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

  • The Need for Effective Implementation of the Nigeria Anti-Torture Act, 2017

    The Anti-Torture Act 2017 prohibits torture without exceptions for government or military officials, including during emergencies and war, and imposes consequences on those who commit acts of torture. Those who carry out torture can face up to 25 years of imprisonment. Accordingly, the effectiveness of the Act must be measured by its effectiveness in ending torture by government and military officials. This article aims to assess the effective implementation of the Anti-Torture Act 2017. In doing so, the article questions whether any perpetrator has been punished in accordance with s 9 of the Act or whether detainees have access to medical examinations as specified in s 7 of the Act. This article analyses the need to effectively implement the Nigeria Anti-Torture Act 2017. Thus, this article finds that, in reality, there is no record of the punishment of any perpetrator under the Anti-Torture Act 2017, nor has the Attorney-General of the Federation provided any additional regulations to ensure its practical applications.

  • Incorporating Sustainable Development Principles in Africa's Investment Treaty-Making

    African states have long been critical of the international investment law regime, believing that international investment agreements (IIA) are misaligned with their sustainable development efforts. As a result, they have crafted modern IIAs to address the legitimacy crisis within the investment law regime. Despite improvements in Africa's new, modern IIAs, some countries continue to conclude bilateral investment treaties (BITs) framed in line with older-generation agreements. An overview of the recent trends in treaty drafting shows that African countries have embraced IIAs as important tools for sustainable development. This article revisits the International Law Association 'New Delhi Declaration of Principles of International Law' to formulate concrete legal solutions not only as binding legal principles for investors within the African continent but also as incentive to improve sustainability through self-monitoring rather than international or domestic enforcement. This underscores the importance for treaty interpreters and drafters to carefully recognise the integration and application of a sustainable development framework. Accordingly, the article integrates lessons from African experiences and articulates the sustainable development-oriented princip les and concepts that should be considered by policy makers and treaty drafters when developing new model BITs or renegotiating the old generation IIAs.

  • Evaluating the Efficacy of Alternative Dispute Resolution Methods in Resolving Marital Conflicts in Nigeria

    Disputes may be a fact of life, but they are no less troubling when they occur. They often need resolution, and swift, meaningful resolution at that. While litigation is the most popular means of settling disputes, this paper appraises the application of Alternative Dispute Resolution (ADR) mechanisms to marital conflicts in Nigeria. In Nigeria, litigation which is the most common means of settling disputes is often inadequate for the settlement of marital conflicts for the simple reason that it is rarely personal, empathic or collaborative for that matter. This paper therefore appraises the nature and extent of the application of ADR mechanisms to marital conflicts and also tests the proposition that a 'cause and effect' relationship exists between ADR and healthy marriages. The paper adopts doctrinal and empirical approaches by leveraging on qualitative analysis of responses to structured questions administered to participants within the Ilorin metropolis, Kwara State, Nigeria. The paper finds that there is an overwhelming use of ADR mechanisms for the settlement of marital conflicts, albeit with most leaning towards non-institutional ADR mechanisms, and that a 'cause and effect' relationship does exist between ADR and healthy marriages. This paper recommends that more importance be given to ADR in the place of settlement of marital conflicts and that better awareness be made in respect to institutional ADR mechanisms in Nigeria. The work also recommends that serious consideration be given to the establishment of family courts that would operate using collaborative approaches unique to ADR mechanisms.

  • Sustainable Solid Waste Management Practices in South Africa: A Comparative Legal Analysis

    South Africa is facing increasing mismanagement of solid waste, such as illegal dumping in open areas. This mismanagement of solid waste in South Africa is an environmental issue that threatens human rights. This study analyses sustainable solid waste management practices in South Africa and draws lessons from England and Kenya focusing on solid waste management, collection and disposal. England is a developed country with advanced waste management systems, while Kenya is a developing country facing similar solid waste management challenges to South Africa's. While South Africa has its legal framework on solid waste management, the lessons from both England and Kenya are to improve and strengthen waste management practices and enforcement in South Africa. This study deployed and used a qualitative research approach to highlight how England, Kenya, and South Africa's legal frameworks reflect their socioeconomic conditions, environmental priorities, and governance enforcement. The findings of the study are important for policy development. The study concludes that South Africa's legal and policy framework needs to be inclusive and enhanced for effective enforcement of sustainable solid waste management.

