bluuebunny/crossref_metadata_2025 huggingface dataset:
The Evolution of Blood-Money for Homicide in Somalia
Authors: Contini Paolo
Published: July 2009

For sociologists and lawyers Somalia presents a fascinating observation ground.

Most of this long and narrow strip of land straddling the Horn of Africa is a dry savannah punctuated by graceful acacias spreading out their thorny leaves like giant umbrellas. Most of the inhabitants are nomadic herdsmen whose principal measure of wealth is the camel and whose main occupation and preoccupation is combating the ever-recurrent droughts by periodic treks in search of water and grazing.
Évolution et Réformes Foncières de L'afrique Noire Francophone
Authors: Verdier R.
Published: July 2009

Traditional African laws have up till now been little studied, because they are unwritten, adversely affected by the colonial experience, and seen through western categories. Before looking at African land law, one must sketch the main characteristics of African customary law generally—that it was oral; popular; intimately linked with the invisible world; based on the legal and social complementarity of individual and group; that it implied the interdependence of persons and things, and the reciprocity of rights and duties. Colonial contact emphasized the individual aspect at the expense of the community, thus provoking a reaction against individualism from many of the independent African states.

Customary land law in Africa operated against a supernatural background, and linked land and family. The first essential feature was that of lineage or family title to land; restriction of land rights within the lineage—“exo-intransmissibilité”, inalienability outside the family—corresponds to exogamy in the realm of marriage. The benefit of land confined within the lineage was periodically redistributed among its members through the law of succession, which was more precise in some societies than in others. The second main feature of customary land law was the role of the “land chief”, distinguishable from the political chief, who represented the first occupant of the land, and mediated between the occupiers and the spirit world through his control of land use. Colonial administrations largely neglected this functionary.
Judicial Precedent in Africa Revisited
Authors: Allott A. N.
Published: July 2009

One of the central facts, if not the most important of all, about the general legal systems of African countries is that they are derived wholly or partly from the legal systems of foreign countries, usually those of the former colonial power, though this is by no means the only source which has been drawn upon. Thus in Commonwealth Africa there has been extensive borrowing not only from the law of England, but from British India, from the provinces of South Africa, and to a less extent from other common-law jurisdictions, such as Queensland, New Zealand and Canada. This wholesale adoption of extraneous laws, sometimes unadapted, sometimes modified, immediately raises the fundamental question of the authority, if any, of judicial decisions in the donor country for the purpose of elucidating or determining the applicable law in the receiving country. There has been considerable discussion on this point, largely initiated by the writings of Elias and myself;1 and in the recent past the theme has been taken up by a number of other writers, especially those concerned with Nigerian and Ghanaian law.2
Tree Planting, Sustainable Development and the Roles of Law in Bongo, North-East Ghana
Authors: England Philippa
Published: July 2009

Development in all its forms is a pervasive theme in the study of modern Africa. The meaning, objectives and methods of development are issues which have entered into every discipline concerned with the study of that continent. The study of law is no exception. Broadly speaking there are three “paradigms of law” which have special relevance to debates on African development. These can be characterized as the instrumental model, the pluralist model and the customary law model.
The Constitutional Court of South Africa Delivers its First Judgments
Authors: Hatchard John
Published: July 2009

The first term of the Constitutional Court began in February 1995. The Court is made up of 11 judges, five of whom, namely Mr Arthur Chaskalson (President), Mr Justice Goldstone, Mr Justice Laurie Ackermann, Mr Justice Ishmail Mohamed, and Mr Justice Tholakele Madlain, were appointed by the President of the Republic in consultation with the Cabinet and the Chief Justice. The remaining six members were appointed by the President of the Republic after consultation with the President of the Court and the Cabinet and following the making of recommendations by the Judicial Service Commission (JSC). In so doing, the JSC was required to take into account “the need to constitute a court which is independent, competent and representative in respect of race and gender”. After a series of public hearings, the JSC submitted a list often names for consideration from the 24 candidates who were short-listed. The following six were appointed: Mr Justice John Didcott, Mr Justice Johann Kriegler, Mr Pius Langa, Prof. Yvonne Mokgoro, Prof. Catherine O'Regan and Prof. Albie Sachs. The Constitutional Court Complementary Act, 1995, provides that eight of the 11 judges must hear each case, so that only one case can be heard by the court at any one time.
The Administration of Tribal Lands in Botswana
Authors: Frimpong Kwame
Published: July 2009

