bluuebunny/crossref_metadata_2025 huggingface dataset:
The Independence of the Judiciary under the Third Republican Constitution of Nigeria
Authors: Ikhariale M. A.
Published: July 2009

One of the fundamental principles underlying the Nigerian constitutional process is that of the independence of the judiciary. The concept, in its basic form, embodies the entire philosophy of constitutional democracy especially as emphasised by the preamble to the Constitution which is for “promoting the good government and welfare of all persons … on the principles of Equality, Freedom and Justice”. In a country such as Nigeria which is presently characterised by political and economic underdevelopment, it is generally considered constitutionally desirable that a viable contrivance such as the institutional separation of the judiciary from the other arms of the government is a necessary bulwark against all forms of political and social tyranny, administrative victimisation and oppression. In other words, the freedom of the judicature from any influence, whether exerted by the legislature or the executive, or even from the judiciary itself, which is capable of leading to any form of injustice, abuse, miscarriage of justice, judicial insensitivity or other court-related vices is a condition sine qua non for the establishment of a durable political order based on the rule of law and constitutionalism.

The notion of the independence of the judiciary has its philosophical ancestry in the time-honoured theory of the separation of powers, a doctrine which incidentally features prominently in the allocation of state powers under the Nigerian constitutional scheme.
Recent Constitutional Developments in Mozambique
Authors: Hall M. , Young T.
Published: July 2009

Constitutions remain a puzzle. They are not conscious falsehoods, yet they are clearly not in any simple sense “true”. Nor are they a matter of self-deception on the part of their drafters, being as much intentionally aspirational or programmatic as regulatory. There is some virtue in Finer's characterization of them as “autobiographical” but even this becomes problematic when we speak of constitutions in the ex-colonial world which are often documents more easily made sense of in the context of other constitutional documents than the realities of the polities they supposedly regulate. All these issues are brought into very sharp focus by the experience of a country such as Mozambique, which in its short history since independence in 1975 has adopted two quite different societal projects in the form (amongst other things) of constitutional documents. The differences between these two projects are obvious and are commented on extensively in what follows. The categories utilized in both, it may be noted, are rooted entirely in European political and intellectual experience and, arguably, what is striking about the liberal and socialist options that they embody is not so much their (highly advertized) differences but what they have in common, including a profound intolerance and a determination to remake the world in their own image. Seen in this way the study of constitutions and constitution-making have interesting things to tell us about the processes of Westernization of our world.

Mozambique's new constitution came into force on 30 November, 1990, replacing the Independence Constitution of 25 June, 1975. It eliminated the leading role of the Frelimo party, introduced multi-party politics, and changed the official name of the country from the People's Republic of Mozambique to the Republic of Mozambique.
Judges and Human Rights: The Kenyan Experience
Authors: Kuria Gibson Kamau , Vazquez Algeisa M.
Published: July 2009

On 4 July, 1989 in Maina Mbacha v. Attorney General the High Court of Kenya appeared to remove itself from its role of enforcing the Bill of Rights of Kenya. The court ruled “inoperative” section 84 of the Constitution of Kenya which grants original jurisdiction to the High Court to enforce Fundamental Rights and Freedoms of the Individual, section 70–83 (inclusive) (Chapter V). The provision was deemed “inoperative” in Kamau Kuria v. Attorney General, and this was upheld shortly thereafter in Maina Mbacha when the High Court found that no rules of procedure had been enacted to enforce the Bill of Rights and dismissed for lack of jurisdiction. Indeed, in the latter case the court dismissed the application for lack of jurisdiction even though the case was before the court by virtue of the constitutional grant of “original unlimited jurisdiction”. As a matter of established law, the court can be approached by any available procedure when ruling to enforce established constitutional rights. Ordinary rights can be defeated for failure to follow procedure, but historically, procedural requirements often defer to constitutionally granted rights. Once the Bill of Rights was enacted in the Constitution, its enforcement became supreme to all other law, including procedural rules, for the supremacy clause of the Kenya Constitution states: “… if any other law became inconsistent with this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void”
Contract and Neighbourly Exchange among the Birwa of Botswana
Authors: Mahoney Nicholas
Published: July 2009

Schapera’s accounts of the Tswana provide one of the few instances of contract to be found in the “customary” law of African societies in colonial times. Not only were contracts a means used, even between closely related people, for making certain kinds of transactions, but also the Tswana courts were prepared to enforce executory contracts. In this paper I intend to discuss the significance of contracts among the Birwa of independent Botswana, in particular the way in which contracts are used to regulate certain kinds of productive exchanges between co-operating neighbours.
High Bridewealth, Migrant Labour and the Position of Women in Lesotho
Authors: Murray Colin
Published: July 2009

