Journal of Comparative Law in Africa

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• Stimulating Private Investment in Public Infrastructure Through Reform of the Nigerian Legal Environment

  A massive infrastructure deficit seriously impedes business growth and economic progress in Nigeria. Given the current fiscal realities, it is apparent that the government cannot solely bankroll such infrastructure requirements. Therefore, the need for private sector involvement in infrastructure development cannot be over-emphasised. However, this paper contends that gaps in infrastructure-related laws are partly responsible for the failure to attract private sector investment into Nigeria's infrastructure sector. In this regard, the paper seeks to investigate those legal impediments hobbling private sector participation in financing public infrastructure in Nigeria and what reforms, if any, should be made to stimulate private capital flows into the sector. Furthermore, it is argued that attracting private capital into the infrastructure sector requires, among other things, a favourable legal and regulatory environment that is rules-based, transparent, and predictable. It is therefore concluded that private resources could be unlocked by reviewing and improving appropriate infrastructure-related aspects of the country's legal environment. This article adopts a doctrinal approach; hence, it is based on desktop and library-based or non-empirical research. As doctrinal research, it will rely on an analysis of existing literature on the subject under investigation.

• A Comparative Legal Analysis of Local Government Autonomy in South Africa and Tanzania

  Over the past thirty years, there has been an increased drive towards decentralisation in Africa with the adoption of national constitutions that guarantee varying degrees of protection to local governments. In 2014, the African Union (AU) adopted the African Charter on Values and Principles of Decentralisation, Local Governance and Local Development (2014) to guide the decentralisation project for member states. The Charter acknowledges that the protection of local autonomy in decentralised legal frameworks is necessary for local governments to deliver on their developmental mandates. In this article, we explore from a comparative law perspective, how local autonomy is protected in the constitutions of South Africa and Tanzania. We also consider legislation regulating decentralisation in South Africa and Tanzania, comparing the similarities, differences, and challenges to local autonomy in these two countries in view of their different national legal frameworks. The comparative legal analysis helps to show the unique nature of the systems of decentralisation in both countries and lessons that can inform law reform. Although there are comparative studies on subnational autonomy in Africa, none has specifically compared local government autonomy in South Africa and Tanzania. The research is based on a critical and integrated analysis of primary and secondary sources of law.

• The Risk of Confusion in Trademark Infringement in South Africa and Kenya: Lessons from Singapore?

  The risk of confusion in trademarks is exponentially high in light of international trade. Where identical or similar marks are used in the course of trade by different companies, this may result in consumers being confused with regard to the origin of the goods. Consumer confusion may result in the proprietor of the trademark suffering financial loss if customers start buying competitors' goods or services. Most legal systems including those of South Africa and Kenya consequently have laws that contain provisions that seek to protect proprietors from the use of identical or similar trademarks in a manner that is likely to create deception or confusion among members of the public. The article discusses the approach to the likelihood of confusion inquiry in trademark infringement under the South African Trademarks Act 194 of 1993 and Kenya's Trademarks Act 4 of 2002. Singapore's step-by- step approach is examined as a best practice when assessing the likelihood of confusion in confusion-based infringement. It is argued that instead of South Africa and Kenya applying the global assessment approach, which seems to confuse and collapse the elements, a step-by-step approach should be preferred. The need to eliminate confusion when applying the elements of confusion-based infringement cannot be overemphasised in order to ensure predictability and consistency in Kenya and South Africa's case law.

