Pub Date : 2022-10-14DOI: 10.1017/S0021855322000274
Rachid El Bazzim
Abstract Morocco's Competition Council has undergone major reform since 2011. New legislation has elevated the Council from its former role as a consultative authority to an independent, financially autonomous, decision-making authority. Despite these changes, however, many questions have been raised with regard to the Council's independence, and its duty to monitor and enforce free and fair competition, as well as the sufficiency of the guarantees concerning the statutory impartiality and powers that enable the Council to fulfil its mandate independently. The Council's independence merits discussion in the debate on the optimal implementation of a competition authority, as it is relevant to good governance and the rule of law. To regulate competition effectively, it is essential that the competition regulator remains independent. However, within a democratic framework, the Council's independence must be balanced by parliamentary accountability and budgetary control.
{"title":"The Independence of Morocco's Competition Council","authors":"Rachid El Bazzim","doi":"10.1017/S0021855322000274","DOIUrl":"https://doi.org/10.1017/S0021855322000274","url":null,"abstract":"Abstract Morocco's Competition Council has undergone major reform since 2011. New legislation has elevated the Council from its former role as a consultative authority to an independent, financially autonomous, decision-making authority. Despite these changes, however, many questions have been raised with regard to the Council's independence, and its duty to monitor and enforce free and fair competition, as well as the sufficiency of the guarantees concerning the statutory impartiality and powers that enable the Council to fulfil its mandate independently. The Council's independence merits discussion in the debate on the optimal implementation of a competition authority, as it is relevant to good governance and the rule of law. To regulate competition effectively, it is essential that the competition regulator remains independent. However, within a democratic framework, the Council's independence must be balanced by parliamentary accountability and budgetary control.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"67 1","pages":"155 - 168"},"PeriodicalIF":0.4,"publicationDate":"2022-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41821672","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 : 2022-10-12DOI: 10.1017/S0021855322000262
Gift Dorothy Makanje
Abstract Expert evidence is an increasingly prominent feature of criminal litigation. Confidence in the reliability of such evidence is therefore vital to the integrity of the justice process. Of late, there have been concerns in most jurisdictions that liberal admissibility standards allow expert evidence of doubtful reliability to be admitted by courts, leading to miscarriages of justice. Consequently, most adversarial common law systems now apply reliability standards to the reception of expert evidence. Malawian law makes provision for the admissibility of expert evidence on mere production if the parties to the case consent. This article critically evaluates this position, arguing that it provides no safeguards for assessing the reliability of expert evidence, thereby making the criminal justice system prone to injustices and challenges related to the use of such evidence. It proceeds to consider how the law and the courts can enhance the reliability of expert evidence in criminal proceedings.
{"title":"The Admissibility of Expert Evidence in Criminal Proceedings in Malawi: A Call for Reliability Safeguards","authors":"Gift Dorothy Makanje","doi":"10.1017/S0021855322000262","DOIUrl":"https://doi.org/10.1017/S0021855322000262","url":null,"abstract":"Abstract Expert evidence is an increasingly prominent feature of criminal litigation. Confidence in the reliability of such evidence is therefore vital to the integrity of the justice process. Of late, there have been concerns in most jurisdictions that liberal admissibility standards allow expert evidence of doubtful reliability to be admitted by courts, leading to miscarriages of justice. Consequently, most adversarial common law systems now apply reliability standards to the reception of expert evidence. Malawian law makes provision for the admissibility of expert evidence on mere production if the parties to the case consent. This article critically evaluates this position, arguing that it provides no safeguards for assessing the reliability of expert evidence, thereby making the criminal justice system prone to injustices and challenges related to the use of such evidence. It proceeds to consider how the law and the courts can enhance the reliability of expert evidence in criminal proceedings.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"67 1","pages":"117 - 134"},"PeriodicalIF":0.4,"publicationDate":"2022-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43024652","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 : 2022-09-28DOI: 10.1017/S0021855322000237
W. Ochieng
Abstract This article contends that the interpretation of article 115 of the Constitution of Kenya as providing for amendatory recommendations as a form of presidential veto to legislative bills is a departure from the common negative veto to bills which was the form envisaged by the drafters of the Constitution. Moreover, it is argued that the interpretation that article 115 of the Constitution allows the president to make positive legislative recommendations which can only be overridden by two-thirds of members of the legislature has transformed the president into the most decisive player in the legislative process in Kenya. The overarching contention of this article is that allowing the president to make positive legislative recommendations that can only be overridden by two-thirds of members of the legislature goes against the goal of tempering presidential powers, which was one of the animating goals that informed the quest for constitutional change in Kenya.