This essay is an attempt to explain the persistence of high bridewealth in Lesotho. I argue that the structural conditions of its persistence have changed over time and I develop a macro-economic perspective in which to apprehend its contemporary significance. This approach exposes the weakness of the anthropologist's traditional paradigm of discovering functional consistencies between variables of kinship structure within a relatively homogeneous “society”. For an understanding of social systems on the rural periphery of southern Africa critically depends on assumptions about the way in which these are articulated with the larger political and economic system of the region as a whole. From a methodological point of view the essay may be seen as an attempt to work out systematically the implications of a view that Isaac Schapera has argued in essence throughout his professional life: that piece-meal ethnography can only make sense within its full political, economic and social context.
La Decolonisation du Droit Penal Algerien
Authors: Lebrun Patrice
Published: July 2009

L’Algérie, aux lendemains de son indépendance (juillet 1962), ne pouvait maintenir le système colonial contre lequel elle s’était battue. Elle devait done procéder à une décolonisation. Cette décolonisation se réalisa d’abord à travers la révolution industrielle, sans être achevée pour autant. Cette révolution industrielle est destinée à garantir Pindépendance économique du pays. Elle s’est traduite notamment par la nationalisation des secteurs-clefs de l’économie, dont le pétrole et le gaz naturel, et par l’édification constante de nouvelles entreprises. Ces nationalisations, au point de vue patrimonial, sont accompagnées, au point de vue social, de la création du secteur socialiste des entreprises.
Regulation and the Development of Petty Trade in the Kweneng
Authors: Silitshena R. M. K.
Published: July 2009

Problems of entrepreneurship and petty trade have largely been ignored in planning to reform land tenure and land use in Botswana. Yet the administrative agencies regulating land use are also involved in the licensing of trade, and the need to reform the trading regulations and traditions inherited from the colonial state are no less pressing than the need for land reform. There is a pattern which is gradually coming to be recognised in other parts of Africa as well. The inherited trading regulations, often phrased or explained as intended to protect consumers, constitute a formidable barrier to the development of new forms of competition in trade. If applied strictly, and effectively, they would block the expansion of petty entrepreneurship and the entry into trade of a new category of entrepreneurs. In effect, the regulations favour the continued dominance in trade of the larger-scale traders, often aliens, who were established in their businesses before independence. Moreover, the continued dominance of the old trading establishment is somewhat masked by the apparently large increase in thenumberof officially registered traders. Such numbers conceal the fact that the inherited rules generate constraints which make it harder for new traders to penetrate into the highly profitable trade sectors hitherto monopolised, with few exceptions, by aliens or non-Africans. Thus in Botswana, the continued dominance of trade and commerce by Europeans and Asians since Independence has been bolstered by a series of archaic and complex licensing regulations which, in effect, eliminate any advantages petty entrepreneurs might have in competing with large-scale, established enterprises.
Colonial Origins of the Public Domain in Southern Somalia (1892–1912)
Authors: Guadagni Marco M. G.
Published: July 2009

This essay is part of a study on the development of land law in Somalia from the end of the last century up to present times. In the following pages an attempt is made to illustrate some of the legal problems connected with the grafting of Western law onto an African land tenure system in a colonial setting. Originally agricultural development and exploitation was not the determining aim of the Italian occupation on the Indian Ocean Coast. In the early Italian plans for colonial expansion on the Horn of Africa, Somalia was primarily regarded as an important political and commercial area. The ultimate goal of these plans was the fertile lands of the Ethiopian plateau, towards which Eritrea and Somalia contained respectively, the Northern and Southern access routes. Occupation of the upper and lower regions of what would be the Italian East Africa colony (Africa Orientale Italiana) was the political and military preliminary to conquering the Ethiopian highlands, the produce of which, once the conquest of the whole Horn of Africa had been completed, would find its natural outlets through Eritrean and Somali ports.
Developments in the Law of Marriage and Divorce in Libya Since the 1969 Revolution
Authors: Mayer Ann
Published: July 2009

How to reform traditional laws of marriage and divorce has proved to be one of the major legal issues facing contemporary Muslim societies. It is a sensitive issue that impinges on many domains—the social, religious, and political as well as the legal. The problems of reform turn more than anything else on the question of how to reconcile fidelity to Islamic law, the shari'a, which remains largely—if not exclusively—controlling on matters of personal status in many Muslim countries, with the demands for change prompted by the process of modernization.
The Many Hats of the Sudanese Magistrate: Role Conflict in Sudanese Criminal Procedure
Authors: El-Naiem Abdullahi Ahmed
Published: July 2009

