Pub Date : 2021-10-25DOI: 10.1017/S0021855321000358
C. Mwangi
Abstract Traditional knowledge forms the fabric of indigenous communities’ social and economic life. Its attempted protection through intellectual property law has been dismal. There is now wide consensus that sui generis regimes should be employed for this purpose, and that customary laws are conceivable as an integral part of such protection. This article finds that the expressed legislative intent to protect traditional knowledge through customary law in Kenya is ill-fated. Sustained inclusive subordination of the latter will obstruct any meaningful efforts to protect the former. This finding is reached by an examination of the historical application of African customary law in personal law regimes that have it as the defining legal regimen. This history is one of subtle subordination, and such subtlety remains embedded even in Kenya's law on traditional knowledge. The unpleasant effects of this phenomenon as observed in personal law regimes are likely to recur for traditional knowledge.
{"title":"Traditional Knowledge and the Inclusive Subordination of African Customary Law in Kenya: Lessons from Personal Law","authors":"C. Mwangi","doi":"10.1017/S0021855321000358","DOIUrl":"https://doi.org/10.1017/S0021855321000358","url":null,"abstract":"Abstract Traditional knowledge forms the fabric of indigenous communities’ social and economic life. Its attempted protection through intellectual property law has been dismal. There is now wide consensus that sui generis regimes should be employed for this purpose, and that customary laws are conceivable as an integral part of such protection. This article finds that the expressed legislative intent to protect traditional knowledge through customary law in Kenya is ill-fated. Sustained inclusive subordination of the latter will obstruct any meaningful efforts to protect the former. This finding is reached by an examination of the historical application of African customary law in personal law regimes that have it as the defining legal regimen. This history is one of subtle subordination, and such subtlety remains embedded even in Kenya's law on traditional knowledge. The unpleasant effects of this phenomenon as observed in personal law regimes are likely to recur for traditional knowledge.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"66 1","pages":"47 - 71"},"PeriodicalIF":0.4,"publicationDate":"2021-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46664761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-22DOI: 10.1017/s0021855321000425
Delali A. Gawu, R. Mensah
Abstract In December 2019, the world woke up to the news of a novel coronavirus (COVID-19). Since then, governments across the globe have deployed various measures to contain the spread of the disease. The government of Ghana, among other measures, issued the Establishment of Emergency Communications System Instrument, 2020 (EI 63) to establish an emergency communications system to aid contact tracing during public health emergencies. This executive instrument has been criticized for illegally “legalizing” the breach of the privacy rights of electronic communications network subscribers in Ghana. This article critically analyses EI 63 in relation to the right to privacy of communication enshrined in Ghana's 1992 Constitution. It argues against the constitutionality of EI 63, calls for its revocation and replacement with an act of Parliament enacted with due regard for Ghana's legislative framework on the protection of the right to privacy of communication.
{"title":"COVID-19 Contact Tracing and Privacy Rights in Ghana: A Critical Analysis of the Establishment of Emergency Communications System Instrument, 2020 (EI 63)","authors":"Delali A. Gawu, R. Mensah","doi":"10.1017/s0021855321000425","DOIUrl":"https://doi.org/10.1017/s0021855321000425","url":null,"abstract":"Abstract In December 2019, the world woke up to the news of a novel coronavirus (COVID-19). Since then, governments across the globe have deployed various measures to contain the spread of the disease. The government of Ghana, among other measures, issued the Establishment of Emergency Communications System Instrument, 2020 (EI 63) to establish an emergency communications system to aid contact tracing during public health emergencies. This executive instrument has been criticized for illegally “legalizing” the breach of the privacy rights of electronic communications network subscribers in Ghana. This article critically analyses EI 63 in relation to the right to privacy of communication enshrined in Ghana's 1992 Constitution. It argues against the constitutionality of EI 63, calls for its revocation and replacement with an act of Parliament enacted with due regard for Ghana's legislative framework on the protection of the right to privacy of communication.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"65 1","pages":"361 - 373"},"PeriodicalIF":0.4,"publicationDate":"2021-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48159870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-22DOI: 10.1017/S0021855321000383
M. Babiker
Abstract This article argues that the lockdown imposed in Sudan due to the COVID-19 pandemic has seriously affected the livelihood of vulnerable populations and their right to live a dignified life. It explores how emergency measures were aimed at containing the spread of the pandemic. The article argues that these measures have seriously affected the enjoyment of core economic and social rights, particularly in the context of a weak legislative framework of social protection. It concludes by arguing that Sudan's transitional government is not subject to parliamentary scrutiny and exercises legislative and executive powers that are de facto illegitimate, as they are not subject to review by the courts and because of the current suspension of constitutional organs and governance structures. This incomplete governance structure is concerning from a rule of law perspective and has prevented scrutiny of COVID-19 emergency measures, particularly those affecting the basic rights of vulnerable groups.
