bluuebunny/crossref_metadata_2025 huggingface dataset:
The Legal Regime of Public Finance in the Sudan: The Legacy of Nimeiri
Authors: Gordon Carey
Published: July 2009

The Republic of the Sudan, the largest country in Africa with a population of approximately 22 million people, became an independent state on 1 January 1956. The “May regime” of former President Ga'afar Mohamed Nimeiri ruled the Sudan during sixteen years of Sudan's independent existence, from 25 May 1969 to 6 April, 1985. Since April 1985, the country has been in a “transitional” period leading up to elections in April 1986, after which a newly elected government will determine the future of the state. Although Nimeiri is gone, the issue of the retention of the policies and legal structures of his regime continues to dominate the political and economic scene of this country.

The economic development of the Sudan, along with the question of the correct balance of central-regional power within the country, constitute two of the major subjects of governmental attention and current political debate. The legal structures put in place by the Nimeiri government with respect to these matters remain largely intact. In order to undertake effective changes in the financial and structural policies of the government, an essential first step is to understand the framework which has existed in the recent past from which such changes will be made.
Traditional Contracts in German East Africa: The Transition from Pre-Capitalist Forms
Authors: Lyall Andrew
Published: July 2009

The material which forms the subject matter of this article constituted a chapter of a PhD thesis presented to London University in 1980. The thesis was based largely on the answers to Kohler's questionnaire which was distributed by the German colonial authorities throughout what was then German East Africa in 1909. A recent article in theJournal of African Lawdescribes these questionnaires in detail. Bibliographical references in the following text to the answers to the questionnaires follow the numbers assigned to them by Ankermann (1929) and used in the list in Redmayne and Rogers' article. Some answers were published at the time and these are referred to in the same way as normal bibliographical entries Some use has also been made of Post's earlier questionnaire which, together with the answers, was published under the editorship of Steinmetz (1903). Post's questionnaire was written in 1895 and distributed throughout the German colonies. The thesis dealt with land tenure and contract and so covered the field of the answers in the questionnaires dealing with those topics. It also set out a typology of African societies at the time the questionnaires were distributed, based on what could be discovered of their economic and social relations. As it turned out this typology proved rather more useful in establishing connections between economic relations and forms of land tenure than it was in establishing connections with such relations and contractual liability.
The Dawn of Legal Acculturation in Nigeria—A Significant Development in Law and National Integration: Olowu V. Olowu
Authors: Sagay I. E.
Published: July 2009

The recent decision of the Supreme Court inAdeniyi Olowu &Ors. v.Olabowale Olowu & Anorto the effect that a person belonging originally to one ethnic group can by a process involving time, association, marriage, personal wishes and manner of life, become assimilated into and thereby legally acquire the status of another ethnic group, is of great significance. For it breaks new ground, gives legal backing to the promotion of social and national integration and establishes very clearly for the benefit of legal philosophers and theoreticians, that courts in fact make law.

Previously, it was believed that no Nigerian could legally change his ethnic group. The prevailing attitude was “once an Ibo, always an Ibo ”, irrespective of the fact that the family of the propositus had settled amongst the Yorubas of Oyo town seven generations previously. The settler family would retain links with its “motherland” no matter how tenuous. The dead of the family would still be conveyed “home” for burial. Even if the settler family wanted to join the ethnic group of the host community, the host community would not allow them to forget that they were strangers. Thus in spite of inter-marriages and other social interaction between the settler family and the host community, the distinction and original identity of the settler family would be retained.

What applies to individual settler families also applies with more force to settler communities. They retain their original cultural and ethnic identity, generations after settling in the midst of another ethnic group.
Moslem Law in Nigeria: The Decision in Kharie Zaidan v. Fatima Khalil Mohssen
Authors: Woodman Gordon
Published: July 2009

The sole issue of importance in this case was the choice of law for determining entitlement to the estate. The most remarkable of the court's holdings is the proposition that Moslem law governs the estate of an intestate Moslem because it is the customary law to which he was subject. Before discussing this it is necessary to examine the line of reasoning by which it was reached.
Fundamental Human Rights and the Military Regime in Nigeria: What did the Courts Say?
Authors: Aihe D. O.
Published: July 2009

The rights of the individual in the society have been conceived as natural rights—which in the modern state have no more than a moral force. In the context of a modern state which asserts absolute powers within its borders, it appears idle to suggest as in the traditional natural law theories that there is anything like a law of nature existing independently of and overriding positive law.
The Advocates Act, 1970, Uganda
Authors: Ross S. D.
Published: July 2009

