. Journalists and academics tend to talk about one or another ethnic group’s involvement in violence without specifying a political organizational agent. This kind of generalization is a serious obstacle to understanding conflicts and identifying solutions because it prevents policymakers and academics from getting at the messy reality of ethnic politics—especially when they become contentious or violent. This article explores how organizations often change their policies and shift back and forth between violent and nonviolent strategies, occasionally adopting both at the same time. In the process, this article provides a counter-balance to generally accepted wisdom concerning the relationship between ethnicity and conflict.
To File or Not to File a Notice to Appear: Improving the Government's Use of Prosecutorial Discretion
22 October 2013
University of Pennsylvania

Penn State Law Immigrants' Rights Clinic

A report by the Penn State Law Immigrants' Rights Clinic that highlights the rate and circumstances surrounding Notice to Appear (NTA) filings at the immigration court.
The Case of Christmas Island: How International Law Affects the Australian-Malaysian Refugee Deal
15 November 2013
University of Pennsylvania

Pereira, Ria

In July 2011, Australia and Malaysia entered into an arrangement in which Australian asylum seekers would be removed to neighboring Malaysia to have their asylum claims processed. Following widespread criticism in the media, Australia’s High Court ruled that such a deal violated Australia’s refuges protection laws. While this ruling should have put an end to the deal, Australia’s Immigration Minister indicated that the agreement might nevertheless be feasible. Policy makers proposed amending Australian domestic immigration laws to allow the deal to go forward unencumbered. A bill to amend Australia’s Migration Act was subsequently introduced. As it currently stands, Australian law and international obligations are in agreement: the Malaysian deal would be improper. However, officials within the Australian government propose disrupting this synchronicity by amending the country’s internal laws. This comment addresses the interplay between Australia’s internal laws and its international obligations and proposes that an amendment to Australia’s Migration Act would not serve as panacea to such a proposed deal. While amending the Migration Act has the effect of overturning the discrete High Court ruling declaring the Malaysian deal improper, Australian courts have intimated that the country’s international obligations branch much further and are not so easily set aside.
The Rise of Speed Deportation and the Role of Discretion
01 January 2014
University of Pennsylvania

Wadhia, Shoba S

In 2013, the majority of people deported never saw a courtroom or immigration judge. Instead, they were quickly removed by the Department of Homeland Security via one of several procedures collectively referred to as “speed deportation.” The policy goals of speed deportation are economic; these processes save government resources from being spent on procedural safeguards such as a trial attorney, immigration judge, and a fundamentally fair hearing. Higher deportation numbers may also benefit the image the government seeks to portray to policymakers who support amplified immigration enforcement. However, the human consequences of speed deportation are significant and can result in the ejection of people who would otherwise qualify for relief before an immigration judge or otherwise present strong equities like family ties, long-term residence, and steady employment in the United States. Moreover, the risk that the government may wrongly classify a person as a candidate for speed deportation is more than a remote possibility. This Article examines deportations resulting from the expedited removal, administrative removal, and reinstatement of removal orders programs and the extent to which the government has discretion to give individuals who present compelling equities, including eligibility for relief, a more complete court proceeding before an immigration judge. This Article ends with recommendations the Department of Homeland Security can take to provide a "day in court" for such individuals.
A Meditation on Moncrieffe: On Marijuana, Misdemeanants, and Migration
01 January 2014
University of Pennsylvania

Romero, Victor C.

This essay is a brief meditation on the immigration schizophrenia in our law and legal culture through the lens of the Supreme Court’s latest statement on immigration and crime, Moncrieffe v. Holder. While hailed as a “common sense” decision, Moncrieffe is a rather narrow ruling that does little to change the law regarding aggravated felonies or the ways in which class and citizenship play into the enforcement of minor drug crimes and their deportation consequences. Despite broad agreement on the Court, the Moncrieffe opinion still leaves the discretion to deport minor state drug offenders in the hands of the federal immigration bureaucracy. However, if the current debate among the states regarding the legitimate uses of marijuana helps lead immigration authorities to refocus their efforts on deporting serious criminals only, then immigrant advocates may come to view Moncrieffe in a much more favorable light.
Immigration Remarks for the 10th Annual Wiley A. Branton Symposium
01 January 2014
University of Pennsylvania

