AbstractGhana's Supreme Court recently held that the regulator of the legal profession violated the country's constitution when it imposed extralegal admission requirements on LLB degree holders seeking entry to the School of Law. Nevertheless, the court relied on the prospective overruling doctrine to issue consequential orders that allowed the regulator to persist with its unconstitutional actions and left the constitutionally-injured students without a remedy. Judges employ the prospective overruling doctrine when they invalidate prior statutes or precedents while simultaneously limiting the effect of the new rule to future cases. Here, however, the court did not invalidate a statute or a precedent, mooting the issue of the temporal effect of a new rule. Rather, the court found that the regulator's actions had violated the constitution and it misapplied the prospective overruling doctrine to validate the violation. Consequently, the court's consequential orders undermined its declarations of unconstitutionality, rendering the latter inconsequential.
AbstractSince 2008 the Ethiopian government has allocated vast tracts of land, particularly in the Gambella and Benishangul-Gumuz regions, to agricultural commercial actors with little or no participation from indigenous communities. The marginalization of indigenous peoples in this process primarily emerges from the government's very wide legislative discretionary power regarding decision-making in the exploitation of land. The government has invoked constitutional clauses relating to land ownership and its power to deploy land resources for the “common benefit” of the people, to assert the consistency of this discretionary power with the Ethiopian Constitution. This article posits that the legislative and practical measures taken by the government that marginalize these indigenous peoples in decisions affecting the utilization of land resources are incompatible with their constitutional right to self-determination. Further, it posits that the government's use of the constitution to justify its wide discretionary power in the decision-making process relating to land exploitation is based on a misreading of the constitution.
Private prosecutions have been part of the Nigerian legal system for a long time. In 2015, the Administration of Criminal Justice Act (ACJA) came into force. The ACJA provides for, inter alia, circumstances in which a person may institute a private prosecution. In this article, relying on jurisprudence emanating from Nigerian courts before the ACJA came into force, the author suggests ways in which Nigerian courts could approach the right to institute a private prosecution under the act. To achieve this objective, the author discusses: the right to institute a private prosecution; locus standi to institute a private prosecution; and measures to prevent abuse of the right to institute a private prosecution.
The practice of cassation over cassation and its consequent rule of precedent have resulted in a legal quagmire. The impact is evident in the pecuniary disposition of a bigamous marriage with far-reaching legal ramifications for a valid marriage in Ethiopia. In fact, the pecuniary consequences of a bigamous marriage have remained a perplexing challenge in Ethiopia due to, inter alia, the debatable precedential practice of the Federal Supreme Court. Given the constitutionally guaranteed regional autonomy of the regional states to regulate family matters in Ethiopia, the practice has constitutional implications for the application of the Oromia Family Code. This article argues that the federal doctrine of precedent and its enabling legislation not only lack a concrete constitutional basis, but also encroach upon the constitutional autonomy of regional states and the constitutional rights of legitimate spouses. Exploring the constitutional dimensions of the practice and its legal ramifications, the article suggests possible options to change the practice at a regional level.
This article critically analyses the reparations and asset forfeiture framework at the Extraordinary African Chambers and its application in the case against Hissene Habre. It identifies obstacles to implementing the reparations awarded and calls for states and international organizations to support their realization for the sake of Habre's victims, without whose efforts the tribunal might not exist. It argues that international(ized) criminal tribunals should more readily utilize fines and forfeiture as penalties to alleviate the pressure on trust funds to implement reparations awards, particularly in cases where convicted persons possess substantial assets. Lastly, in light of the requirement that assets susceptible to forfeiture orders be derived directly or indirectly from the crime(s) of which a person is found guilty, the article questions the failure of the prosecutor to charge Habre with the war crime of pillage, despite its availability in the tribunal's statute and the finding that the suffering of many of Habre's victims entitled to individual compensation resulted from pillage.
This article investigates and illustrates the role and importance of a rights-based approach to foreign agro-investment for the government of Cameroon when it is required to govern foreign agro-investment activities. In doing so, the article offers an analytical framework based on human rights norms, principles and standards emerging from relevant international and regional human rights instruments. It aims to provide clarity on how local communities' rights could be respected, protected and fulfilled when and where foreign agro-investment occurs. Consequently, because a rights-based approach requires states to respect their minimum human rights obligations, its use in the foreign agro-investment context is crucially important to help compel the government of Cameroon to ensure the respect, protection and fulfilment of local communities' rights.
