Abayomi Al-Ameen*

ABSTRACT

Many hardworking people from unprivileged backgrounds are automatically disadvantaged simply because they lack access to financial capital. Observably, microfinance provides a way out of the poverty trap if it is deployed appropriately. Nigeria, like many other developing countries, has thus taken up the challenge of developing inclusive microfinancing initiatives. In the country, funding for small-scale businesses is available from both the government and the private sector. Unfortunately, the nature and conditions of the schemes fail to meet the sensitivities of a substantial group who would otherwise have been eligible for the grants and loans. The practical implication is that such group would be twice excluded from the financial system. These potentially excluded groups are those poor Muslims who might desire funding but are unable to benefit from the government schemes because the loan conditions contradict their faith. It is argued that the effect of the status quo is that it breeds further inequality and inequity and could even amount to outright (or indirect) discrimination. This contention is substantiated through constitutional analysis and also in light of a contemporary economic welfare theory – the Capability Approach. The article argues that this marginalized group has a right to Islamic microfinance. This right, it is further contended, places justiciable (positive and negative) duty on the government. It, therefore, calls that Islamic microfinance should forthwith be embedded into the fabric of public governance in the country. The article demonstrates the exclusionary problem by analysing some of the existing schemes, and it proffers alternative sharia-compliant conditions for existing schemes.

Keywords: Islamic microfinance; social development, distributive justice; indirect discrimination; constitutional law/human right, capability approach.

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.10

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* Lecturer in Commercial Law, Cardiff School of Law and Politics, Cardiff University, UK.

Callixte Kavuro*

ABSTRACT

The political debate on exclusion of refugees and asylum-seekers from socio-economic benefits and opportunities is arguably underpinnned by assumptions, fallacies and misconceptions that a higher number of refugees are not “genuine.” Rather they are bogus refugees who are in South Africa to seek a better life. That belief has a dire consequence of treating refugee students as ‘international students” at higher learning institutions, resulting in depriving refugees and asylum-seekers of the right to education and training and of other social opportunities. These assumptions fly in the face of international refugee law principles that refugees and asylum-seekers are to be accorded ‘treatment as favourable as possible’ with respect to tertiary education. Thus, the main objective of the paper is to argue for favourable extension of student financial aid and assistance to refugees and asylum-seekers in South Africa for educational purpose in line with the principles of fair and equitable treatment under international law. The paper depends largely on the concept of social justice and the philosophy of Ubuntu (which means to be humane toward others). It argues that practicalizing Ubuntu demands a distributive justice system to ensure that the most vulnerable people have access to certain primary goods and they are afforded social opportunities to realise the most fulsome life. In so doing, the paper draws legal distinctions between two often-confused concepts vis a refugee student and an international student though the discussion of the two distinct regimes that regulate their sojourn in South Africa, namely the Refugees Act 130 of 1998, as amended and the Immigration Act 13 of 2002, as amended.

Keywords: Refugee, Ubuntu, social justice, rights, immigration, asylum.

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* Dip. Journ (CMC); LLB (Western Cape); LLM (Capetown); LLD Candidate (Stellenbosch). Email address: callixtekav@gmail.com.