The change taking place in the social structure of the developing countries reflects itself quite obviously in their laws. The legal profession is no exception to this process of change. Uganda had its first African advocate entered on the Roll of Advocates in 1953, and by the time of independence in October, 1962, there were 16 African lawyers out of a total of 170 lawyers. Today there are 96 African lawyers out of a total of approximately 250 in the profession. Although the private bar is still mainly dominated by the Asian lawyers, this situation will drastically change in the next few years. Many Asian lawyers who are non-citizens are leaving the country. Others who are citizens are also planning to leave so as to find a more secure future for their families. Finally very few Asian lawyers are coming into the profession.
The Legal Framework of Banking Business in Ghana
Authors: Date-Bah S. K.
Published: July 2009

The two main sources of the statutory rules that regulate the business of banking in Ghana are the Bank of Ghana Act, 1963,2 as amended by the Bank of Ghana (Amendment) Act, 1965,3 and the Banking Act, 1970.4 Other legislation laying down rules relevant to the business of banking are the Companies Code, 1963,5 the Building Societies Ordinance, 1955,8 as amended,7 the Moneylenders Ordinance,8 the Incorporated Private Partnerships Act, 1962,9 and the Bills of Exchange Act, 1961.10
The Activities of Commercial Banks in French-Speaking African States
Authors: Alibert J. , Sathoud J.-E.
Published: July 2009

On May 12th, 1962, the West African Monetary Union was established by treaty between six French-speaking African states, Senegal, Ivory Coast, Upper Volta, Niger and Dahomey. This Union is linked with France by a system of “operations accounts” concluded between the French Treasury and individual issuing banks. The system ensures the free inter-state convertibility of their currencies and with the French franc, the C.F.A.F. (Communauté Financière Africaine Franc) being guaranteed by the French Republic. Under this system commercial and financial transactions are free within this monetary area, and within the Franc Zone. A common central bank, the Central Bank of West African States, was set up.
The Bank Customer and Banking Law in Nigeria
Authors: Oloyede E. O.
Published: July 2009

Like most modern institutions in the developing countries, the financial institution of banks and banking is foreign and, to begin with, banking was introduced in the last decade of the 19th century for the benefit of the early European mercantile houses in Nigeria. The first bank to appear on the Nigerian scene was the Bank of British West Africa (later known as the Bank of West Africa but now as the Standard Bank of West Africa) having been established in 1894, and it was the only bank operating in Nigeria until 1917, when the Colonial Bank, which later became part of the Barclays Bank D.C.O. in 1925, was established.1 The first indigenous bank was the National Bank of Nigeria founded in 1933.2
Development Lending and Institution Building
Authors: Habte-Selassie Bereket A.
Published: July 2009

Development is a process which involves change, change from a state of under-development to better conditions of life. It is in terms of this process that the term “developing nations” is used to describe the countries with a backward economy which they are in the process of developing. If development involves change, the institution-building that goes with it can also be described as institutional change. Development lending is thus, by definition, linked with institutional change. Any development needs institutions that meet its operational requirements, and the creation of such institutions often affects vested interests. Thus development lending and institutional change often involve conflict between reformers and those with vested interests within the borrower country.
Tort Law and Development: Insights into the Case of Ethiopia and Eritrea
Authors: Bussani Mauro
Published: July 2009

The primary purpose of this article is to enrich the understanding of tort law in Ethiopia and Eritrea and how it affects the environment. Its standpoint is both positive and normative. Its secondary goal is to clarify the affinities, often hidden, between the issues raised by tort law in developing countries now and the same issues as they emerged in the Western tradition in the past. Methodologically, the article considers the interplay between two powerful tools of analysis: law and economics, and legal pluralism (as informed by the doctrine of legal stratification).
The Fundamental Right to a Passport Under Nigerian Law: An Integrated Viewpoint
Authors: Okafor Obiora Chinedu
Published: July 2009

The struggle of Nigerian civil society for the establishment of a democratic polity, founded on the rule of law and the respect for the human and peoples’ rights of ordinary citizens of Nigeria, has been waged against the military governments that have ruled by force for the better part of its nearly three and a half decades of independent existence. During this struggle, there have been many cases of seizure of the passports of prominent opposition activists by members of the security agencies of the government. Such acts have generated much international condemnation of the government, as well as some judicial disapproval.
Conflicting Claims to Custom: Land and Law in Central Province, Kenya, 1912–52
Authors: Mackenzie Fiona
Published: July 2009

In antithesis to legislation on land tenure introduced through the Land Registration Act, 1959, premised on the notion in English common law that the right to allocate land was equivalent to exclusive ownership, “ownership” under customary tenure in Kenya was “essentially heterogeneous and divisible”. People differentiated by age, gender and wealth had bundles of rights defined, in Okoth-Ogendo's words, by “the status differentia which a particular category of membership in a production unit carries”. The complexity and elasticity of customary land law, Okoth-Ogendo demonstrates, derived from its separation of access rights from allocative rights, and the subjection of the latter “to the economic tasks required of the former”. This distinction and the ensuing visibility in legal discourse of both use rights and rights of allocation was critical, as Okoth-Ogendo indicates, in ensuring “the proprietary position” of women, the primary agriculturalists, in societies such as that of the Kikuyu, which are frequently classified as patrilineal.
Matrimonial Cases in the Local Courts of Zambia
Authors: White C. M. N.
Published: July 2009

