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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
  • Author: Dapo Akande, Charles C. Jalloh, Max du Plessis
  • Publication Date: 01-2011
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: This article assesses the African Union's (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU's repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The Council's failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the Sudanese leader. Given the AU's continued concerns, and the current impasse, fundamental questions have arisen about the Council's authority to exercise, or not exercise, its deferral power. This culminated into a November 2009 African proposal for an amendment to the Rome Statute to empower the UN General Assembly to act should the UNSC fail to act on a deferral request after six months. Although ICC States Parties have so far shown limited public support for the AU's proposed amendment to the deferral provision, this article examines its merits because a failure to engage the “Article 16 problem” could impact international accountability efforts in the Sudan, and further damage the ICC's credibility in Africa. This unresolved issue also has wider significance given that the matters underlying the tension ‐ how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the Council in ICC business ‐ will likely arise in future situations from around the world.
  • Topic: United Nations
  • Political Geography: Africa, Sudan
  • Author: Ifeonu Eberechi
  • Publication Date: 01-2011
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: Despite the overwhelming ratification of the statute of the International Criminal Court (ICC) by African states, recent attempts to prosecute the perpetrators of egregious crimes in the region have come under a sustained opposition from its regional body, the African Union (AU). In fact, the blunt accusation is that international criminal justice has become an instrument of colonization. Within the context of the AU's claim, this article engages the question of selective enforcement of international criminal accountability, ironically beginning with the Nuremberg trial. Without necessarily justifying the senseless perpetration of heinous crimes in Africa, this article argues that an international justice regime complex that is perceived to be skewed in favour of the West engenders a crisis of legitimacy and ultimately robs it of the much needed cooperation from the region.
  • Political Geography: Africa
  • Author: Thoko Kaime
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: This article examines the cultural-based critiques of the international human rights paradigm generally and children's rights in particular, with specific reference to Africa. In this regard, the paper attempts to identify gaps in the analyses of the African Charter on the Rights and Welfare of the Child. Towards that end, the paper proceeds in three parts. In the first section, it situates the discussion within the general framework of children's rights at international law. In the next section, it turns to an examination of the culture-based critiques of the idea of universal rights. Finally, in the fourth and fifth sections, it analyses the documents and literature that focus on the rights and welfare of the child. In the concluding section, the author raises several important questions regarding the propriety of this special category of human rights in the African context.
  • Political Geography: Africa
  • Author: Ifeonu Eberechi
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: Intrinsic in the concept of international justice for violations of international humanitarian law is the requirement of cooperation by states and, to a large extent, regional bodies with the International Criminal Court (ICC). Unlike domestic courts, the ICC is not endowed with law enforcement power nor could such power be imputed to it as part of its functions. It is against this background that the on-going crisis of corporation between the ICC and the African Union (AU) following the indictment of Sudanese President Omar al-Bashir for international crime portends a far reaching implication for the administration of international criminal accountability. As part of a broader diagnosis of the reasons for the AU's opposition, this paper, while discussing armed conflicts in Africa, which provides the fillip for gross human rights violations in the region, exposes the contributions of the West. It concludes that an effective enforcement of international justice in the region must include an inquiry into the role of international actors and Western powers in promoting and exacerbating the situation.
  • Political Geography: Africa
  • Author: Pacifique Manirakiza
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: Africa has been ravaged by armed conflicts and/or oppressive regimes for decades. During those conflicts or oppressive regimes, heinous crimes such as genocide, war crimes and crimes against humanity have been committed and made millions of victims. Among these, only a handful number saw some justice. This was possible essentially because the international community took a vigorous stance against the impunity of war criminals and genocidaires by creating international judicial mechanisms, such as the International Criminal Court (ICC), to deal with it. Also, some individual African States have prosecuted international crimes within their municipal courts as well as some western States based on the universal jurisdiction principle. This article analyses the African contribution to the building of the international criminal justice system. It also addresses the African objections against the ICC intervention in Africa and the use of the universal jurisdiction criticized as a form of imperialism and neo-colonialism disguised in a judicial form. It concludes by exploring the feasibility of an African Criminal Court.