The Sudan, a vast country of approximately one million square miles, is a political rather than an ethnic unit. Beside the Arab tribes, which are not as homogeneous as their common origin may suggest, there are numerous non-Arab tribes of several racial and linguistic families. In any description of the population one is reduced to such generalisations as “predominantly Arab and entirely Islamic in the north, and predominantly negroid and pagan in the south, but there are so many exceptions and qualifications…”
Tony Allott: A Colleague's Tribute
Authors: Read James S.
Published: July 2009

It is entirely appropriate that this Special Volume, completing the thirtieth year of publication of theJournal of African Law, should acclaim the rich and many-sided contributions of the founding Editor of theJournal, Professor A. N. (Tony) Allott. His name has been inseparable from the study of African law throughout the existence of the Journal. The present writer was privileged to share in the excitement when the page proofs for the first issue arrived from Butterworths, the original publishers, in 1957. In the years that have followed theJournalhas continued to offer its characteristically varied but always rewarding diet of articles, notes, case reports and reviews under a title which at first prompted sceptical reaction: “African law?” Could a field of true scholarship be given such a broad and essentially territorial designation? Should it not more aptly be titled the Journal of African Laws? Such carping comments are no longer heard. It is perhaps the greatest testimony to Tony Allott's achievement that, having started his academic career at a time when any notion of “African law”” was completely novel, he has by his creative industry and breadth of vision made a unique contribution not merely to the development of his subject but to its emergence and recognition as an important and distinctive field of legal scholarship.
Recent Reforms in Ghana's Family Law
Authors: Daniels W. C. Ekow
Published: July 2009

On 14 June, 1985, the Provisional National Defence Council of Ghana promulgated a series of laws designed to give better security for widows and their children, provide an effective machinery for the registration of customary marriage and divorce and render heads of family statutorily accountable to their members. They are: Intestate Succession Law, Customary Marriage and Divorce Registration Law and Head of Family (Accountability) Law. There is no doubt that the enactment of these laws marks a significant turning point and a new concept of family property law, even though the impact of the laws is yet to permeate into the social fabric of the Ghanaian community as a whole.
Accountability of the Head of Family in Ghana: A Statutory Solution in Search of a Problem
Authors: Kludze A. K. P.
Published: July 2009

By a decree, the Head of Family (Accountability) Law, 1985, it has now been statutorily established that, in Ghana, whatever may have been the doubts in the past on the issue, the Head of Family is accountable for any family property entrusted to him. The relevant provisions of the Law are:

Section 2 of the Law provides for an application by motion to the court for accounts by “any member of the family to which such property belongs who has or claims to have any beneficial interest in the property]. The only proviso is that such an application may not be entertained unless the court is satisfied that a settlement within the family has been attempted without success. The obvious reasons for this procedural requirement are to encourage the resolution out of court of family disputes relating to family property, and to conserve judicial resources.

Perhaps ex abundanti cautela the new legislation makes accountable not only the head of family but also any other person who has possession, control or custody of family property. It has never been doubted that a person other than a head of family who has possession, control or custody of family property is fully accountable for the property. The problem, such as there was, related to the question of accountability for family property by the head of family.
Land Title Registration Without Prejudice: The Ghana Land Title Registration Law, 1986
Authors: Woodman Gordon R.
Published: July 2009

Professor Antony Allott's first studies of law in Africa were of Ghanaian land law. From an early date he has discussed issues of land title registration in Africa. It is therefore fitting in this celebratory number to note that Ghana, after many years of debate and delays, recently enacted a statute providing for the registration of interests in land throughout the country. It is planned that the Land Title Registration Law, 1986 (P.N.D.C.L. 152) (hereafter “the Law”) will be brought into operation in stages as areas are successively designated “registration districts”. It is expected to begin with Accra “and designated agricultural areas”, according to the Memorandum to the Law. When an area is so designated, the Chief Registrar of Lands will be obliged forthwith to call upon all persons claiming interests in land therein to present their claims. Those proven, after adjudication if necessary, will be registered, and the register will be conclusive. All subsequent changes in the holding of interests are to be effectuated through changes in the register. The Land Title Registration Regulations, 1986 (L.I. 1341) have already been made to provide in more detail for the procedures to be followed.