This paper examines what topics are dealt with in matrimonial cases before the local courts in Zambia and, to some extent, what topics in customary law relating to marriage are not dealt with in such cases. It does not explore the conceptual limits of a definition of customary law, nor does it imply that the adjudications of local courts are the only source from which to establish customary law relating to marriage. The scope of matrimonial cases is here taken to include the formation, duration and termination of marriage, but to exclude succession after the death of a spouse. Quantified data are derived from all cases heard in the local courts of Zambia during the year 1968, or from samples drawn from them. Approximately 32,000 matrimonial cases as here defined were heard by these local courts in 1968. Local courts are the courts established under the Local Courts Act of 1966, which replaced the former native courts.
Les Influences de la Période Coloniale Sur L‘avènement de Régimes Militaires en Afrique Noire
Authors: Lavroff D. G.
Published: July 2009

L’évolution politique des Etats d’Afrique noire semble caractérisée par la succession de mouvements qui affectent, presque en même temps, la plupart d’entre eux. Au moment de leur accession à l’indépendance, les Etats d’Afrique noire adoptérent le modèle de la démocratie pluraliste. Les constitutions établissaient les conditions de la concurrence pacifique pour 1’exercice du pouvoir politique et l’existence de plusieurs partis permettait, apparemment, la mise en oeuvre des règies constitutionnelles. Les nouveaux Etats étaient généralement gouvernés par des hommes qui avaient mené leur peuple vers l’indépendance par l’action politique partisane et la négotiation avec la puissance coloniale. La plupart de ces gouvernants étaient des intellectuels ou des syndicalistes. A partir de 1963, un changement important se produit. La révolte de quelques sous-officiers togolais aboutit à l’assassinat du Président de la République. Ces militaires étaient mécontents mais ils n’aspiraient pas à la conquête du pouvoir. Depuis lors, les coups d’Etat organisés par des militaires se sont multipliés et dix sept pays sont actuellement dirigés par des gouvernements militaires ou issus d’un putsch militaire. Il ne parait pas excessif de parler de “l’Afrique des militaires” après “l’Afrique des instituteurs et des médecins”.
The Journal of African Law 1957–96: Then and Now
Authors: Allott Antony
Published: July 2009

This special number of the Journal of African Law has a dual function. First, commemorates 40 years of continuous production of the only learned journal devoted exclusively to African law. And secondly, it is presented as a tribute to the signal achievement of Professor James Read of the School of Oriental and African Studies in devoting himself to the study and advancement of African law, both at the School and elsewhere. The two successes run in parallel. Often their lines intersect. Jim Read directly and indirectly has made an enormous contribution to the expansion of the notion of African law since those early days, an expansion which has fed back into the concerns and the range of materials which the contents list of the Journal now displays.
James Read the Law Reporter: The Case Law of the African Commonwealth
Authors: Slinn Peter
Published: July 2009

In the Introduction to this volume, brief reference was made to James Read’s work as General Editor of Law Reports of the Commonwealth. The series includes cases from every part of the Commonwealth, but the purpose of this brief note is to draw particular attention to some recent cases reported from African jurisdictions, some of which have no up-to-date series of law reports of their own.
New Company Law for Malawi
Authors: Nzunda Matembo
Published: July 2009

Company law needs to be reformed so as to promote and maintain the protection of the interests of shareholders, creditors and the community. These are the three “social and economic needs to which a system of company law should respond”. These three purposes of company law are not mutually exclusive. However, the weighting of them depends on the space factor and time factor of law reform. Space factor refers to the differences in economic, social, political and other conditions and needs between one country and another at a given time. So, “Whereas in Britain one of the main purposes of company legislation is to protect the interests of shareholders, in a developing country like Malawi its main function should be to protect the interests of the national economy since most of the effective shareholders will in fact be non-resident in the country.” Time factor refers to the differences in economic, social, political and other conditions and needs of a country between one time and another. For example, the increasing internationalisation of the Malawian political economy, through branches and subsidiaries of multinational companies and joint-ventures, may demand that companies’ legislation in Malawi respond to the conditions and needs of such an economy. Of course, the two factors constantly act on each other.
Water Pollution Control in Africa: A Comparative Legal Survey
Authors: Ogolla Bondi D.
Published: July 2009

A country's water resources are important not only for the continued well-being of its population but also because water is a critical element in its economic development. Water is vital for human, animal and plant life. Life cannot exist without it. Most domestic needs in developing countries are satisfied through direct access to natural sources. The World Health Organisation in 1976 estimated that only 38 per cent of the total population in developing countries had access to safe water supplies. This means that 62 per cent of the population resorted to lakes, rivers, streams and wells for domestic requirements. Many industries abstract water from rivers and lakes for their industrial processes and often return it to those sources as trade effluents. Water is a critical factor in agricultural production. In turn agricultural activities create by-products such as sediment loads and chemical residues with adverse impact on water quality.