{"title":"COVID-19 and Sudan: The Impact on Economic and Social Rights in the Context of a Fragile Democratic Transition and Suspended Constitutionalism","authors":"M. Babiker","doi":"10.1017/S0021855321000383","DOIUrl":"https://doi.org/10.1017/S0021855321000383","url":null,"abstract":"Abstract This article argues that the lockdown imposed in Sudan due to the COVID-19 pandemic has seriously affected the livelihood of vulnerable populations and their right to live a dignified life. It explores how emergency measures were aimed at containing the spread of the pandemic. The article argues that these measures have seriously affected the enjoyment of core economic and social rights, particularly in the context of a weak legislative framework of social protection. It concludes by arguing that Sudan's transitional government is not subject to parliamentary scrutiny and exercises legislative and executive powers that are de facto illegitimate, as they are not subject to review by the courts and because of the current suspension of constitutional organs and governance structures. This incomplete governance structure is concerning from a rule of law perspective and has prevented scrutiny of COVID-19 emergency measures, particularly those affecting the basic rights of vulnerable groups.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"65 1","pages":"311 - 331"},"PeriodicalIF":0.4,"publicationDate":"2021-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43753971","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-21DOI: 10.1017/S002185532100036X
Pascal Kany Prud’ome Gamassa
Abstract The United Republic of Tanzania, also called Tanzania, is a country composed of Mainland Tanzania and the islands of Zanzibar. Tanzania's domestic laws promote sustainable development of the marine environment; however, since the beginning of the 21st century, the country has been importing large quantities of oil, resulting in an increased risk of vessel-source oil pollution damage. Through a comparative analysis, this article examines the laws addressing this issue in Mainland Tanzania and Zanzibar, the progress that has been made in the legal environment and the challenges that remain, and it discusses possible solutions and improvements. The article reveals that weak implementation of domestic laws for marine environment conservation, a lack of harmonization between domestic laws regarding this issue, and weak domestication of relevant ratified international conventions are among the challenges currently hindering the sustainability of Tanzania's marine environment.
{"title":"Legal Protection of the Marine Environment from Vessel-Source Oil Pollution: Progress and Challenges in Tanzania","authors":"Pascal Kany Prud’ome Gamassa","doi":"10.1017/S002185532100036X","DOIUrl":"https://doi.org/10.1017/S002185532100036X","url":null,"abstract":"Abstract The United Republic of Tanzania, also called Tanzania, is a country composed of Mainland Tanzania and the islands of Zanzibar. Tanzania's domestic laws promote sustainable development of the marine environment; however, since the beginning of the 21st century, the country has been importing large quantities of oil, resulting in an increased risk of vessel-source oil pollution damage. Through a comparative analysis, this article examines the laws addressing this issue in Mainland Tanzania and Zanzibar, the progress that has been made in the legal environment and the challenges that remain, and it discusses possible solutions and improvements. The article reveals that weak implementation of domestic laws for marine environment conservation, a lack of harmonization between domestic laws regarding this issue, and weak domestication of relevant ratified international conventions are among the challenges currently hindering the sustainability of Tanzania's marine environment.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"66 1","pages":"123 - 149"},"PeriodicalIF":0.4,"publicationDate":"2021-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42675062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-20DOI: 10.1017/S0021855321000395
Mansha Mohee
Abstract Over 25 African countries had planned elections for 2020. In the face of the onset of the COVID-19 pandemic in March, states resorted to one of two courses of action: adherence to planned electoral timelines in the shadow of the outbreak, which largely led to record low voter turnouts and hastened the spread of the virus; or adjourning elections with ill-defined election programming, constitutional tensions and unrest over delayed polls. The global health crisis not only frustrated the organization of the electoral process but set severe challenges to democracy, the rule of law and human rights in the region at a time of landmark elections, notably in Ethiopia, Burundi and Malawi. This article analyses initial state responses in electoral administration in light of international electoral norms, and interrogates the role of national and regional mechanisms in securing safe, inclusive, timely, free and fair elections amid new infectious disease outbreaks.
