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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: Suki Goodman, 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
  • 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: Charles C. Jalloh, 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.
  • 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
  • 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: Mtendeweka Mhango, 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
  • 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