It is obvious therefore that a country must ensure that its water resources are rationally utilised and managed. Such utilisation and management entails the creation of normative and institutional structures, first, to regulate the allocation of an often scarce resource to competing legitimate demands and, secondly, to anticipate, prevent and control the adverse consequences of resources utilisation. This article examines the nature of the legal mechanisms instituted by selected African countries, viz. Zambia, Ethiopia, Ghana, Sudan and Kenya, for the control and prevention of water pollution. The objective is two-fold: first, to determine the adequacy of existing legal regimes and, secondly, to suggest how deficiencies in existing frameworks may be rectified.
Compensating The Victims of Crime in Botswana
Authors: Nsereko D. D. N.
Published: July 2009

A victim of crime is any person who is hurt physically, mentally, financially, or economically as a result of criminal conduct. He may sustain permanent physical or mental incapacitation as a result of such conduct. His health may be impaired. His property may be permanently lost, destroyed, or damaged. His reputation in society may be irreparably damaged. His business or professional interests may be ruined. His social standing may be shattered, and this is especially true of victims of sexual offences. His family's welfare may also be dealt a heavy blow, and this is especially so where he or she dies or where his or her ability to support them is diminished or totally extinguished. For the most part, the victim is innocent, going about his activities lawfully and peacefully.
Land Registration in Ghana: Past, Present and the Future
Authors: Agbosu L. K.
Published: July 2009

The establishment in the Gold Coast of commercial agriculture based on a permanent cultivation of the soil, the development of the mining and timber industries in the last two decades of the nineteenth century and the concession boom that these events carried in their train, created favourable conditions for capitalist development for which the private ownership of the means of production is a prerequisite. However, at that time the basic means of production in the Gold Coast, i.e. the land, was generally held in common and was not privately owned.

Colonialism, however, had the effect of establishing two systems of production in the country. The capitalist sector which became dominant was created at commercial and urban centres. The traditional communal system based on what, for want of a better term, one could call subsistence agriculture, remained at the periphery in the countryside. The dominant capitalist sector produced in its own image a class of property owners consisting of European, national and rural capitalists. Attempts by the latter to acquire lands to be privately owned gave rise to problems of insecurity of title. A machinery for land registration was thought to be the most adequate means of solving the problem.
“Ill-Legal” Constraints on the Exercise of Administrative Disciplinary Powers in Nigerian Law
Authors: Odujirin Kemi
Published: July 2009

Can a domestic tribunal or an administrative disciplinary committee try a person for a criminal offence? The answer is clearly no. But can such a tribunal, in the exercise of its disciplinary powers, try a person for misconduct even though the acts amounting to such misconduct are in the nature of criminal offences? The Nigerian Supreme Court has given a negative answer to this latter question. The aim of this short article is to show that the answer puts “ill-legal” constraints on the administrative disciplinary powers of such tribunals.

The history of the problem dates back to 1968. In Denloye v. Medical and Dental Practitioners' Disciplinary Tribunal, counsel for the plaintiff raised the issue of the competence of a disciplinary tribunal to try a person for acts alleged to amount to infamous conduct in a professional respect where the acts were in the nature of criminal offences. Although the court did not consider the issue, it nevertheless observed (in the typical fashion of regarding English law as a palimpsest of Nigerian law) that the practice under the English Medical Act, 1956 which was that allegations of unprofessional conduct in the nature of offences were not dealt with under the Act in the first instance but were left to the courts, and, after conviction, disciplinary actions would follow, was the intention in Nigeria.
Infanticide in Bechuanaland: A Footnote to Schapera
Authors: Otlhogile Bojosi
Published: July 2009

This is not an article on the crime of infanticide as such. It is a footnote, as it were, to Schapera's writings on infanticide in Bechuanaland. The intention is not to go into the intricacies and controversies concerning the crime of infanticide. Nor does it suggest that Schapera ever devoted any substantial book or article to infanticide. Rather he referred in passing to instances of infanticide in various articles and books he wrote on Bechuanaland. He indicated that infanticide was practised in Bechuanaland under certain circumstances, as in any other society. However, it was obvious the exact extent of the practice was unknown because the practice was shrouded in secrecy. It was only when a case had been witnessed by a third party or had been reported to the authorities that the matter reared its head. As such the statistics on infanticide are hard to come by and even where they exist they are at best misleading. The note considers the instances referred to by Schapera and comments on a few available cases. It will emerge that these cases were only those which were prosecuted in the European courts. Infanticide took place broadly under the following circumstances:
A Fresh Start for Africa? New African Constitutional Perspectives for the 1990s
Authors: Slinn Peter
Published: July 2009