Wadhia, Shoba S

This morning (despite the pressure that our panel comes right before lunch), I am going to provide a “101” on the role of prosecutorial discretion in immigration law, which is my primary area of research and fundamental to understanding how the immigration system operates. Prosecutorial discretion is a largely invisible tool that enables thousands, if not millions, of unauthorized noncitizens to reside in the United States without fear from deportation. It may be characterized as invisible because prosecutorial discretion decisions are largely connected to no action at all or as some call it, nonenforcement. A favorable exercise of “prosecutorial discretion” refers to a decision by a Department of Homeland Security, or DHS, employee to abstain from enforcing the immigration laws against a person or group. A grant of immigration prosecutorial discretion does not amount to a formal legal status but rather functions as a tenuous one. There are two or maybe three theories that lie beneath prosecutorial discretion in immigration law. One theory is economic. The agency has limited resources and deporting ten million people is not cost-effective (the agency has the resources to deport less than four percent or 400,000 of the total removable population). Therefore, the agency should target its resources toward its highest priorities such as those who present a risk to national security or a danger to the community. The second theory is humanitarian. There are scores of individuals — young people pursuing higher education, spouses of U.S. military members, single mothers acting as primary breadwinners and caregivers, and migrant workers who left their families to build a life for themselves — who are contributing to the U.S. in meaningful ways and therefore, should be protected from deportation. There is a possible third theory that I might characterize as more political in nature that occurs when the agency chooses to exercise executive power in the wake of congressional inaction or action.
Demystifying Employment Authorization and Prosecutorial Discretion in Immigration Cases
01 January 2015
University of Pennsylvania

Wadhia, Shoba S

On November 20, 2014, President Barack Obama announced a series of immigration programs aimed to reform the immigration system. Deferred Action for Parents of Americans or Lawful Permanent Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) represent two such programs announced by the President. Both programs extend deferred action (one form of prosecutorial discretion) to qualifying individuals. Deferred action has been part of the immigration system for more than 50 years, and has been named explicitly by Congress, federal courts, and the agencies responsible for administering immigration laws. Additionally, regulations list deferred action as one basis for work authorization. The President’s deferred action programs offered room for a healthy debate about immigration law and policy. The debate was intensified by a lawsuit brought by the state of Texas and 25 other states challenging the deferred action programs, and a subsequent judicial opinion enjoining these programs. Much of the tension has centered on the ability for a deferred action grantee to obtain ancillary benefits like employment authorization or lawful presence. This conflict has enabled great distortion about the limits and benefits of prosecutorial discretion in immigration law. In this Article, I seek to clarify the relationship between prosecutorial discretion and employment authorization and describe the historical precedent for allowing qualifying noncitizens to apply for work authorization based on a prosecutorial discretion grant. I also examine the policy questions that are raised by the current legal framework and policy for work authorization. My methodology for this Article is to review the primary and secondary sources of law for prosecutorial discretion and work authorization; analyze a related data set of more than 200,000 work authorization applications processed by the United States Citizenship and Immigration Services retrieved through the Freedom of Information Act; and begin a policy discussion on the benefits of enabling prosecutorial discretion beneficiaries to be authorized to work in the United States. This Article is the first to analyze the law and policy of work authorization and prosecutorial discretion and builds naturally from my body of work developed on the role of immigration prosecutorial discretion generally, and deferred action in particular.
Elusive Equality: Reflections on Justice Field’s Opinions in Chae Chan Ping and Fong Yue Ting
01 January 2015
University of Pennsylvania

Romero, Victor C.

For immigration scholars, Justice Field is perhaps best remembered for his majority opinion in Chae Chan Ping v. United States, the Supreme Court’s decision upholding Chinese exclusion, and credited for introducing the plenary power doctrine to immigration law. Yet, despite the opinion’s xenophobic rhetoric reflecting his personal views of the Chinese, Justice Field dissented in Fong Yue Ting v. United States, reasoning that, once they became lawful residents, the Chinese were entitled to be treated as equals under the law regardless of citizenship, a position supported by his earlier federal circuit court opinion in Ho Ah Kow v. Nunan. Regardless of one’s particular views of his opinions in these cases, it appears Field sought to balance his unfavorable personal and political views about mass Chinese immigration against his duty as a federal judge to uphold the constitutional rights of individual persons within the United States, regardless of their race and citizenship, before Congress’s plenary power. This tension between viewing immigrants as an undifferentiated mass and recognizing each immigrant as a person worthy of constitutional protection pervades contemporary debates regarding immigration today. Further, research in social psychology suggests that, within immigration policy, seldom will personhood trump membership as an organizing principle when benefiting noncitizen outsiders is perceived to come at the expense of U.S. citizen insiders. Put another way, immigration law presumes differences among citizens and noncitizens and creates others among noncitizens; thus, while it is already difficult to extend the circle of empathy beyond family and friends to strangers, it is particularly difficult to do so within a field like immigration law, which is designed to maintain boundaries between citizen and “alien.” Nonetheless, recognizing and working within these constraints, immigrant rights advocates would do well to emphasize and guard against our inherent parochialism, as Field appeared to do in Fong notwithstanding his opinion in Chae.
The Prodigal Illegal: Christian Love and Immigration Reform
01 January 2015
University of Pennsylvania

Romero, Victor C.

