Journal: African Journal of Legal Studies

1. Africa's Imperial Presidents: Immunity, Impunity and Accountability

Author:: Charles Manga Fombad and 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 and Reform
Political Geography:: Africa

2. Institutionalizing Democracy in Africa: A Comment on the African Charter on Democracy, Elections and Governance

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

3. Transfer of cases from the International Criminal Tribunal for Rwanda to Domestic Jurisdictions

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 and Rwanda

4. A Best Practice Model for the Design, Implementation and Evaluation of Social Context Training for Judicial Officers

Author:: Suki Goodman and Joha Louw-Potgieter
Publication Date:: 01-2012
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: Continual professional development for judicial officers through judicial education programmes has become a common feature in many countries throughout the world. The growing need for these kinds of programmes, specifically in transitioning democracies, is relatively well-documented. One core component of this kind of training deals with social context-related issues. Research has shown that even in societies where equality is enshrined in the constitution or mandated through legislation, unequal treatment before the law persists, hence the motivation for social context training for members of the judiciary. There is limited information in the public domain about these kinds of judicial training programmes and their effectiveness or efficiencies. This article presents a best practice model for designing, implementing and evaluating social context training for judicial officers. The aim is to provide a useful framework for programme designers for the development of future programmes of this kind.
Topic:: Government

5. Governance, Peace and Human Rights Violations in Africa: Addressing the Application of the Right to Self-Determination in Post-Independence Africa

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 and Governance
Political Geography:: Africa

6. Shielding Humanity: Essays in International Law in Honor of Judge Abdul G. Koroma

Author:: Charles C. Jalloh and Olufemi Elias
Publication Date:: 01-2012
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: We are pleased to announce a call for papers for essays in international law and policy in honor of the decades of distinguished service rendered to the international law community by H.E. Judge Abdul G. Koroma. This Festschrift, to be published by a major international law publisher (Martinus Nijhoff Brill), will mark the occasion of his retirement from the International Court of Justice (ICJ) in February 2012 after 18 years of service. It is a modest way for international lawyers to extend our collective gratitude to him for his numerous contributions to the progressive development of international law.

7. Building a South African Human Rights Culture in the Face of Cultural Diversity: Context and Conflict

Author:: John Cantius Mubangizi
Publication Date:: 01-2012
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: South Africa has faced enormous challenges since the advent of democracy in 1994. One of the difficulties in the post-apartheid era has been the building of a human rights culture in the context of substantial cultural diversity. In this paper, the constitutional, judicial and institutional contexts – which have consolidated and supported the expression of human rights in the face of cultural diversity – are reviewed. The focus on cultural rights in the constitution is discussed, and the relevance of several constitutional institutions in terms of ensuring human rights, is mentioned. With a clear understanding of the constitutional, judicial and institutional contexts in place, the paper discusses the potentially inherent conflict between human rights and cultural rights, using gender-related issues as a proxy. Several examples of this potential conflict are discussed, including female circumcision, virginity testing and polygamy. The importance of human rights education for informing the debate about cultural and human rights in South Africa is emphasized. The answers to the challenges associated with the clash between cultural rights and human rights are not simple, although pragmatically – in addition to the role of the available constitutional, judicial and institutional structures – they could reside in a cross-cultural debate.
Topic:: Human Rights
Political Geography:: South Africa

8. Post-Colonial Public Law: Are Current Legal Establishments Democratically Illegitimate?

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

9. Provisional Registration of a Retirement Fund under Scrutiny in Swaziland

Author:: Mtendeweka Mhango and P. Thejane
Publication Date:: 01-2012
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: Recently the Industrial Court of Swaziland was faced with a complaint in Mngadi v Motor Vehicle Accident Fund's Pension Fund, which raised two important issues of first impression in Swaziland retirement law. This note discusses the significance and effects of Mngadi on provisional registration of retirement funds in Swaziland. It argues that Mngadi should be welcomed because it clarifies the significance of the need for retirement funds to operate in accordance with their registered rules. The note also discusses the problems with the Registrar's power to issue a provisional certificate of registration under Section 5 in light of the problems that emerged in Mngadi. The note argues that Mngadi should be welcomed because it highlights the characteristics of a defined benefit fund, and implicitly distinguishes it from a defined contribution fund. While Mngadi should generally be welcomed, the Industrial Court should be criticised for its failure to develop the law.
Topic:: Law
Political Geography:: Swaziland

