Transfer of title remains the fulcrum of sale transactions without which there are legal ramifications for both the seller and buyer. The Sale of Goods Act of 1962, Act 137, and the principles of common law and equity lay down the fundamental principles underlying a sale transaction in Ghana. Application of the principles of caveat emptor and protection of the buyer in good faith has brought to the fore, the complexities in balancing these competing interests. This article analyses Act 137 in conjunction with other legislation in selected jurisdictions and case law in respect of this conundrum.
{"title":"The Conundrum of Balance Under Ghana's Legal System: The Protection of a Buyer in Good Faith and the Principle of Caveat Emptor","authors":"O. Newman, Bobby Banson","doi":"10.3366/ajicl.2022.0404","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0404","url":null,"abstract":"Transfer of title remains the fulcrum of sale transactions without which there are legal ramifications for both the seller and buyer. The Sale of Goods Act of 1962, Act 137, and the principles of common law and equity lay down the fundamental principles underlying a sale transaction in Ghana. Application of the principles of caveat emptor and protection of the buyer in good faith has brought to the fore, the complexities in balancing these competing interests. This article analyses Act 137 in conjunction with other legislation in selected jurisdictions and case law in respect of this conundrum.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48873834","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}
Incontestably the right to self-determination is useful in ascertaining which entities have and are entitled to the privileges of statehood and territorial control. Yet certain fundamental questions require clarification, questions such as: what are the special characteristics of some minority groups and what is there about their quests for independence that would justify their being permitted to secede; when and under what circumstances does the right to external self-determination accrue; what is the role of the great power theory in the framework of self-determination and to what extent does the role of the great powers promote or hinder claims for self-determination. This article answers these thought-provoking questions by situating the ongoing Southern Cameroon crisis in the context of the right to self-determination. It provides an analysis of self-determination in relevant international and African regional human rights instruments and distils standards to determine the legitimacy and legality of Southern Cameroon's quest for self-government. It argues that Southern Cameroons meet the standards for self-determination and deserves autonomy and statehood, and that any peaceful resolution of the crisis should hinge on the respect and implementation of Southern Cameroons' right to self-determination.
{"title":"Contextualising the Ongoing ‘Southern Cameroons’ Crisis within the Framework of the Right to Self-Determination","authors":"Jean-Claude N. Ashukem","doi":"10.3366/ajicl.2022.0403","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0403","url":null,"abstract":"Incontestably the right to self-determination is useful in ascertaining which entities have and are entitled to the privileges of statehood and territorial control. Yet certain fundamental questions require clarification, questions such as: what are the special characteristics of some minority groups and what is there about their quests for independence that would justify their being permitted to secede; when and under what circumstances does the right to external self-determination accrue; what is the role of the great power theory in the framework of self-determination and to what extent does the role of the great powers promote or hinder claims for self-determination. This article answers these thought-provoking questions by situating the ongoing Southern Cameroon crisis in the context of the right to self-determination. It provides an analysis of self-determination in relevant international and African regional human rights instruments and distils standards to determine the legitimacy and legality of Southern Cameroon's quest for self-government. It argues that Southern Cameroons meet the standards for self-determination and deserves autonomy and statehood, and that any peaceful resolution of the crisis should hinge on the respect and implementation of Southern Cameroons' right to self-determination.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44750719","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}
Legislative reticence on the issue of compelling an unwilling or uncooperative parent and child to submit themselves for scientific test to determine the paternity of a child has sparked plenty of controversial approaches by the judiciary of South Africa: the designated authority as upper guardian of all children in the Republic. While the notion of ‘best interest of the child’ is factored in when making this determination, some courts have held that they lack such a power to make an order of that nature. Others have entertained the view that it might not be in the best interest of the child, especially when it is likely that the results of the test may prove that the alleged father is not the biological father and financial obligations may cease in this regard. In the view of another high court, discovery of the truth is also in the best interest of the child and as such the court may order such scientific tests as may be necessary. This article explores the legislative silence on the issue of ordering scientific tests. It examines the different cases in which various high courts took a different reasoning, at the end of which inconsistencies, controversies and uncertainties became the unfortunate outcome. In order to resolve this legal puzzle, especially at a time when the integrity of mothers seems to be questionable, and considering the huge financial implication it may have on those who have to pay financial support for children, the high courts may need to provide more consistency in their approach to the issue of ordering parents and children to undertake scientific tests to establish paternity. In addition, legislative reform may be needed to lay this dilemma to eternal rest.
