By establishing an investment project or undertaking abroad, a multinational corporation does not only create a relationship between itself and the host state, but also with its local communities, which are often adversely impacted by the conduct or business operations of the investor. Yet the international investment law system has been lopsided. It creates various substantive and procedural protections for investors that they may enforce against the host state in international arbitration. But generally neither the host state nor its local communities adversely impacted by the conduct or business operations of an investor have similar rights. This article examines balanced investment treaties, one of the measures states have recently begun to adopt to remedy the unequal investment law regime. It concludes that, while this new generation of treaties may level the playing field between investors and host states, they do not go far enough to effectively address the peculiar challenges of local communities that suffer investment-related harms.
{"title":"Corporate Accountability to Local Communities for Investment-Related Harms: The Elusive Promise of Balanced Investment Treaties","authors":"Christopher Yaw Nyinevi","doi":"10.3366/ajicl.2023.0452","DOIUrl":"https://doi.org/10.3366/ajicl.2023.0452","url":null,"abstract":"By establishing an investment project or undertaking abroad, a multinational corporation does not only create a relationship between itself and the host state, but also with its local communities, which are often adversely impacted by the conduct or business operations of the investor. Yet the international investment law system has been lopsided. It creates various substantive and procedural protections for investors that they may enforce against the host state in international arbitration. But generally neither the host state nor its local communities adversely impacted by the conduct or business operations of an investor have similar rights. This article examines balanced investment treaties, one of the measures states have recently begun to adopt to remedy the unequal investment law regime. It concludes that, while this new generation of treaties may level the playing field between investors and host states, they do not go far enough to effectively address the peculiar challenges of local communities that suffer investment-related harms.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"23 20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135004262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
At common law, the employer is entitled to terminate the employment of an employee, for any reason or no reason at all. At present, the level of unemployment in Nigeria is gargantuan, coupled with a high rate of employment insecurity. In 2010 the status and stature of the National Industrial Court of Nigeria (NICN) were enhanced by the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, which vests the NICN with exclusive original civil jurisdiction over labour and employment matters, powers it to apply international best practices (IBP) and international labour standards (ILS) as contained in section 254C(1)(f) and (h) thereof. In 2015 the NICN, according to this section, held that an employer, in master–servant employment, following IBPs and ILSs, cannot terminate the employment of an employee save for good and justifiable reasons. This judgment has attracted various criticisms owing to its iconoclastic nature. This article, through the doctrinal method, examines the validity of this judgment vis-à-vis section 12 of the 1999 CFRN and subsisting appellate courts judgments. It argues that the judgment is not only valid but a welcome development and has opened a new vista on security of employment in Nigeria and has brought the law into conformity with international best practices and standards. Going forward, the article argues for the affirming of the decision by the Court of Appeal as the apex court on appeals from the NICN and for wide publicity by trade unions and workers groups for its exploitation by their members.
{"title":"<i>Aloysius V. Diamond Bank Plc</i>: Opening a New Vista on Security of Employment in Nigeria through the Application of International Labour Organisation Conventions","authors":"David Tarh-Akong Eyongndi, Adekunbi Imosemi","doi":"10.3366/ajicl.2023.0453","DOIUrl":"https://doi.org/10.3366/ajicl.2023.0453","url":null,"abstract":"At common law, the employer is entitled to terminate the employment of an employee, for any reason or no reason at all. At present, the level of unemployment in Nigeria is gargantuan, coupled with a high rate of employment insecurity. In 2010 the status and stature of the National Industrial Court of Nigeria (NICN) were enhanced by the 1999 Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010, which vests the NICN with exclusive original civil jurisdiction over labour and employment matters, powers it to apply international best practices (IBP) and international labour standards (ILS) as contained in section 254C(1)(f) and (h) thereof. In 2015 the NICN, according to this section, held that an employer, in master–servant employment, following IBPs and ILSs, cannot terminate the employment of an employee save for good and justifiable reasons. This judgment has attracted various criticisms owing to its iconoclastic nature. This article, through the doctrinal method, examines the validity of this judgment vis-à-vis section 12 of the 1999 CFRN and subsisting appellate courts judgments. It argues that the judgment is not only valid but a welcome development and has opened a new vista on security of employment in Nigeria and has brought the law into conformity with international best practices and standards. Going forward, the article argues for the affirming of the decision by the Court of Appeal as the apex court on appeals from the NICN and for wide publicity by trade unions and workers groups for its exploitation by their members.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135005404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Front matter","authors":"","doi":"10.3366/ajicl.2023.0450","DOIUrl":"https://doi.org/10.3366/ajicl.2023.0450","url":null,"abstract":"","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135004260","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Maternity and parental benefits legislation impacts on one of the most important pillars in society as it plays a role in family life, the rights of women, and gender equality. It will be beneficial to any country to benchmark its own legislation in this regard against international standards and norms, as one cannot just assume that national legislation is in line with international standards. South Africa is part of the international community, and if South Africa wants to take its seat and play a role in international bodies such as the United Nations (UN) and the International Labour Organisation (ILO), it is important that South Africa as country adhere to international standards and ILO Conventions.