10. Electoral Conflict and Justice: The Case of Zimbabwe

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 and Zimbabwe

11. (Re)Invigorating the World Health Organization's Governance of Health Rights: Repositing an Evolving Legal Mandate, Challenges and Prospects

Author:: William Onzivu
Publication Date:: 01-2011
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: State centred discourse on international law and human rights often diminishes the obligations of global health institutions in international law to advance health related human rights and as sites for the progressive development and implementation of health rights. The constitution of the World Health Organization (WHO) provides an expansive role for human rights protection and promotion in realizing public health, but WHO has faced hurdles in effectively carrying out this role. Current scholarship continues to underscore the normative challenges facing WHO concerning its limited use of international law including human rights to promote health. This article goes a step further and explores the evolving international legal and institutional basis for WHO's future direction in strengthening the governance of human rights. It revisits WHO's evolving and expanding human rights mandate, challenges and prospects within WHO law, the broader United Nations law, policy and practice as well as general international law. Despite the limitations, WHO has evolving institutional mechanisms rooted in international law that comprise a pivotal site for human rights normative and operational work at the global, regional and domestic levels. The article examines these mechanisms and suggests concrete ways and options in which WHO can advance health rights.
Topic:: Human Rights, International Law, United Nations, and World Trade Organization

12. From Sympathy to Reparation for Female Victims of Sexual Violence in Armed Conflicts

Author:: Chile Eboe-Osuji
Publication Date:: 01-2011
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: There is a newfound momentum in international law for reparation for the victims of gross violations of human rights. This momentum has been largely hortative in resonance than actual. The slow progress in translating that desire into tangible, effective reparation programmes is partly attributable to the absence of coherent theoretical bases – especially palatable ones – for reparation in particular cases. It is submitted, however, that in canvassing the theories of reparation, the driving consideration must always remain the interests of victims and not the intellectual satisfaction of knowledgeable and well-meaning experts. The most erudite rationalization of the idea of reparation will be of no consequence if it does not, in practice, assist in improving the lives of the victims. While, it is important always to keep in view the fault-based theories of reparation, it is also advisable to consider the utility of employing the no-fault-based rationale for achieving the aim of reparation when the party at fault is either unavailable or unable to make reparation at all or in full. Hence, guidance might be had to the gratis model of reparation employed in many domestic jurisdictions to make some compensation to victims of violent crimes.
Topic:: Human Rights and International Law

13. Muslim Family Law in Sub-Saharan Africa: Colonial Legacies and Post-colonial Challenges

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 and Law
Political Geography:: Africa

14. Amending the Constitution of the Federal Republic of Nigeria 1999

Author:: Nat Ofo
Publication Date:: 01-2011
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: The amendment of the Constitution of the Federal Republic of Nigeria 1999 has not been free of controversies. The latest controversy dogging the amendment relates to whether or not it is necessary for the President to assent to the Bill of the National Assembly amending the Constitution, even after the amendment has been ratified by at least two-thirds of the Houses of Assembly of the States of the Federation. There are two schools of thought on this issue; each with sound arguments in support of their respective position. A dispassionate and realistic consideration of the issue has been undertaken in this article. The conclusion is reached that the provision of the constitution dealing with its amendment is not free from ambiguity. Its lack of clarity on its amendment procedure has made it obviously in dire need of amendment. Consequently, necessary suggestions on how to resolve the issues, including the amendment of the amendment-provision of the constitution have been proffered.
Political Geography:: Nigeria