Land plays a very important role in the lives of many people in most developing countries, and particularly in Africa, where subsistence agriculture is still widely practised. Accordingly, the nature of land administration can either influence or impede development. Land administration in many African countries, since independence, has been carried out through a policy of over-centralization. This has often resulted in administrative and bureaucratic bottlenecks which have hampered the effective distribution and utilization of land resources. Botswana, on the other hand, has avoided this common pitfall. Its system of land administration has been based on a policy of decentralization. One such area is in the field of tribal lands administered under the Tribal Land Act, which is the subject of discussion in this paper.
Recent Developments in the Public Law of Francophone African States
Authors: Reyntjens Filip
Published: July 2009

The origin of the initial African constitutions is easy to establish. While the former British territories “received” their Westminster-type constitutions negotiated during the Lancaster House conferences, the former French territories, except Guinea, became independent under constitutions drawing heavily upon the constitution of the Fifth French Republic, of which they were virtual copies. Among the countries formerly under Belgian rule, the Congo (Zaïre) was the only one attaining independence with a constitution, theLoi fondamentaleof 1960 which was an Act of the Belgian Parliament.

Therefore, initially the degree of homogeneity was fairly large; there were basically three types of constitutions and the deviation from these models was limited. Admittedly subject to adaptations all the Westminster constitutions were similar, and in fact to some extent they still are; thus in its essential features the 1980 constitution of Zimbabwe draws from the same stock as its predecessors of the early 1960s. The first constitutions of the former French territories were, likewise, very similar, inspired as they were by the French constitution of 1958. TheLoi fondamentaleof the Congo was strongly influenced by the Belgian constitution, and so was the autochthonous constitution of Burundi which was promulgated a few months after independence in 1962.

Many constitutions have since succeeded these initial texts: between 1960 and 1985 there have been 43 constitutions in the 18 French-speaking countries under consideration, i.e. an average of 2·4 constitutions per country. This flow has led to a considerable diversification of constitutional types.
Agricultural Policy and the Nigerian Land Use Decree: The Conflict
Authors: Oshio P. E.
Published: July 2009

The importance of agriculture especially in a developing country cannot be over-emphasised. It had been the mainstay of the Nigerian economy since the colonial period. Apart from subsistence farming which catered for the food needs of the local population, Nigeria had exported cash crops in the past.

Unfortunately, the blessings of the oil boom have diverted our attention from agriculture in the past decade with the consequent neglect of it. But the dwindling fortunes of oil appear to have induced us to switch our attention once again to agriculture.

To this end, some practical steps have been taken by Government to encourage investment in agriculture. These include subsidising fertilisers and seeds for farmers, the establishment of various Agricultural Development Projects, the Communal Farm Programmes and the establishment of various River Basins Development Authorities. Other recent measures include tax relief for agro-allied projects; tax holidays for investors in combined agricultural productions and processing; capital allowances for capital expenditure on plant and equipment for, and equipment leasing to, agriculture; removal of import duties on tractors and other agricultural machinery and equipment and increased foreign equity participation within the framework of the Enterprises Promotion Decree.
Feudal Dues in Lundazi
Authors: Fleming C. J. W.
Published: July 2009

The late Professor Gluckman adumbrated on the customary dues formerly made to the King in Barotseland. It might be of interest to consider similar imposts required on the other side of Zambia in the Lundazi District, and to note in particular that the distinction that is made in Barotseland between what Gluckman calls “Kingly things” and tribute also obtained in Lundazi as well.

Feudal dues in Lundazi before the occupation fell roughly into four categories, “Kingly things”, here called regalia or the local vernacular word for them, vya chalo, things pertaining to the land; mithulo or tribute; msonko or land tax and chiŵeta or tribute labour.

The vya chalo, as the name signifies, were things pertaining to the land which belonged to the chief in his capacity as the titular head of a land-owning clan and might not be taken or used by anyone else except with permission. Properly speaking vya chalo appear to have consisted only of the skins, with claws intact, of the larger carnivora, lion, leopard and cheetah, the skins of hartebeest and the plumage of the Livingstone Lourie.
Insurance Regulation in Aid of Development in the Third World: A Look at the Republic of Ghana
Authors: Achampong Francis
Published: July 2009

The role of law as a tool in aid of development is extremely important to less developed economies. In the area of insurance where insurers act as mobilisers of vast amounts of capital, the importance of regulation as a tool facilitating development cannot be overemphasised.

In recognition of the increasing importance of insurance activity to the economies of less developed countries, the United Nations Conference on Trade and Development has played a leading role in helping developing countries fashion regulatory systems that maximise the contribution of their insurance industries to the development of their local economies.