{"title":"Presidential Veto in the Law-Making Process: The Case of Kenya's Amendatory Recommendations","authors":"W. Ochieng","doi":"10.1017/S0021855322000237","DOIUrl":"https://doi.org/10.1017/S0021855322000237","url":null,"abstract":"Abstract This article contends that the interpretation of article 115 of the Constitution of Kenya as providing for amendatory recommendations as a form of presidential veto to legislative bills is a departure from the common negative veto to bills which was the form envisaged by the drafters of the Constitution. Moreover, it is argued that the interpretation that article 115 of the Constitution allows the president to make positive legislative recommendations which can only be overridden by two-thirds of members of the legislature has transformed the president into the most decisive player in the legislative process in Kenya. The overarching contention of this article is that allowing the president to make positive legislative recommendations that can only be overridden by two-thirds of members of the legislature goes against the goal of tempering presidential powers, which was one of the animating goals that informed the quest for constitutional change in Kenya.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"67 1","pages":"79 - 96"},"PeriodicalIF":0.4,"publicationDate":"2022-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43922087","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 : 2022-09-16DOI: 10.1017/S0021855322000213
C. Obi-Ochiabutor, C. A. Ogbuabor, Chioma O. Nwabachili, U. Nwoke
Abstract Prior to the inception of the Employees’ Compensation Act 2010 (“ECA”), the workers’ compensation system in Nigeria was governed by the Workmen's Compensation Act 1987 (Cap W6 LFN 2004) (“WCA”). The WCA failed to provide an adequate compensation regime for employees, notwithstanding the fact that payment of compensation stems from the employer's duty of care to the employee. Though an employer may be liable for injury, whether physical or mental, sustained by an employee, the WCA, among other things, had no provision for mental stress claims. Neither was the mental health of employees contemplated under its regime. The ECA has sought to close this gap by the provisions of its section 8. Using a comparative perspective, this article examines the dynamics as well as the challenges of applying section 8 of the ECA in the overall interest of the legal system and the labour environment.
{"title":"Interpretation of the Mental Stress Taxonomy under Nigeria's Employees’ Compensation Act 2010","authors":"C. Obi-Ochiabutor, C. A. Ogbuabor, Chioma O. Nwabachili, U. Nwoke","doi":"10.1017/S0021855322000213","DOIUrl":"https://doi.org/10.1017/S0021855322000213","url":null,"abstract":"Abstract Prior to the inception of the Employees’ Compensation Act 2010 (“ECA”), the workers’ compensation system in Nigeria was governed by the Workmen's Compensation Act 1987 (Cap W6 LFN 2004) (“WCA”). The WCA failed to provide an adequate compensation regime for employees, notwithstanding the fact that payment of compensation stems from the employer's duty of care to the employee. Though an employer may be liable for injury, whether physical or mental, sustained by an employee, the WCA, among other things, had no provision for mental stress claims. Neither was the mental health of employees contemplated under its regime. The ECA has sought to close this gap by the provisions of its section 8. Using a comparative perspective, this article examines the dynamics as well as the challenges of applying section 8 of the ECA in the overall interest of the legal system and the labour environment.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"67 1","pages":"135 - 153"},"PeriodicalIF":0.4,"publicationDate":"2022-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42414788","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 : 2022-08-17DOI: 10.1017/S0021855322000201
Janeth Alphonce, C. Binamungu, Seraphine M Bakta
Abstract To safeguard marriage, the Law of Marriage Act of Mainland Tanzania, established marriage conciliation boards (MCBs) to reconcile disputing spouses. Divorce cases are referred to MCBs before they are filed in court. The divorce rate in Mainland Tanzania is increasing and case law indicates that some parties are by-passing MCBs without good cause. The authors were motivated to study the causes of this trend. Data were collected in Morogoro and Kilimanjaro regions through documentary review and in-depth interviews. They identified six factors limiting parties’ access to MCBs: set-up of the boards; MCBs’ regulatory framework; jurisdiction; costs; choice of forum; and inadequate provisions governing the process followed by MCBs. The study concluded that the government attaches minimal significance to MCBs and recommends that the government should intervene, including by reforming the law governing MCBs.
