Pub Date : 2023-11-06DOI: 10.1017/s0021855323000256
Opeyemi A Gbadegesin
Abstract Although legal transplants are a most fertile source of legal development, a failure to adapt their methods to local traditions and cultures before putting them into practice often results in the loss of indigenous legal cultures. This article examines environmental jurisprudence in Nigeria. It aims to determine whether the failure of these laws to curb the trend of unsustainable natural resource use in the country is traceable to the indigenous legal cultures of sustainability that were lost in the process of transplanting colonial ideologies into the Nigerian legal system. The article submits that neglecting the innate standards of sustainability in Nigeria's environmental law-making (a practice adopted since the period of colonization) has made the extant laws on natural resource sustainability largely ineffective. It recommends reworking some of the laws to reflect the lost traditions and notes the cultural imperative for natural resource sustainability.
{"title":"Lost in Transplantation: Revisiting Indigenous Principles as a Panacea to Natural Resource Sustainability in Nigeria","authors":"Opeyemi A Gbadegesin","doi":"10.1017/s0021855323000256","DOIUrl":"https://doi.org/10.1017/s0021855323000256","url":null,"abstract":"Abstract Although legal transplants are a most fertile source of legal development, a failure to adapt their methods to local traditions and cultures before putting them into practice often results in the loss of indigenous legal cultures. This article examines environmental jurisprudence in Nigeria. It aims to determine whether the failure of these laws to curb the trend of unsustainable natural resource use in the country is traceable to the indigenous legal cultures of sustainability that were lost in the process of transplanting colonial ideologies into the Nigerian legal system. The article submits that neglecting the innate standards of sustainability in Nigeria's environmental law-making (a practice adopted since the period of colonization) has made the extant laws on natural resource sustainability largely ineffective. It recommends reworking some of the laws to reflect the lost traditions and notes the cultural imperative for natural resource sustainability.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135636460","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 : 2023-10-01DOI: 10.1017/s0021855323000232
Joseph Geng Akech
Abstract Many countries write their constitutions with some form of international involvement. Internationalized constitutional assistance has been made easier by technology as well as trade and political exigencies. The question, therefore, is: How does this inevitable foreign influence impact constitutional legitimacy? This article discusses this question and asserts that foreign influence interacts with three approaches of constitutional design to shape constitutional legitimacy: (a) popular participation, (b) elites’ contracts, and (c) transnational constitutional implants. Such a transactional relationship is referred to as the “three-stone legitimacy theory”, which implicates both the internal and the external legitimacy of a constitution. The former means citizens’ acceptance that a constitution meets their aspirations, while the latter refers to the international community's satisfaction with the resulting constitution as guaranteeing the universal democratic ethos. The article ends with a proposition conceptualized as a “blueprint” for a democratic constitutional legitimacy in South Sudan.
{"title":"Foreign Influence and the Legitimacy of Constitution Building in South Sudan","authors":"Joseph Geng Akech","doi":"10.1017/s0021855323000232","DOIUrl":"https://doi.org/10.1017/s0021855323000232","url":null,"abstract":"Abstract Many countries write their constitutions with some form of international involvement. Internationalized constitutional assistance has been made easier by technology as well as trade and political exigencies. The question, therefore, is: How does this inevitable foreign influence impact constitutional legitimacy? This article discusses this question and asserts that foreign influence interacts with three approaches of constitutional design to shape constitutional legitimacy: (a) popular participation, (b) elites’ contracts, and (c) transnational constitutional implants. Such a transactional relationship is referred to as the “three-stone legitimacy theory”, which implicates both the internal and the external legitimacy of a constitution. The former means citizens’ acceptance that a constitution meets their aspirations, while the latter refers to the international community's satisfaction with the resulting constitution as guaranteeing the universal democratic ethos. The article ends with a proposition conceptualized as a “blueprint” for a democratic constitutional legitimacy in South Sudan.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135849895","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 : 2023-10-01DOI: 10.1017/s0021855323000220
Mwiza Jo Nkhata
Abstract Following a public outcry about Eric Aniva being hired to have sex with children, he was arrested, tried and convicted of attempting to engage in a harmful practice and also of engaging in a harmful practice, contrary to Malawi's Gender Equality Act. Aniva's trial attracted significant public attention and highlighted kulowa kufa , the cultural practice at the centre of his trial. This article revisits Aniva's trial. By focusing on the operation of the law in judicial processes as well as the dynamics of judicial decision-making, it demonstrates and concludes that Aniva's trial may have been compromised. Specifically, the article analyses the state's failure to identify and parade material witnesses notwithstanding the alleged multiplicity of Aniva's victims, the role of the media in the trial as well as the probable effects of the trial court's selective recourse to international human rights standards.