  • Political Geography: Africa
  • Author: Yemisi Dina
  • Publication Date: 11-2009
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: Professor Henry Steiner et al in the book International Human Rights in Context: Law, Politics, Morals: Texts and Materials described the African System as the “newest, least developed or effective.....most distinctive and most controversial”. However the African Charter on Human and Peoples' Rights even though in its infancy has managed to be an effective international human rights instrument according to the findings of the study conducted by Professor Obiora Okafor in his book The African Human Rights System, Activist Forces And International Institutions. The book is a testamentary evidence of some of the achievements of this system through the African Charter on Human and Peoples' Rights. The African continent is faced with a number of regional obstacles but Okafor has contributed his well researched work to scholarship by documenting some of the critical issues in the area of international human rights which cannot be found anywhere else. The book can also serve as casebook on African.
  • Political Geography: Africa
17. Editorial
  • Author: Charles Chernor Jalloh
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: The Africa Law Institute is pleased to present this second issue of Volume 2 of the African Journal of Legal Studies (“AJLS”). This issue contains four articles that capture in their origins and breadth the aim of the AJLS, which is to serve as a leading forum for the interdisciplinary engagement of issues of human rights, governance and the rule of law in Africa.
  • Topic: Governance
  • Political Geography: Africa
  • Author: John C. Mubangizi
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: A significant gain of the new political and constitutional dispensation ushered in South Africa in 1994 was a commitment to the protection of human rights. However, protecting human rights in a country where the gap between the rich and the poor is among the largest in the world was always going to be a daunting challenge. The challenge is even more daunting with the protection of socio-economic rights such as the right of access to adequate housing. This article explores the challenges that South Africa faces in protecting human rights in the face of persistent poverty of over half of the country\'s population, vast economic disparities and gross inequality. Focusing on the right of access to adequate housing, the author explores some prospects arising from the roles played by the constitution; domestic courts; other state institutions as well as non-state actors. The article concludes that although the challenges are real, the prospects are promising. However, a lot must be done if the democratic miracle that has characterized South African society over the last fifteen years is to be maintained.
  • Topic: Human Rights
  • Political Geography: Africa
  • Author: Adewale Banjo
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: The politics of succession in post-independence West Africa has left much to be desired and, by extension, has affected the quality of democracy and human security in the sub-region. This article briefly assesses succession politics in Togo, a small West African nation of approximately 5 million people, following the death of President Gnassingbe Eyadema, one of Africa\'s longest serving dictators. The author describes the military takeover and subsequent election that legitimized the illegal take over of power by Eyadema\'s son despite sustained domestic opposition from politicians and civil society, as well as sub-regional, regional and international condemnation of a Constitutional "coup d\'etat" in Togo. The article concludes that the succession crisis in Togo is far from over, given the continuing manipulation of what the author calls the geo-ethnic divide in that country.
  • Topic: International Relations
  • Political Geography: Africa
  • Publication Date: 11-2008
  • Content Type: Journal Article
  • Journal: African Journal of Legal Studies
  • Institution: The Africa Law Institute
  • Abstract: The African Journal of Legal Studies is pleased to present the following books relating to human rights in Africa received from two major publishers:. Antje du Bois-Pedain, Transitional Amnesty in South Africa (Cambridge: Cambridge University Press, 2007) 418 pages, hardback. . Obiora Chinedu Okafor, The African Human Rights System, Activist Forces and International Institutions (Cambridge: Cambridge University Press, 2007) 350 pages, hardback . John Hagan and Wenona Rymond-Richmond, Darfur and the Crime of Genocide (Cambridge: Cambridge University Press, 2008) 296 pages, paperback.. Frans Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007) 673 pages, hardback.
  • Topic: Human Rights, International Law
  • Political Geography: Africa