{"title":"The Power of South African Courts to Order Scientific Tests to Determine the Paternity of a Child: Highlighting the Existing Gaps","authors":"Rorisang Matlala, Avitus A Agbor","doi":"10.3366/ajicl.2022.0408","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0408","url":null,"abstract":"Legislative reticence on the issue of compelling an unwilling or uncooperative parent and child to submit themselves for scientific test to determine the paternity of a child has sparked plenty of controversial approaches by the judiciary of South Africa: the designated authority as upper guardian of all children in the Republic. While the notion of ‘best interest of the child’ is factored in when making this determination, some courts have held that they lack such a power to make an order of that nature. Others have entertained the view that it might not be in the best interest of the child, especially when it is likely that the results of the test may prove that the alleged father is not the biological father and financial obligations may cease in this regard. In the view of another high court, discovery of the truth is also in the best interest of the child and as such the court may order such scientific tests as may be necessary. This article explores the legislative silence on the issue of ordering scientific tests. It examines the different cases in which various high courts took a different reasoning, at the end of which inconsistencies, controversies and uncertainties became the unfortunate outcome. In order to resolve this legal puzzle, especially at a time when the integrity of mothers seems to be questionable, and considering the huge financial implication it may have on those who have to pay financial support for children, the high courts may need to provide more consistency in their approach to the issue of ordering parents and children to undertake scientific tests to establish paternity. In addition, legislative reform may be needed to lay this dilemma to eternal rest.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42060942","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}
Various provisions on special and differential treatment of developing countries have been enacted from the time of the General Agreement on Tariffs and Trade 1947 (GATT 1947) through to the current era of the World Trade Organisation (WTO). Perhaps the most significant epoch in the recognition of the special and differential treatment of developing countries in the international trade regime was the 1979 Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, more popularly known as the Enabling Clause. The Enabling Clause, inter alia, allowed for a permanent derogation from the most favoured nation provision in Article I of the GATT 1947 in order to enable developed countries grant preferential treatment to goods coming from developing countries. The advent of the WTO in 1995 also came with specific provisions in the multilateral trade agreements that catered for the special needs of developing countries. Developing countries have, however, raised concerns regarding the effectiveness and utility of most of the special and differential treatment provisions considering the fact that most of these provisions have been formulated in non-mandatory language and thus do not obligate compliance. This article considers the special and differential treatment of developing countries in WTO law and analyses similar provisions in the most recent multilateral trade agreement in the WTO - the Trade Facilitation Agreement - which came into effect on 22 February 2017. The article aims to ascertain the effectiveness of special and differential treatment provisions in the Trade Facilitation Agreement with respect to addressing long-standing concerns of developing countries.
{"title":"The Special and Differential Treatment Provisions in the Trade Facilitation Agreement: New Teeth for an Old Gum?","authors":"Bader Bakhit M. Almodarra","doi":"10.3366/ajicl.2022.0401","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0401","url":null,"abstract":"Various provisions on special and differential treatment of developing countries have been enacted from the time of the General Agreement on Tariffs and Trade 1947 (GATT 1947) through to the current era of the World Trade Organisation (WTO). Perhaps the most significant epoch in the recognition of the special and differential treatment of developing countries in the international trade regime was the 1979 Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, more popularly known as the Enabling Clause. The Enabling Clause, inter alia, allowed for a permanent derogation from the most favoured nation provision in Article I of the GATT 1947 in order to enable developed countries grant preferential treatment to goods coming from developing countries. The advent of the WTO in 1995 also came with specific provisions in the multilateral trade agreements that catered for the special needs of developing countries. Developing countries have, however, raised concerns regarding the effectiveness and utility of most of the special and differential treatment provisions considering the fact that most of these provisions have been formulated in non-mandatory language and thus do not obligate compliance. This article considers the special and differential treatment of developing countries in WTO law and analyses similar provisions in the most recent multilateral trade agreement in the WTO - the Trade Facilitation Agreement - which came into effect on 22 February 2017. The article aims to ascertain the effectiveness of special and differential treatment provisions in the Trade Facilitation Agreement with respect to addressing long-standing concerns of developing countries.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47950808","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}
Access to credit facility by the micro, small and medium enterprises (MSMEs) in the developing countries remains a mirage without a functional, inclusive and efficient system of credit and security. The realisation of the sustainable development goals for rapid growth and economic development in those countries depends on a viable and effective financial inclusion agenda as encapsulated in one of the targets of Goal Number 9 of the United Nations Sustainable Development Goals (SDGs). As an enabler of many of the developmental goals of the UN, the financial inclusion agenda provides the link with sustainable development. This article interrogates how security over movable assets will meet the reasonable expectations of the MSMEs in Nigeria and actualise consistent funding of growing businesses.