15. Minorities in Postcolonial Transitions: The Ndebele in Zimbabwe

Author:: Khanyisela Moyo
Publication Date:: 01-2011
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: This article argues that there is a legal and political basis for attending to concerns of ethnic minorities in postcolonial transitions. If left unattended, this issue may prompt members of minority groups to resort to preservative measures, including violence to the detriment of the security which is a fundamental objective of the transition. This reaction is often generated by an axiomatic fear of assimilation. The case of the Ndebele of Zimbabwe illustrates this. The article's position is confirmed by post-colonial state practice that implements minority rights and accords affected groups a right to self-determination or autonomy in tandem with liberal democratic reforms.
Topic:: Security and Reform
Political Geography:: Zimbabwe

16. Corruption and the Rule of Law in Sub-Saharan 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, and Law
Political Geography:: Africa

17. Preventing and Responding to Atrocity Crimes in Africa: Interrogating the African Response in Darfur

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 and Sudan

18. Publisher's Note

Publication Date:: 01-2011
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: We are pleased to announce that as of Volume 4, Issue 1, 2011, the African Journal of Legal Studies (AJLS), will be published by Martinus Nijhoff. AJLS, a peer-reviewed and interdisciplinary journal, began in 2004 as an online publication under the auspices of The Africa Law Institute, and the editorship of its president, Charles Jalloh. the six issues which comprise the back volumes of the Journal, (Vols. 1-3) are now available online and free of charge at: brill.nl/ajls. Subscribers wishing to receive these issue in print should contact the Publisher; a fee will be charged for this service. AJLS accepts online submission only, using Editorial Manager (EM), an online submission and peer review tracking system which is currently used worldwide by over 3000 journals. Editorial Manger allows authors to track the progress of their submission online. Via the EM website for the Journal, authors are guided step-by-step through the submission process. The system automatically converts all source files of the article to a single pdf that is then used in the peer-review process. All correspondence between editors, authors and reviewers proceeds via e-mail. We are confident that this will greatly facilitate the process of submission, peer review and final publication and kindly invite you to register online at: editorialmanager.com/ajls.
Topic:: Law

19. 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

20. Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court

Author:: Dapo Akande, Charles C. Jalloh, and 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 and Sudan

21. "Rounding Up the Usual Suspects": Exclusion, Selectivity, and Impunity in the Enforcement of International Criminal Justice and the African Union's Emerging Resistance

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

22. Domestic Adjudication of Sexual and Gender-based Violence in Armed Conflict: Considerations for Prosecutors and Judges

Author:: Evelyn W. Kamau
Publication Date:: 01-2011
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: The increased domestication of international core crimes like genocide, crimes against humanity and war crimes has placed national prosecutors and judges on unfamiliar ground. Specifically, though very welcome, the recognition of acts of sexual and gender-based violence (SGBV) as constituting core international crimes poses a further challenge. The circumstances surrounding the commission of SGBV as international core crimes, coupled with their unique elements and manner of proof, makes their domestic prosecution seem that much more difficult. An understanding of how acts of SGBV constitute international core crimes, their constituent elements and the manner of proving them, coupled with how to treat victims and witnesses of SGBV, goes a long way in easing the perceived challenge of domestically prosecuting them. This article is geared towards achieving that and is directed at people who are involved in or are considering carrying out domestic prosecutions and adjudications of SGBV as international core crimes.
Topic:: War

23. Contents

Publication Date:: 11-2009
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: No abstract is available.