This seems a particularly appropriate time to devote a double issue of the Journal to one topic—constitutional law. Throughout sub-Saharan Africa, there is blowing a wind of political change comparable with that identified by British Prime Minister Harold Macmillan in his famous speech to the South African parliament in Cape Town on 3 February, 1960. The source of that wind was African national consciousness which was impelling the process of decolonisation: in that year, 1960, most of the francophone African states discussed by Reyntjens and Nigeria became independent. By 1968, the process was complete except for Angola, Mozambique, Namibia and Zimbabwe. All the new states were endowed with shiny new democratic constitutions, a “Gaullist” or Westminster” legacy from the departing colonial masters.
Towards A Bill of Rights for a Democratic South Africa
Authors: Sachs Albie
Published: July 2009

All revolutions are impossible until they happen; then they become inevitable. South Africa has for long been trembling between the impossible and the inevitable, and it is in this singularly unstable situation that the question of human rights and the basics of government in post-apartheid society demands attention.

No longer is it necessary to spend much time analysing schemes to modernize, reform liberalize, privatize, or even democratize apartheid. Like slavery and colonialism, apartheid is regarded as irremediably bad. There cannot be good apartheid, or degrees of acceptable apartheid. The only questions are how to end the system as rapidly as possible and how to ensure that the new society which replaces it lives up to the ideals of the South African people and the world community. More specifically, at the constitutional level, the issue is no longer whether to have democracy and equal rights, but how fully to achieve these principles and how to ensure that within the overall democratic scheme, the cultural diversity of the country is accommodated and the individual rights of citizens respected.
Contradictory Developments in the Teaching and Practice of Human Rights Law in Tanzania
Authors: Shivji Issa G.
Published: July 2009

The Bill of Rights is a novelty in Tanzania. As is well-known, Tanzanian Constitutions from independence to 1984 did not contain a bill of rights. Partly for this reason, legal discourse, whether in teaching or in practice, did not centre on rights issues particularly in the relationship between the state and citizen. At the Faculty of Law, University of Dar es Salaam, there developed an approach to teaching which the university calendar refers to as “the historical, socio-economic” method. The socioeconomic method emerged in contrast to the “law and development” approach which was a manifestation of the modernization theory on the legal plane. Neither of these revolved around the question of rights. Put rhetorically, “law and development” saw law essentially as an instrument of social change while the “socio-economic method” regarded law as an instrument of the ruling class. This may be a little over-simplified, but I believe broadly represents the main points of departure of, and contention between, the two schools—at least at that time at the Dar es Salaam Faculty.
The Jurisprudence of the Dar Es Salaam Declaration on Academic Freedom
Authors: Shivji Issa G.
Published: July 2009

On 19 April, 1990, 12 delegates from autonomous staff associations of six institutions of higher education in Tanzania adopted theDar es Salaam Declaration on Academic Freedom and Social Responsibility of Academics. The inaugural workshop was also attended by representatives from some eight other institutions of higher education who do not as yet have staff associations. A student representative from the proposed autonomous students' union of the University of Dar es Salaam was also invited. They all attended as observers who participated fully in the deliberations of the workshop although they did not have a right to vote.

In terms of article 51, the Declaration has now come into force as it has been ratified by the membership of two-thirds of the staff associations attending the inaugural workshop. Following the formal launch of the Declaration in July 1991, the next step will be for the staff associations to pressurize the respective administrations at their institutions to accord the Declaration formal recognition. Eventually, the Government itself will be approached to accord the Declaration political acceptance.
Extra-Constitutional Parliamentary Private Secretaries in Mauritius
Authors: Meetarbhan M. J. N.
Published: July 2009

In a recent analysis of the constitutional position of Parliamentary Private Secretaries (P.P.S.s) in the United Kingdom Professor Norton concludes that they “occupy an important twilight zone between ministers and backbenchers. Though remaining among the latter, they assume certain characteristics of the former.” Mauritius, which like many Commonwealth countries has a constitutional regime largely inspired by the British model, has recently created an innovative role for P.P.S.s who operate at sub-ministerial level but are not unpaid helpers to ministers as in the U.K. It is the intention of this article to critically examine this role.