{"title":"Taking One for the Team? Some Reflections on the Trial of Malawi's <i>Hyena-man</i>","authors":"Mwiza Jo Nkhata","doi":"10.1017/s0021855323000220","DOIUrl":"https://doi.org/10.1017/s0021855323000220","url":null,"abstract":"Abstract Following a public outcry about Eric Aniva being hired to have sex with children, he was arrested, tried and convicted of attempting to engage in a harmful practice and also of engaging in a harmful practice, contrary to Malawi's Gender Equality Act. Aniva's trial attracted significant public attention and highlighted kulowa kufa , the cultural practice at the centre of his trial. This article revisits Aniva's trial. By focusing on the operation of the law in judicial processes as well as the dynamics of judicial decision-making, it demonstrates and concludes that Aniva's trial may have been compromised. Specifically, the article analyses the state's failure to identify and parade material witnesses notwithstanding the alleged multiplicity of Aniva's victims, the role of the media in the trial as well as the probable effects of the trial court's selective recourse to international human rights standards.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134935714","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 : 2023-10-01DOI: 10.1017/s0021855323000281
An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
{"title":"JAL volume 67 issue 3 Cover and Back matter","authors":"","doi":"10.1017/s0021855323000281","DOIUrl":"https://doi.org/10.1017/s0021855323000281","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136206458","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 : 2023-10-01DOI: 10.1017/s0021855323000244
Tshepo Mogapaesi
Abstract Botswana's Trade Disputes Act was enacted to provide for a settlement of trade disputes by the Commissioner of Labour, mediators and arbitrators and for the establishment of the Industrial Court as a court of law and equity. Mediators therefore play a critical role in the resolution of trade disputes within Botswana's labour law framework, and while their role is facilitative, their contribution to the trajectory of resolving labour disputes is significant. This article analyses the form of mediation envisaged under the act, and the mediator's role and powers. It further considers circumstances under and the extent to which the Industrial Court may intervene in the decisions of mediators.
{"title":"The Mediation Framework in Botswana's Trade Disputes Act: A Unique Approach to Dispute Resolution","authors":"Tshepo Mogapaesi","doi":"10.1017/s0021855323000244","DOIUrl":"https://doi.org/10.1017/s0021855323000244","url":null,"abstract":"Abstract Botswana's Trade Disputes Act was enacted to provide for a settlement of trade disputes by the Commissioner of Labour, mediators and arbitrators and for the establishment of the Industrial Court as a court of law and equity. Mediators therefore play a critical role in the resolution of trade disputes within Botswana's labour law framework, and while their role is facilitative, their contribution to the trajectory of resolving labour disputes is significant. This article analyses the form of mediation envisaged under the act, and the mediator's role and powers. It further considers circumstances under and the extent to which the Industrial Court may intervene in the decisions of mediators.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135605386","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 : 2023-10-01DOI: 10.1017/s002185532300027x
An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
{"title":"JAL volume 67 issue 3 Cover and Front matter","authors":"","doi":"10.1017/s002185532300027x","DOIUrl":"https://doi.org/10.1017/s002185532300027x","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136206479","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 : 2023-08-21DOI: 10.1017/s0021855323000219
M. Addadzi-Koom
The Kampala Convention is a global first, yet, over a decade since it came into force, Africa hosts more than half of the world's internally displaced persons (IDPs). This article explores how the Kampala Convention could mitigate internal displacement by asking which of the enforcement mechanisms in the convention would work best to protect and advance durable solutions for IDPs in Africa. The convention adopts a state obligation model and contains judicial and non-judicial enforcement mechanisms. Evaluation of these mechanisms reveals some flaws, including the unclear mandate of the Conference of States, an inoperative African Court and private actors lacking locus standi. The article argues that some amendments to the convention are necessary to foster enforcement. Literature on internal displacement in Africa from an enforcement perspective is limited, so this article makes a significant contribution.
