Horizontal accountability: Bottom-up oversight of public duty bearers in Malawi

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

Horizontal accountability: Bottom-up oversight of public duty bearers in Malawi

Authors: Dan Kuwali and Chikosa M Silungwe

ISSN: 2521-2605
Affiliations: Dan Kuwali holds an LLD (Lund). He is an Extraordinary Professor of Law at the University of Pretoria, South Africa; Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Sweden; Adjunct Professor and Executive Director, Centre for Strategic Studies, Malawi University of Science and Technology; Fellow at the Carr Centre for Human Rights Policy, Harvard Kennedy School; and Chief of Legal Services and Judge Advocate General, Malawi Defence Force; Chikosa Silungwe holds a PhD (Warwick). He is a Former Attorney General, Government of the Republic of Malawi and a consultant at the Mizumali Foundation, Lilongwe, Malawi
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 1 – 23
https://doi.org/10.47348/JCLA/v9/i1a1

Abstract

The principle of public duty requires that public authorities should be held accountable for their acts, omissions, decisions, policies and use of public resources. Focusing on Malawi as a country whose democracy has been tried and tested, this paper locates and dissects the notion of public duty in s 12 of the Constitution of Malawi as an instrument for horizontal accountability that can be employed by the citizenry, based on ss 15 and 41 of the Constitution, for more effective and proactive oversight, as opposed to an ex post facto mechanism exercised by the Ombudsman in terms of s 123 of the Constitution. The central argument of this paper is that those who exercise a public duty do so based on people’s sovereignty and they have an obligation to account to the people for the exercise of State authority. The paper concludes that public duty is a corollary of democratic accountability, and both derive from the protection of individual rights and the rule of law.

The Constitutional Court of Uganda: Blurring/misunderstanding its jurisdiction

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

The Constitutional Court of Uganda: Blurring/misunderstanding its jurisdiction

Author: Jamil Ddamulira Mujuzi

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape, South Africa
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 24 – 66
https://doi.org/10.47348/JCLA/v9/i1a2

Abstract

Article 137 of the Constitution of Uganda (the Constitution) provides for the jurisdiction of the Constitutional Court (the Court) to interpret the Constitution and to determine whether any law or conduct—act or omission—is contrary to the Constitution. The drafting history of art 137 shows that the court’s jurisdiction to interpret the Constitution is different from that of declaring whether any law or conduct is inconsistent with the Constitution. However, the jurisprudence of the Court shows that it has blurred the distinction between these two mandates. In this article, the author relies on the drafting history of art 137 to argue, inter alia, that the Court’s approach in this regard is debatable. It is also argued that, although the intention of the drafters of the Constitution was that the Court was not to be the first and final court in matters of constitutional interpretation, the literal interpretation of art 137 and the jurisprudence on art 137 show the opposite. It is further argued that in some instances the Court has misunderstood its jurisdiction under art 137(5) and (6) and that the Court does not have the power to declare legislation unconstitutional under art 137(5). It is also submitted that the Court’s argument that its jurisdiction is limited to interpreting the Constitution or that any petition before it cannot be resolved without first interpreting the Constitution is erroneous. It is further argued that Uganda may have to follow the South African model in which other courts, such as the High Court and the Supreme Court of Appeal, are also empowered to declare legislation unconstitutional.

Recusal of a judge in adjudication: Recent developments in South Africa and Botswana

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

Recusal of a judge in adjudication: Recent developments in South Africa and Botswana

Authors: Chuks Okpaluba and Tumo C Maloka

ISSN: 2521-2605
Affiliations: LLB LLM (London) PhD (University of the West Indies); Research Fellow, Centre for Human Rights, University of the Free State, South Africa; BA LLB LLM (UCT) LLD (UFH), Associate Professor, Department of Mercantile and Labour Law, University of Limpopo
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 67 – 93
https://doi.org/10.47348/JCLA/v9/i1a3

Abstract

Both at common law and under contemporary constitutional jurisprudence, the principle is that a judge who finds himself or herself in a situation where their personal interest(s) in the case in court will lead a dispassionate and independent observer to reasonably suspect that they will be biased or reasonably apprehended to be so, must not sit and hear the case. Even before the commencement of the hearing, the judge is expected to disclose their interest(s) in the case or association with one of the parties to both sides in the case so as to hear their views on the matter. Otherwise, a party who might be prejudiced by the outcome should, as early as possible in the proceedings, apply to the judge to recuse himself or herself from adjudicating the case. Sometimes, the judge might have entered the adjudication without any personal baggage, but one of the parties apprehends bias on account of the utterances or conduct of the judge in the proceedings, and the party affected must apply for the recusal of the judge from the trial or proceedings. Recent developments have shown that the circumstances in which recusal is permissible are far from being exhausted, hence the category of possible recusal cases is not closed. The cases that have arisen in the last ten years in Botswana and South Africa are very extensive in terms of volume and the variety of the issues that they raise and therefore they provide the material around which this article is constructed.

