Transition and the Pitfalls of Nondemocratic Institutions: A review of Constitutionality in Ethiopia

by | Jan 16, 2022 | AJCL, AJCL 2021

Transition and the Pitfalls of Nondemocratic Institutions: A review of Constitutionality in Ethiopia

Author: Tadesse Melaku

ISSN: 2521-5434
Affiliations: Assistant Professor, School of Law, Hawassa University, Ethiopia
Source: Africa Journal of Comparative Constitutional Law, 2021, p. 67 – 87
https://doi.org/10.47348/AJCL/2021/a4

Abstract

Ethiopia has undertaken important political reforms after the fall of authoritarianism in 2018. This article examines the performance of Ethiopia’s constitutional review mechanism amid the ongoing political and institutional reforms in the country. The study focuses on the process and merit of the constitutional ruling to delay the 2020 national and regional elections because of the coronavirus pandemic, thereby extending the government’s tenure. It further unravels the challenges posed by nondemocratic institutions of the past regime in navigating the transition. In doing so, this study draws on legal, documentary and case analysis, and a literature review. While the mandate extension comes as no surprise, the reasoning of the decision to do so was disappointing for many, dashing the hope and sense of a constitutional moment that accompanied the highly publicised constitutional hearing process in June 2020. The judgment reveals an endemic deficiency of the institutional system. Thus, it is imperative for Ethiopia to establish an independent constitutional umpire to check and control the exercise of government power and support the transition to multiparty democratic governance in the country.

The Constitutionality of Covid-19 Measures Under the Nigerian Federal System

by | Jan 16, 2022 | AJCL, AJCL 2021

The Constitutionality of Covid-19 Measures Under the Nigerian Federal System

Author: Muyiwa Adigun

ISSN: 2521-5434
Affiliations: Senior Lecturer, Faculty of Law, University of Ibadan, Ibadan, Nigeria
Source: Africa Journal of Comparative Constitutional Law, 2021, p. 88 – 121
https://doi.org/10.47348/AJCL/2021/a5

Abstract

In November 2019, a novel coronavirus appeared in China. Once it enters a person’s body, it causes a disease known as Covid-19. This disease is highly communicable and began to spread to other parts of the world, including Nigeria. To prevent the spread of the disease in Nigeria, the Nigerian president, Muhammadu Buhari announced measures in a national broadcast, introducing new measures in an attempt to combat the disease. This article examines the constitutionality of the measures taken within the framework of the Nigerian federal system. The article finds that the president did not expressly declare a state of emergency, did not indicate the constitutional provisions relied upon in his broadcast, while he did rely on the Quarantine Act in respect of regulations made and introduced measures that were far-reaching that had a telling effect on the Nigerian federal system. The article argues that measures could have been taken under the derogation clause, the limiting clause in the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, the Quarantine Act, the Fundamental Objectives and Directive Principles of State Policy and the provisions of the Nigerian Constitution on emergency powers. However, none of these instruments would have constitutionally justified suspending the Nigerian federal system without a controversy, except for measures taken in the exercise of emergency powers. The article concludes that, since the Nigerian president did not declare a state of emergency, the measures taken could be said to have been unconstitutional to the extent that they suspended federalism, if federalism is considered an expression of checks and balances, and not only a mechanism to manage diversity. Furthermore, even under a pandemic situation, excessive power should be checked.

Nigeria and the Riddle of Two Constitutions

by | Jan 16, 2022 | AJCL, AJCL 2021

Nigeria and the Riddle of Two Constitutions

Authors: Akintunde Emiola and Idowu A Akinloye

ISSN: 2521-5434
Affiliations: LLM, PhD, BL, JP, KSC, Retired Professor of Law and Former Dean of Faculties of Law, Ambrose Alli University, Ekpoma; Delta State University, Abraka, and Niger Delta University, Amassoma; B.Th, LLM, PhD, BL, Lecturer, Ajayi Crowther University, Oyo, Nigeria
Source: Africa Journal of Comparative Constitutional Law, 2021, p. 122 – 141
https://doi.org/10.47348/AJCL/2021/a6

Abstract

This article brings to the fore the problem of two constitutions (the 1963 and the 1999 Constitutions) coexisting in Nigeria. It argues that the ongoing debate on the need for Nigeria’s restructuring may not be resolved until this problem is addressed. By using a historical approach and an analytical research methodology, the article lifts the discourse about restructuring above mere political expediency to the realm of law, which is the only instrument for restructuring. The authors forcefully argue that the 1979 and 1999 Nigerian constitutions are “military unconstitutional constitutions” that lack legitimacy and legal validity. It submits that the 1963 Constitution, which made Nigeria a republican state, was never repealed but was used by the military to govern and it is, therefore, intact, unencumbered and operatable in the country. This paper argues that it is only after reverting to the 1963 Constitution that an honest and sincere search for a valid foundation upon which a truly federal, democratic and just Nigerian society can be built.