This paper looks at the importance of insurance to the Ghanaian economy and discusses the use of insurance regulation to aid development. The paper first looks at insurance in relation to the national economy as a whole, examining how regulation is used to fulfil the various aspects of the industry's importance in aid of development. The paper then looks at the industry and the important sections of the economy, considering how regulation aids development in these areas by fulfilling the various objectives of the industry.
The Investment Act, 1986 of Zambia
Authors: Mbao Melvin L. M.
Published: July 2009

Twenty years ago Zambia was riding a wave of seemingly unstoppable prosperity. Income per capita was the highest amongst sub-Saharan African countries. The high copper prices on which Zambia's wealth was based enabled the government to pursue ambitious social welfare programmes. However since the second half of 1974 the bottom has fallen out of the copper market as a result of recession in most of the copper-consuming countries and technical advances in industry which have reduced the need for copper. In the decade since then Zambia's economy has deteriorated progressively as can be gleaned from these statistics: GDP per capita in constant (1970) prices declined by about 25 per cent, between 1974 and 1983; per capita incomes fell by 44 per cent, during 1974—85 period; the level of real imports in 1984 was only 40 per cent, of the average level in the early 1970s; scarcity of foreign exchange has reduced capacity utilisation to low levels (in the last quarter of 1985 it was estimated that the industrial sector was operating only at about 30 per cent, of capacity and in some individual companies the situation was so serious that some once-thriving factories had had to close down for lack of essential spares and raw materials) and the investment rate fell from 41 per cent, in 1975 to about 12 per cent, in 1984. The expenditure in the public sector for operation and maintenance is underfunded, resulting in marked deterioriation of standards in public services, especially health and education.
Ghana Reforms the Law of Intestate Succession
Authors: Woodman Gordon R.
Published: July 2009

Four interrelated reforms in the private law of Ghana were promulgated by the ruling Provisional National Defence Council (P.N.D.C.) on 14 June, 1985: the Intestate Succession Law, 1985 (P.N.D.C.L. Ill); the Customary Marriage and Divorce (Registration) Law, 1985 (P.N.D.C.L. 112); the Administration of Estates (Amendment) Law, 1985 (P.N.D.C.L. 113); and the Head of Family (Accountability) Law, 1985 (P.N.D.C.L. 114). The Intestate Succession Law radically changes the law of inheritance, and constitutes the most extensive legislative reform ever made in the private law of Ghana. The Administration of Estates (Amendment) Law is a minor consequential enactment. The other two Laws are directed primarily to other issues, but bear on the Intestate Succession Law in minor aspects which will be mentioned later.

This comment does not seek to provide a detailed textual analysis of the Law, but merely to consider its provenance and general significance in the development of Ghanaian property law.
Criminal Law in Internal Conflict of Laws in Malaŵi
Authors: Nzunda Matembo
Published: July 2009

Malaŵi has two sets of courts which run completely parallel to each other. One set forms the Judicial Branch of the Government and consists of magistrates’ courts (which have original civil and criminal jurisdiction only), the High Court (which has unlimited original and appellate civil and criminal jurisdiction) and the Supreme Court of Appeal (which has original criminal jurisdiction for contempt of court but otherwise has appellate civil and criminal jurisdiction). The Supreme Court of Appeal is a final appellate court in this set of courts. These courts are here called Received Courts because they apply the received (English) common law as the basic law.

The other set of courts is a section of the Ministry of Justice (which is part of the Executive Branch of the Government). The set consists of Traditional Courts of Grades A and B, the Traditional Appeal Courts (which hear and determine appeals from Traditional Courts of Grades A and B), District Traditional Courts, Regional Traditional Courts and the National Traditional Appeal Court (which hears and determines appeals from Traditional Appeal Courts, District Traditional Courts and Regional Traditional Courts). The civil and criminal jurisdiction of Traditional Courts is set out in the warrant establishing the Court and is supplemented from time to time by published ministerial orders under the authority of the Traditional Courts Act (the 1962 Act). The National Traditional Appeal Court is a final appellate court in this set of courts.
Abolition of Customary Courts—the Nigerian Experiment
Authors: Nwogugu E. I.
Published: July 2009

Before the establishment of British judicial institutions in Nigeria, disputes were settled through the machinery of indigenous traditional tribunals. The character of these varied from one area of the country to another. In the Eastern part of the country, the machinery of justice was rudimentary and in no sense institutionalised. The strong tradition of chieftaincy which existed in the North and West enabled these areas to possess fairly well organised traditional tribunals. From 1898 the government of the Niger Coast Protectorate, in agreement with the local communities, began to create systematised native courts. These courts were purely administrative creations which were neither established nor controlled by statute. In 1900, the Grown took over from the Niger Company and by the Native Courts Proclamation established native courts on a statutory basis in the Protectorate of Southern Nigeria. The system of native courts created by this enactment was modified in subsequent years. In 1948 the Brooke Commission of Enquiry was appointed for the Northern, the Eastern, the Western Provinces and for the Colony to review the operation and jurisdiction of the native courts in the various parts of Nigeria. With the introduction of the federal system of government in Nigeria in 1954, the native courts became a residuary matter on which Regional Legislatures alone could legislate. In the subsequent statutes on this matter, the Eastern and Western Regions adopted the new title “customary court” while the Northern Region retained the old title of native court.
African Copyright Laws in Relation to International Copyright Conventions: A Study of two Systems with Particular Reference to Term of Protection
Authors: Esezobor J. E.
Published: July 2009