This contribution attempts to provide a brief, critical summary of the central features of the Law. It considers these in the context of the historical development of Ghanaian land law, and contrasts them with features of certain other schemes which have been implemented or proposed.
When crime crosses borders: a Southern African perspective
Authors: Nsereko Daniel D. Ntanda
Published: July 2009

The countries of Southern Africa are organized under the Southern African Development Community (SADC). They share a common social and cultural affinity, a common historical experience of colonization, and common problems and aspirations. One of their shared problems is crime, both within and across their borders. Cross-border crime is facilitated by their common and often long and open borders, the affinity of their peoples, the improved transport systems by road, rail, air and sea, and die concomitant heavy traffic of persons and goods between the common borders. Regarding this traffic, moves are already under way to make it even easier by progressively eliminating all obstacles to movement of persons within the region. It is believed that individuals are both agents and the ultimate beneficiaries of regional co-operation. Said Dr Kaire Mbuende, the Executive Secretary of SADC: “We do not see how else the SADC can come into being unless the people of the region are able to interact freely across national borders, to share their skills, experiences and resources”. This freer movement of persons within the region will also inevitably mean the freer movement of criminals and contraband across the borders.
Some Notes on Tswana Bogadi
Authors: Schapera I.
Published: July 2009

In a general survey of Tswana culture, written for the International African Institute twenty-five years ago, I summarized as follows the main features of the bogadi (bridewealth) system:
The Adoption Act of Sierra Leone
Authors: Lisk Ida E.
Published: July 2009

The long-awaited Adoption Act was passed in 1989. The object of the Act as indicated in the objects and reasons of the Bill is to make provision for the adoption of juveniles by persons who are fit and willing to do so. Informal adoptions existed in Sierra Leone in a variety of situations but for the past decade there has been a growing realization that these arrangements needed a legal stamp in order to provide proper security for the child and for the adopters who often feared that the natural parent might claim possession of the child after a number of years of care by the adopters. The absence of any provision for legal adoption was a cause for concern for couples who wished to provide a permanent home for children who were not their natural children.

In the past lawyers have attempted to fill this vacuum by ensuring that the natural parent or parents executed a contract with supporting affidavits, where requisite, disclaiming all rights and liabilities towards the child. Such contracts were not strictly legal and lawyers therefore attempted to include a clause (which did not have legal validity) whereby the natural parent could resume his or her rights over the child only if he or she compensated the adopters for all expenses incurred during the child's upbringing. The size of the expenditure involved was often enough to discourage the natural parent's efforts to gain custody over the child.
Homosexuality and the law: a gay revolution in South Africa?
Authors: Sanders A. J. G. M.
Published: July 2009

Recent constitutional developments in South Africa and political statements by President Robert Mugabe of Zimbabwe have brought to the fore the issue of social tolerance of homosexual conduct. It is a sensitive issue, and is approached in this article from a legal anthropological angle. A distinction is drawn between situational same-sex activity and a gay lifestyle. Although both constitute homosexual conduct, situational same-sex activity need not imply a gay lifestyle, or even a homosexual orientation.
Colonial relics I: the requirement of a permit to hold a peaceful assembly
Authors: Stevens Joanna
Published: July 2009

In November 1993, in the case of NPP v. Inspector-General of Police, Archer, CJ., in striking down Ghanaian legislation providing for the licensing of peaceful assemblies, stated rhetorically:

“… police permits are colonial relics and have no place in Ghana in the last decade of the twentieth century. …Those who introduced police permits in this country do not require police permits in their own country to hold public meetings and processions. Why should we require them?”

Over the last three years, possible justifications for the retention of laws requiring that a permit be obtained prior to holding a peaceful assembly have been examined and rejected by the courts of Zimbabwe, Tanzania and Zambia as well as Ghana. In all four jurisdictions such laws were struck down as unconstitutional as being contrary to the fundamental right to freedom of assembly and, additionally, in Zimbabwe, Tanzania and Zambia, the right to freedom of expression. This article assesses the interpretation by the courts of the relevant limitation clauses under the respective constitutions and raises the question of why, within the space of 12 months, courts in West, Southern and East Africa, although unaware of each other's decisions, reached the same conclusion on a law which had been present on the statute books since colonial times. It is suggested that these series of cases signify a turning point in the development of constitutional law in Commonwealth Africa with respect to civil rights.
The Land Use Act and the State of Nigerian Land Law
Authors: Agbosu L. K.
Published: July 2009

The Land Use Act, 1978, is a product of the inherent contradictions of the colonial and neo-colonial dependent, pseudo-capitalist economic structures established in Nigeria since colonial times. By the 1970s these contradictions became so seŕious that they threatened to become a clog on the growth of the capitalist economy. If such contradictions were allowed to reach a nodal point, conditions for the self-negation of the existing socio-economic and legal order would have ensued. The legislature, it would seem, narrowly identified the problem with private ownership of lands from its own class perspective, that is without a scientific conception of the problems in terms of ownership in the theory of social relations. A scientific conception of the problems would have revealed the essence of the difficulties as relating, not merely to the procedural aspects of private ownership of the lands, such as certainty of title, registration of title, etc., but concerning the institution of private ownership as an economic and legal category around which the exploitation of man by man is organised in class-divided societies.