• A New Legal Framework for the “Ownership” of a Deceased Person in a Legally Plural Ghana

  Any funeral in Ghana is a family business. Families hold elaborate ceremonies to mark the death of their deceased family members. Strict fulfilment of the duty to bury is said to ensure the seamless transition of the deceased from this life to the next. In Ghana, the extended family of the deceased has custody and control over the dead body for the purpose of burial. However, the heterogeneous nature of modern Ghanaian society, the rise of the nuclear family, and modern socio-legal values have increased disputes over the dead body, often between the extended family and the nuclear family. Against the background of Ghana's pluralistic legal system, we investigate the context in which such disputes take place and how the legal system responds. We draw on field interviews to critically compare the living customary law with Ghanaian common law, judicial customary law, statutory law, and the experience of other jurisdictions. We note that the customary law principle of being owned by one's extended family is well established, usually overriding other systems of law. Nonetheless, we argue, drawing on the experiences of other African countries, that the nuclear family should be given greater opportunities to participate in decisions relating to the burial of the deceased. We propose a framework that reflects the needs and aspirations of both kinds of families.

• The Right Against Double Jeopardy (Non Bis In Idem) in the Constitutions of African Countries

  Article 14(7) of the International Covenant on Civil and Political Rights (1966) provides that '[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country'. In human rights law, this is referred to as the right against double jeopardy (non bis in idem). The ICCPR has been ratified or acceded to by all African countries with the exception of Comoros and South Sudan. This implies, inter alia, that African countries must ensure that the right against double jeopardy is protected in their legislation. In this article, the author examines the constitutional provisions of all the African countries to analyse the extent to which they deal with the right against double jeopardy. The author also refers to legislation and case law from different African countries to demonstrate the circumstances in which a person who has been convicted or acquitted may be prosecuted again for the same offence (retrial) without violating their right against double jeopardy. The discussion shows, inter alia, that some of the constitutional provisions on the right against double jeopardy are contrary to art 14(7) of the ICCPR and some constitutions are silent on the right against double jeopardy. However, this loophole is rectified through subsidiary legislation or direct or indirect incorporation of art 14(7) in domestic legislation.

• Realising a ‘Right’ to Research in Nigeria and South Africa: The Role of the Executive Arm of Government

  Development agendas and plans such as South Africa's National Development Plan 2030 and Nigeria's National Development Plan 2021–2025, indicate the need for, and benefits of, development research to sharpen countries' innovative edge and to contribute to global scientific and technological advancement. Recent scholarship has highlighted the positive impact on national development of copyright exceptions allowing for the right to research. This can be in the form of either a complete defence to copyright infringement, or, as user rights. However, the realisation of a right to research has been limited by a copyright legislative framework that may be challenging to interpret. Other hindrances to realising the right to research are limited access to courts for interpretation due to limited resources and also as a result of the inherent institutional limitations of courts to consider only the case pleaded by parties before them. In this environment, the role of the executive arm of government in driving the realisation of a right to research is crucial. Yet, there's been no executive action to provide for the much-needed clarification to concretise and promote the right to research to actualise development goals. Focused on Nigeria and South Africa, this paper explores the duties imposed on the institutions of executive government and applies administrative law principles to indicate a policy toolkit within copyright statutes that may be deployed to realise a right to research and engender guidance for researchers, copyright owners, users and audience of research.

• The Possible Impact of the Wilsnach v M [2021] 1 All SA 600 (GP) Judgment on the Right of an Absent Muslim Parent to Inherit in Terms of an Islamic Will

  The Gauteng Division of the High Court, Pretoria handed down a judgment in Wilsnach v M [2021] 1 All SA 600 (GP) (Wilsnach) during 2020, where it held that a biological father could not inherit 'in the capacity of a parent' due to absence, in terms of the Intestate Succession Act 81 of 1987 on the basis he inter alia lost his rights and obligations in terms of s 18 of the Children's Act 38 of 2005 (hereafter absent parent). This article analyses the potential impact that the Wilsnach judgment could have on the right of a Muslim father to inherit in terms of an Islamic will in the event where he too has lost his rights and obligations in terms of s 18 of the Children's Act 38 of 2005.1 An overview of the Wilsnach judgment is analysed by way of introduction. The right of a Muslim parent to inherit from their child in terms of 'Islamic law' is then explored. The possible impact that the Wilsnach judgment could have on the right of a father to inherit in terms of the 'Islamic will' is then investigated. The article concludes with an overall analysis of the findings and makes a recommendation as to how Islamic law consequences can be accommodated.