Some African countries are members of either the Berne Convention or the Universal Copyright Convention. Some belong to both. Membership of these conventions confers certain rights and obligations. One of the obligations is that local conditions must be favourable for the implementation of provisions of the international conventions. By this arrangement it is expected that national copyright laws must not be inconsistent with the international copyright conventions ot which the countries concerned are members.
Aspects of Penal Policy in Africa, with Special Reference to Tanzania
Authors: Boehringer G. H.
Published: July 2009

Although the broader purpose of this paper is to review some of the major aspects of current penal policy in Africa, I wish to emphasize the desirability of seeking new approaches to the perennial problem of how to deal with deviants generally, and criminal offenders in particular. The main thrust of penal policy in Africa today—and, indeed, in the world generally—ought, in my view, to be directed toward developing what I will call “alternatives to imprisonment”. I use “imprisonment” here as a short-hand expression to denote the entire process of criminal justice as it works in most countries, in the majority of cases, i.e., from an arrest to a court sentence to prison. Thus I am putting the question: towards what kind of penal system, in its widest sense, ought we to be working? I will suggest that the answer is: towards new and alternative means of dealing with deviance, i.e., any method of treating a person who engages in deviant behaviour other than by sending him through the complete criminal process into prison. Thus this paper will range over a wide area, including the kinds of deviant behaviour to be dealt with, the nature of the process by which the deviant is dealt with and the nature of the sanctions available to deal with deviancy.
The Banking Act, 1970, of Ghana
Authors: Ellimah Rebecca B.
Published: July 2009

Before July, 1970, the Bank of Ghana was given a certain amount of control over the operations of banking institutions by sections 29–35 of the Bank of Ghana Act, 1963 (Act 182). In exercise of those powers, the Bank of Ghana could, for example, prescribe the amount of liquid assets to be held by banks, request banks to furnish statements of their accounts, and fix the minimum paid-up capital to be maintained by banks.
An Outline of the Law Governing the Relationship between Banker and Customer in Kenya
Authors: Rogers Margaret
Published: July 2009

It is perhaps desirable to start off by reminding ourselves as to what generally is the law which is applicable to bankers in Kenya. We know that the sources of Kenya law as set out in the Judicature Act, 19671 are:

“;(a) the Constitution;

(b) subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom, cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;

(c) subject thereto and so far as the same do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date:…”;
The Role of Target Management in a Tender Offer: The Position in Nigerian Law
Authors: Ogowewo Tunde I.
Published: July 2009

A hostile tender offer is the most dramatic occurrence in corporate life. It pits incumbent management against the insurgent who claims to be getting rid of dead wood. The target shareholders usually incur large losses when management succeeds in defeating the offer and the target remains independent. An array of defensive measures have been used as embattled managers have fought to keep their seats. The validity and effectiveness of these measures depend largely on the regulatory scheme for tender offers in the particular jurisdiction and the legal duties of the directors.
African Presidentialism: A Comparison of the “Executive” Under the Constitutions of the Federation of Nigeria, the Federal Republics of the Congo and Cameroon, and the Republics of Ghana, Chad, Congo and the Entente
Authors: Juergensmeyer Julian Conrad
Published: July 2009

The recent proliferation of independent African nations with varying legal and governmental backgrounds has given comparativists an unprecedented amount of subject matter which has already resulted in a number of comparative studies.2 So far, however, there is a dearth of material concerning the varied and already numerous constitutions of the new states.3
Marriage and Divorce Laws in East Africa
Authors: Phillips Arthur
Published: July 2009

This paper is concerned mainly with the situation arising from the recognition of African customary law in the three largest of the East African territories administered under the authority of Her Majesty's Government in the United Kingdom—viz. Kenya, Uganda and Tanganyika. It will not be necessary, for the present purpose, to take any account of differences in constitutional status between the territories concerned.
Family Property among the Yoruba
Authors: Lloyd P. C.
Published: July 2009

