Comparative Exposition of Judicial Interventionism in the Enforcement of the Healthcare Right in Nigeria and India

by | Jun 3, 2021 | CILSA, CILSA V53 I1 2020

Comparative Exposition of Judicial Interventionism in the Enforcement of the Healthcare Right in Nigeria and India

Authors Ibrahim Imam & Wahab Egbewole

ISSN: 2522-3062
Affiliations: Associate Professor, University of Ilorin, Faculty of Law, Department of Public Law, Nigeria; Professor, University of Ilorin, Faculty of Law, Department of Jurisprudence and International Law, Nigeria
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 1, p. 116 – 151

Abstract

The significance of health to national life has made successive governments in Nigeria and India design certain fundamental policies to regulate, control and guide healthcare service delivery. Since the incorporation of fundamental human rights into the two countries’ constitutions, the healthcare right has appeared as one of the fundamental objectives and directive principles of state policy. This requires governments to put in place policies geared towards implementing these obligations. However, regarding economic and social rights, the Nigerian judiciary has generally played a restrictive or a rather passive role in their enforcement. In contrast, Indian courts have employed a much more pragmatic approach to implementing economic and social rights. The problem with these rights is that judicial intervention resulting from a violation of the healthcare right remains a challenge because section 6(6)(c) and article 35 of the Nigerian and Indian constitutions, respectively, make economic and social rights non-justiciable. The article makes a comparative analysis of the practice in Indian and other jurisdictions in order to justify the possibility of embracing the enforceability of the rights, having regard to the link between economic and social rights and civil and political rights in Nigeria. By drawing on judicial synergy, this article suggests a legislative intercession to bring health rights within the enforceable rights by taking advantage of section 13 and item 60 of the Nigerian Exclusive Legislative List. In addition, the author recommends that the relevant international conventions signed by the country should be domesticated.

Journal Note: Third-party State Intervention in Disputes Before the International Court of Justice: A Reassessment of Articles 62 and 63 of the ICJ Statute

by | Jun 3, 2021 | CILSA, CILSA V53 I1 2020

Journal Note: Third-party State Intervention in Disputes Before the International Court of Justice: A Reassessment of Articles 62 and 63 of the ICJ Statute

Author George N Barrie

ISSN: 2522-3062
Affiliations: Professor, University of Johannesburg
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 1, p. 152 – 171

Abstract

In the modern world, disputes before the International Court of Justice (ICJ) which are normally of a bilateral nature, increasingly also affect the interests of third states. Third states may in many instances wish to intervene in such disputes. Articles 62 and 63 of the Statute of the ICJ has attempted to accommodate such an eventuality. Article 62 provides for intervention by a third state if it has an interest of a legal nature which may be affected by the ICJ’s decision in the case. Article 63 allows for member states of a multilateral treaty to intervene in cases involving the interpretation of such a treaty. Intervention under Article 62 is in the discretion of the ICJ. Intervention under Article 63 is a right. Applications to intervene under Article 62 have only been successful in three instances and, applications to intervene under Article 63 have only been successful in two instances. It is submitted that the ICJ should be more flexible in allowing third-party interventions by interpreting Articles 62 and 63 less strictly. This is more in accordance with the greater interdependence of states in the modern world and can prevent the duplication of proceedings. Such flexibility can only enhance the effectiveness of the ICJ in achieving its mandate.

Mediation Legislation around the World—A Variety of Options for South Africa

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

Mediation Legislation around the World—A Variety of Options for South Africa

Author Madelene de Jong

ISSN: 2522-3062
Affiliations: BLC (University of Pretoria); LLB (University of Pretoria); LLD (University of South Africa). Professor of Law, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 279 – 318

Abstract

Mediation has gained traction across the globe on account of its strengths. At present, it has widespread application in a range of civil disputes in areas that include the family, children, labour, medical malpractice, bioethics, environmental issues, the community and education, and even criminal matters. As a result, various jurisdictions have opted to regulate mediation, at first mostly through softer forms of regulation, but more recently increasingly through extensive legislation. However, the question is whether an informal process like mediation needs to be formally regulated, and if so, how it could be regulated. Although regulation is often associated with legislation, there are in fact four different regulatory approaches, namely market-contract regulation, self-regulation, the formal-regulatory approach, and the formal legislative approach. There are also different aspects of mediation that require regulation. In this regard, reference is made to triggering laws, procedural laws, standard-setting laws and beneficial laws. With regard to the scope of mediation legislation, a further distinction is made between general mediation legislation, sector-specific mediation legislation and context-integrated mediation legislation. Against this background, the regulation of mediation in general and family mediation in particular in four foreign jurisdictions—namely Ghana as an African jurisdiction, Singapore as an Asian jurisdiction, Austria as a European-Continental jurisdiction and Australia as an Anglo-American jurisdiction—is discussed. The experiences of these jurisdictions offer useful examples for the further development of mediation regulation in South Africa. The article therefore also provides a brief overview of the current state of mediation regulation in South Africa and concludes by highlighting the valuable lessons that can be learnt from the foreign jurisdictions examined. It is abundantly clear that South Africa needs extensive mediation legislation to give mediation the formal recognition it deserves, while simultaneously maximising the benefits of mediation, minimising its potential harms and protecting the mediator, the parties and outside parties.