24. Evidence in International Criminal Trials: Lessons and Contributions from the Special Court for Sierra Leone

Author:: Patrick Matthew Hassan-Morlai
Publication Date:: 11-2009
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: This article aims to contribute to the discourse on the development of a system of international criminal justice. The paper discusses the Special Court for Sierra Leone (SCSL), in particular, certain of its rules of evidence and their role in ensuring just, fair and expeditious trials for breaches of international humanitarian and international human rights law during the Sierra Leone conflict which lasted between 1991 and 2002. In the conclusion, the author considers whether the manner in which the SCSL interpreted and applied specific rules of evidence helped it to meet and contribute to the objectives of a system of international criminal justice. These objectives include holding violators of international norms accountable; guaranteeing procedural proprietary; giving legitimacy to the process and bestowing confidence in international criminal justice institutions. Though not without criticism, the author concludes that they did.
Political Geography:: Sierra Leone

25. Violence in Kenya: Any Role for the ICC in the Quest for Accountability?

Author:: Mba Chidi Nmaju
Publication Date:: 11-2009
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: This article examines the violence that broke out in Kenya after the 2007 presidential elections. After weeks of fighting and the establishment of a coalition government made up of the incumbent president and the leader of the opposition, relative calm returned to the country. However, the government has been slow to implement the recommendations of the Commission of Inquiry into Post Election Violence (Waki Commission). One key suggestion the Waki Commission made was to call upon the Kenyan government to establish an independent Special Tribunal made up of domestic and international jurists to prosecute those responsible for the crimes committed during the violence. At the time of writing, the ICC Pre-Trial Chamber II had been assigned the matter to determine whether the Office of the Prosecutor could initiate investigations. This article argues that the crimes committed in Kenya during the post election violence do not meet the ICC threshold on jurisdiction and gravity, and do not have the essential legal attributes of genocide and crimes against humanity. However, the manner in which the ICC handles this situation has the potential to influence the way future crimes are tried; thus the ICC must ensure that impunity does not prevail over accountability.
Political Geography:: Kenya

26. The Foundations of Rights in the African Charter on the Rights and Welfare of the Child: A Historical and Philosophical Account

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

27. Armed Conflicts in Africa and Western Complicity: A Disincentive for African Union's Cooperation with the ICC

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

28. The Emerging Role of the Constitutional Value of Ubuntu for Informal Social Security in South Africa

Author:: Clarence I. Tshoose
Publication Date:: 11-2009
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: This paper explores the significance of the African value of ubuntu within the context of social protection. The paper argues that ubuntu as a constitutional value plays a crucial role in supporting the existence of informal social security in South Africa. It concludes by reflecting the overarching potential that the traditional African value has for influencing the social protection and enhancing family solidarity in the South African context.
Political Geography:: South Africa

29. L'Afrique et le système de justice pénale internationale

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

30. The Human Rights System, Activist Forces, and International Institutions

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

31. 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

32. Land Policy Reform, Customary Rule of Law and the Peace Process in Sierra Leone

Author:: Jon Unruh
Publication Date:: 11-2008
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: Armed conflict is particularly destructive to socio-legal relations regarding land and property. Reconstruction priorities increasingly include the reform of property legislation as part of efforts to address the causes and reasons for continuation of conflicts. However, a pervasive problem is that postwar laws are extremely difficult to connect with informal on-the-ground developments regarding perceptions of spatially-based rights as populations pursue livelihoods, grievances and aspirations. Left unattended, the problem constitutes a potential flashpoint for a return to conflict. This article examines this connection for postwar Sierra Leone, in order to highlight issues and questions of potential utility. The stakes are high for successfully connecting postwar land tenure laws with informal socio-legal realities. For Sierra Leone, a primary issue is the presence of a large population without access to land, tenure insecurity discouraging investment, large-scale food insecurity and rural unemployment while significant swathes of arable and previously cultivated land stands idle.
Topic:: Development