“The land is family land—he may not sell it”; “the land is our family land—it does not belong to the chiefs”. How often such statements are heard in West African courts and how difficult it is to distinguish the rights claimed by the individual, the family and the community. To resolve this difficulty is the task which Dr. G. B. A. Coker has set himself in his recently published book Family Property among the Yorubas.2 In this contribution to the rapidly growing number of books on African law the author writes of a single people—the Yoruba of Western Nigeria, and of a single topic—family property; this is no light task, for the study of the concept of family property is the study of the social and political structure of the people as expressed in their land tenure.
Some General Principles of Acquisition of Ownership of and Rights Over Land by Customary Prescription in the Sudan
Authors: Ahmed El Mahd Saeed Mohd
Published: July 2009

Custom is known as urf in Arabic. In Islam the sources of law are the Holy Koran, the Sunna, the ijma’a, the qiyas and possibly urf Customary law existed before the advent of the Condominium Rule in the Sudan. But the origins of the customs and their nature have not yet been studied seriously. According to section 9 of the Civil Justice Ordinance, 1929, the civil courts of the Sudan may have resort to customary law to reach a decision if there is no express enactment covering a certain situation by applying the formula of equity, justice and good conscience of section 9. Moreover, the law to be administered in personal matters in any suit or other proceeding in a civil court shall be any custom applicable to the parties concerned which is not contrary to justice, equity and good conscience, and has not been altered or abolished and has not been declared void by the decision of a competent court.
Nigeria—Customary Land Law of the Itsekiris: A Look at Idundun v. Okumagba
Authors: Emiko G. I.
Published: July 2009

This case, as will be seen from the facts, was between the Itsekiri2 tribe sub-tribe in Warri Division of the Midwestern State of Nigeria, who were plaintiffs, and the defendants, a family from another tribe in Eastern Urhobo Division of the Midwestern State who had founded a home in Okere,3 Warri. It was about the “ownership” of a piece or parcel of land in Okere. The plaintiffs claimed, inter alia, a declaration that in accordance with Itsekiri customary law the piece or parcel of land in dispute at Okere, Warri, was the property of the Ogitsi Family of Okere subject only to the overlordship of the Olu (King) of Warri, now vested in and exercisable by Itsekiri Communal Lands Trustees by virtue of the Communal Land Rights (Vesting in Trustees) Law, 1958, and the Warri Division (Itsekiri Communal Lands) Trust Instrument, 1959.
Minimum Sentences in Tanzania
Authors: Read James S.
Published: July 2009

To what extent do the methods of treating criminal offenders in African states require revision ? This question is increasingly under discussion at present. Problems of crime and punishment are changing. To some extent such problems appear in a changed form after the end of the colonial period, when foreign governments have been replaced by representative national governments. The prison, an alien institution in much of Africa, which, moreover, in colonial days may have contained popular political leaders, does not confer on its inmates the stigma which is an important punitive aspect of imprisonment elsewhere.2 Most African governments are seriously concerned to combat crime: partly because many forms of crime are inimical to nation-building and economic development, but partly too from idealistic determinations to cleanse national life.
Nigeria and the United States: Some Constitutional Comparisons
Authors: Utton Albert E.
Published: July 2009

The Federation of Nigeria is the most populous and potentially the most powerful nation in Africa.2 These two facts alone give particular importance to the Nigerian Republican Constitution which came into operation on October 1st, 1963.
Mortgages Under the Rights of Occupancy System in Nigeria
Authors: Oshio P. E.
Published: July 2009

The Land Use Act, 1978 (hereinafter referred to, where the context admits, as “the Act”) introduced a uniform State ownership of land otherwise known as the Rights of Occupancy System in Nigeria. Section 1 of the Act vests all land within the territory of each State in the Federation in the Governor of the State to hold upon trust for the use and common benefit of all Nigerians. Section 5 empowers the Governor in respect of land whether or not in an urban area to grant a Statutory Right of Occupancy to any person for all purposes, while Section 6 empowers the Local Government, where appropriate, in respect of land in a non-urban area to grant a Customary Right of Occupancy to any person. By Sections 34 and 36 former owners of land become deemed holders of rights of occupancy into which their former ownership rights have been transformed by operation of law.

The Act continues to attract comments from learned writers as to its effect on various aspects of property law. However, it would appear that not many writers have focused particularly on the effect of the Act on the law of mortgages. This is not to say that the subject is not important, nor that the Act has not significantly affected the law and practice of mortgages. The object of this article is to fill this vacuum.
Legal Education in Kenya
Authors: Ojwang J. B. , Salter D. R.
Published: July 2009

Legal education in Africa has attracted and will continue to attract the attention of scholars. An important reason is that African countries have enjoyed sovereign statehood for only a comparably short time, during which period transition, experiment, change, and even turmoil, have been the hallmark of society: all factors which must have a profound impact on received law (and, of course, on the primeval law), if this law is to serve effectively as a regulatory and stabilising device. This law, in its received cast, is thrown into a dilemma of turbulence; will it serve in wonted fashion, to give regularity, predictability, and a measure of reason? Or will it readily respond to inevitable change, so as to uphold new institutional positions? As President Kenneth Kaunda of Zambia has observed:

