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  • Author: Charles Manga Fombad, Enyinna Nwauche
  • Publication Date: 01-2012
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: A fundamental tenet of modern constitutionalism is that nobody, regardless of his status in society, is above the law. Constitutional reforms in the 1990s saw the introduction in many African countries of constitutions which for the first time provide some prospects for promoting constitutionalism and respect for the rule of law. This article reviews the extent to which these reforms have addressed the issue of presidential absolutism and the abuses that go with it. It examines some of the factors that made African presidents to be so powerful that the conventional constitutional checks and balances could not restrain their excesses. It also reviews the attempts to limit impunity through immunity provisions. It concludes that unfortunately, the 1990 reforms did not adequately address the problem of presidential absolutism. A number of ways, nationally and internationally, in which presidential accountability could be enhanced and the culture of impunity ended is suggested.
  • Topic: Law, Reform
  • Political Geography: Africa
  • Author: Patrick J. Glen
  • Publication Date: 01-2012
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: This article provides an exegesis of the recently entered-into-force African Charter on Democracy, Elections and Governance. Democracy has a decidedly mixed history in Africa and, despite a concerted effort by the African Union (AU), it has made only halting inroads in those states that are nondemocratic or struggling to consolidate democracy. That may change as more states ratify and implement the Charter, a comprehensive regional attempt to promote, protect, and consolidate democracy that entered into force in February 2012. This Charter, the culmination of two decades of African thinking on how democracy should develop on the continent, represents the AU's attempt to institutionalize principles of good governance and democratic ideals. Although hurdles remain on Africa's road to democratic development, including poverty, illiteracy, and corruption, the Charter provides a means to address these stubborn problems. Whether it will succeed will depend on state implementation of the obligations undertaken by ratification of the Charter, as well as the AU's own commitment to ensuring observation of the Charter's key provisions. If the AU and its member states do fully implement and practically observe the Charter's obligations, then the prospects for democratic governance in Africa have a bright future.
  • Topic: Governance
  • Political Geography: Africa
  • Author: Alex Obote-Odora
  • Publication Date: 01-2012
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: The article examines Rule 11bis on the transfer of cases from the Rwanda Tribunal to domestic jurisdictions. It discusses the criteria for transfer under Rule 11bis and reflects on reasons for the denial of all the Prosecutor's requests for transfer except in the recent Uwinkindi's Appeals Chamber decision. The article also examines how the Appeals Chamber resolved the ambiguity between the Death Penalty Law vis-à-vis Imprisonment in Isolation in Munyakazi, on the one hand, and ambiquity in Article 59 of the Rwanda Code of Criminal Procedure (“RCCP”) vis-à-vis Articles 13(10) and 25 of the Transfer Law, on the other hand, opening the way for the transfer of Uwinkindi to Rwanda. The article recognizes the high standards the Appeals Chamber has established for the transfer of cases to domestic jurisdictions and notes that only few States satisfactorily meet these requirements. In sum, the article welcomes the Uwinkindi decision and recognises a positive development in international criminal law and procedure. However, it also cautions that in practice the precedent may not necessarily translate into a flood of cases being transferred to Rwanda because many States will not be able to meet the Rule 11bis high international standards.
  • Political Geography: Africa, Rwanda
  • Author: Mtendeweka Mhango
  • Publication Date: 01-2012
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: Recent claims of self-determination in post-independence Africa have put pressure on African regional judicial bodies to define the scope of this right. This article examines governance, peace and human rights violation issues in the context of the application of the right to self-determination in post-independence Africa. It scrutinizes the ruling by the African Commission in Katangese Peoples Congress v. Zaire, and argues that this ruling exhibits the African Commission's encouraging view of self-determination under the African Charter, and the likely recognition of a right to an autonomy regime in post-independence Africa. The article maintains that many of the legal issues in Katanga will likely be raised again, either before the African Commission or the African Court, due to recent and increased claims of self-determination by groups within African states. It examines whether the recognition of a right to autonomy regime could have positive impact on good governance, peace and development in Africa.
  • Topic: Development, Governance
  • Political Geography: Africa
  • Author: Jean-Paul Gagnon
  • Publication Date: 01-2012
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: The extant literature covering indigenous peoples resident on the African continent targets colonial law as an obstacle to the recognition of indigenous rights. Whereas colonial law is argued by a wide body of literature to be archaic and in need of review, this article takes a different route and argues the perspective that colonial law is democratically illegitimate for ordering the population it presides over – specifically in Africa. It is seen, in five case studies, that post-colonial public law structures have not considered the legitimacy of colonial law and have rather modified a variety of constitutional statutes as country contexts dictated. However, the modified statutes are based on an alien theoretical legality, something laden with connotations that hark to older and backward times. It is ultimately argued that the legal structures which underpin ex-colonies in Africa need considerable revision so as to base statutes on African theoretical legality, rather than imperialistic European ones, so as to maximise the law's democratic legitimacy for both indigenous and non-indigenous Africans.