Despite the impasse around immigration reform, most everyone believes the United States’ immigration system is broken. And most agree that the key issue is what to do with the eleven million or so undocumented persons currently residing in the United States. As a Christian immigration law teacher, I have been interested in the debate among the churches as to what such reform should look like. In this Article, I use Professor Jeffrie Murphy’s conception of agapic love as a lens through which to examine reform proposals. I then evaluate the two positions Christian churches have seemed to embrace—permanent legal status on the one hand, full citizenship on the other—from both a gospel and legal perspective. To aid my analysis from the Christian perspective, I turn to Dr. Timothy Keller’s interpretation of the Parable of the Prodigal Son; from the legal perspective, I examine the lived experiences of those subject to our current deportation laws. I argue that a thick conception of agapic, neighborly love requires embracing a pathway to citizenship as the only available reform option. This Article explores what agapic love might look like in the context of formulating immigration policy regarding the undocumented. Despite what appear to be the strict borders of law that create categories of immigrant status and belonging, the Christian tradition of sacrificial love suggests a willingness to promote equality and reject ubordination— in a sense, to set captives free.
Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases
01 June 2015
University of Pennsylvania

Wadhia, Shoba S

When Beatles star John Lennon faced deportation from the U.S. in the 1970s, his lawyer Leon Wildes made a groundbreaking argument. He argued that Lennon should be granted "nonpriority" status pursuant to INS's (now DHS's_ policy of prosecutorial discretion. In U.S. immigration law, the agency exercises prosecutorial discretion favorably when it refrains from enforcing the full scope of immigration law. A prosecutorial discretion grant is important to an agency seeking to focus on its priorities on the "truly dangerous" in order to conserve resources and to bring compassion into immigration enforcement. The Lennon case marked the first moment that the immigration agency's prosecutorial discretion policy became public knowledge. Today, the concept of prosecutorial discretion is more widely known in light of the Obama Administration's Deferred Action for Childhood Arrivals or DACA program, a record number of deportations and a stalemate in Congress to move immigration reform. Beyond Deportation is the first book to comprehensively describe the history, theory, and application of prosecutorial discretion in immigration law. It provides a rich history of the role of prosecutorial discretion in the immigration system and unveils the powerful role it plays in protecting individuals from deportation and saving the government resources. - From the Publisher
Is Immigration Law National Security Law?
01 January 2016
University of Pennsylvania

Wadhia, Shoba S

The debate around how to keep America safe and welcome newcomers is prominent. In the last year, cities and countries around the world, including Baghdad, Dhaka, Istanbul, Paris, Beirut, Mali and inside the United States - have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War. This article is based on remarks delivered at Emory Law Journal’s annual Thrower Symposium on February 11, 2016. It explores how national security concerns have shaped recent immigration policy in the Executive Branch, Congress and the states and the moral, legal and practical implications of these proposals. Finally, this article examines the parallels between these proposals and immigration policies enacted after September 11, 2001.
Practitioner's Toolkit on Cancellation of Removal for Lawful Permanent Residents
16 May 2016
University of Pennsylvania

Penn State Law Immigrants' Rights Clinic;Pennsylvania Immigration Resource Center

Created on behalf of the Pennsylvania Immigration Resource Center (PIRC), the toolkit is a resource for immigration attorneys representing lawful permanent residents who are facing removal from the United States.
The Aftermath of United States v. Texas
10 August 2016
University of Pennsylvania

Wadhia, Shoba S

On June 23, 2016, the Supreme Court issued a 4-4 ruling in the immigration case of United States v. Texas, blocking two “deferred action” programs announced by President Obama on November 20, 2014: extended Deferred Action for Childhood Arrivals (DACA Plus) and Deferred Action for Parents of Americans and Legal Residents (DAPA). The 4-4 ruling by the justices creates a non-precedential non-decision, upholding an injunction placed by a panel of federal judges in the Fifth Circuit Court of Appeals. While the future of these programs remains uncertain in the long term, the immediate effects are pronounced, as millions of qualifying young people (“Dreamers”) and parents who would have been able to request deferred action programs are unable to do so in the foreseeable future. The outcome of the ruling highlights the need for greater information about existing prosecutorial discretion tools, including a longstanding deferred action program on which DACA and DAPA are based.This essay examines 185 deferred action cases processed by the United States Citizenship Immigration Services (USCIS), a unit within Department Homeland Security (DHS or Department). While previous scholarship examines deferred action historically and in depth, this is the first piece to review cases under the Department’s current enforcement policy. The author’s goal is to provide advocates and policymakers with accurate information about the deferred action program outside of DACA (and what would have been DACA Plus and DAPA) and to facilitate a dialogue about the possibilities of advancing a robust deferred action policy for Dreamers, parents and others who present humanitarian equities. A second goal of this essay is to (re)address the continued transparency challenges faced by the deferred action program and recommendations for moving forward. Beyond the scope of this essay is an analysis of whether certain noncitizens may be currently eligible for relief outside of deferred action or a discussion on those who should qualify for immigration status under unrealized but critical legislative reforms.
Information Session on President Trump's Executive Orders on Immigration
03 February 2017
University of Pennsylvania

Wadhia, Shoba S

On February 3, the Center for Immigrants' Rights Clinic and the Borough of State College presented a community information session covering the president's executive orders relating to immigration enforcement, refugees, and Muslim immigration.

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