“We live in a changing world, and one in which the pace of change is becoming even greater. Neither the character nor the needs of any given society can remain static, and if the law is to fulfil its proper function it must keep pace with the changes. This is not to say that the law must be a straw in the wind; if law is to be an effective instrument of social order it must be a stabilising influence, but it must be flexible and it must be progressive, else it will hinder society in its progress and development. …”
The Wills and Administration of Testate Estates Act 1989 and The Intestate Succession Act 1989 of Zambia
Authors: Coldham Simon
Published: July 2009

After conducting research into the customary law of succession and considering the various arguments for and against reforming succession law, in 1982 the Law Development Commission published a report which favoured reform and which contained a draft bill dealing with testate and intestate succession, and with family provision. Now two laws have been enacted, the one governing wills and the administration of testate estates, the other governing intestacy and the administration of intestate estates. Although there are obvious similarities between the draft bill and the new laws, there are also significant differences. It is not only that the draft bill did not deal with the administration of estates, but that several of its key provisions relating to wills and intestacy have been modified or abandoned.
The Effect of Legislation on Foreign Investment—the Case of Cameroon
Authors: Ngwasiri C. N.
Published: July 2009

There is no doubt that the investment climate in every country is conditioned to a great extent by non-legal factors. Nevertheless, many developing countries have, to varying degrees, relied on legislation as a means of attracting foreign investment. When Cameroon attained independence in 1960, it enacted an Investment Code that same year with the aim of attracting investment which the young state needed so much for the realisation of its development objectives. When after two decades the said Code no longer responded to the needs of the state, a new one was instituted on 4 July, 1984. The common feature of Investment Codes is that they contain various incentives aimed at channelling investments to areas which the authors regard as top priority. In this article, an attempt will be made to show to what extent the Cameroonian government has succeeded in its effort to direct investments to desired regions of the country through a statute wherein incentives cohabit with regulations on matters such as imports, exports, price fixing, foreign exchange, etc., which foreign investors consider as repellent. The study is subdivided into two parts. The first part is based on the Investment Codes and the second deals with the country's regulatory environment.
Judicial Concepts of Adultery, Intolerability and Damages in Nigeria
Authors: Uzodike E. N. U.
Published: July 2009

Adultery is one of the cardinal sins in the Ten Commandments and, despite the modern apparently relaxed attitude towards sexual intercourse, it has remained one of the main reasons for marriage breakdowns. Its seriousness as a matrimonial offence is clearly reflected in the fact that originally it was the only permitted ground for divorce under English Law. Of particular gravity was adultery by a wife which was described as being unforgivable by a husband, for while a husband could divorce his wife on the sole basis of her adultery, a wife had to prove other material facts in addition to her husban's adultery in order to obtain a similar relief.

Even under customary law, adultery, particularly by a wife, was treated as a sin against the ancestral gods and required the performance of certain rituals to appease them and the husband and to cleanse the violated woman. Although pre-set grounds for divorce are non-existent and unnecessary at customary law, adultery may well be a vital reason why a man would want to divorce his wife. Under the Matrimonial Causes Act adultery, coupled with intolerability, is one of the listed grounds for divorce the proof of which is proof of “irretrievable breakdown” of the marriage.

The object of this article is to examine the judicial concept of adultery, intolerability and damages for adultery.
The Role of Law in the Transition of Societies: The African Experience
Authors: Ghai Yash
Published: July 2009

Decolonization in Africa brought political independence to former colonies but it did not, as a rule, change the underlying social and economic structures of their societies. It passed political power to groups which had only a weak base in the economy (which was dominated by multinational capital, immigrant communities or traditional elites) and a limited stake in the prevailing social systems. It was obvious that in these circumstances political power would be used to bring about fundamental changes in economic and social structures. This tendency was reinforced by popular demands for greater social justice and economic opportunities. Anti-colonial struggles were inspired by a longing for greater human dignity and improved standards of living. Thus development inscribed itself large on the agenda for the future. This raised the question of the modalities for change. More and improved systems of education, agricultural reform, incentives for industrialization and enhanced administrative capacity would be necessary. However, it was an underlying assumption that all these changes would be affected within the framework of the constitution and the law. There were various reasons for this assumption. Despite its authoritarianism, the colonial state was a legally constituted and administered state. The metropolitan notions of legality underlay strategies for decolonization. The more complex the problems of ethnicity, especially the protection of the interests of the settlers, or of the balance between the traditional and new elites, the greater was the reliance on the law as a means of both providing the framework for and controlling public power.
The Constitution of Zimbabwe: Towards A Model for Africa?
Authors: Hatchard John
Published: July 2009

