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Journal of Comparative Law in Africa

Publisher:
Juta Journals
Publication date:
2021-07-05
ISBN:
2311-6889

Description:

The Journal of Comparative Law in Africa is a peer-reviewed academic legal journal published bi-annually by Juta and the Centre for Comparative Law in Africa, at the University of Cape Town (South Africa). The Journal is bilingual (English and French) and addresses legal issues on the African continent.

Issue Number

Latest documents

  • Tax policy gap in southern African countries: Reflections on indirect tax coordination and tax diversity in SADC post Covid-19

    The Southern African Development Community (SADC) tax policy on indirect tax coordination has mainly been guided by an approach toward the harmonisation of tax bases, the convergence of tax rates and the movement of taxes toward tax uniformity. This approach is one envisaged by the member states and reflected in Annex 3 of the Protocol on Finance and Investment. However, in recent studies, writers in this area opine that countries within a regional integration economic area (REC) should instead adopt an approach characterised by tax diversity of the indirect tax systems, as well as mutual coordination and cooperation to contribute towards economic integration. Recent literature proposes that tax coordination of indirect taxes must consider other options that move away from the uniformity of taxes, rates, and tax base. This paper considers this approach of placing tax diversity at the centre of the SADC tax policy of coordination of indirect taxes, particularly VAT and excise taxes. The paper reflects on the previous approaches that have characterised the implementation of the existing legal framework in tax coordination in the SADC and critically examines the implementation of the VAT and excise taxes guidelines and their significance in achieving tax coordination of indirect taxes. The article emphasises the importance of the SADC realising its goal of coordinating indirect taxes, particularly post Covid-19, due to the imminent need to raise more revenue from cross-border trade in the SADC member states to contribute toward the economic growth of member states.

  • Female genital mutilation in Nigeria and Burkina Faso: Safeguarding the rights of women and girls in Africa

    Article 2 of the Convention against the Elimination of Discrimination against Women explicitly prohibits violence against women, which was defined to include Female Genital Mutilation (FGM). FGM is a practice which is entrenched in African culture. Archaic as this practice is, it is widely carried out in several countries, with its attendant deleterious effects. Nigeria and Burkina Faso have a high prevalence of FGM but have made legislative efforts to curb the practice. Burkina Faso has, however, employed additional measures to ensure their laws' enforcement, which has effectively changed the cultural attitudes of several communities towards FGM in the country. This study uses a doctrinal approach to examine the prevalence, mode of operation and legal framework enacted to protect girls and women from FGM in Nigeria and Burkina Faso. It further discusses the efforts taken in Burkina Faso to implement and enforce their laws, in addition to the challenges inherent in enforcing FGM laws in Nigeria. This article found that enforcement of laws is key to eliminating FGM, and Nigeria needs to take urgent measures to enforce their FGM legislation like Burkina Faso.

  • The role of non-governmental organisations in advancing good governance and development through regional institutions in Africa

    Non-governmental Organisations (NGOs) in Africa, as people's representatives, play an essential role in advancing good governance, human rights and development on the continent. They have cemented their role alongside international and regional institutions, organisations and state governments. NGOs have made extensive contributions to democracy and development in Africa. They have a history of challenging poor governance and human rights contraventions, and advancing development on the continent through regional institutions such as regional courts, regional bodies and other regional networks. However, these roles have not been critically studied. There is a lack of in-depth analysis of the different methods used by NGOs in promoting good governance and development through African regional institutions. This paper identifies and examines the various tools that NGOs employ in advancing good governance and development on the continent. The paper discusses the recognition of NGOs by regional institutions and how international and regional law protects their involvement in and participation on the continent. It further outlines how NGOs have used various regional legal institutions and other regional bodies to protect the rights and interests of the people. The paper demonstrates that while the role of NGOs in advancing good governance and development on the continent is progressive, many challenges hinder this role, such as stringent rules for eligibility and application to implement certain functions, lack of access to key resources that facilitate their participation and lack of clarity on the legal instruments that govern NGOs.