The Quest for Coherence in Kenya’s Judicial Sentencing Policy: A Review of the Jurisprudence Following the Muruatetu Case

by | Jan 16, 2022 | AJCL, AJCL 2021

The Quest for Coherence in Kenya’s Judicial Sentencing Policy: A Review of the Jurisprudence Following the Muruatetu Case

Author: Phyllis Ngugi

ISSN: 2521-5434
Affiliations: Advocate of the High Court of Kenya. LLM (UQ), LLB (MOI) PDG (KSL)
Source: Africa Journal of Comparative Constitutional Law, 2021, p. 142 – 149
https://doi.org/10.47348/AJCL/2021/a7

Abstract

The Supreme Court decision in the now-infamous case Francis Karioko Muruatetu v Republic seemed to settle the enduring debate whether sentencing is a judicial or a legislative function. The court’s ruling was that sentencing is a judicial function and that the mandatory nature of the death penalty for murder was unconstitutional because it took away the courts’ discretion to determine a just and proportionate punishment to impose on a convicted person. In its judgment, the court ordered that the judiciary sentencing policy be revised to reflect the court’s guidelines on the obligation of courts to listen to the accused’s mitigation before sentencing. The court also directed that a framework for sentence rehearing be prepared immediately to allow applicants who had been sentenced in circumstances similar to those of the petitioners to apply for sentence a rehearing from the trial court. This article examines the aftermath of this judgment in terms of whether the Supreme Court’s decision helped to cure the challenge that lies in the current sentencing process; achieving coherence and proportionality in the sentencing process. By using jurisprudential arguments, we intend to demonstrate that, despite the court’s direction to all courts to ensure that no person should be subjected to a disproportionate sentence, the problem of disproportional sentencing is one that goes beyond merely reviewing of the sentencing guidelines but also demands a reform of the entire criminal justice system.

Some views from the South African Constitutional Court on patent revocation and infringement matters: Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC)

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

Some views from the South African Constitutional Court on patent revocation and infringement matters: Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC)

Author Mikhalien Du Bois

ISSN: 2521-2591
Affiliations: Associate Professor in Intellectual Property Law, University of South Africa
Source: South African Intellectual Property Law Journal, 2021, p. 1 – 17
https://doi.org/10.47348/SAIPL/v9/a1

Abstract

In South African law, the substantive requirements for a patent may be scrutinised during infringement proceedings or revocation proceedings. Lack of novelty (or anticipation) is a ground for revocation of a patent but can also serve as a defense in an infringement matter. After a series of decisions by the Commissioner of Patents and the Supreme Court of Appeal on infringement and revocation matters relating to Merck’s Patent 98/10975 and its alleged infringement by Cipla (now Ascendis), the Constitutional Court was asked to deliberate the matter in Ascendis Animal Health (Pty) Limited v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC). The main issue related to the principle of res judicata, and whether invalidity of a patent may be considered as a defense during infringement matters after the validity of the patent was already determined during revocation proceedings between the same parties. The decisions also considered whether each revocation ground constituted a separate issue or whether revocation is the issue for purposes of determining whether a matter is res judicata. A review of all the preceding decisions also indicate that the Supreme Court of Appeal may have developed the way in which lack of novelty is determined in South African law, but without explicitly acknowledging that the approach is different. The Constitutional Court’s evenly split decisions (per Khampepe J and Cameron J) indicate different approaches to reaching just and fair outcomes in patent matters. While Khampepe J’s decision focuses more on the need to remove invalid patents from the register, Cameron J’s decision focuses on preventing harm from piecemeal litigation.

Ownership of intellectual property rights: Did Vodacom ‘sell’ its rights in Makate v Vodacom?

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

Ownership of intellectual property rights: Did Vodacom ‘sell’ its rights in Makate v Vodacom?

Author Malebakeng Agnes Forere

ISSN: 2521-2591
Affiliations: Associate Professor in Law, University of the Witwatersrand
Source: South African Intellectual Property Law Journal, 2021, p. 18 – 34
https://doi.org/10.47348/SAIPL/v9/a2

Abstract

The case between Mr Makate and Vodacom, which was decided by the highest court in the land — the Constitutional Court, raises interesting intellectual property questions; yet it was argued and decided on as a purely contractual matter. Specifically, Vodacom was found to have been in breach of an agreement to reward a former employee who conceived an idea that led to the development of a product known as ‘Please Call Me’ while still employed by Vodacom. In the main, the dispute is now about fair compensation payable to Mr Makate. It is argued herein that the determination of fair compensation is predicated on the determination of ownership of the ‘Please Call Me’ product. This paper finds that ownership of the product in question vests in Vodacom in accordance with the Copyright Act and the Patents Act, even though the product was never patented, which, in turn, makes compensation to Mr Makate even less determinable. Accordingly, it is argued herein that any determination of compensation must be based on how the industry, in general, and Vodacom, in particular, has rewarded its employees who have conceived workable ideas in the past. Thus, compensation cannot be based on market value.