  • Navigating the Complex Terrain of Competition Law Enforcement in Nigeria's Petroleum Sector: An Examination of the Nigerian National Petroleum Company Limited (NNPCL)

    The convergence of the Petroleum Industry Act of 2021 and the Federal Competition and Consumer Protection Act of 2018 offers a unique opportunity to reshape the Nigerian Oil and Gas sector. However, the true potential of these legislative reforms can only be realised through vigilant enforcement. This article comprehensively analyses the critical role of competition law in fostering a dynamic and competitive energy sector in Nigeria. By immersing into the labyrinth of competition law, this article distils the challenges and opportunities arising from the convergence of the Petroleum Industry Act and the Federal Competition and Consumer Protection Act. Additionally, the article expounds upon how a proactive stance by the NNPCL, within the ambit of competition compliance, can infuse dynamism into market dynamics and, ultimately, rebound to the collective economic well-being of Nigeria. The methodology involves a desktop review of laws and regulations pertinent to competition and petroleum. The aim is to assess the influence of these laws on market competitiveness, consumer welfare, and economic efficiency within the Nigerian petroleum industry. The article finds that though the dominance of the NNPCL is not problematic per se, the ownership structure of the NNPCL is an impetus for the government to undesirably influence the entity's autonomy to compete like other undertakings. If left unchecked, it could potentially affect smaller private competitors in the industry. The article recommends more robust regulatory compliance to ensure fair competition and prevent the abuse of the NNPCLs dominant position.

  • Duty To Act Provisions and Omissions Offences Under the Anti-Human Trafficking Statutes of Malawi, Uganda and South Africa

    To effectively combat human trafficking, states have enacted domestic anti-human trafficking statutes to support the cause. Many of these statutes impose positive duties on both natural and legal persons, reinforced by criminal sanctions. The article examines the anti-human trafficking statutes of Malawi, Uganda, and South Africa, focusing on provisions that carry positive duties and, consequently, create omissions offences. It argues that while most positive duties — and the resulting offences of omission — in these statutes comply with criminal-law principles for imposing positive duties and criminalising their breach, some provisions in Malawi's and South Africa's anti-human trafficking statutes contain vague terms or phrases. Such terms or phrases may undermine the effective enforcement of these provisions and violate the principle of legality with respect to offences of omission resulting from non-compliance. The article further observes that while certain provisions in Uganda's and South Africa's anti-human trafficking statutes fail to consider the duty bearer's capacity and opportunity to comply when imposing positive duties, these provisions are generally precise. The article argues that the benefits of precise language in an anti-human trafficking statute outweigh concerns regarding disregard for the duty bearers' capacity and opportunity. Moreover, any consequences from this disregard can be addressed through sensitive or proactive prosecution or, where prosecution is pursued, the defence of impossibility.

  • Le Droit Au Juge Naturel en Droit Camerounais (The Right to a Rightful Judge in Cameroonian Law)

    A fair trial presupposes, among other things, that the judgment is pronounced by a court and/or an independent and impartial judge. In any state based on the idea of the rule of law, justice must be organized in such a way as to be stripped of any risk of serious grievance affecting its neutrality or that of the judges. It is on objective bases that the assignment of a court or a judge to a case must be made. The litigant must have for judge the one whom the law alone has established, his natural judge. Their meeting should not result from manipulation or a particular arrangement, but result from the implementation of criteria specially predefined by the legislator, taking into account the equality of citizens before the law and justice. These principles are indeed in force in Cameroonian law, although mistreated in their implementation.