{"title":"The United Nations Sustainable Development Goals, Financial Inclusion Agenda and the Efficacy of Security Interest over Movable Assets: The Case of Micro, Small and Medium Enterprises in Nigeria","authors":"I. Smith","doi":"10.3366/ajicl.2022.0405","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0405","url":null,"abstract":"Access to credit facility by the micro, small and medium enterprises (MSMEs) in the developing countries remains a mirage without a functional, inclusive and efficient system of credit and security. The realisation of the sustainable development goals for rapid growth and economic development in those countries depends on a viable and effective financial inclusion agenda as encapsulated in one of the targets of Goal Number 9 of the United Nations Sustainable Development Goals (SDGs). As an enabler of many of the developmental goals of the UN, the financial inclusion agenda provides the link with sustainable development. This article interrogates how security over movable assets will meet the reasonable expectations of the MSMEs in Nigeria and actualise consistent funding of growing businesses.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47214447","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}
There has been a progressive shift in shareholder activism in South Africa as shareholder demands for greater levels of accountability, reasonable executive remuneration and disclosure and transparency are increasing. Frustration with increasing high-profile corporate scandals and governance failures has also caused shareholder activism to gain momentum in South Africa. This article discusses the South African legal framework relating to shareholder activism and identifies trends in shareholder activism in South Africa. While the growing increase in shareholder activism is welcomed, this article contends that South Africa still has a long way to go compared to the level of shareholder activism in the USA, the UK and Australia. Recommendations are made to enhance shareholder activism in South Africa.
{"title":"An Analysis of Trends in Shareholder Activism in South Africa","authors":"Rehana Cassim","doi":"10.3366/ajicl.2022.0402","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0402","url":null,"abstract":"There has been a progressive shift in shareholder activism in South Africa as shareholder demands for greater levels of accountability, reasonable executive remuneration and disclosure and transparency are increasing. Frustration with increasing high-profile corporate scandals and governance failures has also caused shareholder activism to gain momentum in South Africa. This article discusses the South African legal framework relating to shareholder activism and identifies trends in shareholder activism in South Africa. While the growing increase in shareholder activism is welcomed, this article contends that South Africa still has a long way to go compared to the level of shareholder activism in the USA, the UK and Australia. Recommendations are made to enhance shareholder activism in South Africa.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44566213","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 recent years, some of the most interesting and challenging corporate litigation has involved transnational tortious claims against parent companies. Such transnational cases raise a number of important issues which are downplayed in the literature addressing parental liability in purely ‘domestic’ cases. This article seeks to explore three such issues. The first concerns how we should explain victims' motives for suing the parent in these cases. We argue that transnational actions, unlike ‘domestic’ cases against parents, are less often a means of circumventing the subsidiary's insolvency, and more often about the search for a better forum, inflicting reputational damage on a corporate group, and avoiding doctrinal problems which may afflict the subsidiary action. The second issue is the legitimacy of using parental actions for these reasons. The third issue concerns whose law should govern transnational actions against parents. To illustrate these issues, we use three recent examples of transnational actions against parent companies.