{"title":"An Evaluation of South Africa's Maternity and Parental Benefits Legislation in Light of the International Labour Organisation's Maternity Protection Convention and Recommendation","authors":"Paul Andries Smit","doi":"10.3366/ajicl.2023.0457","DOIUrl":"https://doi.org/10.3366/ajicl.2023.0457","url":null,"abstract":"Maternity and parental benefits legislation impacts on one of the most important pillars in society as it plays a role in family life, the rights of women, and gender equality. It will be beneficial to any country to benchmark its own legislation in this regard against international standards and norms, as one cannot just assume that national legislation is in line with international standards. South Africa is part of the international community, and if South Africa wants to take its seat and play a role in international bodies such as the United Nations (UN) and the International Labour Organisation (ILO), it is important that South Africa as country adhere to international standards and ILO Conventions.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135004259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Supreme Court of Uganda and the Right to Bail Pending Appeal: Understanding <i>Nakiwuge Racheal Muleke v Uganda</i> (Criminal Reference No.12 Of 2020) (9 September 2021)","authors":"Jamil Ddamulira Mujuzi","doi":"10.3366/ajicl.2023.0456","DOIUrl":"https://doi.org/10.3366/ajicl.2023.0456","url":null,"abstract":"","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135004261","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, I discuss 11 Supreme Court cases decided since 1993 in connection with Ghana’s criminal procedure law. Most of the cases tested the constitutionality of some provisions of the criminal procedure law and the outcomes reformed, and/or proposed institutional, policy and legal reforms. To facilitate presentation and analysis, I grouped the cases into the following constitutional/legal principles: liberty of the accused or suspect; right to be represented by counsel of one’s choice; compensation for wrongful arrest/detention/conviction; access to justice and to the court; the accused’s right to adequately prepare to mount a defence; determinants of the mode of criminal trials, and the right of the accused to know and the duty of criminal justice officials to explain. I conclude that the Court has largely upheld the Constitution and balanced individual and communal rights while protecting the accused and suspects. It has demonstrated its willingness to exercise its oversight functions but has been overly mindful of the impact of its decisions on the taxpayer. I also conclude that the criminal procedure law is outdated. Although the Court directed its orders for legislative reform at specific institutions, most of them have been ignored. Recommendations include reforming the criminal procedure law to conform to the Constitution and establishing a mechanism to oversee the implementation of the Court’s orders.
{"title":"Making Ghana's Criminal Procedure Law Conform to Its Grundnorm: Decisions of the Supreme Court","authors":"Samuel Opoku-Agyakwa","doi":"10.3366/ajicl.2023.0451","DOIUrl":"https://doi.org/10.3366/ajicl.2023.0451","url":null,"abstract":"In this article, I discuss 11 Supreme Court cases decided since 1993 in connection with Ghana’s criminal procedure law. Most of the cases tested the constitutionality of some provisions of the criminal procedure law and the outcomes reformed, and/or proposed institutional, policy and legal reforms. To facilitate presentation and analysis, I grouped the cases into the following constitutional/legal principles: liberty of the accused or suspect; right to be represented by counsel of one’s choice; compensation for wrongful arrest/detention/conviction; access to justice and to the court; the accused’s right to adequately prepare to mount a defence; determinants of the mode of criminal trials, and the right of the accused to know and the duty of criminal justice officials to explain. I conclude that the Court has largely upheld the Constitution and balanced individual and communal rights while protecting the accused and suspects. It has demonstrated its willingness to exercise its oversight functions but has been overly mindful of the impact of its decisions on the taxpayer. I also conclude that the criminal procedure law is outdated. Although the Court directed its orders for legislative reform at specific institutions, most of them have been ignored. Recommendations include reforming the criminal procedure law to conform to the Constitution and establishing a mechanism to oversee the implementation of the Court’s orders.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135005406","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Chukwuma Samuel Adesina Okoli, Abubakri Yekini, Philip Oamen
Under the Igiogbe custom of the Bini Kingdom of Edo State Nigeria, the eldest surviving son exclusively inherits the ancestral home of his deceased father. This custom is a mandatory norm in conflict of laws. Litigation on the custom has been described as a matter of life and death. There is a widely shared view among academic writers, practitioners, and judges that this customary law is absolute. Contrary to this popular view, this work argues that the Igiogbe custom can be displaced by statute and other customary or religious laws. To substantiate this position, this article examines all the reported appellate court decisions on the Igiogbe custom and other connected principles. It is often taken for granted that every Bini man is subject to customary law, thereby leading to the overriding application of the Igiogbe custom. Recent developments in case law suggest otherwise. There is a conflict of personal law question that is often ignored in most litigation concerning the Igiogbe. Careful consideration of this question can potentially lead to the application of other systems of succession law (statutory, religious, and other customary laws) other than the Igiogbe custom. Besides, these conflict of laws techniques and constitutional human rights norms can be used to strike the appropriate balance between competing interests and reasonable legitimate expectations of the deceased and their heirs.
