Journal of Comparative Law in Africa

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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

  • Opinion: Rethinking PFPAD: Reflections From The Third General Session, For The African Diaspora

    Emerging from a legacy of United Nations interventions on racism dating back to 1950, the Permanent Forum for People of African Descent (PFPAD) is a freshly minted mechanism, established in 2021. Despite its promise, and perhaps because of its novelty, PFPAD risks undermining the well-founded hopes invested in it: namely, due to a lack of a clear mission. Drawing on participant observation at the Third General Session, this article presents a critical legal and institutional analysis, arguing that the Forum remains caught in a cycle of performative politics, elite disconnection, and institutional inertia – epitomised by the ratification of a Second International Decade for People of African Descent. The analysis further identifies a diaspora gap, analysing the counter-productive dissociation between African and African-descendant identities which sidelines the continent and fractures pan- African solidarity. To realise its potential, the article contends, PFPAD must pivot from symbolism to substance by prioritising a single, concrete legal objective: the completion of the Declaration on the Human Rights of People of African Descent. This process is currently hampered by a procedural disconnect between the drafting Intergovernmental Working Group and the Forum’s public general sessions. Finally, the article advances a three-part blueprint for the PFPAD to build public value: 1) reconceptualising reparations as sustainable capacity-building rather than a onetime payout; 2) grounding PFPAD’s work in local action, including relocating its sessions to Africa and the Caribbean; and 3) leveraging comparative regional legal models, from CARICOM to the AfCFTA, to create a self-reliant, legally fortified, and truly unified global African diaspora.

  • Asymmetrical Devolution and Management of Regional Specificities of Cameroon’s Anglophone Regions: A Half-Seized Good Opportunity

    This paper examines the special status of Cameroon’s English-speaking regions (North West and South West) as outlined in the 2019 General Code of Regional and Local Authorities (GC-RLA). It aims to assess the effectiveness of the asymmetrical devolution in favour of the North West and South West regions, chosen as the structural tool to accommodate their specificities within the national fold, and as a path towards resolving the conflict afflicting these two regions. The paper concludes that resorting to asymmetrical devolution as a tool to resolve Cameroon’s Anglophone crisis is a good medicine, which, however, has not been administered at the appropriate dose. On the one hand, indeed, establishing infranational regions with differentiated degrees of autonomy based on their specificities, is increasingly resorted to, in a bid to resolve conflicts within States which are driven by internal regional and territorial specificities, especially when – as it is the case in Cameroon – minorities concerned attain a certain threshold of demographic significance (around 15% of the national population). On the other hand, based on the comparative normative guideposts and best experiences on the setting up of special status regions, this study argues that the conditions for the implementation of the special status as provided for by the GC-RLA are not conducive to making it play the role for which it has been provided.

  • Rethinking the Concurrency of Legislative Competence on The Freedom of Information Law of Nigeria

    The scope of concurrent legislative powers under Nigeria’s Freedom of Information Act (FOIA) 2011 has generated sustained controversy, reflected in a series of judicial decisions marked by inconsistency and uneven enforcement. This paper interrogates the intersection of federal and state legislative authority over the FOIA. Adopting a doctrinal methodology, the study traces the historical evolution of the FOIA, analyses judicial interpretations of its applicability, and situates these within the constitutional framework governing concurrent legislative powers. It highlights how federal supremacy and state resistance have produced legislative anarchy, often to the detriment of citizens’ access to information. Comparative insights are drawn from the United States and Kenya, whose federal systems offer more coherent models of concurrency and cooperative governance. The paper argues that Nigeria requires clearer constitutional delineation and judicial fidelity to textual interpretation to avert legislative anarchy. It recommends that State Houses of Assembly confine themselves to procedural frameworks that facilitate implementation rather than enacting duplicative or conflicting statutes.