  • Topic: Law
  • Political Geography: Africa
  • Author: Conrad Nyamutata
  • Publication Date: 01-2012
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: In recent years, Africa has faced a new form of conflict arising from disputed elections. Incumbents have refused to vacate office after apparently losing elections, triggering violent conflict. Regional organisations have invested considerable political energy to manage these conflicts. Post-electoral conflict accords (PECAs) resulting in power-sharing have been the favoured modus vivendi with regional mediators. However, little attention has been paid to the crucial issue of justice in the management of these disputes. Like most conflicts, electoral conflict centres on perceived injustice in the electoral process. Therefore, in order to manage these conflicts in an effective way, justice must be acknowledged in both procedural and substantive content. This article focuses on management of electoral conflict in Zimbabwe. It argues that the protracted post-electoral conflict in Zimbabwe can be explained, to a large extent, through failure to acknowledge procedural, distributive and retributive justice concerns.
  • Political Geography: Africa, Zimbabwe
  • Author: Muhammed Haron
  • Publication Date: 01-2011
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: Shamil Jeppie, Ebrahim Moosa and Richard Roberts (Eds.), Muslim Personal Law in Sub-Saharan Africa: Colonial Legacies and Post-Colonial Challenges. Amsterdam: Amsterdam University Press, 2010. ISBN: 978 90 8964 172 4, 388 pp.
  • Topic: Islam, Law
  • Political Geography: Africa
  • Author: Stuart S. Yeh
  • Publication Date: 01-2011
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: The World Bank and IMF attribute underdevelopment in sub-Saharan Africa to the practice of directing economic activity through centralized planning. They prescribe privatization and economic liberalization to restructure African economies, promote competition, reduce the scope for corruption, and promote good governance. However, inadequate checks on political power permit African elites to subvert these reforms. This article reviews the political economy of sub-Saharan countries as well as a case study of Sierra Leone to illustrate the problem. The analysis suggests the need for an international agency such as the UN to provide the capacity to investigate, expose and check corruption by employing UN inspectors who are immune to pressure from powerful African elites. This type of check on corruption is necessary to promote the rule of law in sub-Saharan Africa.
  • Topic: Economics, United Nations, Law
  • Political Geography: Africa
  • Author: Vincent O. Nmehielle
  • Publication Date: 01-2011
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: There has been much scholarly and public debate regarding whether the ongoing atrocities in Darfur constitute “genocide”. This article posits that, irrespective of the description given to the mass atrocities taking place in the Sudan, there needs to be a more formidable response and intervention by the world community. As part of this, the author examines the African Union (AU) engagement with the Darfur crisis, within the context of Sudan's membership in the AU. Contending that Darfur is the first litmus test of how the AU is different from its predecessor, the Organization of African Unity, he argues that Darfuris would only realize the benefits of the new regional body if perpetrators of egregious human rights violations are brought to justice.
  • Political Geography: Africa, Sudan
10. Editorial
  • Author: Charles C. Jalloh
  • Publication Date: 01-2011
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: On behalf of the Editorial Board, I am pleased to present issue 4.1 of the African JournalofLegal Studies (AJLS) under a new and exciting partnership with Martinus Nijhoff, the renowned Dutch publisher. On the occasion of our first print edition, I would like to express my most sincere gratitude to all the authors who have submitted manuscripts to A]LS for publication consideration. This special issue on international criminal law aims to contribute to, and to further stimulate, the growing debate on the place and nature of international criminal accountability for all those bearing the greatest responsibility for international crimes in Africa's numerous contemporary conflicts. While unable to accept every submission, the three peer-reviewed articles selected for this first print issue of the journal confirm the original thinking and high quality we are confident will continue to be this journal's hallmark. Consistent with our new partnership, the journal is pleased to announce that we will publish three issues. We also inaugurate a new look both in our electronic and print formats. Electronically, arrangements are now in place for all the journal's back issues as well as our new content to be available on our new website at brill.nl/ajls. We hope that the many databases associated with Martinus Nijhoff will give our published contents and authors truly global circulation in this age of Internet, Facebook and Twitter.
  • Topic: Law
  • Political Geography: Africa