Such a scientific perception of the problems would have demanded a lasting solution that not only abolished private ownership rights in land but also abolished private ownership of other means of production. The socialisation of all means of production would have amounted to a holistic approach to the solution of the problems in the interest of the nation as a whole.
Gwao Bin Kilimo: The Administrators' Reaction
Authors: Lyall Andrew
Published: July 2009

The case of Gwao bin Kilimo v. Kisunda bin Ifuti decided by the colonial courts of the then Tanganyika has always held a certain fascination for those interested in the process of law under colonial rule. This is for a variety of reasons. The case seems to put into sharp focus the conflict between the imposed common law system and the indigenous customary law. This in turn stimulates questions as to the social values that lay, and probably still lie, behind the two systems and the extent to which those values reflect actual differences between the societies in which they developed. Since the conflict arose in a colonial context, the case also raises the question of the rôle of law in such a society and therefore, to some extent, the rôle of law in relation to ideology and political economy in this and in other contexts also. What is less well known is that the case was the subject of comment by colonial administrative officers at the time, comments which point up many of the issues involved and provide some insight into the different perceptions of African society on the part of administrative officers on the one hand and the judiciary on the other.
The Mining Ordinance of Northern Rhodesia: A Legislative History 1924–1958
Authors: Slinn Peter
Published: July 2009

Shirley Zabel's account of the genesis of the Gold Coast Marriage Ordinance of 1884, published elsewhere in this Journal, demonstrates how much a legislative history can teach us about the way in which colonial law-makers went about tackling the formidable problems which had to be faced in what were still the early stages of modern British administration in West Africa. It is proposed in this article to turn to colonial Zambia and to look at the very different field of mining legislation, concentrating on the middle and later period of colonial rule before and after the Second World War. Compared with the early days in West Africa, bureaucratic techniques had been refined and communications greatly improved. This did not always lead to speed in the legislative process. Zabel has shown that the Gold Coast Ordinance was six years in the making; the Northern Rhodesia Mining Ordinance had a gestation period, including several miscarriages, of no less than thirty years prior to its enactment in 1958, despite the admitted need in the 1920s to replace obsolete legislation dating from the days of British South Africa Company rule. The span of time involved, however, has advantages for the legal historian—an opportunity to examine in relation to a single ordinance the colonial legislative process and the forces which, over an extended period, affected the shaping of a vital piece of legislation. It is hoped also that the fruits of this examination will serve as a useful background to studies of modern Zambian mining law.
The Survival of the Traditional Tswana Courts in the National Legal System of Botswana
Authors: Roberts Simon
Published: July 2009

In almost all the former British African territories the colonial power tried to make use of the traditional dispute settlement agencies which it found on arrival. The history of these efforts is familiar, following a generally similar course in most territories. The arrangements made in the early years were haphazard; a good deal of formalization took place around 1930; more profound changes were initiated in the early 1960's and have continued since. But the familiar legislative history yields little information about what has been happening on the ground. We know very little of the way in which the traditional agencies drawn into the official system actually reacted towards this process of incorporation. Leaving aside what the statute may have said, have they remained the agencies to which Africans actually resorted for the settlement of their disputes? Has the type of business coming before them changed? Similarly we know little about those agencies, typically at the lower levels, which did not undergo incorporation. Have they continued to function, or have they simply died away?
Workers' freedom of association in Botswana
Authors: Molatlhegi B.
Published: July 2009

The year 1992 saw significant reforms to the Botswana labour law and industrial relations system. Before then, as was the case elsewhere in Africa, the Botswana government had adopted highly interventionist policies with respect to industrial relations. The changes introduced in 1992 were aimed at shifting labour relations to the market place. State intervention, though not completely eliminated, has been greatly reduced as a result. The changes in labour law and the industrial relations system have brought to the fore the debate about the nature, content and extent of workers' freedom of association in the country. The changes mean that more than ever before collective bargaining will play a significant role in the determination of wages, terms and conditions of employment.
Competence of a spouse as a witness: some unresolved issues in Botswana
Authors: Quansah E. K.
Published: July 2009

Marriage as a social institution has been deliberately protectedas a matter of State policy. Such protection manifests itself in a variety of ways, one of which is the subject of this article. In an attempt to protect the sanctity of marriage, a rule evolved under which spouses cannot give evidence against each other in legal proceedings. In the words of that venerable English jurist, Coke, if this were not so “it might be a cause of implacable discord and dissension between the husband and the wife”. The rule shows itself in strange ways both in criminal and civil cases. For example, the law regards spouses as one person and as such they cannot conspire with each other. Although the institution has been on a slippery slope for a long time with the increasing prevalence of “cohabitation” it has shown remarkable resilience and most of the population still partake and support it. The British bequeathed the rules relating to competence of spouses to Botswana some decades ago and these have since been applied in their pristine purity although the legislature left an escape route by which they could be supplemented. It is this route for supplementation which has led to issues that need to be resolved. Some of these are explored in this article, after a brief historical background of the reception of the rules.
Execution of Judgments and Means of Enforcement Available to a Court in Nigeria
Authors: Fabunmi J. O. , Akai O. O.
Published: July 2009

Although the judiciary is the weakest branch of the government and must depend on the executive branch to enforce its judgments, it is not the integrity, or prestige of the judiciary that is at stake when the executive fails to comply, or to comply satisfactorily with court orders and judgments. In such situations, the authority of the state is called into question.

