Barbara Oomen

Vigilantism or alternative citizenship? The rise of Mapogo a Mathamaga

WHEREAS the areas of Nebo and Sekhukhune and surroundings are presently suffering under an unprecedented wave of crime and lawlessness, where criminals are openly flaunting their crimes in complete...

Group rights in post-apartheid South Africa: the case of the traditional leaders

AbstractSouth African’s first democratic constitution provides that the “institution, status and role of traditional leadership, according to customary law, are recognized“. The recognition of indigenous rulers and their administrative and judicial powers may be interpreted as a continuation of former native rule policies as well as a distinctive feature of a modern state. On the one hand, the recognition is linked to the country’s colonial and apartheid past, during which ethnic identity was forcibly created and compartmentalized in ’homelands’ with imported tribesmen and customary law. On the other hand, the claims of the chiefs form an example of the larger-scale contemporary political demand for the legal recognition of cultural diversity, in the form of minority and group rights. Thus considered, state recognition of chiefs and their subjects poses the same problems of inclusion and exclusion as are faced when any group in society is carved out and granted a separate legal status. An additional probl...

Justice Mechanisms and the Question of Legitimacy: The Example of Rwanda's Multi-layered Justice Mechanisms

Legitimacy, this contribution argues, plays a key role in connecting transitional justice mechanisms to sustainable peace, and strengthening peoples perceptions of legitimacy should be of concern to all those involved in these institutions. Here, it is important to take an empirical, people-based approach to legitimacy, with regard for its dynamic quality. This approach should focus on all three dimensions of legitimacy: the input into transitional justice mechanisms, the popular adherence to the demos that sets them up, and their output. In addition, legitimacy requires an explicit deliberation by means of justificatory discourse, and the involvement of all stakeholders. Drawing on the example of Rwandas multi-layered justice mechanisms this model then draws attention to the processes through which various internal and external actors can seek to (de)legitimate transitional justice institutions, and what this entails for the legitimacy of these mechanisms in general.

The Rights for Others: The Contested Homecoming of Human Rights in the Netherlands

This article describes and explains the historical and current emphasis on human rights as a foreign policy issue in the Netherlands. Whilst human rights have, in the past decades, had a central place in Dutch foreign policy they hardly figure in political and societal discourse on pressing domestic social problems. In order to explain why this is the case, the article presents a three-fold model of understanding how human rights acquire meaning as a discursive framework. Whilst the legal dispensation is important, attention also has to be paid to legal culture and legal consciousness and the role of actors in rights implementation. Applying this model to the Netherlands, it is noted that there is hardly a country in the world in which human rights have a more privileged legal position. There is, however, a lack of knowledge of human rights combined with a legal culture that privileges consensualism over adversarialism and fears juridification of disputes. Additionally, the many actors involved in policy-making are also considered a factor in explaining the relative lack of reference to human rights in a country that is so active in their formulation and implementation at the international level.

Between Rights Talk and Bible Speak: The Implementation of Equal Treatment Legislation in Orthodox Reformed Communities in The Netherlands

This article discusses the responses to a number of recent court cases concerning the equal treatment of women and homosexuals amongst Dutch orthodox reformed in the semi-public sphere (e.g. political parties, schools). In doing so, this article applies and refines legal anthropological theories on the realization of rights in a context of cultural and religious diversity. It also specifically addresses the responses to court cases launched “from the outside” in the context of a western country with a tradition of code law. These cases have an adverse effect on discussions of equal treatment within the communities concerned.

Transitional Justice and its Legitimacy: The Case for a Local Perspective

Keynote speech delivered by B. Oomen at a seminar organized by the Foundation for Peace Sciences and the Netherlands Institute of Human Rights at the occasion of the inaugural lecture of professor G. Hesseling, 24 November 2006

The Power of Definition

Taking this centrality of traditional leaders in the policy debate as the point of departure, the argument in this chapter runs as follows. It was due to the specific political climate in post-apartheid South Africa that traditional leaders were able to take centre stage in discussions that affected not only them but also the 13 million or more people considered to be their ‘subjects’. This political climate was tempered not only by the actors — political parties, traditional leaders, NGOs, government departments — with a stake in the process, but also by wider national and international conditions. With the fact that South Africa possessed a cultural diversity that needed to be ‘recognised’ as a central presupposition in the policy debate, what was essentially at issue was the contents of culture, custom and tradition. And because the traditional leaders played such a central role in these debates, they had the ‘power of definition’, and virtually monopolised knowledge on rural conditions, the popularity of traditional authority and the character of customary law. Thus, it was the type of culture, custom and tradition to be promoted to the ‘austerity of tabulated legalism’ (d’Engelbrenner-Kolff, 2001:271) that stood central in the post-apartheid power struggle, with the odds skewed heavily in favour of the traditional leaders.

A serious case of Strasbourg-bashing? : An evaluation of the debates on the legitimacy of the European Court of Human Rights in the Netherlands

Over the past several years, there has been an increase in critiques of the European Court of Human Rights, most notably and surprisingly amongst its founding members, like the Netherlands. These critiques are often understood as a crisis of legitimacy. In order to assess whether this is the case, the definition and operationalisation of legitimacy is crucial. This article evaluates the critiques in the Netherlands, using a subjective understanding of legitimacy based upon works by Sharpf and Schmidt, who emphasise input, throughput and output legitimacy, but also that of the demos concerned. The latter dimension is often overlooked in other studies. The critiques of the European Court of Human Rights in the Netherlands are discussed on the basis of archival research, literature review, interviews and survey research. On the basis of the exploratory findings for the Netherlands, the article concludes that, in taking a subjective approach to legitimacy that covers all its dimensions, including support for the European demos, into account, the crisis of legitimacy could be deeper than most scholars estimate. Both the theoretical approach and the empirical insights from the Netherlands are considered of relevance to wider research on the legitimacy of the international human rights regime.

Walking in the middle of the road

‘We don’t really have a chief’ says a middle-aged man who lives in a densely populated settlement called Riverside. 1 know of a headman Manala who is supposed to be working on behalf of the traditional leader, but I have never seen him.’ Nevertheless, he is enthusiastic about the institution of traditional leadership. ‘That thing is really part and parcel of our black culture; it should be retained. Even if some of us originally grew up on farms outside the tribal areas.’ Paying the traditional leaders, however, would be overdoing it. ‘These people are just like us. They should go out and look for a job. After all, they are not really serving us with anything and just demand tribute from the community.’

Orchestrating Encounters: Teaching Law at a Liberal Arts and Sciences College in the Netherlands

This article is concerned with teaching law in the liberal arts & sciences tradition. It offers a general introduction into the tradition of liberal arts and sciences education, both in Europe and in the United States, and the key educational objectives of such an education. Subsequently, it discusses the place of the study of law within these programmes, the relationship with disciplinary legal masters and the core educational objectives of law courses within a liberal arts context. The next section then discusses the authors own experiences in translating these objectives into the contents and pedagogics of a variety of liberal arts law courses. In conclusion, she states that the common thread in all these experiences is that of orchestrating meaningful encounters.