A right to read object code – software copyright law and the development of a decompilation exception in South Africa

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

A right to read object code – software copyright law and the development of a decompilation exception in South Africa

Author Cobus Jooste

ISSN: 2521-2591
Affiliations: Consolidoc Postdoctoral Fellow in Law, Department of Mercantile Law, Faculty of Law, University of Stellenbosch
Source: South African Intellectual Property Law Journal, 2021, p. 35 – 66
https://doi.org/10.47348/SAIPL/v9/a3

Abstract

The opportunity to read and extract knowledge from a lawfully obtained copy of any published work is a cornerstone of copyright law, except in the case of computer programs. This article examines the development of an exception to copyright protection that will permit decompilation of object code as a means to access its underlying ideas. It illustrates that the persistent link between software and literary works leads to an unduly narrow view of decompilation. This contention is supported by a basic technical illustration of the decompilation process to support the submission that reading object code should not amount to copyright infringement in any way. Thereafter, the proposed decompilation exception in South African copyright law is critically analysed in light of the developmental objectives expressed in national policy, to formulate an alternative approach based on the inherent flexibilities in international law and local conditions.

Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) — Revisiting the justiciability of cross-border copyright infringement in South African courts

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) — Revisiting the justiciability of cross-border copyright infringement in South African courts

Author Thato M Moloto

ISSN: 2521-2591
Affiliations: Consultant, World Intellectual Property Organization (Copyright Management Division), Geneva
Source: South African Intellectual Property Law Journal, 2021, p. 67 – 86
https://doi.org/10.47348/SAIPL/v9/a4

Abstract

This contribution examines the basis for and implications of the strictly territorial approach of South African courts in cross-border copyright infringement cases, requiring litigants to bring separate infringement suits in every country where infringement is alleged. This position by the courts loosely hinges on principles of effectiveness, locality and comity, as well as the classification of all intellectual property — copyright in this case — as immovable incorporeal property. In this belated case note, the Roman-Dutch law origins from which this classification is inferred to be derived from the English common law precedent with which it is paralleled and private international law principles applicable are briefly interrogated in light of prevailing constitutional prescripts. This complete bar on the authority of local courts on what is a ubiquitous concern for rights holders is a matter with far-reaching consequences.

DABUS gains territory in South Africa and Australia: Revisiting the AI-inventorship question

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

DABUS gains territory in South Africa and Australia: Revisiting the AI-inventorship question

Author: Desmond Osaretin Oriakhogba

ISSN: 2521-2591
Affiliations: Senior Lecturer, Department of Mercantile and Private Law, University of Venda
Source: South African Intellectual Property Law Journal, 2021, p. 87 – 108
https://doi.org/10.47348/SAIPL/v9/a5

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Oriakhogba, DO
DABUS gains territory in South Africa and Australia: Revisiting the AI-inventorship question
Senior Lecturer, Department of Mercantile and Private Law, University of Venda
https://doi.org/10.47348/SAIPL/v9/a5

Abstract

This paper draws from and builds upon DO Oriakhogba ‘What If DABUS Came to Africa? Visiting AI Inventorship and Ownership of Patent from the Nigerian Perspective’ (2021) 42(2) Business Law Review 89. It reviews the recent granting of a patent by the Companies and Intellectual Property Commission (CIPC) to Dr Stephen Thaler in respect of the DABUS-generated invention in South Africa and the judgment of the Australian Federal Court (FCA) upholding AI-inventorship. The review, which is based on desk research, is conducted against a backdrop of statutory provisions and case law from both countries, the provisions of the Patent Cooperation Treaty (PCT) and relevant literature dealing with the inventorship question. The paper determines whether, without reform of the extant patent law and policy, recognition of artificial intelligence (AI) as an inventor does not undermine the foundational concept of human inventorship, and the central focus on human creation and agency for intellectual property protection in South Africa and Australia. In connection with this, the paper asks and examines the question of whether the CIPC patent grant and the FCA judgment can stand judicial scrutiny under the extant patent regimes in South Africa and Australia.

A Critical Analysis of the Amendments Proposed to the Social and Ethics Committee by the Companies Amendment Bill, 2018

by | Jan 12, 2022 | SAMLJ, SAMLJ V33 I2

A Critical Analysis of the Amendments Proposed to the Social and Ethics Committee by the Companies Amendment Bill, 2018

Authors: Delani Milton Mahhumane and Rehana Cassim

ISSN: 1996-2185
Affiliations: Former Postgraduate Assistant, Department of Mercantile Law, University of South Africa; Associate Professor, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 33 Issue 2, 2021, p. 153 – 175
https://doi.org/10.47348/SAMLJ/v33/i2a1

Abstract

The Companies Amendment Bill, 2018 proposes certain changes to the social and ethics committee established in terms of s 72(4) of the Companies Act 71 of 2008 and reg 43 of the Companies Regulations, 2011. These new provisions are critically discussed in this article. Although some of these provisions are commendable, others give rise to certain concerns examined here: the lack of clarity in the functions of the social and ethics committee, the proposed amendments regarding its appointment and composition, and the ambiguity in the exemptions from the requirement to appoint this committee. This article also suggests further amendments to the current legislative provisions regarding this committee.