  • A Critical Review of Jurisprudence on the Adjudication of Presidential Election Petitions in Africa

    A survey of jurisprudence on the adjudication of presidential election petitions in Africa yields different and sometimes confusing results on the legal approaches that are being applied by courts in different jurisdictions to determine the standard of proof which a petitioner must discharge and the nature of violations which a petitioner must prove in order for the court to vitiate an election. This is despite the fact that most of these countries share similar legal frameworks in the sense that their rules of evidence are similar while their constitutions require elections to be conducted in a way which adheres to the principles of universal suffrage, free suffrage, equal suffrage and secret suffrage. The emergence of divergent views and positions among courts which operate on the basis of a similar legal framework reflects a lack of coherence in the emerging African jurisprudence on the adjudication of presidential election petitions. What then is the appropriate standard of proof which the petitioner must discharge in a presidential election petition, and what kind of violations should a petitioner prove in order for the court to vitiate an election? In an attempt to contribute towards strengthening the role of the courts in resolving election disputes, this paper suggests that the approach to be taken by courts when adjudicating election petitions should very much depend on the case that has been presented by the petitioner. Where the petitioner is alleging irregularities and is claiming that those irregularities affected the results of the election, the question that must be examined by the court is the extent to which the results were affected. Where the petitioner's challenge is directed at the integrity of the election process, the question to be examined by the court should be the extent to which the integrity of the process was violated.

  • Tobacco Labelling and Advertising Rules: Lessons from other Countries for Zimbabwe

    This paper analysed the approach that has been taken by four countries in controlling tobacco usage through advertising and labelling rules. The paper is a documentary analysis and literature review of primary and secondary legal sources. The paper considered the national approaches adopted by the Commonwealth of Australia, the United Kingdom (UK), Thailand and Zimbabwe. The first three nations were used as examples that can offer lessons to Zimbabwe on how international tobacco control obligations are met. Australia and the UK were the first two countries to adopt plain packaging and hence offer some best practices. Thailand, on the other hand, was the first developing country to adopt plain packaging rules. Thailand's case shows that developing countries can also adopt sound tobacco control rules. The Australian law led to several national and international legal challenges that were resolved in favour of Australia. The legal domestic challenges against standardised packaging in the United Kingdom were also resolved in favour of the British government. It was established in the study that, despite acceding to the World Health Organisation Framework Convention for Tobacco Control (WHO FCTC), the Zimbabwean national legal framework is not yet compliant with the FCTC international treaty obligations. The laws of Zimbabwe are scanty and leave a lot of gaps in the control framework which have been exploited by tobacco manufacturers. This is unsatisfactory and calls for action on the part of the government.

  • A Comparative Analysis of the Right to Protest under the Nigerian Public Order Act and the South African Regulation of Gatherings Act

    The handling of the #EndSARS protests in 2020 and 2021 by the Nigerian authorities has once again brought to the fore the restriction of the right to protest in Nigeria, and in Africa as a whole, and the need to compare the right to protest under various African jurisdictions. Protest can be the catalyst for positive change in the social, political, economic and cultural life of a country, and therefore the right to protest is guaranteed under international, regional African and domestic human rights legal frameworks. In Nigeria, the Public Order Act of 1990 is designed to give effect to the provisions of the Constitution in terms of the appropriate and peaceful conduct of protests. Likewise in South Africa, the Regulation of Gatherings Act 205 of 1993 regulates the holding of public gatherings and demonstrations, in alignment with the provisions of the Constitution. This paper applies doctrinal methodology to undertake a comparative study of the right to protest under the Nigerian Public Order Act and the South African Regulation of Gatherings Act, specifically because South Africa has seen a groundswell of protests in the past few years with minimal restrictions. This paper finds that despite some shortfalls in the Regulation of Gatherings Act, it is a more potent law than the Public Order Act in ensuring the right to protest. This paper further argues that the robustness of the Regulation of Gatherings Act could serve as a template for strengthening the Nigerian Public Order Act to fully guarantee the right to protest in Nigeria.

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