{"title":"The <i>Igiogbe</i> Custom as a Mandatory Norm in Conflict of Laws: An Exploration of Nigerian Appellate Court Decisions","authors":"Chukwuma Samuel Adesina Okoli, Abubakri Yekini, Philip Oamen","doi":"10.3366/ajicl.2023.0455","DOIUrl":"https://doi.org/10.3366/ajicl.2023.0455","url":null,"abstract":"Under the Igiogbe custom of the Bini Kingdom of Edo State Nigeria, the eldest surviving son exclusively inherits the ancestral home of his deceased father. This custom is a mandatory norm in conflict of laws. Litigation on the custom has been described as a matter of life and death. There is a widely shared view among academic writers, practitioners, and judges that this customary law is absolute. Contrary to this popular view, this work argues that the Igiogbe custom can be displaced by statute and other customary or religious laws. To substantiate this position, this article examines all the reported appellate court decisions on the Igiogbe custom and other connected principles. It is often taken for granted that every Bini man is subject to customary law, thereby leading to the overriding application of the Igiogbe custom. Recent developments in case law suggest otherwise. There is a conflict of personal law question that is often ignored in most litigation concerning the Igiogbe. Careful consideration of this question can potentially lead to the application of other systems of succession law (statutory, religious, and other customary laws) other than the Igiogbe custom. Besides, these conflict of laws techniques and constitutional human rights norms can be used to strike the appropriate balance between competing interests and reasonable legitimate expectations of the deceased and their heirs.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"140 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135004263","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In May 2020 a Nigerian High Court sentenced Olalekan Hameed to death via Zoom. Amid the controversy, Rhodes-Vivour JSC, striking out Attorney General of Lagos State v Attorney General of the Federation, instituted to clarify the constitutionality of virtual court sittings, pronounced: ‘[v]irtual sitting as of today are not unconstitutional’. Analysing sections 36(3) and (4) of Nigeria's Constitution alongside judicial authorities on the public hearing imperative, this article argues that the issue is not so much whether virtual sittings are unconstitutional as whether enough has been done to ensure public access to the proceedings. This view is fortified by the elaborate procedure recommended in the Guidelines for Court Sittings and Related Matters in the COVID-19 Period 2020. To ensure access to justice is not truncated, the article recommends: (1) the Chief Justice of Nigeria's (CJN) inclusion of virtual sitting rules in the Fundamental Rights (Enforcement Procedure) Rules, as restrictions during emergency periods affect fundamental rights; and (2) that all other heads of courts embed the virtual sitting rules in their court rules. This, it is concluded, would prevent haphazard adoption of virtual sittings for adjudication, which could invalidate such sittings for failing to meet the proceedings in public requirement of the Constitution.