  • The Spirits and the Law – The Role of Superstition Laws in Modernity in Kenya and Seychelles – A Literature Review

    This article examines the legal and socio-political dimensions of superstition-related offences in Kenya and Seychelles, highlighting how cultural beliefs intersect with crime, law, and state power. Rather than viewing witchcraft and superstition as mere cultural relics, this analysis underscores their entanglement with modern political agendas and governance challenges. Legal responses to superstition, including anti-witchcraft laws, may paradoxically reinforce societal fears and legitimise witch hunts, fostering cycles of persecution. Drawing on Foucault’s theories of power and knowledge, this article argues for a nuanced legal approach that differentiates between harmful acts and legitimate expressions of belief. A balanced framework must protect citizens from harmful practices while upholding fundamental freedoms, aligning with international human rights standards. This article is divided into four parts: first, a conceptual map of superstition, religion, and witchcraft; second, Foucault’s power/knowledge as an analytical framework; third, the statutory and case-law frameworks in Kenya and Seychelles; and finally, a comparative synthesis and implications for reform.

  • Quel Régime Pour L’Imprévision En Droit Mauricien Des Contrats? Les Eçons A Tirer De La Réforme Du Droit Français Des Obligations En 2016

    The general rule on unforeseeability, incorporated into Article 1195 of the French Civil Code, is relatively new, dating back only to 2016. The doctrinal and jurisprudential position in France concerning the theoretical justification of this institution, its imperativeness, the conditions for taking unforeseeability into account, and the reaction of the law to it can be a rich source of learning for the Mauritian legislator when the time comes to regulate contractual unforeseeability in the Mauritian Civil Code.

  • Green Diplomacy in Action: Navigating International Law For Kenya’s Sustainable Aviation Fuel Transition

    The aviation industry’s significant carbon footprint necessitates the urgent adoption of sustainable practices. Kenya’s sustainable aviation fuel (SAF) initiatives emerge as a pioneering model within this context, demonstrating a blend of environmental innovation and strategic green diplomacy. This paper analyses Kenya’s strategic engagement with the International Civil Aviation Organization’s (ICAO) Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) mechanism and bilateral partnerships to overcome the financial and technical barriers associated with the deployment of sustainable aviation fuel (SAF). Unlike most previous studies that have focused on transitions in the Global North, the current paper focuses on revealing how Kenya employs multilateral platforms and approaches to overcome barriers and negotiate financial and technological support suitable for the African context. The study argues that Kenya adopts a developmental green diplomacy approach, allowing itself to balance its international commitments with industrialisation agendas through strategies such as coalition building with other nations from the Global South in ICAO negotiations, aligning SAF policies with regional frameworks, and creating investment incentives through bilateral air service agreements. The paper demonstrates how Kenya is reshaping the global aviation climate even though it is excluded from the Paris Agreement’s direct mandates.

  • La Protection Juridique Des Personnes Handicapées En Matiére De Droit Du Travail AU Cameroun: Entre Inclusion ET Exclusion

    People with disabilities, like all human beings, have the right to dignity and to enjoy a full life, including the right to work. Their legal protection in terms of labour law in Cameroon lies somewhere between inclusion and exclusion. The Cameroonian legislature has adopted a policy of positive discrimination in favour of persons with disabilities, consisting of preferential measures in terms of recruitment and job retention. The intended effect is to restore the balance between able-bodied and disabled workers, most of whom have had a difficult educational background. However, in Cameroon, as in several sub-Saharan African countries, the government’s objectives of economic emergence and the creation of a more just and inclusive society are struggling to materialise; the experiences of persons with disabilities, affected by challenges and vulnerabilities, illustrate this. The reality regarding the protection of persons with disabilities in labour law is sad. Beyond the texts, which enshrine the commendable efforts of Cameroonian legislators, the implementation of this policy is limited, if not non-existent in practice. In short, the inclusive professional integration of persons with disabilities seems to have a long way to go.

