Scielo RSS <![CDATA[Law, Democracy and Development]]> vol. 27 num. lang. en <![CDATA[SciELO Logo]]> <![CDATA[<b>The right to privacy in the decriminalisation of psilocybin mushrooms in South Africa</b>]]> This article assesses the right to privacy as a ground for challenging the constitutionality of the criminalisation of psilocybin mushrooms. In doing so, it discusses the right to privacy as found in section 14 of the Constitution of the Republic of South Africa, 1996 (Constitution). Drawing on Constitutional Court case law, the article argues that the right to privacy is a fundamental right that deserves paramount protection, even in instances where individuals engage in illicit activities within the confines of their personal realm of privacy. Accordingly, the prohibiting laws, notably the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Act 101 of 1965, do prima facie limit an individual's right to privacy, and therefore an analysis in terms of section 36 of the Constitution is necessary. A section-36 limitations analysis is accordingly presented, through which it is concluded that the nature and importance of the limited right outweighs the importance and purpose of the criminalisation. This paper argues that the current articles of legislation, which criminalise psilocybin mushrooms, are not justifiable, in that they unjustifiably limit the right to privacy. As such, the criminalisation of psilocybin mushrooms falls short of the standards implemented in section 36 of the Constitution and is concluded to be unconstitutional. <![CDATA[<b>Migration and climate change in Africa: A differentiated approach through legal frameworks on the free movement of people</b>]]> The global consequences of rapid climate change cannot be overstated. In Africa, drought, flooding and environmental degradation are increasingly important drivers of migration, affecting already vulnerable and indigenous persons, together with factors such as conflict, poverty, and weak democratic governance. This article argues for alternative ways to protect vulnerable persons, alternatives which include regional integration frameworks on mobility. The article interrogates existing regional and subregional migration frameworks in Africa in order to ascertain the level of obligation to protect and facilitate the movement of those compelled to flee disaster-affected areas and seek safety in neighbouring countries. Regional and sub-regional groupings need to learn from each other, as well as utilise and expand on existing provisions for the free movement of people, to effectively accommodate the growing trend of migration due to environmental concerns. A laudable measure to ensure protection and facilitate the movement of such vulnerable persons can be found in the recently endorsed Protocol on the Free Movement of Persons in the Intergovernmental Authority on Development (IGAD). <![CDATA[<b>The African Union's quest for a "peaceful and secure Africa": An assessment of Aspiration Four of Agenda 2063</b>]]> This article undertakes a comprehensive assessment of the African Union (AU)'s Agenda 2063 Aspiration 4: A peaceful and secure Africa and the progress made at continental level towards it. Aspiration 4 is informed by the AU's acknowledgment that the scourge of conflict on the continent plays a significant role in hampering socioeconomic development. Against this background, the article examines the role played by the AU and its regional economic communities (RECs) in response to armed conflict on the continent, as exemplified by the AU and Southern African Development Community (SADC) response to the Cabo Delgado conflict in northern Mozambique. The AU's response to the recent surge of military coups in Africa is also examined, with a focus on the coups in Sudan in 2019 and 2021. The article concludes that the Agenda 2063 blueprint is a useful tool for the continental body when dealing with the scourge of conflicts and unconstitutional changes of governments, which threatens to hamper the AU's developmental agenda. <![CDATA[<b>Beyond labels: Executive action and the duty to consult</b>]]> Whether executive action attracts a duty to consult has been contested judicial terrain. In this article, we aim to contribute to the development of a principled approach to requiring consultation in executive decision-making. We grapple with the distinction between procedural fairness as a requirement of just administrative action and procedural rationality as a requirement of the principle of legality. We then move beyond these labels by engaging with the values underlying the Constitution's vision of participatory democracy. Despite contradictions in the case law, we suggest that the developing requirement of "procedural rationality" as a basis for a duty to consult offers fertile ground for advancing the values of accountability, responsiveness, and openness in executive decision-making. We therefore encourage recognition of participatory democracy as the normative framework within which the rationality of executive decision-making should be substantively assessed. Finally, we demonstrate that links between participatory democracy, a duty to consult, and executive decision-making have some grounding in existing case law, which, we argue, can be further developed. <![CDATA[<b>Disarming the dispirited South African: A critical analysis of the proposed ban on firearms for self-defence</b>]]> In South Africa, owning a firearm is a privilege and not a right. This privilege is regulated by the Firearms Control Act 60 of 2000. In May 2021, the Minister of Police published the Firearms Control Amendment Bill (FCAB), 2021, which contains a section prohibiting individuals from obtaining a firearm for self-defence purposes. This article challenges this view and argues that firearm owners should not be banned from protecting their right to life with a firearm. It looks at the reasons why the Bill was published as well as its purposes. The enactment of such a Bill would have severe consequences for individuals who want to protect their constitutional rights in a country with one of the highest crime rates in the world. Consequently, the article also examines the impact the proposed prohibition would have on self-defence by means of a firearm. Furthermore, the South African Police Service (SAPS) is reluctant to address its own challenges, which have contributed significantly to the proliferation of unlicensed firearms. The supply of firearms by SAPS to criminals will be examined and recommendations made for addressing the dilemma faced by SAPS. SAPS should rectify and professionalise its firearm regime instead of disarming South Africans, who are desperately in need of a peaceful society. Finally, proposals are made as to how firearm control could be improved.