Clearly, where private persons are unable to concretise their remedies by enforcement, the relevance of the whole judicial process is called into question. In this regard one may say that the existing rules of enforcement are sufficiently geared to prevent that anomaly.

In actions involving private parties the judiciary is an impartial arbiter and it is up to the party aggrieved to pursue his claim to the logical conclusion. The Sheriffs and Civil Process Laws are designed to facilitate this. Not only are officers of state placed at his disposal but he has the ultimate weapons, in an action for committal of an irresponsible judgment debtor. Yet, the formalities appurtenant to the issuance and execution of the various writs have appropriately built in devices, that allow the respondent to comply at any stage and thus save himself financial loss, or loss of his liberty.

In the field of enforcement of non-money judgments the ultimate weapon is an action for committal initiated at the suit of the plaintiff. The same safety devices are available. In particular, where possible, the Court will employ another means of enforcing the judgment, or order.

Although, there is provision for the appointment of commissioners (eg. in sequestration proceedings) and referees (in enquiries) there is little resort to these provisions, not only because sequestration proceedings are extremely rare but probably also because there is seldom need for the appointment of referees in our courts.

It is in the enforcement of judgments against the state and government functionaries that rapid changes have occurred. Although, injunctions and mandamus will still not lie against government, it can now be sued and indirectly be made to obey court orders through actions directed against state functionaries. There is increasing willingness on the part of the courts to subject judicial, or quasi-judicial actions of government to judicial review. The problem remains as usual that of giving teeth to such orders since the very executive against which orders are made, is depended on to enforce such orders. Hence the judiciary has developed safety valves in actions for judicial review to prevent collision with the executive. Utmost discretion is exercised by judges in granting orders for review and they will generally do so only as a last resort
Accountability: The Debate in South Africa
Authors: Kollapen N.
Published: July 2009

The constitutional and political negotiations in South Africa have reached an advanced stage and elections for a government of national unity might take place within the next twelve months. For the millions of South Africans who have waited, fought, sacrificed and suffered the end appears to be in sight. While they will have every right to celebrate the results of their hard-fought battles to achieve a democratic and just society, they equally have a solemn duty to ensure that they proceed to build the future on a solid base, not only to guarantee the protection of democracy and justice but more importantly to ensure that no other South African is ever again the victim of the types of human rights abuses that have for the past decades become synonymous with the country. There will only be one opportunity to rebuild the nation. If it fails it will be a great disservice to South Africa's countrymen and women and to the generations that will follow. Even as a South African one has difficulty in fully comprehending the enormity of the social and human destruction caused in the name of apartheid. It has brutalized and dispossessed its people; robbed children of their youth and their innocence; widowed and orphaned thousands and destroyed the dreams and hopes of decent men and women. The 18 million people gaoled in terms of the pass laws and the 15.5 million people uprooted by forced removals bear testimony to the brutality and savagery with which apartheid was applied. The legacy of those policies will remain for many years to come.
Private Sector Housing in Ghana: Some of the Legal Aspects of State Control since 1982
Authors: Kufuor K. Oteng
Published: July 2009

This article examines the use of the law by the state to achieve its aim of social justice. It focuses on how, through a series of laws, the state has endeavoured to regulate private sector residential rents at the lower end of the market (up to a ceiling of 1,000.00 cedis) and the occupation of residential accommodation. An analysis is thus given of the nature of the laws in question as well as the institutions and organs of the state that were either set up, or had the scope of their powers broadened, in pursuance of the state's objectives.