The Mauritian Constitution originally provided for a Cabinet consisting of the Prime Minister and up to 14 ministers who were all members of the Legislative Assembly, except for the Attorney-General. Under section 66 of the Constitution, the Governor General acting in accordance with the advice of the Prime Minister could appoint up to five Parliamentary Secretaries from among members of the Assembly “to assist Ministers in the performance of their duties”. Following the formation of a coalition government in 1969, the Constitution was amended so as to increase the number of Ministers to 20 and that of Parliamentary Secretaries to ten with Mauritius having a unicameral legislative assembly of 62 elected members and up to eight nominated members, the 1969 amendments enabled almost every other elected member to be appointed a Cabinet minister or Parliamentary Secretary.
Small Man Politics and the Rule of Law: Centre-Periphery Relations in East-Central Botswana
Authors: Werbner Richard P.
Published: July 2009

There is a familiar stereotype overrunning much of the anthropological literature on political and economic development in new nations. Brokers and big men have captured the stage, and their chains and alliances, their manipulations and calculations, their political games as men in the middle of centre-periphery relations have loomed larger than life in the literature. Indeed, it has come to be almost a matter of faith in certain studies of new African nations, especially studies influenced by work on India, to regard political questions within the frame of a patronage model, since it has been taken for granted that transactions between patrons and clients or “friends of friends” control the stuff of politics, the decisions about who gets what, when and how. How and why the rule of law is upheld during those periods of major change in government that come immediately before and after Independence remains a largely neglected question. Yet in a new nation citizens may also take political action through appeals to ministers, courts, tribunals, or commissions of enquiry and thus subject decisions by the local government to review and sometimes revision by the central government. The outcome need not be a foregone conclusion, because the hearings may pit the interests of the central and the local government against each other. The central government may then have to defend the aggrieved citizen against the local elected officials or civil servants. The point is not that a citizenship model has to be put in the place of the old patronage model. Rather the power of citizens in a new nation qua citizens has to be taken as problematic, and their powerlessness without middlemen or brokers cannot be assumed, especially in centre-periphery relations.
Twenty Years on—The Journal of African Law and African Law: A Look at the Past and the Future I
Authors: Allott Antony
Published: July 2009

To launch a new journal is an act of faith; it is also an act of recognition. An act of faith, because the editors and publishers of the journal will naturally ask themselves where the readership is to come from, which is to make the journal viable. An act of recognition, because the new journal officially marks, at least in the minds of its begetters, the recognition that a new area of theoretical study or practical action has now defined itself, which has hitherto been unrecognised or insufficiently provided for by the journals already in existence. As the first editor of this Journal, and the only member of the original Editorial Committee still serving the Journalin that capacity, I may be permitted to indulge in a personal reflection on the motives and background to the launching of the Journal of African Law in 1957.
II: Twenty Years On—The Journal of African Law and African Law: A Look at the Past and the Future
Authors: Phillips Arthur
Published: July 2009

The launching of the Journal of African Law in 1957 seemed a bold venture. It was less than ten years since African law, as a subject of study in its own right, had received its first recognition in legal circles in this country, whether academic or professional; and there were as yet comparatively few who appreciated its importance or its capacity for development.
III: Twenty Years On—The Journal of African Law and African Law: A Look at the Past and the Future
Authors: Daniels W. G. Ekow
Published: July 2009

The attainment of twenty years in the lifetime of a learned journal such as the Journal of African Law is an occasion which deserves to be commemorated. As one of its many readers I should like to pay my tribute to the editors and contributors on their efforts at fostering the study of the laws in Africa during the past two decades.
Contempt of Court in Tswana Law
Authors: Schapera I.
Published: July 2009

“Contempt of court” in the English legal system has been variously defined as “failure to comply with an order of a superior court, or an act of resistance or insult to the court, or the judges; conduct likely to prejudice the fair trial of an accused person” (Osborn, 1964: 86), and as “any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation” (Borrie and Lowe, 1973: 1, quoting Oswald).
Alternative dispute resolution, Africa, and the structure of law and power: the Horn in context
Authors: Grande Elisabetta
Published: July 2009

Data collected by comparative legal scholars show that legal transplants usually take place from more complex societies to less complex ones. By contrast, the alternative dispute resolution (ADR) movement that has recently developed in modern societies has been described as a return to a simple model of dispute settlement used in the past and in modern non-Western societies. Does this mean that we are experiencing a new kind of legal transplant, a transplant from less complex to more complex societies? In this article I will argue that this is not the case. Far from being a transplant from the southern to the northern hemisphere, ADR seems indeed to be a modern legal institution born from the retreat of the state from some of its traditional functions. A different question thus needs exploring: is ADR, at least, an institution that can easily be transplanted to Africa where the original transplant of the Western state has failed? In other words, is conciliatory ADR more similar to the African way of dealing with conflicts and consequently to be recommended as the dispute resolution mechanism for modern African states? The question appears to be appropriate in situations such as the one in the Horn of Africa—particularly Eritrea—where the new political leadership is confronting the difficult task of building a new legal system.
“Autonomic judicial review”: powers in search of identity and assertion
Authors: Jabbi Bu-Buakei
Published: July 2009