  • Reflections on Approaches to Constitutional Interpretation in Botswana

    A constitution is a form of legislation that forms the basis for the polity of free and equal individuals. It establishes the state itself, together with its institutional geometry, rules, processes, and procedures, as well as societal values, and expresses the nation’s vision. In this sense, a constitution is a sui generis legislation that calls for the application of unique interpretive models. Constitutions, unlike regular statutes, rules, and regulations, are typically enduring, rigid, unitary and vague laws. Because the language of their text is vague and open-ended, it requires interpretation to decipher meaning. This article considers the various models of constitutional interpretation in Botswana. It points out that the Courts of Botswana contemporaneously employ the contextual and purposive interpretations of the Constitution. It notes that the hybrid model of interpretation allows the courts to rely on relevant rules of international law, drafting history, comparative law, public opinion and other considerations in search of a meaning to be ascribed to a Constitutional provision. It observes that the courts of Botswana consider the Constitution as a single unitary compact whose provisions rank equally. As such, they must be interpreted in a mutually reinforcing manner as part of a structure or system to render the Constitution effective. The article also discusses the constitutional avoidance doctrine. It concludes that it has lost relevance in modern constitutional adjudication as it ossifies the Constitution and prevents it from evolving to meet the needs of society.

  • The Protection of Disability Rights Under the Nigerian National Framework

    There were various reports and studies shown in 2021 indicating that the population of persons living with disabilities in Nigeria has exceeded 32 million. Generally speaking, the issues surrounding disability conditions and welfare are usually addressed as matters of welfare and charity. This attitude has precipitated the continued social exclusion and marginalisation of persons with disabilities in Nigeria. Nigeria has ratified the United Nations Convention on the Rights of Persons with Disabilities and its Optional Code. Another milestone in the country’s efforts to promote disability inclusion and achieve sustainable improvement in the conditions of persons with disabilities was reached in January 2019, when it signed into law the Discrimination against Persons with Disabilities (Prohibition) Act. Despite the passage of these laws, people with disabilities continue to face discrimination, insecurity, violation of rights, stigmatisation, and lack of access to basic amenities daily. Silhouetted against this backdrop, this paper examines the extent of the protection of disability rights under the Nigerian legal regime. This paper employs a doctrinal and qualitative methodology of legal research in which relevant primary and secondary sources of legal materials are subjected to descriptive and content analysis. The paper then concludes with recommendations on how to achieve effective protection of disability rights in Nigeria.

  • Open Banking and AI for Financial Inclusion in Tanzania

    Financial inclusion is a means to enable individuals and businesses to access and utilise a broad range of affordable and appropriate formal financial products and services to improve their financial well-being and standard of living. Advancements in innovation and technology, such as open banking and artificial intelligence (AI), offer opportunities for enhancing financial inclusion. Open banking ensures that consumers are provided the right to share their bank account or financial transaction data with third-party providers of their choice who will provide them with appropriate, convenient, and affordable financial services. This has the potential to enhance financial inclusion by extending the scope of financial service providers under the data sharing infrastructure to serve consumers with a broad range of financial services. Applying AI tools and techniques by banks and financial institutions increases efficiency, reduces operating costs, and enhances the capacity to analyse consumer data. Thus, it enables providing a broad range of affordable financial services tailored to customer needs. The regulation of open banking and AI in financial services fosters the expansion of financial inclusion in several countries. However, in Tanzania, there are still several challenges to implementing and using open banking and AI to expand financial inclusion, particularly in accessing and using banking services. Therefore, a qualitative research methodology is employed in this article to unravel these challenges. The challenges include data authorisation risks, data privacy and security risks, algorithmic discrimination, lack of regulation and supervision, lack of industry standards, inadequate legal frameworks for consumer data rights, lack of regulation of data aggregators, and lack of explicit provision to regulate open banking, and artificial intelligence to advance financial inclusion. This article discusses the challenges of regulating and implementing open banking and AI for financial inclusion in Tanzanian banks and non-bank institutions. The authors hope that the recommendations raised in this article will be useful to the relevant authorities in enhancing financial inclusion using open banking and AI in Tanzania.

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