A director may serve a company in more than one capacity. In his capacity as a shareholder, a director may hold voting rights in the company. One consideration regarding the removal of a director from office is their removal by shareholders in circumstances where the directors are themselves shareholders in the company and hold weighted votes. This article appraises whether, under the South African Companies Act 71 of 2008, a shareholding-director who holds shares with weighted votes would validly and lawfully be able to block his removal from office by the company's shareholders. This article makes suggestions regarding the use of weighted votes to block the removal of directors from office, and calls for an important amendment to the South African Companies Act 71 of 2008 to prevent weighted votes being used as a device to block the removal of directors from office.
The common law doctrine of uberrimae fidei is pivotal to all contracts of insurance. It imposes a duty on the parties to act towards each other with utmost good faith by disclosing all material facts and not misrepresenting any fact, either before the contract is formed or while the contract subsists. This article examines the doctrine and its statutory reforms in Nigeria and the United Kingdom. It argues that, before the statutory interventions, the iniquitous doctrine was a potent weapon, most often used by insurers to defeat just and legitimate claims by an insured. Although the legislation has brought some measure of relief to the insured in these jurisdictions, the article concludes that there are still some grey areas in the Nigerian law that need to be addressed to further the cause of justice between the contracting parties.
This article traces a genealogy of the African Charter on Democracy, Elections and Governance (ACDEG) and examines the charter's overall implementation. While there has always been a struggle between competing views of how to ensure more or less continental accountability for norms related to democratic governance in Africa, enforcement by the African Union (AU) has definitively become more robust since the ACDEG's adoption. The article argues that this development is observable in three trends: continental legalization, technocratization and judicialization of politics. It evaluates the growth of normative commitments in the field of democracy, elections and governance and their increasing consolidation into binding legal treaties; explores the increasing reliance on AU technical assistance in the implementation and interpretation of these instruments; and assesses the expanding role of continental and regional judicial bodies in enforcing commitments to democracy. Building upon a better understanding of these trends, the article identifies key contextual factors that will shape the ACDEG's future implementation.
A growing number of states have modified constitutionally determined presidential term limits or adopted a flexible interpretation of relevant constitutional provisions to allow incumbent leaders additional terms in the highest office. This article investigates African Union (AU) responses to attempts to overturn or weaken term limits on executive power, one of the most tenacious constitutional trends in Africa. Inspired by the AU's well-established discourse on "unconstitutional changes of government" under the African Charter on Democracy, Elections and Governance, the article frames the manipulation of presidential term limits as "undemocratic changes of the constitution". From this perspective it argues for a more active role for the AU in monitoring and enforcing constitutionalism and respect for democratic standards by member states when they amend their constitution. It concludes with a tentative set of principles to guide processes of constitutional change in Africa.
According to various provisions of the Protocol Establishing the African Court on Human and Peoples' Rights, the court has jurisdiction over the interpretation and / or application of human rights instruments ratified by the states concerned. This article considers whether, in terms of those provisions, the African Charter on Democracy, Elections and Governance (ACDEG) is a relevant human rights instrument over which the court can exercise its jurisdiction. It aims to consider the contours of the main question posed and clarify the relevant aspects in light not only of the court's jurisprudence but also of the overall legal framework of the African Union. In this regard, before drawing appropriate conclusions, it addresses three main questions. What is a human rights instrument? Which elements in the ACDEG clearly relate to human rights? And, what is the court's approach on the issue?
During the first decade of the African Charter on Democracy, Elections and Governance, one significant political development in Africa has been the resort to popular protests or uprisings against tyrannical rule. These uprisings have been remarkable for their scale and extraordinary political ramifications, and succeeded in unseating longstanding authoritarian rulers. They presented serious challenges to the African Union's democratic and constitutional governance norms, in particular regarding the status of uprisings in relation to the ban on unconstitutional changes of government and the determination of whether and when resultant changes of government are constitutional. In addressing these issues, this article contends that, although popular uprisings (also called democratic revolutions) are not a priori deemed constitutional, the AU's application of its norm banning unconstitutional changes of government to the popular uprisings in North Africa and Burkina Faso has opened a legal avenue that offers constitutional legitimacy for popular uprisings overthrowing authoritarian regimes.