On 18 April, 1991, the Republic of Zimbabwe celebrated its 11th year of independence. Coincidentally, just a few months earlier, the 11th constitutional amendment Act was passed. This flurry of legislative activity was the result of a desire on the part of the government to develop a new constitutional structure rather than to remain with the constitution which was essentially imposed upon it by the British during the 1979 Lancaster House conference which eventually led to independence in 1980. The new constitutional model is of considerable interest as it is based upon those operating in many other African nations but, according to the Minister of Justice, is designed to provide safeguards on the exercise of presidential power and to avoid unnecessary conflict and division between the various branches of government. On several occasions, ministers have stressed the autochthonous nature of the new structure and some have indeed suggested that it might form a model for other African countries.

It is the intention of this article to examine the legitimacy of these assertions by analysing both the new constitutional structure and its operation in practice. In order to assess the significance of these changes, it is first necessary to examine very briefly the Lancaster House constitution and constitutional developments in the early years of independence.
The Fall and Rise of The Cane in Zimbabwe
Authors: Hatchard John
Published: July 2009

The legality of judicial corporal punishment is an issue which has caused considerable disagreement amongst jurists, legislators and criminal justice personnel, for its use has serious moral, constitutional and penological implications. In Zimbabwe, two decisions handed down by the Supreme Court together with a later constitutional amendment Act have highlighted the divergence of views on this matter. It is thus the intention of this article to examine critically the issue from a constitutional and penological perspective.

In 1987 in S v. Ncube a full bench of the Supreme Court of Zimbabwe unanimously held that the sentence of whipping for adults contravened section 15(1) of the Declaration of Rights which is contained in the Constitution of Zimbabwe in that it constituted a punishment which in its very nature was both inhuman and degrading. In his seminal judgment, Gubbay, J. A., had regard to four factors, namely: (i) the current trend of thinking amongst distinguished jurists and leading academics; (ii) the abolition of whipping in many countries of the world as being repugnant to the consciences of civilized men; (iii) the progressive move of the courts in countries in which whipping is not susceptible to constitutional attack to restrict its imposition to instances where a serious, cruel, brutal and humiliating crime has been perpetrated; (iv) the decreasing recourse to the penalty of whipping in Zimbabwe, especially over the previous ten years and the declining number of laws on the statute book in which it remained a permissible penalty.
The People as Law-Makers: Custom, Practice, and Public Opinion as Sources of Law in Africa and England
Authors: Allott A. N.
Published: July 2009

This essay is an attempt to investigate, assess and compare the role of the “people” as makers of law in a variety of customary societies in black Africa on the one hand, and in England on the other. The studies that may have been made of this sort of question by lawyers, constitutional experts, sociologists, political scientists and the like have rarely, if ever, contrasted the law-making function of the people in the two types of society. Where such a contrast has been made, it has tended to be limited to the proposition that things are quite different in the two types of society. It will be one of the arguments of this essay that, although the procedures and mechanisms of the law may fundamentally differ if one compares a highly developed, industrialised, literate society such as England with a simpler subsistence pre-literate society such as anciently those of the Ashanti and the Sotho, yet in each society, whatever the forms in which power is exercised or however absolute the authority possessed by those in power, yet the people participate constantly and in a variety of ways in a continuing process of law-making. It will be the task of this paper to isolate, describe and compare those ways.
Marriage and Extra-Marital Sexuality: The Dialectics of Legal Change among the Kgatla
Authors: Comaroff John L. , Roberts Simon
Published: July 2009

In paying tribute to the pioneering work of Isaac Schapera on Tswana law we return to one of his earliest and possibly least quoted studies, “Premarital Pregnancy and Native Opinion: A Note on Social Change-”, and explore the recent transformations which have characterised the perception and management of extra-marital sexuality among the Kgatla. We shall suggest that these transformations are the product of a wider process: namely, the spread of monogamy within a society organised in terms of the assumption of polygyny. In doing so we shall seek to demonstrate that the analysis of one substantive problem in the field of legal anthropology may illuminate a number of fundamental social principles.
Growing security: land rights and agricultural development in northern Senegal
Authors: Tzeutschler Gregory G. A.
Published: July 2009