• Constitutionalisation of Ethnicity and Decolonisation of African Constitutionalism: Towards an Authentic African Constitutional Identity?

  In the aftermath of independence, African states for the most part opted for the nation-state model inspired by their colonial masters. Consequently, the constitutionalism of the newly independent African states emphasised national unity, an absolute obsession of state leaders, while demonising ethnicity, when it was not simply forgotten. Presented as one of the major causes of the state crisis in Africa, the liberal nation-state model has proven incompatible with African composite societies. Hence the imperative need for African states to reconcile the organisation and functioning of the state with their own values, and thus forge a typically African constitutional identity. The revival of constitutionalism integrates this tendency to appropriate African values, despite the criticisms of this option. The role given to ethnicity, a central element of African society, is symptomatic of this trend. The ethnic group is gradually emerging from its lethargy to occupy an increasingly important place and punctuate the political and institutional life of the state. The principle of equality is softened by the mechanisms tending to favour some people to ensure their representation in state institutions. The principle of the indivisibility of the state gives way to the formation of a 'Republic of lands and territories' with overlapping citizenships, where the sons and daughters of the soil enjoy comparatively more rights and privileges than any other nationals from other origins. Finally, as a vehicle carrying traditional values, customary law is gradually recognised and constitutionally protected.

• Traditional justice systems in the Nigerian administration of justice: Lessons from Kenya

  The Nigerian administration of justice is facing many challenges such as congestion of cases in the courts, delays in the prompt resolution of cases, corruption in the formal justice system, a punitive and retributive approach to crime with little or no room for restitution and reparation of victims of crimes, as well as the adversarial, hostile, and technical nature of litigation. Although the federal government and some states have made efforts in respect of criminal matters by the enactment of the Administration of Criminal Justice Act (ACJA) and Administration of Criminal Justice Laws (ACJL) traditional justice systems can effectively ameliorate these challenges in the resolution of both civil and criminal matters. However, the potential benefits of the effective application and operation of traditional justice systems in Nigeria are hindered by their restriction to civil disputes, the lack of a clear and specific legal and policy framework, scant regard for procedural justice, inadequate or lacking of enforcement mechanisms and a retributive and punitive approach of the criminal justice system. This article analyses the nature of the Nigerian traditional justice systems and their relationship with alternative dispute resolution (ADR) mechanisms to see how ADR could complement the Nigerian administration of justice. The article further examines the challenges of the Nigerian administration of justice and the practice of traditional justice systems in Kenya to draw lessons for Nigeria. The article argues that the reconciliatory and restorative focus of tranditional justice systems could help resolve some of the challenges facing the Nigerian administration of justice. The article suggests legal, policy, and institutional reforms and their integration for effective application in Nigeria.

• From subsistence to commercialisation: Legal implications of ‘ECOWAS Regulations on Transhumance’ on livestock investment options

  West Africa is expected to experience rapid population growth with a projected population of 796, 494, 188 in 2050, most of whom will be unemployed youths in quest of job and business opportunities. The increasing growth in population with an increasing demand for livestock products and a ready workforce presents exciting opportunities for investment in livestock production, job creation, poverty reduction, and food security. Nonetheless, private investment may not happen in a form that will achieve these gains if the ECOWAS texts are left in their current form, in promoting the transhumance business model to the detriment of meaningful large-scale investments that will increase productivity and create jobs for the region's booming young population. This article adopts a socio-legal approach to examine the ECOWAS Decision and Regulation on Transhumance in order to determine whether they have adequately promoted transhumance in a form that is not inimical to other business investment options for livestock production in the region. Its aim is to show that the regulatory framework has not effectively ensured that transhumance exists in a form that will still provide other business models with opportunities to competitively engage in livestock production. This is given the fact that the transhumance method has been commercialised and even criminalised in ways that produce significant negative consequences for the livestock business. It recommends concrete plans with a view to phasing out transhumance across borders and designating rangelands in semi-arid areas of the region.

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