In English law, since 1977 at least, the term “application for judicial review” has come to refer to the special method of applying for public law remedies in the supervisory jurisdiction of the High Court over inferior courts and administrative bodies or authorities. Moreover, die fine expositions flowing from that jurisdiction—comprising judicial decisions, dicta and learned writings alike—have tended to sound at points as if “judicial review” might be more or less coterminous with “supervisory review”. A useful introduction to the subject, ostensibly setting out “to examine the various different review jurisdictions vested in die English courts”, however, ends up acknowledging and treating only the appellate and supervisory jurisdictions.
Grass Roots Land Tenure among Yeyi of North-Western Botswana
Authors: Sutherland Alistair J.
Published: July 2009

A central problem for a national programme of land reform is the selective response of local communities. The plans are often grand, simple and homogeneous; the communities, small, complex and diverse. Moreover, locally a received reform may be re-interpreted—indeed, re-invented—in quite fundamental ways in the light of a locally understood history of introduced change and outside intervention. There may be a deliberately defensive response, due to the high value people put on their community's autonomy or due to the perceived bias of the reform in relation to longstanding oppositions within a community. Sometimes, also there may be an attempt to seize an opportunity, perhaps unintended by the reform's planners, for a further encroachment by some at the expense of others, within the community itself.
The Quasi-Judicial and the Experience of the Absurd: Remaking Land Law in North-Eastern Botswana
Authors: Werbner Richard P.
Published: July 2009

The introduction of a quasi-judicial agency into a new nation in Africa brings with it many of the predicaments, dilemmas and contradictions that keep such agencies busy in Western countries. The power struggles, the encroachment on the rights of citizens, the problems of indeterminacy, apparent arbitrariness and uncertainty, all call to mind Western parallels, or rather, prototypes (cf. Handelman and Leyton 1978; Wraith and Hutcheson 1973; Bell 1969; Wade 1967, 1949; Allen 1956; Hewart 1929). But unlike their Western prototypes, the transplanted agencies have to displace non-Western alternatives, such as tribal courts, which reached their earlier phases of development under colonial rule. Usually, people with experience of such an alternative try to make sense of the new form of administration by reference to the old. Moreover, sometimes the displacement is partial, and old and new develop further in competition with each other. Hence the agencies transplanted in developing countries come to be politicised and problematic in ways of their own.
The Botswana Customary Law Act, 1969
Authors: Himsworth C. M. G.
Published: July 2009

Prior to 1969 the legal system of Botswana enjoyed the characteristics of the dual existence of customary and common law (and the courts in which they were administered) typical of most of Anglophone Africa. The common or general law was the Roman-Dutch law “received” from the Colony of the Cape of Good Hope and this was the only law to be applied in the ordinary courts (High Court and Subordinate Courts) in the exercise of their original jurisdiction. Customary law was the preserve of the customary courts. Three main questions were inherent in the working of this system:

(1) How was it to be determined which system of law (and, therefore, which system of courts) was appropriate for deciding a particular case?

(2) If it was decided that customary law was to be applied, which system of customary law was appropriate?

(3) Again, if customary law was to be applied, how were its rules to be ascertained in the courts?

The Customary Law (Application and Ascertainment) Act of 1969 appended to this article, introduced far-reaching changes in the administration of the dual legal system and in particular contained for the first time statutory answers to the questions posed above.
A Milestone in the Integration of Personal Laws: The new Law of Marriage and Divorce in Tanzania
Authors: Read James S.
Published: July 2009

When the Commission on the Law of Marriage and Divorce in Kenya presented its Report in 1968, the basic scheme of its proposals, and the draft Bill it had prepared for the reform and integration of the laws, were widely welcomed and it has been a disappointment to many—not least, it may be supposed, to the members of the Commission—that four years have passed without those proposals having been translated into statutory form in Kenya. It is a little ironic, though no doubt an interesting example of East African inter-dependence, that the essential basis of those proposals, and indeed in many respects the detailed draft provisions which accompanied them, have now been given their first legislative effect not in Kenya but in Tanzania.
Tony Allott, Pioneer of the Study of African Law: A Personal Memoir
Authors: Cotran Eugene
Published: July 2009

In 1959 I had just completed my Diploma in International Law at Cambridge under the supervision of Eli Lauterpacht, who was assisting me in finding a post in the international law field. One day; he said that he had been approached by the School of Oriental and African Studies to find a Research Officer in “African Law”—would I be interested? I asked him what on earth “African Law” was. He wasn't sure, but suggested that I go and discuss things with a Dr. Allott at SOAS.