33. Crimes Against Humanity: Directing Attacks Against A Civilian Population

Author:: Chile Eboe-Osuji
Publication Date:: 11-2008
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: In international criminal law, to sustain a charge of crimes against humanity, the Prosecution must prove, among other elements, that the perpetrator was involved in an attack directed against a civilian population. In Prosecutor v Fofana and Kondewa, the Special Court for Sierra Leone found that the Prosecution failed to prove, beyond a reasonable doubt, that the civilian population was the 'primary object' of the attack and acquitted the accused on the counts of murder and other inhumane acts as crimes against humanity. The Appeals Chamber accepted this view. However, it reversed Trial Chamber I on the ground that the Prosecution evidence did establish that the civilian population had been the primary, as opposed to incidental, target of the attack. The author suggests that this is an error resulting from the undue jurisprudential pre-occupation with the meaning of 'primary' in relation to the notion of attack against a civilian population. Instead, the inquiry should focus on whether the civilian population was 'intentionally' targeted in the attack, notwithstanding that it may not have been the primary object of the attack. He submits that this approach would be consistent with the classic theory of mens rea in criminal law.
Topic:: Population

34. Protecting Human Rights Amidst Poverty and Inequality: The South African Post-Apartheid Experience on the Right of Access to Housing

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

35. Constitutional and Succession Crisis in West Africa: The Case of Togo

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

36. Legal texts of the international criminal tribunal for rwanda: Statute of the International Criminal Tribunal for Rwanda

Publication Date:: 11-2008
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: The Security Council, Reaffirming all its previous resolutions on the situation in Rwanda, Having considered the reports of the Secretary-General pursuant to paragraph 3 of resolution 935 (1994) 1 July 1994 (S/1994/879 and S/1994/906), and having taken note of the reports of the Special Rapporteur for Rwanda of the United Nations Commission on Human Rights (S/1994/1157, annex I and annex II).
Topic:: Human Rights
Political Geography:: United Nations

37. Legal texts of the international criminal tribunal for rwanda:: Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda

Publication Date:: 11-2008
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: (A) In the Rules, unless the context otherwise requires, the following terms shall mean: Rules: The Rules referred to in Rule 1; Statute: The Statute of the Tribunal adopted by Security Council Resolution 955 of 8 November 1994; Tribunal: The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for Genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, established by Security Council resolution 955 of 8 November 1994; Accused: A person against whom one or more counts in an indictment have been confirmed in accordance with Rule 47;
Topic:: Human Welfare

38. List of Books Available for Review

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 and International Law
Political Geography:: Africa

39. The Constitutional Protection of Socio-Economic Rights in Selected African Countries: A Comparative Evaluation

Author:: John Cantius Mubangizi
Publication Date:: 03-2006
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: This article evaluates the extent to which a few selected African countries have incorporated socio-economic rights in their constitutions, the mechanisms through which such rights are realised, the challenges such realisation entails and the approach taken by the courts and other human rights institutions in those countries towards the realisation and enforcement of those rights. The survey examines South Africa, Namibia, Uganda and Ghana. Apart from the logical geographical spread, all these countries enacted their present constitutions around the same time (1990 to 1996) in an attempt to transform themselves into democratic societies. In a sense, these countries can be seen as transitional societies, emerging as they have done, from long periods of apartheid and foreign domination or autocratic dictatorships. The latter is true for Uganda and Ghana while the former refers to South Africa and Namibia. The article concludes that South Africa has not only made the most advanced constitutional provision for socio-economic rights, it has also taken the lead in the judicial enforcement of such rights, an experience from which the other countries in the survey can learn.
Topic:: Development, Government, and International Law
Political Geography:: Africa

40. Genomics, Insurance and Human Rights: Is there a Place for Regulatory Frameworks in Africa?

Author:: Vincent O. Nmehielle
Publication Date:: 03-2006
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: This article examines the human rights dimension of genetic discrimination in Africa, exploring the place of regulatory frameworks while taking into account the disadvantaged position of the average African. This is in response to the tendency of insurance companies toward making health insurance decisions on the basis of individual genetic information, which could result in genetic discrimination or health insurance discrimination based on a person’s genetic profile. The author considers such questions as the intersection between human rights (right to life, health, privacy, human dignity and against genetic discrimination) in relation to the insurance industry, as well as the obligations of state and non-state actors to promote, respect, and protect the enjoyment of these rights. The article argues that African nations should not stand aloof in trying to balance the competing interests (scientific, economic and social) presented by the use of genetic information in the health care context and that ultimately it is the responsibility of states to develop domestic policies to protect their most vulnerable citizens and to prevent entrenched private discrimination based on an individual’s genes.
Topic:: Development, Government, Human Rights, and International Law
Political Geography:: Africa