{"title":"Explaining and Evaluating Transnational Tortious Actions against Parent Companies: Lessons from Shell and Nigeria","authors":"Christopher Riley, Oludara Akanmidu","doi":"10.3366/ajicl.2022.0406","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0406","url":null,"abstract":"In recent years, some of the most interesting and challenging corporate litigation has involved transnational tortious claims against parent companies. Such transnational cases raise a number of important issues which are downplayed in the literature addressing parental liability in purely ‘domestic’ cases. This article seeks to explore three such issues. The first concerns how we should explain victims' motives for suing the parent in these cases. We argue that transnational actions, unlike ‘domestic’ cases against parents, are less often a means of circumventing the subsidiary's insolvency, and more often about the search for a better forum, inflicting reputational damage on a corporate group, and avoiding doctrinal problems which may afflict the subsidiary action. The second issue is the legitimacy of using parental actions for these reasons. The third issue concerns whose law should govern transnational actions against parents. To illustrate these issues, we use three recent examples of transnational actions against parent companies.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47783538","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 2019, the Ugandan government issued the National Health Insurance Scheme (NHIS) Bill to promote more equitable access to health care, passing this Bill in March 2021. While the NHIS marks a significant step towards equitable reform of the health system, it also raised concerns about its impact on equity and the right to health. This article considers the extent to which the proposed 2019 Bill is in line with the right to health in international and Ugandan law, and offers recommendations to strengthen the foundation it sets for future and more equitable health policy.
{"title":"Using the Right to Health to Advance Equitable Universal Health Coverage in Uganda's National Health Insurance Scheme Bill","authors":"L. Forman, Diya Uberoi, M. Mulumba","doi":"10.3366/ajicl.2022.0409","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0409","url":null,"abstract":"In 2019, the Ugandan government issued the National Health Insurance Scheme (NHIS) Bill to promote more equitable access to health care, passing this Bill in March 2021. While the NHIS marks a significant step towards equitable reform of the health system, it also raised concerns about its impact on equity and the right to health. This article considers the extent to which the proposed 2019 Bill is in line with the right to health in international and Ugandan law, and offers recommendations to strengthen the foundation it sets for future and more equitable health policy.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45323110","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":"Territorial Jurisdiction Relating to Succession and Administration of Estates under Nigerian Conflict of Laws","authors":"Chukwuma Samuel Adesina Okoli","doi":"10.3366/ajicl.2022.0397","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0397","url":null,"abstract":"","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42451926","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 many African communities, gender inequality remains the norm as women continue to live at the periphery of society. Women in Africa have continued to bear the greatest burden of sexual and reproductive ill-health. Women's access to reproductive justice is often restricted by the systems, institutions and legal frameworks that (should) facilitate reproductive justice. Thus reproductive justice should be viewed holistically, taking into account cultural, institutional and political barriers and the social environment in which women live. Using the decision in Mapingure as a case study, this article argues that attempts at legal reforms towards access to reproductive justice for women must put women at the centre and address structural and institutional inadequacies that perpetuate gender inequality. The Mapingure case illustrates that the mere existence of positive laws and institutions to enforce these laws is not a guarantee for women to secure access to justice in general and reproductive justice in particular. The article concludes that realising access to justice for women goes beyond creating an enabling legal environment but also modifying socio-cultural behaviour and attitudes that spread patriarchal and primordial hegemonic tendencies.
{"title":"Engendering Legal and Institutional Reforms to Ensure Access to Reproductive Justice for Women in Zimbabwe: A Case Study of the Mapingure Case","authors":"M. Maziwisa, E. Durojaye","doi":"10.3366/ajicl.2022.0395","DOIUrl":"https://doi.org/10.3366/ajicl.2022.0395","url":null,"abstract":"In many African communities, gender inequality remains the norm as women continue to live at the periphery of society. Women in Africa have continued to bear the greatest burden of sexual and reproductive ill-health. Women's access to reproductive justice is often restricted by the systems, institutions and legal frameworks that (should) facilitate reproductive justice. Thus reproductive justice should be viewed holistically, taking into account cultural, institutional and political barriers and the social environment in which women live. Using the decision in Mapingure as a case study, this article argues that attempts at legal reforms towards access to reproductive justice for women must put women at the centre and address structural and institutional inadequacies that perpetuate gender inequality. The Mapingure case illustrates that the mere existence of positive laws and institutions to enforce these laws is not a guarantee for women to secure access to justice in general and reproductive justice in particular. The article concludes that realising access to justice for women goes beyond creating an enabling legal environment but also modifying socio-cultural behaviour and attitudes that spread patriarchal and primordial hegemonic tendencies.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48355280","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}
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