  • Reimagining regional cooperation as a springboard for curbing piracy off the coast of Nigeria

    Nigerian waters remain risky for navigation. Despite efforts by the Nigerian government to suppress piracy off its coast, little progress has been made. Moreover, Nigeria is ill-equipped, ill-prepared and lacks effective enforcement of the extant piracy legal regime to combat piracy suo motu due to the absence of political will by the government to curb piracy exemplified by an inefficient institutional framework. This paper suggests the adoption of the regional cooperation mechanism to curb piracy in Nigeria, given the number of piracy incidents off its coast and the fact that Nigerian piracy extends to the waters of neighbouring countries. Additionally, Nigerian piracy affects the navigational and geostrategic importance of the Gulf of Guinea to the global energy supply and international trade, and it implicates regional trade agreements in Africa. The research methodology is a dialectical analysis of data, legal instruments and scholarly publications. Also, this research uses the application of anti-piracy regional cooperation agendas in other piracy hotspots to suggest the adoption of regional cooperation to suppress Nigerian piracy. The results reveal that attempts to curb piracy in Nigeria have been futile because the country lacks the political will to eliminate the causes of piracy. Since Nigerian piracy has a regional effect, regional cooperation would be apt to suppress this crime. Legal instruments, soft laws, regional agreements and international maritime organisations promote regional cooperation in combating piracy. Consequently, the paper explores factors that bolster and sustain regional cooperation as a means of repressing piracy off the Nigerian coast.

  • Le mensonge dans le proces penal: Analyse a partir du droit camerounais

    In criminal proceedings, everyone claims to hold the truth, yet at times untruths or lies seem blithey to triumph. Untruths are therefore a living aspect of criminal proceedings and one can observe that, even if they are contrary to the objective pursued by criminal proceedings, they may yet articulate harmoniously with certain essential principles which govern and guide their unfolding.

  • The Constitutional Court of Uganda: Blurring/misunderstanding its jurisdiction

    Article 137 of the Constitution of Uganda (the Constitution) provides for the jurisdiction of the Constitutional Court (the Court) to interpret the Constitution and to determine whether any law or conduct — act or omission — is contrary to the Constitution. The drafting history of art 137 shows that the court's jurisdiction to interpret the Constitution is different from that of declaring whether any law or conduct is inconsistent with the Constitution. However, the jurisprudence of the Court shows that it has blurred the distinction between these two mandates. In this article, the author relies on the drafting history of art 137 to argue, inter alia, that the Court's approach in this regard is debatable. It is also argued that, although the intention of the drafters of the Constitution was that the Court was not to be the first and final court in matters of constitutional interpretation, the literal interpretation of art 137 and the jurisprudence on art 137 show the opposite. It is further argued that in some instances the Court has misunderstood its jurisdiction under art 137(5) and (6) and that the Court does not have the power to declare legislation unconstitutional under art 137(5). It is also submitted that the Court's argument that its jurisdiction is limited to interpreting the Constitution or that any petition before it cannot be resolved without first interpreting the Constitution is erroneous. It is further argued that Uganda may have to follow the South African model in which other courts, such as the High Court and the Supreme Court of Appeal, are also empowered to declare legislation unconstitutional.

  • Horizontal accountability: Bottom-up oversight of public duty bearers in Malawi

    The principle of public duty requires that public authorities should be held accountable for their acts, omissions, decisions, policies and use of public resources. Focusing on Malawi as a country whose democracy has been tried and tested, this paper locates and dissects the notion of public duty in s 12 of the Constitution of Malawi as an instrument for horizontal accountability that can be employed by the citizenry, based on ss 15 and 41 of the Constitution, for more effective and proactive oversight, as opposed to an ex post facto mechanism exercised by the Ombudsman in terms of s 123 of the Constitution. The central argument of this paper is that those who exercise a public duty do so based on people's sovereignty and they have an obligation to account to the people for the exercise of State authority. The paper concludes that public duty is a corollary of democratic accountability, and both derive from the protection of individual rights and the rule of law.