Tony Allott was full of enthusiasm about a new comprehensive research scheme, the Restatement of African Law Project (RALP), set up at SOAS with substantial financial assistance from the Nuffield Foundation. The object was to facilitate, undertake and assist in the recording of customary laws in Commonwealth African countries in a systematic legal fashion (the choice of the term “restatement” having been influenced by the restatements of American common law). Tony said that two Research Officers had just been appointed: W. C. (Bill) Ekow Daniels of Ghana would deal with West Africa; Bill McClain (an American) would deal with Central/Southern Africa and, if I took the job, East Africa would be assigned to me.

I told Tony that this sounded all very exciting, but I knew nothing about Africa or African law, let alone customary law. How could I begin to restate something of which I knew nothing? Tony was not deterred.
American Law Teachers and Africa: Some Historical Observations
Authors: Paul James C. N.
Published: July 2009

In 1961 Tony Allott, then a rather young elder statesman of African law, helped to foster my interest in that subject, and my subsequent work in Ethiopia. He and several other distinguished colleagues in London also encouraged other American initiatives to assist the development of legal education and research in Africa, efforts which began in 1962, burgeoned during the ensuing decade, and then withered rapidly.

The activities of the early 60s helped to generate an extraordinary number of different kinds of projects: the temporary placement of over 150 Americans in law teaching positions in African institutions; a large and wide variety of research and writing; the founding of law reporters, law journals and university institutes of African law, both within Africa and elsewhere; the flow of a substantial number of Africans to graduate legal studies in U.S. and U.K. universities; new kinds of interactions between African, British and American scholars. These activities also contributed to the emergence (notably in North America) of that amorphous, contentious field of scholarship which came to be called “law and development”, and, then, in the latter 70s, to acrimonious critiques and agonising reappraisals of much of all this effort.

Tony Allott participated in, or observed, much of this history, as anyone familiar with his career and bibliography will know. I hope that this brief account of some of these past activities may be of some interest to him, and to others interested in law and social change in Africa.
D'une Bonne Lecture des Sources du Droit: Essai D'Histoire Comparée
Authors: Vanderlinden Jacques
Published: July 2009

Si on accepte que la source de droit est le mode de formulation de l'abstraction que constitue le droit, la tentation est grande d'abord de l'ignorer totalement au seul bénéfice de son contenu; le droit lui-même (ou plutôt l'image qu'elle nous en donne). Qu'importe en effet la bouteille; ce qui compte c'est le vin. C'est pourquoi sans doute l'étude des sources du droit est relativement négligée par rapport á celle du droit. A supposer toutefois que l'attention du juriste soit retenue par la source, il est facilement enclin á ne la considérer que dans sa forme (est-elle d'ailleurs autre chose qu'une forme?) comme un objet détaché des éléments justificatifs de sa naissance et, parmi ceux-ci, de son auteur. Existeraient ainsi des coutumes, des lois, des décisions de jurisprudence ou des ouvrages de doctrine, objets matériels reflétant l'alchimie complexe du processus aboutissant au phenomene juridique. Certes la genése de ces objets obéit elle-même á des régies de droit permettant le plus souvent d'en assurer la validité dans un ordre juridiqué déterminé. Nous demeurons ainsi dans le domaine du droit et, frèquemment, l'investigation s'arrête la. L'univers qui sous-tend la source formelle est ignore. Dé meme sont négligés les acteurs de la lutte pour la maîtrise du paysage juridique: le peuple, le prince, le juge ou le savant. Ce sont précisément ces acteurs et ce paysage qui constituent l'essentiel de mon propos. Quant à son cadre géographique, il est forme de l'Afrique non-islamisée contemporaine d'une part, de la France medievale et moderne de l'autre.
Towards a People's Philosophy of Law!
Authors: Sanders A. J. G. M.
Published: July 2009

It was in August 1980 that Professor Allott visited Southern Africa for the first time, and I am proud that it was the Institute to which I am attached which arranged the visit. In October 1981 we had the pleasure of welcoming Professor Allott to our region again. This time the happy occasion had been arranged by the University of Swaziland. All of us took an instant liking to Professor Allott. (As for our visitor, I got the distinct impression that he, too, enjoyed the encounter!) The way in which he was able to keep our discussions on track and lend perspective to them made a great impression. Hitherto, we had known him as a learned author on African law and the “internal conflict of laws”. “In the flesh”, he proved to be a man of the people and a teacher par excellence—concerned but never patronising, incisive in his criticisms but never disparaging. This impression is confirmed in his publication, The Limits of Law, which has become a source of constant reference in the Southern African region, and which inspired this essay.

For reasons Professor Allott will understand, my contribution to his Festschrift has taken the form of a cri de coeur from a troubled part of the world which, only too aware of the limits and the excesses of law, continues to put its faith in law as a social directive.