Natural Person Debt Relief Reforms in Nigeria—A Comparison with South Africa

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

Natural Person Debt Relief Reforms in Nigeria—A Comparison with South Africa

Authors Tobi Osunlaja, Hermie Coetzee & Melanie Roestoff

ISSN: 2522-3062
Affiliations: LLB (Olabisi Onabanjo University), LLM (University of Pretoria), LLD candidate, Department of Mercantile Law, University of Pretoria; BCom Law (University of Pretoria), LLB (University of Pretoria), LLM (University of Pretoria), LLD (University of Pretoria), Associate Professor, Department of Mercantile Law, University of Pretoria; BLC (University of Pretoria), LLB (University of Pretoria), LLM (University of Pretoria), LLD (University of Pretoria), Professor and Acting HoD, Department of Mercantile Law, University of Pretoria.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 319 – 351

Abstract

The purpose of this article is to compare the proposed natural person debt relief procedures in Nigeria with South Africa’s existing and proposed measures. It is the first time that the proposed Nigerian system is analysed. The comparison is made in order to determine whether Nigeria can learn from South Africa’s experience regarding natural person insolvency law. South Africa is chosen as a comparative jurisdiction because it has a wealth of documented experience relating to insolvency law. Furthermore, Nigeria and South Africa boast the two largest economies on the African continent and consequently share economic and developmental challenges. These challenges are intrinsically linked to natural person insolvency law, since they determine the context in which an insolvency law system must be developed and within which it must function. As a subtext, the research considers whether Nigeria complies with some of the more pertinent international principles and guidelines regarding natural person debt relief. To achieve this objective, the Nigerian system is measured against the yardstick of the World Bank Report on the Treatment of the Insolvency of Natural Persons. Two key foundations of effective and efficient natural person insolvency systems highlighted by the World Bank’s report relate to (a) access to insolvency systems and (b) the eventual discharge of debts that such systems should result in. The research concludes that the Nigerian natural person insolvency law reforms do not meet the required international standards in these respects and that the jurisdiction may learn from South Africa’s successes and failures within the field, particularly from the circumstances leading up to and its recent proposals for reform.

The Realisation of Children’s Survival Rights in South Africa, Kenya and the Democratic Republic of the Congo: A Comparative

by | Jun 2, 2021 | CILSA, CILSA V52 I3 2019

The Realisation of Children’s Survival Rights in South Africa, Kenya and the Democratic Republic of the Congo: A Comparative

Authors Mafuku Tholaine Matadi & Desan Iyer

ISSN: 2522-3062
Affiliations: LLB (Honours) (Université William Booth/Kinshasa), LLM (University of KwaZulu-Natal), LLD (University of Zululand), Lecturer in the Department of Public Law, University of Zululand; BROC (Natal University, Durban), LLM (University of South Africa), LLD (University of Zululand), Attorney of the High Court of South Africa, Associate Professor of Law, University of Zululand.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 352 – 388

Abstract

Child rights are particularly sensitive due to the power relations within societies. As early as 1924, a number of countries collaborated to produce the Declaration of the Rights of the Child. In 1945, the Charter of the United Nations appeared, followed three years later by the Universal Declaration of Human Rights (UDHR). Although the latter is concerned primarily with everyone’s rights, Article 25(2) refers to children as well and provides that all children must receive special care and assistance. The article focuses on the most important children’s rights instruments both at regional and international level; respectively the African Charter on the Rights and Welfare of the Child of 1990 (ACRWC) and the United Nations Convention on the Rights of the Child of 1989 (CRC). Particularly, these conventions are binding on all the states which sign and ratify them. Although the CRC classifies children’s rights into four main categories, this article focuses on life and survival rights in selected African countries that have committed themselves to implement and enforce basic rights for children, namely South Africa, Kenya and the Democratic Republic of the Congo. The article is an evaluative and comparative analysis of the selected countries, based on international law and domestic legislation, as standards of actual delivery of child rights. The authors aim to produce a model guideline for effective realisation and observance of the specified children’s rights in the countries under investigation.