On various continents, intergovernmental organizations resort to legal engineering in order to promote democratic governance in their member states. Those legal efforts operate in a fluctuating political and societal environment, which they seek to transform but which, in turn, shapes the authority, the effectiveness and even the very nature of the legal instruments. As this Special Issue shows, this process of mutual influencing between law and context as interdependent variables also applies to the African Union's (AU) landmark instrument for democratic governance promotion. Roughly one decade after the adoption of the African Charter on Democracy, Elections and Governance (ACDEG), fascinating developments, challenges and questions have emerged, some of which were arguably not anticipated by its drafters. For example, who envisaged that the ACDEG might become a justiciable instrument before the African Court on Human and Peoples’ Rights? In the wake of popular uprisings in response to gross undemocratic practices, what normative guidance does the ACDEG offer in response to such developments?
The African Charter on Democracy, Elections and Governance requires state parties to establish and strengthen democratic institutions, the rule of law, human rights and independent electoral systems. However, the extent to which these provisions can be invoked by individuals and non-governmental organizations before a court of law is uncertain. It is also unclear whether such provisions guarantee "stand-alone" individual rights and as such whether the charter could be considered to be a human rights instrument. This article seeks to analyse whether the charter is a human rights instrument, as well as examining its justiciability in light of the decision of the African Court on Human and Peoples' Rights in APDH v Cote d'Ivoire. The analysis highlights the court's decision affirming that the charter is a human rights instrument and that individuals and non-governmental organizations can file cases in a court of law seeking its enforcement.
The adoption of the African Charter on Democracy, Elections and Governance (ACDEG) has been a milestone for the transformation of Africa's political landscape. This instrument seeks to expand on the ideals of liberal democracy enshrined in the Constitutive Act of the African Union and other African fundamental instruments. The ACDEG seems to pave the way for the right to democracy for Africans, which entails, inter alia, political sovereignty of African citizens. The latter have clearly and vigorously exercised their sovereignty through elections when given such an opportunity. However, in some instances, African citizens resorted to popular uprisings in cases of gross violations of their democracy-related rights. With reference to the recent popular uprisings and coups (or attempted coups) in Africa, this article enquires, from a human rights perspective, whether ACDEG or other instruments, enshrine a right to resist gross undemocratic practices underpinning the right to democracy.
AbstractThe retention and use of the death penalty, especially the mandatory death penalty, continues to be an issue of controversy and concern in Africa and elsewhere. Accordingly, African states are slowly but increasingly moving away from the death penalty, with many of them abolishing it either de facto or de jure, or limiting its use, with some finding its mandatory application to be unlawful. This article considers the recent Supreme Court of Kenya decision that declared the mandatory nature of the death penalty as provided for under the country's Penal Code to be unconstitutional. However, it argues that, while declaring the mandatory death penalty to be unconstitutional is commendable and a promising step on the path towards the abolition of the death penalty, the death penalty remains available as a punishment, with serious human rights implications if procedural safeguards are not followed.
AbstractWith a view to showing that courts do not have the power to validate native law and custom, this article highlights the different roles assigned to the assent of the people governed by native law and custom, and to the court called upon to determine its judicial enforceability. It argues that customary law is validated by the assent of the people and not by courts, and that the tests contained in different statutes by which courts are permitted to intervene in the regime of customary law are tests of enforceability and not tests of validity. As a result, it argues that the term “validity test” is misleading when used in relation to the power of courts to determine the enforceability of native law and custom, and should therefore be discarded.
AbstractThis article highlights that section 76(4)(a) of South Africa's Companies Act, which reflects the business judgment rule (BJR) concept, is a standard of review, providing a means of determining whether a director has met his or her undertakings under section 76(3). The article suggests that section 76 should be titled “Standards of conduct and review” instead of referring only to standards of conduct. It draws a clear distinction between standards of conduct (including the personal financial interests disclosure requirements) on one hand, and a standard of review on the other. After tracing the traditional international requirements of BJR, the article analyses the decision-making requirements under section 76(4)(a). It concludes that, while section 76(4)(a) compares favourably with US and Australian laws, the omission of a good faith requirement is unfortunate since that is a critical component of decision-making. The article proposes that good faith and proper purpose under section 76(3)(a) should form part of the section 76(4)(a) requirements.