{"title":"Breathing Life into the Kampala Convention: Towards Workable Enforcement Mechanisms","authors":"M. Addadzi-Koom","doi":"10.1017/s0021855323000219","DOIUrl":"https://doi.org/10.1017/s0021855323000219","url":null,"abstract":"\u0000 The Kampala Convention is a global first, yet, over a decade since it came into force, Africa hosts more than half of the world's internally displaced persons (IDPs). This article explores how the Kampala Convention could mitigate internal displacement by asking which of the enforcement mechanisms in the convention would work best to protect and advance durable solutions for IDPs in Africa. The convention adopts a state obligation model and contains judicial and non-judicial enforcement mechanisms. Evaluation of these mechanisms reveals some flaws, including the unclear mandate of the Conference of States, an inoperative African Court and private actors lacking locus standi. The article argues that some amendments to the convention are necessary to foster enforcement. Literature on internal displacement in Africa from an enforcement perspective is limited, so this article makes a significant contribution.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46195971","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 : 2023-07-26DOI: 10.1017/s0021855323000207
T. Mosaka
The statutory formulation of the rules of evidential admissibility in African jurisdictions can be characterized into two, positive and negative, broad categories. This article uses the Sowetan trope of a pair of conjoined twins, popularly known as Mpho le Mphonyana in South Africa, to analyse these two formulations with a view of exposing eight doctrinal, institutional and theoretical fallacies associated with these (English) common law colonial inheritances in Africa. The continued, and popular, focus on the Euro-American world by African Evidence scholars, notwithstanding the prevalence of these kinds of fallacies, raises serious questions not only about the scholarly and institutional future of African jurisdictions, but also about what precisely Africans think of themselves in a world that renders them largely invisible for scholarly purposes.
非洲司法管辖区证据可采性规则的法定制定可分为积极和消极两大类。本文使用了一对连体双胞胎的索韦坦比喻，在南非通常被称为Mpho le Mphonyana，来分析这两种说法，以揭露与这些（英国）在非洲的普通法殖民继承相关的八个教义、制度和理论谬误。尽管这些谬论盛行，但非洲证据学者对欧美世界的持续关注和普遍关注，不仅引发了对非洲司法管辖区学术和制度未来的严重质疑，也引发了对非洲人在一个使他们在学术上基本上看不见的世界里对自己的看法的严重质疑。
{"title":"Mpho le Mphonyana: Two Iterations of Admissibility in Africa","authors":"T. Mosaka","doi":"10.1017/s0021855323000207","DOIUrl":"https://doi.org/10.1017/s0021855323000207","url":null,"abstract":"\u0000 The statutory formulation of the rules of evidential admissibility in African jurisdictions can be characterized into two, positive and negative, broad categories. This article uses the Sowetan trope of a pair of conjoined twins, popularly known as Mpho le Mphonyana in South Africa, to analyse these two formulations with a view of exposing eight doctrinal, institutional and theoretical fallacies associated with these (English) common law colonial inheritances in Africa. The continued, and popular, focus on the Euro-American world by African Evidence scholars, notwithstanding the prevalence of these kinds of fallacies, raises serious questions not only about the scholarly and institutional future of African jurisdictions, but also about what precisely Africans think of themselves in a world that renders them largely invisible for scholarly purposes.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-07-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45801049","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 : 2023-07-07DOI: 10.1017/s0021855323000165
Damilola Osinuga
One of the primary goals of the African Continental Free Trade Area (AfCFTA) is to establish a single market for goods and services in order to achieve economic integration in Africa. Experts opine that the AfCFTA can be a game changer for improving intra-African trade and may pave the way to economic diversification and inclusion. To maximize the potential of the AfCFTA, African nations must eliminate or minimize trade and non-trade barriers that can undermine the AfCFTA's true intention. Nigeria is the largest economy in Africa; therefore for the AfCFTA to flourish, Nigeria must implement targeted industrial, structural and policy changes to facilitate the achievement of the AfCFTA's objectives. This article addresses protectionist cabotage as a non-tariff trade hurdle to AfCFTA aims, as well as the need for Nigeria to abolish or liberalize its restrictive regime on domestic cabotage trade. It proposes that Nigeria should take the lead in campaigning for a regional cabotage regime and eliminate its protectionist policy.