Discretion in the exercise of jurisdiction in conflict cases in Nigeria

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

Discretion in the exercise of jurisdiction in conflict cases in Nigeria

Authors: Chilenye Nwapi, Emeka J Egbebu and Thankgod Akazua

ISSN: 2521-2605
Affiliations: Research Associate, Canadian Institute of Resources Law, University of Calgary, Calgary, Canada; Senior Magistrate, Imo State Judiciary, Owerri, Nigeria; 4th Year Law Student, Rivers State University, Port Harcourt, Nigeria
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 94 – 129
https://doi.org/10.47348/JCLA/v9/i1a4

Abstract

This article analyses the jurisprudence of discretionary jurisdiction in conflicts cases in Nigeria to interrogate the considerations of theory and practical policy (or lack thereof) that, in the authors’ view, have influenced the development of the relevant law and procedure. The analysis includes an assessment of whether too much or too little weight has been given to some theories or policies. The article discusses discretionary jurisdiction in three main situations: (1) where the defendant is outside the jurisdiction of the forum court and, therefore, must be served ex juris; (2) when the court is invited to decline jurisdiction based on the doctrine of forum non conveniens; and (3) when there are parallel proceedings in a foreign jurisdiction. A key finding is that discretionary jurisdiction in Nigeria is highly under-theorised in the jurisprudence. Nigerian intellectuals have, for their part, not given the subject adequate consideration. There is, therefore, a dearth of literature to draw on. The article sifts through the rules of court and court decisions to discover the theoretical and practical considerations for the courts’ exercise of discretionary jurisdiction in the three situations mentioned.

Le mensonge dans le procès pénal : Analyse a partir du droit Camerounais

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

Le mensonge dans le procès pénal : Analyse a partir du droit Camerounais

Author: Tchabo Sontang Hervé Martial

ISSN: 2521-2605
Affiliations: Docteur/Ph.D en Droit, Maître-Assistant (CAMES), Département de Droit des Affaires et de l’Entreprise, FSJP, Université de Dschang, Membre de l’Unité de Recherche en Droit, Institutions et Intégration Communautaire (URDIIC)
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 130 – 161
https://doi.org/10.47348/JCLA/v9/i1a5

Abstract

In criminal proceedings, everyone claims to hold the truth, yet at times untruths or lies seem blithey to triumph. Untruths are therefore a living aspect of criminal proceedings and one can observe that, even if they are contrary to the objective pursued by criminal proceedings, they may yet articulate harmoniously with certain essential principles which govern and guide their unfolding.

Territorial jurisdiction of the National Industrial Court of Nigeria (NICN) and the requirement of endorsing originating processes under the Sheriffs and Civil Process Act (SCPA) determined

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

Territorial jurisdiction of the National Industrial Court of Nigeria (NICN) and the requirement of endorsing originating processes under the Sheriffs and Civil Process Act (SCPA) determined

Authors: David Tarh-Akong Eyongndi and Stephen Idowu Ilesanmi

ISSN: 2521-2605
Affiliations: LLB (Hons) UNICAL LLM (Ibadan) BL; Lecturer, College of Law, Bowen University, Iwo, Osun State, Nigeria; LLB (Hons) LLM (OAU) BL; Lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Ibadan
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 162 – 178
https://doi.org/10.47348/JCLA/v9/i1a6

Abstract

When a case is filed at the National Industrial Court of Nigeria (NICN), apart from its Civil Procedure Rules, the service of originating processes in Nigeria is regulated by the Sheriffs and Civil Process Act (SCPA), just as in all other courts under the 1999 Constitution of the Federal Republic of Nigeria (1999 CFRN). The SCPA requires that, when an originating process is issued in one State but is to be served in another, there must be an endorsement on the process disclosing this fact, or else the service shall be rendered void. Is this requirement of the SCPA applicable to the NICN, and what effect does it have on its efficiency, given that the NICN is a specialised court dealing with matters requiring expeditious settlement, free of technicalities? This article, using doctrinal methodology, will catechise the territorial jurisdiction of the NICN vis-à-vis the SCPA on endorsement of originating processes by appraising the Court of Appeal’s decision in Johnson v Eze where it held that the provisions of ss 97, 98 and 99 of the SCPA are inapplicable to the NICN because of s 2 of the SCPA, s 21(1) andd(2) of the National Industrial Court Act, 2006 and Order 7, Rule 15(1) and (2) of the NICN Rules, 2017. The effect of the judgment on the jurisdiction and mandate of the NICN under extant laws is also discussed. The authors argue that making the court amenable to the provisions of the SCPA will usher in technicalities that can frustrate the mandate of the NICN. Thus, the decision is a welcome development, which should not be overturned in subsequent decisions.