41. Rules of Procedure and Evidence of the Special Court for Sierra Leone

Publication Date:: 03-2006
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: These Rules of Procedure and Evidence as first amended on 7 March 2003, are applicable pursuant to Article 14 of the Statute of the Special Court for Sierra Leone, and entered into force on 12 April 2002.
Topic:: Development, Government, and International Law
Political Geography:: Africa

42. Editorial

Publication Date:: 03-2005
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: The Africa Law Institute is pleased to announce the publication of its second issue of the African Journal of Legal Studies (“AJLS”). While delayed, we hope that the improvements made since launching our first issue last year will have made the wait worthwhile.
Political Geography:: Africa

43. Ending Impunity: The Case for War Crimes Trials in Liberia

Author:: Chernor Jalloh and Alhagi Marong
Publication Date:: 03-2005
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: This article argues that Liberia owes a duty under both international humanitarian and human rights law to investigate and prosecute the heinous crimes, including torture, rape and extra-judicial killings of innocent civilians, committed in that country by the warring parties in the course of fourteen years of brutal conflict. Assuming that Liberia owes a duty to punish the grave crimes committed on its territory, the article then evaluates the options for prosecution, starting with the possible use of Liberian courts. The authors argue that Liberian courts are unable, even if willing, to render credible justice that protects the due process rights of the accused given the collapse of legal institutions and the paucity of financial, human and material resources in post-conflict Liberia. The authors then examine the possibility of using international accountability mechanisms, including the International Criminal Court, an ad hoc international criminal tribunal as well as a hybrid court for Liberia. For various legal and political reasons, the authors conclude that all of these options are not viable. As an alternative, they suggest that because the Special Court for Sierra Leone has already started the accountability process for Liberia with the indictment of Charles Taylor in 2003, and given the close links between the Liberian and Sierra Leonean conflicts, the Special Court would be a more appropriate forum for international prosecutions of those who perpetrated gross humanitarian and human rights law violations in Liberia.

44. United Nations Resolutions and the Struggle to Curb the Illicit Trade in Conflict Diamonds in Sub-Saharan Africa

Author:: Mungabalemwa Koyame
Publication Date:: 03-2005
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: This article examines the extent to which revenues from the trade in rough diamonds have funded civil war in African countries and the difficulties encountered by the United Nations in putting an end to it. As case studies, the article considers the conflicts in Angola, the Democratic Republic of the Congo and Sierra Leone where the illicit trade in rough diamonds, also referred to as "conflict diamonds" or "blood diamonds," provided most of the funds used by rebel groups in their war efforts. The article further examines the role played by the diamond industry, the international community and diamond importing countries such as the United States and Belgium in the trade of conflict diamonds. The article concludes that several resolutions passed by the United Nations Security Council concerning "conflict diamonds" were at times not successful because of indifference on the part of the international community.
Topic:: United Nations
Political Geography:: Africa and United States

45. L'Envers et L'Endroit de L'Interprétation Islamiste du Concept de Jihad en Droit Islamique

Author:: Bruce Mabley
Publication Date:: 03-2005
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: The concept of jihad plays a key role in Islamic Law at the same level as several other juridical notions. Although jihad has not been considered to form one of the official legal sources of Islamic Law (usul al-fiqh), it has taken on a modern conceptual interest. The history and evolution of jihad will be irrevocably altered by the existence of an epistemological break occurring in the early 9th century. The closing of the gate of ijtihad (independent legal reasoning) has a two fold impact on the changing juridical context as well as the geopolitical distribution of Islamist thinking in Africa and elsewhere. For Islamist scholars and political activists, jihad becomes a means, a testimony to Islam's pertinence and a desirable end. For example, the rising interest in the Islamic legal code (shari'a) and its political state aspirations is seen to be facilitated by calls for jihad. Lastly, three examples of modern jihad are considered and evaluated in light of Islamic legal precepts and of the controversy surrounding the closing of the gate of ijtihad.