  • Discretion in the exercise of jurisdiction in conflict cases in Nigeria

    This article analyses the jurisprudence of discretionary jurisdiction in conflicts cases in Nigeria to interrogate the considerations of theory and practical policy (or lack thereof) that, in the authors' view, have influenced the development of the relevant law and procedure. The analysis includes an assessment of whether too much or too little weight has been given to some theories or policies. The article discusses discretionary jurisdiction in three main situations: (1) where the defendant is outside the jurisdiction of the forum court and, therefore, must be served ex juris; (2) when the court is invited to decline jurisdiction based on the doctrine of forum non conveniens; and (3) when there are parallel proceedings in a foreign jurisdiction. A key finding is that discretionary jurisdiction in Nigeria is highly under-theorised in the jurisprudence. Nigerian intellectuals have, for their part, not given the subject adequate consideration. There is, therefore, a dearth of literature to draw on. The article sifts through the rules of court and court decisions to discover the theoretical and practical considerations for the courts' exercise of discretionary jurisdiction in the three situations mentioned.

  • Territorial jurisdiction of the National Industrial Court of Nigeria (NICN) and the requirement of endorsing originating processes under the Sheriffs and Civil Process Act (SCPA) determined

    When a case is filed at the National Industrial Court of Nigeria (NICN), apart from its Civil Procedure Rules, the service of originating processes in Nigeria is regulated by the Sheriffs and Civil Process Act (SCPA), just as in all other courts under the 1999 Constitution of the Federal Republic of Nigeria (1999 CFRN). The SCPA requires that, when an originating process is issued in one State but is to be served in another, there must be an endorsement on the process disclosing this fact, or else the service shall be rendered void. Is this requirement of the SCPA applicable to the NICN, and what effect does it have on its efficiency, given that the NICN is a specialised court dealing with matters requiring expeditious settlement, free of technicalities? This article, using doctrinal methodology, will catechise the territorial jurisdiction of the NICN vis-à-vis the SCPA on endorsement of originating processes by appraising the Court of Appeal's decision in Johnson v Eze where it held that the provisions of ss 97, 98 and 99 of the SCPA are inapplicable to the NICN because of s 2 of the SCPA, s 21(1) and (2) of the National Industrial Court Act, 2006 and Order 7, Rule 15(1) and (2) of the NICN Rules, 2017. The effect of the judgment on the jurisdiction and mandate of the NICN under extant laws is also discussed. The authors argue that making the court amenable to the provisions of the SCPA will usher in technicalities that can frustrate the mandate of the NICN. Thus, the decision is a welcome development, which should not be overturned in subsequent decisions.

  • Companies convicted of economic crimes and their participation in government tender processes in South Africa: A comment on Namasthethu Electrical (PTY) LTD v City of Cape Town and another (201/19) [2020] ZASCA 74 (29 JUNE 2020)

    In South Africa, persons or companies convicted of fraud or corruption or companies whose directors have been convicted are debarred from participating in bidding for government tenders. Although it is easy to establish whether or not a natural person has been convicted of an offence, because a certificate can be obtained from the South African Police Service to that effect, it is the opposite with juristic persons. This issue came up in the case of Namasthethu Electrical (Pty) Ltd v City of Cape Town and Another in which the appellant company was awarded a government tender although the company and its former director had been convicted of fraud and corruption. The purpose of this article is to analyse this judgment and show the challenges that the government is faced with when dealing with companies that have been convicted of offences bid for government tenders. Because South Africa is in the process of enacting public procurement legislation, the Public Procurement Bill was published for comment in early 2020. One of the issues addressed in the Bill relates to debarring bidders who have been convicted of some offences from bidding for government tenders. Based on the facts of this case and legislation from other African countries, the author suggests ways in which the provisions of the Bill could be strengthened to address this issue.

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