Although international asset recovery is one of the key anti-corruption commitments under the United Nations Convention against Corruption and the African Union Convention on Preventing and Combating Corruption, a huge gap remains between commitments and implementation. The shortcomings of international asset freezes in the case of Libya, with billions of dollars unaccounted for, confirm this statement. In this article, I identify the major obstacles for recovering stolen assets in the case of Libya and I argue that the international community needs to enhance asset recovery and mutual legal assistance, as well as to explore bold ideas, such as the reversal of the burden of proof as to the illicit origin of the assets.
{"title":"The Troubling Shortcomings of International Asset Freezes: The Hunt for Gaddafi's Lost Billions","authors":"G. Pavlidis","doi":"10.3366/ajicl.2021.0387","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0387","url":null,"abstract":"Although international asset recovery is one of the key anti-corruption commitments under the United Nations Convention against Corruption and the African Union Convention on Preventing and Combating Corruption, a huge gap remains between commitments and implementation. The shortcomings of international asset freezes in the case of Libya, with billions of dollars unaccounted for, confirm this statement. In this article, I identify the major obstacles for recovering stolen assets in the case of Libya and I argue that the international community needs to enhance asset recovery and mutual legal assistance, as well as to explore bold ideas, such as the reversal of the burden of proof as to the illicit origin of the assets.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45433555","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 today's world, the role of law transcends the maintenance of social order and administration of justice. Law has a crucial role to play in the developmental processes of states. Nigeria, a country now reputed to be the poverty capital of the world, is in dire need of development. Law can aid Nigeria's quest towards development. This study addresses the question what is development and makes an attempt to offer a holistic notion of the concept. In appraising the relevance of law in Nigeria's developmental process, the study examined instances where the law was employed to enable development, either through the facilitation of indices of development or through the inhibition of impediments to development. Additionally, the study interrogated the nexus between the law and development policy in Nigeria, and appraised the role of law in Nigeria's development process. Prescriptively, the study suggested ways in which the relevance of law in Nigeria's development process can be supplemented, namely prioritisation of the development question in law-making, execution and interpretation; promoting the realisation of socio-economic rights; and the mainstreaming of customary law as an integral part of the law and development discourse.
{"title":"Law and Nigeria's Development: How to Strengthen the Efficacy of Law for Development in Nigeria","authors":"Daniel P. Saredau","doi":"10.3366/ajicl.2021.0383","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0383","url":null,"abstract":"In today's world, the role of law transcends the maintenance of social order and administration of justice. Law has a crucial role to play in the developmental processes of states. Nigeria, a country now reputed to be the poverty capital of the world, is in dire need of development. Law can aid Nigeria's quest towards development. This study addresses the question what is development and makes an attempt to offer a holistic notion of the concept. In appraising the relevance of law in Nigeria's developmental process, the study examined instances where the law was employed to enable development, either through the facilitation of indices of development or through the inhibition of impediments to development. Additionally, the study interrogated the nexus between the law and development policy in Nigeria, and appraised the role of law in Nigeria's development process. Prescriptively, the study suggested ways in which the relevance of law in Nigeria's development process can be supplemented, namely prioritisation of the development question in law-making, execution and interpretation; promoting the realisation of socio-economic rights; and the mainstreaming of customary law as an integral part of the law and development discourse.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49186669","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 electricity is a major challenge in Nigeria with adverse effects on residents and businesses. To improve the poor state of electricity, the government introduced several policies to enhance the use of renewable energy in addition to existing conventional energy resources. However, the use of renewable energy has been relatively low in Nigeria. This can be attributed to several factors such as inconsistency in renewable energy targets, non-implementation of policies and lack of political will. In order to address this, the use of incentives as in the case of Texas is proposed for Nigeria.