46. The African Commission on Human and Peoples' Rights and the Demystification of Second and Third Generation Rights under the African Charter

Author:: Justice C. Nwobike
Publication Date:: 03-2005
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: This article argues that the decision of the African Commission on Human and Peoples' Rights in the Ogoni case represents a giant stride towards the protection and promotion of economic, social and cultural rights of Africans. This is predicated on the African Commission's finding that the Nigerian Government's failure to protect the Ogoni people from the activities of oil companies operating in the Niger Delta is contrary to international human rights law and is in fact a step backwards since Nigeria had earlier adopted legislation to fulfill its obligation towards the progressive realization of these rights. The findings of the African Commission demonstrate that economic, social and cultural rights are not vague or incapable of judicial enforcement. They also illustrate how the Charter can be interpreted generously to ensure the effective enjoyment of rights. Novel and commendable as the decision is, it is not without its shortcomings. These shortcomings lie in the failure of the Commission to pronounce on the right to development, its silence on the desirability of holding transnational corporations accountable for human rights violations, and the institutional weakness of the Commission in enforcing its decisions.
Political Geography:: Africa

47. Foreword

Author:: Chernor Jalloh
Publication Date:: 03-2004
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: On behalf of the entire Editorial Board, I am pleased to present the inaugural issue of the African Journal of Legal Studies (‘AJLS’) on the theme of Justice and Reconciliation. It is dedicated to the memory of all those who were killed in the genocide in Rwanda in 1994.
Political Geography:: Africa

48. Violence, Amnesty and Transitional Law: "Private" Acts and "Public" Truth in South Africa

Author:: Rosemary Nagy
Publication Date:: 03-2004
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: Whereas amnesty is generally associated with impunity and denial, in South Africa, amnesty was pulled into the reach of justice and reconciliation. This article assesses the extent to which South Africa's amnesty fulfilled these normative goals. It centers on the difficulty of differentiating between “private” acts and “political” crimes deserving of amnesty. It argues that the determination of political crimes obfuscated the full extent of apartheid violence and responsibility for it. Consequently, the amnesty process produced a truncated “truth” about apartheid violence that was insufficient to the task of overcoming the past. This is in part an intractable problem embedded in the conflicting tasks of transitional law. The lesson of hope that South Africa offers to other transitional nations is that amnesty should be wound into the promises of democracy without creating false expectations of reconciliation or simplistic truths about the past.
Political Geography:: South Africa

49. Reconciliation in Post-Genocide Rwanda

Author:: Eugenia Zorbas
Publication Date:: 03-2004
Content Type:: Journal Article
Journal:: African Journal of Legal Studies
Institution:: The Africa Law Institute
Abstract:: National reconciliation is a vague and 'messy' process. In post-genocide Rwanda, it presents special difficulties that stem from the particular nature of the Rwandan crisis and the popular participation that characterized the Rwandan atrocities. This article outlines the main approaches being used in Rwanda to achieve reconciliation, highlighting some of the major obstacles faced by these institutions. It then goes on to argue that certain 'Silences' are being imposed on the reconciliation process, including the failure to prosecute alleged RPA crimes, the lack of debate on, and the instrumentalization of, Rwanda's 'histories', the collective stigmatization of all Hutu as génocidaires, and the papering over of societal cleavages through the 'outlawing' of 'divisionism'. The role economic development can play in the reconciliation process is also discussed. Given the Government of Rwanda's central role in the reconciliation process and its progressive drift towards authoritarianism, the article ends with a reflection on the worrisome parallels between the pre and post-genocide socio-political contexts.

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COLUMBIA UNIVERSITY PRESS