{"title":"Factors Hindering Couples from Accessing Marriage Conciliation Boards in Mainland Tanzania","authors":"Janeth Alphonce, C. Binamungu, Seraphine M Bakta","doi":"10.1017/S0021855322000201","DOIUrl":"https://doi.org/10.1017/S0021855322000201","url":null,"abstract":"Abstract To safeguard marriage, the Law of Marriage Act of Mainland Tanzania, established marriage conciliation boards (MCBs) to reconcile disputing spouses. Divorce cases are referred to MCBs before they are filed in court. The divorce rate in Mainland Tanzania is increasing and case law indicates that some parties are by-passing MCBs without good cause. The authors were motivated to study the causes of this trend. Data were collected in Morogoro and Kilimanjaro regions through documentary review and in-depth interviews. They identified six factors limiting parties’ access to MCBs: set-up of the boards; MCBs’ regulatory framework; jurisdiction; costs; choice of forum; and inadequate provisions governing the process followed by MCBs. The study concluded that the government attaches minimal significance to MCBs and recommends that the government should intervene, including by reforming the law governing MCBs.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"66 1","pages":"439 - 464"},"PeriodicalIF":0.4,"publicationDate":"2022-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43923486","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 : 2022-08-05DOI: 10.1017/S0021855322000195
Gregory Esangbedo
Abstract A key novelty of the unitary system of personal property security law is the concept of security interests or rights developed to address the rather complex categorizations of security rights under the common law. With respect to the limitations of floating charges as security devices for loans under the common law, there were expectations that the unitary security interest could provide an alternative security device capable of addressing the problems faced by hitherto inhibited business borrowers. This article compares the floating charge device to the unitary security interest in some critical areas to ascertain whether the latter ameliorates the difficulties associated with floating charges or whether it merely creates an added conceptual burden within the framework of an already convoluted secured transactions system.
{"title":"Conceptual or Pragmatic? Differentiating Floating Charges from Unitary Security Interests under Nigerian Law","authors":"Gregory Esangbedo","doi":"10.1017/S0021855322000195","DOIUrl":"https://doi.org/10.1017/S0021855322000195","url":null,"abstract":"Abstract A key novelty of the unitary system of personal property security law is the concept of security interests or rights developed to address the rather complex categorizations of security rights under the common law. With respect to the limitations of floating charges as security devices for loans under the common law, there were expectations that the unitary security interest could provide an alternative security device capable of addressing the problems faced by hitherto inhibited business borrowers. This article compares the floating charge device to the unitary security interest in some critical areas to ascertain whether the latter ameliorates the difficulties associated with floating charges or whether it merely creates an added conceptual burden within the framework of an already convoluted secured transactions system.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"66 1","pages":"491 - 514"},"PeriodicalIF":0.4,"publicationDate":"2022-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44504821","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 : 2022-07-06DOI: 10.1017/S0021855322000183
Christopher Phiri
Abstract The 2016 amendments to the Constitution of Zambia 1991 have transformed Zambia's constitutional order in many respects. Among other transformative provisions, the Constitution now requires everyone seeking elective public office to have, as a minimum qualification, a grade twelve certificate or its equivalent. This article examines the rationale for this requirement, as judicially interpreted, through the lens of the right to run for election. The article's core argument is twofold. First, that the requirement is an unwarranted restriction on the right to run for election and cannot be justified when considered in its relevant context. Secondly, that the Constitutional Court of Zambia's recent interpretation of the requirement further limits the right to run for election and in turn narrows the field of candidates from which voters may choose, potentially depriving the country of resourceful political leadership. The article concludes with a call for reform.