Are “traditional” or “indigenous” land rights an obstacle to development? The question seems simple enough. And the liberal economic perspective currently being advanced by free market advocates such as the Bretton Woods institutions answers: yes, to the extent that those traditional relations hinder the free exchange of land, they do slow development. But of course the question is more complex and requires answers to a number of subsidiary and ancillary questions. Some are definitional and empirical: what are these “traditional land rights”? To what extent do they, rather than codified law or administrative practices, define the relationships of social actors and groups to land and to each other through land? Other questions are more hypothetical: what are the alternatives to the current regime, what costs would installing them incur, and what would be their costs and benefits, once in place? Finally, there are ancillary, but still central questions: what other factors, such as ecological conditions, state policies and non-state institutions, may account for development or the lack thereof, apart from land tenure regimes?
Tradition, Social Justice and Land Reform in Central Botswana
Authors: Hitchcock Robert K.
Published: July 2009

A close relationship holds between the goals of development planning and the notions that planners have of what already exists. Hand in hand with certain goals go appropriate notions of the status quo. Aiming to “modernise” for the sake of increased productivity, conservation of natural resources, and a fairer distribution of wealth, planners presuppose the existence of the “traditional” as the negative condition that has to be changed. It might be thought that an understanding of the status quo or the traditional condition comes first, before the choice of goals. But that is not always so. Information is often fundamentally incomplete or ignored when decisions about policy have to be made by planners. Hence they rely on their goals to guide their thinking about what already exists. In such circumstances, modernising planners reinvent the traditional as a negative stereotype; they derive it from their goals, rather than the other way round. The difficulty is, however, that their plans, when implemented, encounter the cultural realities of the continuing social arrangements. Unintended consequences result, or worse still, radically unacceptable ones. The overall pattern is familiar in nationally planned development: the reform designed by planners at the centre gets subverted by people at the periphery, and a gross disjunction arises between the policy as it is officially formulated and the policy as it can effectively be applied.
Pastoral Identity and Reluctance to Change: the Mbanderu of Ngamiland
Authors: Almagor Uri
Published: July 2009

In a recent book on the economics of pastoralism in Africa, Konczacki argues that “the present pattern of land use” by pastoralists, “results in the over-exploitation of pastures and precludes the application of rational methods of range movement”. He applies his argument to sub-Sahara Africa in general and maintains that an improvement in the pastoral sector is possible only if the damaging results of “mismanagement” can be prevented and “a scientifically controlled approach” to range management can be introduced. Konczacki is aware that pastoral societies are slow to change and even oppose changes which are imposed upon them, but despite this he claims that “socio-psychological traits alone cannot provide sufficient explanation of their resistance to change”. It is true that a rapid growth of livestock population may lead to an over-exploitation of grazing grounds, and thus will focus the attention of government officials and planners on patterns of land use, so that a policy and a number of measures become necessary to prevent a deterioration of pastures. However, one gets the impression from Konczacki's argument that the existing land tenure system of pastoralists poses a problem at a merely technical level (of “mismanagement”) which can be separated from the “socio-psychological traits” of pastoralists, and solved if the people are only shown how to manage livestock properly and “wisely”. Nor is Konczacki alone in his technical and split view of pastoralists.
Class and Culture in a Peasant Economy: The Transformation of Land Tenure in Barolong
Authors: Comaroff John L.
Published: July 2009

Consider these apparently simple facts: in 1968, the Government of Botswana introduced its Tribal Land Act, which promulgated new institutional and tenurial arrangements for the rural communities; in the period thereafter land regulations in Barolong, a small chiefdom in the south-eastern corner of the country, underwent dramatic changes. Most obvious among these were a rapid rise in the value of cultivable acreages, a marked shift in the ideology of property rights, and an intense politicisation of the processes surrounding the distribution and negotiation of arable holdings. Given the historical coincidence of these events, it might seem perfectly reasonable to infer a causal link between them. And, indeed, the direct attribution of rural transformations of this kind to the effects of state intervention is common enough in analyses of “social change” and “development”. But, tempting as this mode of explanation might be, it leads inexorably to oversimplification. Worse still, it is often predicated upon the patently false assumption that the temporal conjunction of such decontextualised events may alone represent a sufficient condition for hypothesising causal connections between them.
Arable Land Tenure and Administrative Change in the Kgatleng
Authors: Roberts Simon
Published: July 2009

The uncertainties which surround any attempt to modify social behaviour through legislation are well recognised. So too is the probability that such uncertainties will multiply in a “plural” context; where, for example, national legislation is imposed upon formerly autonomous groups in the period following their incorporation. But even if we take it for granted that desired behavioural changes are unlikely to appear as direct, matching results of legislative action, we should equally avoid the assumption that law made at the centre will have no impact on the periphery. Even in the absence of efforts towards enforcement, knowledge of an enactment (however slight or incorrect) is likely to be utilised and thus carried over into the sphere of action with results not necessarily foreseen by the legislator. Some response is all the more probable in a case like that of the Tswana, for whom the idea of legislation being used to introduce desired changes was entrenched long before the coming of the Bechuanaland Protectorate (see Schapera, 1943a: 1970).