{"title":"Analysing the Effectiveness of the Nigerian Law and Policy in Promoting Renewable Energy and Expanding Access to Electricity","authors":"F. Alonge","doi":"10.3366/ajicl.2021.0385","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0385","url":null,"abstract":"Access to electricity is a major challenge in Nigeria with adverse effects on residents and businesses. To improve the poor state of electricity, the government introduced several policies to enhance the use of renewable energy in addition to existing conventional energy resources. However, the use of renewable energy has been relatively low in Nigeria. This can be attributed to several factors such as inconsistency in renewable energy targets, non-implementation of policies and lack of political will. In order to address this, the use of incentives as in the case of Texas is proposed for Nigeria.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49272205","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}
Article 21(2) of the Ugandan constitution provides that ‘a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability’. Article 21(3) defines discrimination to mean ‘to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability’. Age is not one of the grounds mentioned in Article 21 against which a person may not be discriminated against. In Madrama Izama v. Attorney General the Ugandan Supreme Court dealt with the issue of whether, notwithstanding the fact that age is not mentioned under Article 21, a person could argue that he has a right not to be discriminated against on the basis of age. The majority judgment answered that question in the negative whereas the minority judgments came to the opposite conclusion. In this article, the author highlights the strengths and weaknesses of the majority and minority judgments.
{"title":"Discrimination on the Ground of Age in Uganda: Analysing Madrama Izama v. Attorney General (Constitutional Appeal No.01 of 2016) [2019] UGSC 1 (14 February 2019)","authors":"J. D. Mujuzi","doi":"10.3366/ajicl.2021.0388","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0388","url":null,"abstract":"Article 21(2) of the Ugandan constitution provides that ‘a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability’. Article 21(3) defines discrimination to mean ‘to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability’. Age is not one of the grounds mentioned in Article 21 against which a person may not be discriminated against. In Madrama Izama v. Attorney General the Ugandan Supreme Court dealt with the issue of whether, notwithstanding the fact that age is not mentioned under Article 21, a person could argue that he has a right not to be discriminated against on the basis of age. The majority judgment answered that question in the negative whereas the minority judgments came to the opposite conclusion. In this article, the author highlights the strengths and weaknesses of the majority and minority judgments.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42791976","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}
It is a universally acceptable practice to employ newly hired employees on a probationary period. In general terms the purpose of probation is to give the employer an opportunity to evaluate the employee's performance before confirming the appointment. This in itself seems to be an uncomplicated process; however, the scenario, especially in South Africa, becomes more complicated if an employer wants to terminate an employee's service during the probationary period of employment or terminate the services of an employee at the end of the probationary period. The right to a fair dismissal is well recognised in South African labour law; this right also extends to employees during their probationary period of employment. Convention 158 of the International Labour Organisation (ILO) provides guidelines in respect of the termination of employment, also during the probation period. In this article the ILO's standards with regard to the termination of employment during probation are considered. South Africa was a former colony of the Netherlands and the United Kingdom, in light of this the respective positions on dismissal during the probation period of employment in the Netherlands and the United Kingdom are also analysed. This provided the researcher with an opportunity to determine if South Africa's dismissal regime during the probationary period of employment is in line with some international perspectives and it appears that dismissal during the probationary period of employment in South Africa is out of step with international standards and developments.
{"title":"Dismissal during Probationary Period of Employment in South Africa: An International Perspective","authors":"P. Smit, J. Grobler","doi":"10.3366/ajicl.2021.0380","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0380","url":null,"abstract":"It is a universally acceptable practice to employ newly hired employees on a probationary period. In general terms the purpose of probation is to give the employer an opportunity to evaluate the employee's performance before confirming the appointment. This in itself seems to be an uncomplicated process; however, the scenario, especially in South Africa, becomes more complicated if an employer wants to terminate an employee's service during the probationary period of employment or terminate the services of an employee at the end of the probationary period. The right to a fair dismissal is well recognised in South African labour law; this right also extends to employees during their probationary period of employment. Convention 158 of the International Labour Organisation (ILO) provides guidelines in respect of the termination of employment, also during the probation period. In this article the ILO's standards with regard to the termination of employment during probation are considered. South Africa was a former colony of the Netherlands and the United Kingdom, in light of this the respective positions on dismissal during the probation period of employment in the Netherlands and the United Kingdom are also analysed. This provided the researcher with an opportunity to determine if South Africa's dismissal regime during the probationary period of employment is in line with some international perspectives and it appears that dismissal during the probationary period of employment in South Africa is out of step with international standards and developments.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44775240","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}
Ndinawe Mtonga Ruppert, Kevin Sobel-Read, Blake Pepper
The increasingly interconnected nature of global commerce has caused dramatic structural transformation. Global value chains (GVCs) are crucial to understanding the resulting consequences, including the possibilities available today for a country's economic success. Law plays a central role. In this article, we explore GVC upgrading in Africa, focusing on the mining sector in Zambia. We outline three impediments to Zambia's upgrading capacity within the copper-mining GVC and conclude with three policy suggestions that could improve Zambia's position. By shedding light on the relationship between law, development and global value chains, the article provides beneficial insight to Zambia and across Africa.