{"title":"The Right to Run for Election in Zambia: A Preserve of the “Educated” Class?","authors":"Christopher Phiri","doi":"10.1017/S0021855322000183","DOIUrl":"https://doi.org/10.1017/S0021855322000183","url":null,"abstract":"Abstract The 2016 amendments to the Constitution of Zambia 1991 have transformed Zambia's constitutional order in many respects. Among other transformative provisions, the Constitution now requires everyone seeking elective public office to have, as a minimum qualification, a grade twelve certificate or its equivalent. This article examines the rationale for this requirement, as judicially interpreted, through the lens of the right to run for election. The article's core argument is twofold. First, that the requirement is an unwarranted restriction on the right to run for election and cannot be justified when considered in its relevant context. Secondly, that the Constitutional Court of Zambia's recent interpretation of the requirement further limits the right to run for election and in turn narrows the field of candidates from which voters may choose, potentially depriving the country of resourceful political leadership. The article concludes with a call for reform.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"66 1","pages":"419 - 438"},"PeriodicalIF":0.4,"publicationDate":"2022-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48168007","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 : 2022-06-24DOI: 10.1017/S0021855322000158
Pascal Kany Prud’ome Gamassa
Abstract In protecting the marine environment from vessel-source oil pollution, compensation for victims of damage is of great importance. International conventions regarding compensation for such damage have been adopted under the auspices of the International Maritime Organization. This article analyses the extent to which South Africa has implemented the provisions of these international conventions into its domestic laws and identifies issues that remain in the South African legal system. The article reveals that, although South Africa has improved its legal system for compensation for damage from vessel-source oil pollution, claimants in respect of damage from large vessel-source persistent oil pollution and vessel-source bunker oil pollution are still not adequately compensated. This article finds that acceding to the 1996 Limitation of Liability for Maritime Claims, the 2001 Bunker Convention and the 2003 Supplementary Fund Protocol would be of great interest and benefit to South Africa.
{"title":"The Legal System for Compensation for Vessel-Source Oil Pollution in South Africa","authors":"Pascal Kany Prud’ome Gamassa","doi":"10.1017/S0021855322000158","DOIUrl":"https://doi.org/10.1017/S0021855322000158","url":null,"abstract":"Abstract In protecting the marine environment from vessel-source oil pollution, compensation for victims of damage is of great importance. International conventions regarding compensation for such damage have been adopted under the auspices of the International Maritime Organization. This article analyses the extent to which South Africa has implemented the provisions of these international conventions into its domestic laws and identifies issues that remain in the South African legal system. The article reveals that, although South Africa has improved its legal system for compensation for damage from vessel-source oil pollution, claimants in respect of damage from large vessel-source persistent oil pollution and vessel-source bunker oil pollution are still not adequately compensated. This article finds that acceding to the 1996 Limitation of Liability for Maritime Claims, the 2001 Bunker Convention and the 2003 Supplementary Fund Protocol would be of great interest and benefit to South Africa.","PeriodicalId":44630,"journal":{"name":"Journal of African Law","volume":"66 1","pages":"465 - 490"},"PeriodicalIF":0.4,"publicationDate":"2022-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46095497","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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