On 31 December, 1981 a military junta, the Provisional National Defence Council (PNDC) assumed power in Ghana. It had as one of the cornerstones of its political agenda the establishment of “true democracy” for all Ghanaians who, according to the new rulers, had been denied this right by previous civilian and military regimes. As a consequence, the PNDC enacted Law 42 which encapsulated in part the Directive Principles of State Policy (hereinafter the Directive Principles).
Labour adjudication in Swaziland: the exclusive jurisdiction of the Industrial Court
Authors: Okpaluba Chuks
Published: July 2009

When the Industrial Relations Act was enacted in Swaziland in 1980 its express object was to provide for the collective negotiation of terms and conditions of employment and for the establishment of an Industrial Court for the settlement of disputes arising out of employment. In turn, the avowed purpose for the establishment of the Industrial Court as the nerve centre and most important institution established by the legislative scheme was, and still is, “for the furtherance, securing and maintenance of good industrial relations and employment conditions in Swaziland”. As in the case of other industrial courts and labour adjudicatory institutions with special and limited jurisdiction elsewhere, issues surrounding the jurisdiction of the Industrial Court of Swaziland have given rise to a measure of controversy.
Telecommunications monopoly in South Africa—some human rights aspects and options for future regulation
Authors: Zlotnick Myron
Published: July 2009

In the Internet ruling the Authority did not come to the assistance of the monopoly. It is submitted that the vested interests of the ISPs outweighed any protection that Telkom could claim and it suited the Authority then to have reference to constitutional rights and universal sendee policies to justify its ruling. The Authority's perception of the market-place may have influenced the decision. In the call back ruling, however, the Authority came to the assistance of the monopoly. This ruling was based in part on a desire to protect Telkom's revenue. But it seems because the call back operators were not afforded an opportunity to present a case to protect their interests, the Authority assumed Telkom's interests to be more important. This notwithstanding, in both rulings the Authority opted for a value-laden rather than a technologically informed decision. While this may be commendable in terms of achieving the overall goals of the sector, it does lead to inconsistency. As I have alluded to above, this can perhaps be overcome if the Authority develops a coherent policy framework for decision making, i.e. the White Paper and the Telecommunications Act afford the Authority a number of policy beacons by which they may be guided and it is inappropriate to follow one (the Telkom monopoly) at the expense of others.
Unsworn statement from the dock and the accused person in Botswana
Authors: Quansah E. K.
Published: July 2009

In a criminal trial an accused person may either choose not to give evidence or give evidence on oath (or affirmation) or make an unsworn statement from the dock. It is with this latter option that this article is concerned. This right to make a statement without being sworn is recognized in section 218 of the Criminal Procedure and Evidence Act (C. P. & E.) which confers competency on an accused person, their wife or husband to testify for the defence at every stage of the proceedings. Section 218(3) provides that:
The Government of Zimbabwe's White Paper on Marriage and Inheritance, 1993
Authors: Coldham Simon
Published: July 2009

Far from heralding a comprehensive and long-overdue reform of the law relating to marriage and inheritance in Zimbabwe, this White Paper is a modest document, only seven pages long, which largely restricts itself to considering the extent to which the law of intestate succession applicable to a person’s estate should depend on the type of marriage into which the deceased had entered. Even so, the issues raised are controversial and the government clearly wishes to stimulate public debate and to receive suggestions from all quarters before formulating its policy. It appears that the paper has succeeded in generating interest as well as some harsh criticism.
The Constitution of the Republic of South Africa
Authors: Hatchard John
Published: July 2009

“We the people of South Africa declare that … there is a need to create a new order in which all South Africans will be entitled to … enjoy and exercise their fundamental rights and freedoms.” (Preamble to the Constitution of the Republic of South Africa)
Discours D'ouverture
Authors: M'Baye K.
Published: July 2009

Je voudrais, au nom de l'Association internationale de Droit Africain que j'ai l'honneur de présider, remercier toutes les personnes et toutes les organisations, grâce à qui ce colloque sur “les mécanismes et procédures juridiques destinés à contribuer à l'évolution économique dans les organisations internationales africaines”, a pu se tenir.
The Institutional Framework of the Association of African Central Banks
Authors: Akiwumi A. H.
Published: July 2009

In 1966, the first Conference of African Central Banks was organized by the Economic Commission for Africa at which it was decided that a permanent association of African Central Banks should be established to foster co-operation amongst its members. An interim committee consisting of representatives from the Economic Commission for Africa, the African Development Bank and the African Institute of Economic Development and Planning, prepared draft articles of association for consideration by a second Conference of Central African Banks. This Conference, again, organized by the Economic Commission for Africa, was held from August 7th–13th, 1968 at Accra, where the Articles of the Association of African Central Banks were adopted.
L'organisation de L'unité Africaine et le Développement Économique de L'Afrique
Authors: Kamanda J. G.
Published: July 2009

Je voudrais, tout d'abord, exprimer ma très sincère gratitude, à l'Institut de Droit Comparé de l'Université d'Uppsala, à l'Institut Scandinave d'Études Africaines et à l'Association Internationale de Droit Africain non seulement pour l'invitation qui nous a été adressée, mais encore et je dirais surtout, pour l'intérêt constant qu'ils portent aux questions africaines.
L'Association des Compagnies Aériennes Africaines
Authors: Kraiem M.
Published: July 2009

