Recent Case: Sentencing
Recent Case: Sentencing
Author Annette van der Merwe
ISSN: 1996-2118
Affiliations: School of Law, University of Limpopo
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 508
Abstract
None
Legislative versus judicial harmonisation of law: a comparative study of Ohada commercial law and the US uniform commercial code
Legislative versus judicial harmonisation of law: a comparative study of Ohada commercial law and the US uniform commercial code
Author Jonathan Bashi Rudahindwa
ISSN: 2521-2605
Affiliations: Lecturer in law, Université Protestante au Congo (DRC); Research Associate, Centre for Comparative Law in Africa (CCLA), University of Cape Town; Research Associate, School of Law, SOAS, University of London. Correspondence address: Université Protestante au Congo, Faculté de Droit, Croisement des Avenue Libération et Boulevard Triomphal, Commune de Lingwala, Ville de Kinshasa, République Démocratique du Congo, BP. 4745 Kinshasa 2
Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 1 – 29
Abstract
The Organisation for the Harmonisation of Business Law in Africa (OHADA) was established 27 years ago, in October 1993. Using legislative harmonisation or unification of its 17 Member States’ business laws, through the adoption of several Uniform Acts that are meant to be simple and modern, the organisation aims to produce a business law that is adapted to each Member State’s context, thereby facilitating commercial transactions within the OHADA area. While noting the relative success of the OHADA harmonisation or unification process, this article aims to highlight the advantages and shortcomings of its legislative harmonisation mechanism. This aspect of the OHADA process is analysed by considering the judicial harmonisation process that resulted in the adoption of the United States Uniform Commercial Code (UCC), which is codified legislation that aims to harmonise the law of sales and other commercial transactions across US states, hence promoting inter-state trade. This comparative analysis is conducted with a view to perfecting the harmonisation of business laws across Africa, while ensuring that harmonisation achieves the goal of promoting intra-African trade. The ultimate goal of the article is to demonstrate the need to place a greater emphasis on judicial harmonisation and highlight its ability as a law-making method to produce a commercial law that truly meets the needs and aspirations of the business community across the continent.
A comparative analysis of codes of corporate governance and their impact on the boards of public companies in Nigeria and South Africa
A comparative analysis of codes of corporate governance and their impact on the boards of public companies in Nigeria and South Africa
Author Akin Olawale Oluwadayisi
ISSN: 2521-2605
Affiliations: BL ACIArb FIPMD LLM PhD and Notary Public, Lecturer, Department of Commercial Law, Faculty of Law, Adekunle Ajasin University, Akungba Akoko, Ondo State, Nigeria
Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 30 – 62
Abstract
The growth of the economy of any nation requires that public companies, which dominate the securities sector, are strong financially, and also requires that the modality for their governance and operations should accord with acceptable and beneficial standards. Corporate regulatory bodies prescribe codes of corporate governance (CCG) that regulate the daily activities and performance of corporate entities. However, it appears that despite the introduction of CCG in Nigeria and South Africa, public companies are yet to deliver the desired results, due to noncompliance, enforcement challenges and a lack of internal mechanisms to implement the spirit and content of CCG. This research provides a comparative analysis of boards and the compliance level of public companies in Nigeria and South Africa. The research methodology adopts a combination of doctrinal legal research and qualitative analysis. The research aims to discover how the two countries can benefit from each other. The objectives include determining the level of knowledge of CCG, the level of accountability of boards, the level of responsibility, and enforcement and compliance levels. The research identifies the gaps in the law and practice, while offering solutions on how best to apply and enforce the codes in the two countries.
A critical analysis of codification: Analysing the value of family preservation in African Law
A critical analysis of codification: Analysing the value of family preservation in African Law
Author Gloria Paidamoyo Chikaonda
ISSN: 2521-2605
Affiliations: BA LLB LLM; PhD candidate and researcher, University of Cape Town
Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 63 – 92
Abstract
The laws and practices of African people have often been regarded as repugnant, and in many cases have been completely ignored. During the colonial period, African laws were denied. In this context the important questions surrounding the preservation and development of a legal theory that is distinctly African arises. I will argue that the codification of African customary law values is one way of ensuring the survival of African law and, in furtherance of that aim, I will examine the value of preserving the family. With reference to South African and Zimbabwean legislation and jurisprudence and an overview of the Namibian approach to dealing with the recognition of customary law, I propose that in place of the codification of customary laws and practices, consolidating – in textual format – the underlying values, such as the preservation of the family, will be an effective way of laying the foundation for an African legal theory. This will preserve African law, while maintaining the dynamism and fluidity of customs and practices.
Contentious jurisdiction: The Kenyan Kadhis’ courts and their application of the Islamic law of custody and maintenance of wives and children
Contentious jurisdiction: The Kenyan Kadhis’ courts and their application of the Islamic law of custody and maintenance of wives and children
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 7 Issue 1, p. 93 – 119
Abstract
Article 170(5) of the Constitution of Kenya provides that ‘[t]he jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.’ A provision to the same effect is also included in s 5 of the Kadhis’ Courts Act. It is clear that the Kadhis’ Courts have jurisdiction over marriage, divorce and inheritance and they have handed down many judgments dealing with these issues. Neither art 170(5) of the Constitution nor s 5 of the Kadhis’ Courts Act expressly permit or prohibit these courts from dealing with custody and maintenance matters. This approach is different from the one taken in other African countries such as Tanzania (Zanzibar) and Uganda, where the issues of custody and maintenance are expressly mentioned in the law on Kadhis’ Courts. As a result, there are conflicting decisions from the Kenyan Kadhis’ Courts and the High Court on the issue of whether the Kadhis’ Courts have jurisdiction over custody and maintenance matters. In this article, I illustrate how the Kadhis’ Courts and the High Court have dealt with the issues of custody and maintenance in Islamic law and I refer to Kenyan case law and the drafting history of art 170(5) to argue that the Kadhis’ Courts do not have jurisdiction over custody and maintenance issues. I rely on legislation and practice from other African countries to suggest ways in which the issue of the jurisdiction of the Kenyan Kadhis’ Courts in relation to custody and maintenance could be addressed.