{"title":"The Constitutionality Conundrum on Virtual Court Sittings in the Covid-19 Period in Nigeria","authors":"Miriam Chinyere Anozie, Emmanuel Onyedi Wingate","doi":"10.3366/ajicl.2023.0454","DOIUrl":"https://doi.org/10.3366/ajicl.2023.0454","url":null,"abstract":"In May 2020 a Nigerian High Court sentenced Olalekan Hameed to death via Zoom. Amid the controversy, Rhodes-Vivour JSC, striking out Attorney General of Lagos State v Attorney General of the Federation, instituted to clarify the constitutionality of virtual court sittings, pronounced: ‘[v]irtual sitting as of today are not unconstitutional’. Analysing sections 36(3) and (4) of Nigeria's Constitution alongside judicial authorities on the public hearing imperative, this article argues that the issue is not so much whether virtual sittings are unconstitutional as whether enough has been done to ensure public access to the proceedings. This view is fortified by the elaborate procedure recommended in the Guidelines for Court Sittings and Related Matters in the COVID-19 Period 2020. To ensure access to justice is not truncated, the article recommends: (1) the Chief Justice of Nigeria's (CJN) inclusion of virtual sitting rules in the Fundamental Rights (Enforcement Procedure) Rules, as restrictions during emergency periods affect fundamental rights; and (2) that all other heads of courts embed the virtual sitting rules in their court rules. This, it is concluded, would prevent haphazard adoption of virtual sittings for adjudication, which could invalidate such sittings for failing to meet the proceedings in public requirement of the Constitution.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135005405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Deployment of illegality or public policy to render unenforceable is one area of the common law which developed early to contain untrammelled party autonomy or freedom of contract. Traditionally, contracts that advance immoral purpose, undermine integrity in public office or governance as well as ousting jurisdiction of the courts are peremptorily deemed contrary to public policy and consequently unenforceable. In this paper I argue that the imposition of general obligation on all organs of government and private bodies and individuals to observe fundamental human rights and freedoms enshrined in Chapter 5 of the 1992 Constitution makes it imperative for the common law concept of public policy to be expanded to encapsulate non-compliance with fundamental freedoms and human rights as a ground for rendering contract unenforceable.
{"title":"Unenforceability of Contract: Are Fundamental Human Rights and Freedoms under Ghana's 1992 Constitution Grounds of Public Policy?","authors":"Ernest Owusu-Dapaa","doi":"10.3366/ajicl.2023.0443","DOIUrl":"https://doi.org/10.3366/ajicl.2023.0443","url":null,"abstract":"Deployment of illegality or public policy to render unenforceable is one area of the common law which developed early to contain untrammelled party autonomy or freedom of contract. Traditionally, contracts that advance immoral purpose, undermine integrity in public office or governance as well as ousting jurisdiction of the courts are peremptorily deemed contrary to public policy and consequently unenforceable. In this paper I argue that the imposition of general obligation on all organs of government and private bodies and individuals to observe fundamental human rights and freedoms enshrined in Chapter 5 of the 1992 Constitution makes it imperative for the common law concept of public policy to be expanded to encapsulate non-compliance with fundamental freedoms and human rights as a ground for rendering contract unenforceable.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45695045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A reading of the decisions of the East African Court of Justice delivered during its early years portrays an orientation towards the application of common law doctrines. This is not surprising given that the initial litigants, legal Counsel and Judges originated from countries with legal systems sourced from common law; and so, they relied on judicial precedents of national courts and the Court’s predecessor, the Court of Appeal for East Africa. For over a decade now, there’s been a shift as the Court has charted a jurisprudential path reflecting its international character. This paper considers some of the decisions of the Appellate Division which have espoused the primacy of public international law principles and legal instruments; and the inspiration drawn from the jurisprudence of other international and regional courts in interpreting and applying the East African Community Treaty. Over the years, the Court has continued to uphold deference for rule of law, jurisdictional, procedural and evidential standards in the administration of justice and applied the seldom used dissenting opinion mechanism where necessary.
{"title":"The East African Court of Justice: Weaving Jurisprudential Pathways, 2012–20","authors":"J. A. Ringera, Wanjiru Rubia","doi":"10.3366/ajicl.2023.0442","DOIUrl":"https://doi.org/10.3366/ajicl.2023.0442","url":null,"abstract":"A reading of the decisions of the East African Court of Justice delivered during its early years portrays an orientation towards the application of common law doctrines. This is not surprising given that the initial litigants, legal Counsel and Judges originated from countries with legal systems sourced from common law; and so, they relied on judicial precedents of national courts and the Court’s predecessor, the Court of Appeal for East Africa. For over a decade now, there’s been a shift as the Court has charted a jurisprudential path reflecting its international character. This paper considers some of the decisions of the Appellate Division which have espoused the primacy of public international law principles and legal instruments; and the inspiration drawn from the jurisprudence of other international and regional courts in interpreting and applying the East African Community Treaty. Over the years, the Court has continued to uphold deference for rule of law, jurisdictional, procedural and evidential standards in the administration of justice and applied the seldom used dissenting opinion mechanism where necessary.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47525526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：