{"title":"Electoral Governance and Human Rights Amid Pandemics in Africa: Key Lessons from the Early COVID-19 Experience","authors":"Mansha Mohee","doi":"10.1017/S0021855321000395","DOIUrl":"https://doi.org/10.1017/S0021855321000395","url":null,"abstract":"Abstract Over 25 African countries had planned elections for 2020. In the face of the onset of the COVID-19 pandemic in March, states resorted to one of two courses of action: adherence to planned electoral timelines in the shadow of the outbreak, which largely led to record low voter turnouts and hastened the spread of the virus; or adjourning elections with ill-defined election programming, constitutional tensions and unrest over delayed polls. The global health crisis not only frustrated the organization of the electoral process but set severe challenges to democracy, the rule of law and human rights in the region at a time of landmark elections, notably in Ethiopia, Burundi and Malawi. This article analyses initial state responses in electoral administration in light of international electoral norms, and interrogates the role of national and regional mechanisms in securing safe, inclusive, timely, free and fair elections amid new infectious disease outbreaks.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"65 1","pages":"209 - 236"},"PeriodicalIF":0.4,"publicationDate":"2021-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43649755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-20DOI: 10.1017/S0021855321000371
Carolien Jacobs, P. M. Kyamusugulwa, Rachel Sifa Katembera, Henri Kintuntu
Abstract This article concerns the unfolding COVID-19 pandemic in the Democratic Republic of the Congo. It analyses the sanitary measures that the government has taken to respond to the pandemic since March 2020, the way these measures are enforced, and the extent to which women comply with the measures. The article draws from desk research and empirical data from the eastern city of Bukavu, where the research team conducted 134 structured interviews. The findings show widespread willingness to comply with some of the main measures because of fear of sanctions, fear of the pandemic and because of trust in the state or church. The article argues that many women hold the state accountable for the success in containing the virus, but also criticize the state for not providing livelihood assistance during the state of emergency. Further research is needed to assess the impact of COVID-19 on state legitimacy.
{"title":"Containing COVID-19 in the Democratic Republic of the Congo: Government Measures and Women's Compliance","authors":"Carolien Jacobs, P. M. Kyamusugulwa, Rachel Sifa Katembera, Henri Kintuntu","doi":"10.1017/S0021855321000371","DOIUrl":"https://doi.org/10.1017/S0021855321000371","url":null,"abstract":"Abstract This article concerns the unfolding COVID-19 pandemic in the Democratic Republic of the Congo. It analyses the sanitary measures that the government has taken to respond to the pandemic since March 2020, the way these measures are enforced, and the extent to which women comply with the measures. The article draws from desk research and empirical data from the eastern city of Bukavu, where the research team conducted 134 structured interviews. The findings show widespread willingness to comply with some of the main measures because of fear of sanctions, fear of the pandemic and because of trust in the state or church. The article argues that many women hold the state accountable for the success in containing the virus, but also criticize the state for not providing livelihood assistance during the state of emergency. Further research is needed to assess the impact of COVID-19 on state legitimacy.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"65 1","pages":"287 - 310"},"PeriodicalIF":0.4,"publicationDate":"2021-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44624373","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-12DOI: 10.1017/S0021855321000334
A. Adewopo
Abstract The COVID-19 pandemic has continued to exert enormous pressure on public health policies and systems, with far-reaching implications. The race for vaccines has raised important intellectual property rights issues. These are evident in the need to advance the public interest and in the obligation of governments to address the challenge of access to vaccines, especially in sub-Saharan countries like Nigeria with relatively underdeveloped healthcare and innovation ecosystems. While the Nigerian Patents and Designs Act (PDA) establishes a compulsory licence regime that affords access to patented drugs, existing public healthcare is severely challenged in providing access to new medicines. This article examines the framework for patent protection of pharmaceuticals designed to meet public health challenges, such as those presented by the pandemic. It recommends the implementation of a government use provision under the PDA, with a view to addressing the challenge of access to COVID-19 vaccines.
{"title":"Access to Pharmaceutical Patents in the COVID-19 Emergency: A Case for Government Use in Nigeria","authors":"A. Adewopo","doi":"10.1017/S0021855321000334","DOIUrl":"https://doi.org/10.1017/S0021855321000334","url":null,"abstract":"Abstract The COVID-19 pandemic has continued to exert enormous pressure on public health policies and systems, with far-reaching implications. The race for vaccines has raised important intellectual property rights issues. These are evident in the need to advance the public interest and in the obligation of governments to address the challenge of access to vaccines, especially in sub-Saharan countries like Nigeria with relatively underdeveloped healthcare and innovation ecosystems. While the Nigerian Patents and Designs Act (PDA) establishes a compulsory licence regime that affords access to patented drugs, existing public healthcare is severely challenged in providing access to new medicines. This article examines the framework for patent protection of pharmaceuticals designed to meet public health challenges, such as those presented by the pandemic. It recommends the implementation of a government use provision under the PDA, with a view to addressing the challenge of access to COVID-19 vaccines.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"65 1","pages":"259 - 286"},"PeriodicalIF":0.4,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47554330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-01DOI: 10.1017/S0021855321000346
J. D. Mujuzi
Abstract Article 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi's Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.
{"title":"The Islamic Law of Marriage and Inheritance in Kenya","authors":"J. D. Mujuzi","doi":"10.1017/S0021855321000346","DOIUrl":"https://doi.org/10.1017/S0021855321000346","url":null,"abstract":"Abstract Article 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi's Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"65 1","pages":"377 - 401"},"PeriodicalIF":0.4,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47782169","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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