Notre Association a été crée par l'Assemblée Générale constitutive qui a eu lieu au Caire en janvier 1969. Son siége a été fixé à Nairobi, mais pour des raisons de commodité, il peut être transferer dans toute autre ville africaine par une décision de l'Assemblée Générale prise à la majorité des deux tiers des membres actifs.
The new Cameroonian constitutional council in a comparative perspective: progress or retrogression?
Authors: Fombad Charles Manga
Published: July 2009

The 1990s will go down in history as the decade when Africans had the chance to correct and make up for the blunders of the 1960s. Constitutional and multi-party democracy is now back in fashion and many are ready to forgive the errors of the past and make the sacrifices that will make such democracy and the expected concomitant economic progress possible. The daunting task facing African constitutional engineers is how to free themselves, intellectually and practically, from their strings of colonial loyalty, and how to frame constitutional arrangements that are adapted to the prevailing conditions and are genuinely democratic.
The Proposed abolition of de facto unions in Tanzania: a case of sailing against the social current
Authors: Rwezaura Bart
Published: July 2009

In April, 1994, the Law Reform Commission of Tanzania (LRC) recommended,inter alia, that section 160 of the Law of Marriage Act (LMA), be repealed because it constitutes “an unnecessary encroachment [on] the sanctity of marriage and [is] contrary to the spirit of the Law of Marriage Act”. Subsection (1) of the offending section enacts a statutory presumption of marriage in favour of reputed de facto unions that have existed for a minimum of two years. Subsection (2) states that once the presumption is rebutted, the woman cohabitant and the children born of that union become legally entitled to apply to the court for economic support from the male partner. In these proceedings the court has similar jurisdiction as a divorce court, including the making of orders for the division of assets jointly acquired by the couple and the determination of who is to have custody of the children. In 1971 when section 160 was enacted, it was widely recognized that de facto unions had become a social fact which the law could not ignore. Hence, the decision to extend to these unions the same legal consequences that follow a formal dissolution of a legal marriage. However, in so doing the legislature had indirectly raised and yet left open a number of important questions that have continued to engage the minds of judges.
The law of the Republic of Cape Verde after 25 years of independence
Authors: Bogdan Michael
Published: July 2009

The laws of Cape Verde are unusual in that the islands were uninhabited prior to the arrival of the Portuguese and their legal system. The extent to which Capeverdean law is and is likely to be influenced by Portuguese law is considered. The article concludes that whilst some original legal solutions have been developed in Cape Verde, its limited legal resources and the continuing close ties with Portugal will remain but this should be seen as a strength rather than a weakness of the legal system.
Recent Environmental Legislation in South Africa
Authors: Goolam Nazeem
Published: July 2009

Section 24 of the Constitution of the Republic of South Africa, Act 108 of 1996, provides:

“Everyone has the right

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”
Why the judicial annulment of the Constitution of 1999 is imperative for the survival of Nigeria's democracy
Authors: Ogowewo Tunde I.
Published: July 2009

The article calls for the alteration of the present risk-benefit calculus of would-be coup plotters that may wish to subvert Nigeria's democracy, by arguing for the introduction of anex anterisk ofex postprosecution for successful usurpations. The prosecution of those that subverted Nigeria's democracy on 31 December, 1983, will alter the present risk-benefit calculus, which is skewed in favour of coup plotting. Since such a prosecution will not succeed if the constitution imposed on Nigeria by its last military rulers continues to be accepted as valid, the article furnishes the legal basis for its judicial annulment and the consequent unearthing of the Constitution of 1979. By demonstrating that the Constitution of 1999 is a sham, it becomes evident that the judiciary has a duty under the Constitution of 1979 to pronounce this document as null and void.
Judicial review of spending powers: should Kenyan courts entertain taxpayers' actions?
Authors: Akech J.M. Migai
Published: July 2009

Combatting the mismanagement of government funds by public officials remains a challenge in Kenya as well as in many African countries. Current mechanisms have not proved effective and need strengthening. This article argues that courts in Kenya should allow taxpayers standing to bring actions challenging allegedly improper government expenditure. Drawing upon the experience of courts in the United States, it demonstrates the potential effectiveness of such actions.
Criminal justice policies in Commonwealth Africa: trends and prospects
Authors: Coldham Simon
Published: July 2009

This article provides an overview of criminal justice policies adopted in Commonwealth Africa during the last 40 years. It shows that, far from attempting to devise policies appropriate to the needs of a developing contemporary African state, governments have pursued the same policies as their colonial predecessors, based on retribution and general deterrence. The criminal law has been used to secure social and economic objectives and concern about crime levels has led to an erosion of a defendant's rights and the introduction of increasingly harsh punishments. Prospects for the future are gloomy, particularly in states where definitions of criminality are contested.