{"title":"Law, Global Value Chains and Upgrading in the Mining Industry: A Case Study on Zambia","authors":"Ndinawe Mtonga Ruppert, Kevin Sobel-Read, Blake Pepper","doi":"10.3366/ajicl.2021.0382","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0382","url":null,"abstract":"The increasingly interconnected nature of global commerce has caused dramatic structural transformation. Global value chains (GVCs) are crucial to understanding the resulting consequences, including the possibilities available today for a country's economic success. Law plays a central role. In this article, we explore GVC upgrading in Africa, focusing on the mining sector in Zambia. We outline three impediments to Zambia's upgrading capacity within the copper-mining GVC and conclude with three policy suggestions that could improve Zambia's position. By shedding light on the relationship between law, development and global value chains, the article provides beneficial insight to Zambia and across Africa.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45722660","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}
The article is based on the notion that real socio-economic and political transformation did not follow the adoption of the 2013 Zimbabwean Constitution. Relying on theories of constitutionalism, transformational constitutionalism and transformative adjudication as contemplated by Karl Klare, the question of whether it is possible for the transformation agenda to be accomplished in the absence of political will, and the extent to which the courts can be used as a means of attaining this, is addressed. The article uses a socio-legal research method by drawing arguments from legal and policy-related literature. The jurisprudence of the Zimbabwean Constitutional Court is compared with other jurisdictions such as Kenya and South Africa that adopted interpretative and adjudication methods that have changed the lives of the people, especially with regard to socio-economic and civil and political rights. It is observed that while commendable progress has been made by the Zimbabwean courts, the jurisprudence is still fraught with inconsistencies and lacking in transformative legal culture.
{"title":"Prospects for Constitutional and Human Rights Transformation through Constitutional Adjudication in Zimbabwe after 2013","authors":"Simbarashe Tembo, Anne-Marie Singh","doi":"10.3366/ajicl.2021.0372","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0372","url":null,"abstract":"The article is based on the notion that real socio-economic and political transformation did not follow the adoption of the 2013 Zimbabwean Constitution. Relying on theories of constitutionalism, transformational constitutionalism and transformative adjudication as contemplated by Karl Klare, the question of whether it is possible for the transformation agenda to be accomplished in the absence of political will, and the extent to which the courts can be used as a means of attaining this, is addressed. The article uses a socio-legal research method by drawing arguments from legal and policy-related literature. The jurisprudence of the Zimbabwean Constitutional Court is compared with other jurisdictions such as Kenya and South Africa that adopted interpretative and adjudication methods that have changed the lives of the people, especially with regard to socio-economic and civil and political rights. It is observed that while commendable progress has been made by the Zimbabwean courts, the jurisprudence is still fraught with inconsistencies and lacking in transformative legal culture.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48779147","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}
This article discusses the contentious issue of Head of State of immunity before the International Criminal Court (ICC) in the context of the historical link between the colonial confrontation of the nineteenth century and the development of the doctrines of state sovereignty and immunity. It examines the philosophical underpinnings of the immunity in international criminal law debate and concludes that a clear understanding of the role that colonialism played in the development of international law is pivotal to understanding the concerns raised by the African Union and individual African leaders regarding the indictment of African leaders by the ICC.
