Journal of African Law最新文献

Public procurement is often used to achieve policy goals beyond the purchase of the required goods and services. These goals include the economic advancement of minorities, the promotion of fair labour practices and climate action. In the last two decades, many countries have used public procurement to advance gender equality. This is referred to as gender-responsive procurement and is often implemented through the award of public contracts to women-owned businesses. While many countries have legal provisions designed to increase the award of public contracts to women, gender-responsive procurement is extremely limited and women-owned businesses are not fully integrated into public sector supply chains. This is unfortunate, given that gender-responsive procurement can improve women's economic empowerment, with implications for sustainable development. This article adopts a gender equality and women's economic empowerment lens to examine the legal, policy and cultural barriers to gender-responsive procurement and recommends measures to improve the award of public contracts to women-owned businesses.

This article examines the interplay between traditional leaders, democratically elected leaders and succession in Makapanstad Village, North West Province, South Africa. The article stems from community-based participatory action research conducted in Makapanstad in 2018. The article uses research data, in the form of community dialogue, together with desktop literature on the same subject. The article analyses the significance and role of traditional leadership in a democratic South Africa. It considers traditional leadership and democratically elected leadership in conjunction with succession and the demarcation of roles and responsibilities. The article analyses participants’ views to explore the form of leadership preferred by the residents of Makapanstad. It argues that, despite the recognition of traditional leadership in South Africa's Constitution, the roles and responsibilities of traditional leaders in local and provincial arms of government are limited, in contrast to those of democratically elected leaders.

Several post-independence African states have opted for constitutional democracies in response to various governance challenges. Most of these constitutions espouse values of constitutionalism, such as the rule of law, human rights and citizenship. This article interrogates the concept of constitutionalism, examines its pillars and values, and reflects on how Africa's constitutions mirror them. Its thesis is that a constitutional government does not necessarily approximate constitutionalism. The article argues, with evidence, that many states possess constitutions but fall short in practising constitutionalism. It calls on these states to embark on institutional reforms and to pursue good governance that improves the living standards of their citizens.

The doctrine of subrogation, like many other legal principles in Zimbabwean insurance law, has evolved with changing times. The position in Zimbabwe (which was adopted from English law) is that a subrogated insurer who intends to enforce the insured's right to recover compensation for the insured loss from a third party can only do so in the name of the insured. The reason is that the insured is the custodian of legal rights against the third party; the insurer's rights only relate to the insured and not the third party. This research discusses legal developments in South African law and how they may be adopted in Zimbabwe in order to advance the rights of the parties in subrogation proceedings.

This article explores the responses of the South African competition authorities to the impact of the COVID-19 pandemic on the socio-economic rights of consumers in relation to the price gouging of essential and medical supplies. After discussing the constitutional and legislative context of socio-economic rights and excessive pricing, it examines the first case in which the competition authorities were called upon to decide on the excessive pricing of medical supplies during COVID-19. The article finds that, while the competition authorities were swift to interpret the Competition Act widely and act against suppliers charging excessive prices, there remains a gap in South Africa's legislative framework as there is no specific legislation regulating price gouging during states of pandemic or disaster. The article identifies the need for legislative development and concludes by offering recommendations for addressing future incidents of price gouging.

The grim realities of the COVID-19 pandemic have resuscitated discussions about the effectiveness of the flexibilities entrenched in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for improving access to medicines. This article revisits this vexed issue by examining whether a regional approach to implementing TRIPS obligations could deliver a better outcome for access, especially in low- and middle-income countries, where manufacturing capacity is almost non-existent. Using the East African Community (EAC) as a case study, the article critiques recommended implementation options under the EAC policy on TRIPS flexibilities, concluding that, if significantly implemented, these recommendations could yield a better outcome for access.

The aim of this article is to use a decolonial approach to interrogate Kenya's laws and policies that compel the admission and treatment of persons with psychosocial disabilities. Against the backdrop of the colonization of Africa, the article appraises the historical development of Kenyan mental health laws. It critically analyses domestic policies, legislation, court decisions and the Constitution as they apply to admission to healthcare facilities of persons with psychosocial disabilities and to the freedom to decide about treatment, in order to reveal the persistence of coloniality. It highlights gaps in the protection of equality, dignity and liberty. It also draws on pertinent provisions of the Convention on the Rights of Persons with Disabilities as a juridical method for translating a decolonial agenda into a normative framework. Ultimately, the article proposes a framework for decolonizing Kenya's mental health laws and policies.

One of the major pillars of the African Union is the integration of peoples and the ability for them to move freely from one member country to another, with the right to reside and practise their trade or profession. This aspect of integration found full expression in the Protocol to the Treaty Establishing the African Economic Community Relating to the Free Movement of Persons, Right of Residence and Right of Establishment, adopted in 2018. Upon operationalization, it will remove obstacles to the movement of people, capital and resources in the region and give expression to aspiration 2 of the African Union Agenda 2063. However, significant challenges lie on the path of its implementation. This article doctrinally reviews the protocol, looking at its prospects for promoting African integration and development, and anticipates some of the problems that the protocol will face. It concludes with recommendations for achieving its lofty but desirable ends.

Since the mid-1980s, Botswana has relied on community based natural resources management (CBNRM) to incentivize communities to choose environmentally beneficial behaviour to advance conservation efforts. This approach has had some success, although it has not been as successful as had been hoped. Nevertheless, it is well acknowledged that CBNRM can play an important role in advancing conservation efforts. The state is therefore working to revamp the CBNRM framework so that it consistently yields beneficial results for communities and conservation. This article relies on regulatory theory and experience with CBNRM in Botswana to identify what it would take to establish an effective CBNRM regulatory framework there. It establishes that Botswana has failed to secure effective CBNRM consistently, due to the lack of a dedicated CBNRM law and inadequately resourced institutions. It recommends the promulgation of a CBNRM law with a community-centred and / or rights-based approach, and the establishment of an adequately resourced institution, charged with regulating CBNRM in Botswana.