{"title":"The Nigerian Cabotage Act and the Ideals of the African Continental Free Trade Area: An Unwholesome Alliance?","authors":"Damilola Osinuga","doi":"10.1017/s0021855323000165","DOIUrl":"https://doi.org/10.1017/s0021855323000165","url":null,"abstract":"\u0000 One of the primary goals of the African Continental Free Trade Area (AfCFTA) is to establish a single market for goods and services in order to achieve economic integration in Africa. Experts opine that the AfCFTA can be a game changer for improving intra-African trade and may pave the way to economic diversification and inclusion. To maximize the potential of the AfCFTA, African nations must eliminate or minimize trade and non-trade barriers that can undermine the AfCFTA's true intention. Nigeria is the largest economy in Africa; therefore for the AfCFTA to flourish, Nigeria must implement targeted industrial, structural and policy changes to facilitate the achievement of the AfCFTA's objectives. This article addresses protectionist cabotage as a non-tariff trade hurdle to AfCFTA aims, as well as the need for Nigeria to abolish or liberalize its restrictive regime on domestic cabotage trade. It proposes that Nigeria should take the lead in campaigning for a regional cabotage regime and eliminate its protectionist policy.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47079097","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 : 2023-07-03DOI: 10.1017/s0021855323000153
Roseline Omoye Ehiemua
This article evaluates statutory provisions and case law regarding a mortgagee's rights to exercise its statutory power of sale over the matrimonial home in Nigeria. It reveals that no statute protects the rights of family members, particularly wives and children, in the mortgaged home. The mortgagee must grapple with the reality of ownership, as wives often resort to litigation to set aside sales, on the ground that they are joint owners with their husbands. Ironically, some Supreme Court decisions, while protecting the interests of other family members (contrary to the established principles of property law), have tended to ignore the mortgagee's power of sale over the mortgaged matrimonial home, thus making it unattractive to lending institutions as collateral. This article recommends that all parties’ interests should be set out in a legal framework, as in England, where a non-owning spouse's right of occupation must be registered with the land registry.
{"title":"Striking a Balance between Protecting the Matrimonial Home and the Mortgagee's Right of Sale in Nigeria: Lessons from England","authors":"Roseline Omoye Ehiemua","doi":"10.1017/s0021855323000153","DOIUrl":"https://doi.org/10.1017/s0021855323000153","url":null,"abstract":"\u0000 This article evaluates statutory provisions and case law regarding a mortgagee's rights to exercise its statutory power of sale over the matrimonial home in Nigeria. It reveals that no statute protects the rights of family members, particularly wives and children, in the mortgaged home. The mortgagee must grapple with the reality of ownership, as wives often resort to litigation to set aside sales, on the ground that they are joint owners with their husbands. Ironically, some Supreme Court decisions, while protecting the interests of other family members (contrary to the established principles of property law), have tended to ignore the mortgagee's power of sale over the mortgaged matrimonial home, thus making it unattractive to lending institutions as collateral. This article recommends that all parties’ interests should be set out in a legal framework, as in England, where a non-owning spouse's right of occupation must be registered with the land registry.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48047915","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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