{"title":"The Immunity Question before the International Criminal Court: Revisiting African Sovereignty and the Colonial Origins of International Law","authors":"Linda Mushoriwa","doi":"10.3366/ajicl.2021.0370","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0370","url":null,"abstract":"This article discusses the contentious issue of Head of State of immunity before the International Criminal Court (ICC) in the context of the historical link between the colonial confrontation of the nineteenth century and the development of the doctrines of state sovereignty and immunity. It examines the philosophical underpinnings of the immunity in international criminal law debate and concludes that a clear understanding of the role that colonialism played in the development of international law is pivotal to understanding the concerns raised by the African Union and individual African leaders regarding the indictment of African leaders by the ICC.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47173272","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}
The decision of the European Court of Justice in Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres, Judgment of the Court of Justice (Grand Chamber) of 1 March 2011 Case (C-236/09) sparked international interest and concern as it prohibited the use of gender as a rating variable in the access to and the supply of goods and services. With specific reference to motor-vehicle insurance, gender is widely used to differentiate for purposes of accurate risk classification. South African motor-vehicle insurers use, inter alia, gender as a rating variable to classify risks into certain classes and to determine insurance premiums. A South African court is still yet to decide whether the use of gender as a motor-vehicle insurance rating variable amounts to unfair discrimination or not. In light of South Africa's history of discrimination, case law and equality legislation reflect a deep commitment to substantive equality. This article explores, taking into account a South African court's approach to equality, whether the outcome may be similar to the decision of the European Court of Justice or not.
欧洲法院在2011年3月1日法院（大分庭）对案件（C-236/09）的判决中，对联合会测试Achats ASBL、Yann van Vugt、Charles Basselier诉Conseil des ministres一案的裁决引起了国际社会的兴趣和关注，因为该裁决禁止在获得和提供商品和服务时使用性别作为评级变量。关于机动车辆保险，为了准确的风险分类，性别被广泛用于区分。南非机动车辆保险公司除其他外，将性别作为评级变量，将风险分为某些类别，并确定保险费。南非一家法院尚未裁定将性别作为机动车保险评级变量是否构成不公平歧视。鉴于南非的歧视历史，判例法和平等立法体现了对实质平等的坚定承诺。考虑到南非法院对待平等的态度，本文探讨了结果是否与欧洲法院的裁决相似。
{"title":"EU Directive Prohibiting Gender-Based Insurance Rating: Would a South African Court Follow Suit?","authors":"Anthea Natalie Wagener","doi":"10.3366/ajicl.2021.0374","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0374","url":null,"abstract":"The decision of the European Court of Justice in Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres, Judgment of the Court of Justice (Grand Chamber) of 1 March 2011 Case (C-236/09) sparked international interest and concern as it prohibited the use of gender as a rating variable in the access to and the supply of goods and services. With specific reference to motor-vehicle insurance, gender is widely used to differentiate for purposes of accurate risk classification. South African motor-vehicle insurers use, inter alia, gender as a rating variable to classify risks into certain classes and to determine insurance premiums. A South African court is still yet to decide whether the use of gender as a motor-vehicle insurance rating variable amounts to unfair discrimination or not. In light of South Africa's history of discrimination, case law and equality legislation reflect a deep commitment to substantive equality. This article explores, taking into account a South African court's approach to equality, whether the outcome may be similar to the decision of the European Court of Justice or not.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47964974","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}
Living resources directly support the livelihood of coastal communities in Sao Tome e Principe, while oil and gas reserves are needed to improve economic growth. Yet these resources are widely coveted, resulting in illegal, unreported and unregulated fishing, as well as illegal oil bunkering and theft of crude oil. STP has settled its maritime boundaries with Equatorial Guinea and Gabon, but not with Nigeria. Instead, the two countries agreed on a joint development regime in the disputed maritime area, albeit unsuccessfully. This article examines two key challenges currently facing STP: unblocking the STP-Nigeria joint development agreement and addressing IUUF.
{"title":"Two Key Ocean Governance Challenges for Sao Tome and Principe","authors":"Vasco Becker-Weinberg","doi":"10.3366/ajicl.2021.0373","DOIUrl":"https://doi.org/10.3366/ajicl.2021.0373","url":null,"abstract":"Living resources directly support the livelihood of coastal communities in Sao Tome e Principe, while oil and gas reserves are needed to improve economic growth. Yet these resources are widely coveted, resulting in illegal, unreported and unregulated fishing, as well as illegal oil bunkering and theft of crude oil. STP has settled its maritime boundaries with Equatorial Guinea and Gabon, but not with Nigeria. Instead, the two countries agreed on a joint development regime in the disputed maritime area, albeit unsuccessfully. This article examines two key challenges currently facing STP: unblocking the STP-Nigeria joint development agreement and addressing IUUF.","PeriodicalId":42692,"journal":{"name":"African Journal of International and Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47904134","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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