An appraisal of HIV and Aids (Anti-Discrimination) Act, 2014 and the tide of employment discrimination in Nigeria

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

An appraisal of HIV and Aids (Anti-Discrimination) Act, 2014 and the tide of employment discrimination in Nigeria

Author David Tarh-Akong Eyongndi

ISSN: 2521-2613
Affiliations: LLB (Hons) UNICAL, LLM (Ibadan) BL. Lecturer, College of Law, Bowen University, Iwo, Osun State, Nigeria
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 111 – 127
https://doi.org/10.47348/ANULJ/v8/i1a5

Abstract

Subjecting employees or applicants to a medical test to determine whether they are fit for employment and so pre-empt any liability that the employer may suffer owing to the unfitness of the employer has become a prevalent practice. However, a trend has developed in terms of which employers subject employees to medical tests to use the outcome as a reason to discriminate against them and terminate their employment. Testing positive for HIV/AIDS is one such outcome where the status of the employee, despite their right to be free from discrimination, has been used to terminate their employment. This is the plight that persons living with HIV/AIDS (PLW HIV/AIDS) must suffer at the hands of employers as they were being discriminated against based on their health status even though it did not affect their ability to discharge their duties. This situation led to discontentment which developed into serious pressure to protect PLW HIV/AIDS. To address the phenomenon, the legislature enacted the HIV and AIDS (Anti-Discrimination) Act 2014. This article adopts the desk-based methodology in appraising the provisions of the Anti-Discrimination Act to determine the extent to which the Act has dealt with the quagmire of employment discrimination against PLW HIV/AIDS in Nigeria. It also considers the challenges confronting the implementation of the Act. The Anti-Discrimination Act has criminalised termination of employment on account of the HIV/AIDS status of an employee and prohibits other forms of discrimination sequel to the status. The article concludes by making vital recommendations on how to implement the Act in a way that strikes a balance between curbing discrimination while promoting the employer’s business.

Reforming the UNSC by the African Union proposal to address inequality: The limitations

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

Reforming the UNSC by the African Union proposal to address inequality: The limitations

Author Tatenda Leopold Chakanyuka

ISSN: 2521-2613
Affiliations: PhD Candidate in International Law, Institute of International Law, Wuhan University School of Law, Wuhan, China
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 128 – 148
https://doi.org/10.47348/ANULJ/v8/i1a6

Abstract

The United Nations Security Council (UNSC) has been accused of serving the interests of the victors of World War II rather than the collective interests of the current world. Countries, regions, and academics have all called for UNSC reform. The African Union (AU) argues that the current arrangements of the Council do not reflect the broad membership of the United Nations (UN) and ‘equitable geographical distribution’ provided for under the Charter of the United Nations and calls for equitable representation and involvement as per its proposal. Though the African position enjoys the support of most African countries, some African countries have described it as becoming unreasonable and obstructionist to the reform process. Despite, many scholars and countries questioning the practicality and prospects of the AU position gaining universal acceptance, the AU has not stopped calling for reforms by their position. Based on the realities of Article 108 and the responses the African proposal has received, it is time to compromise, but the compromise must be mutual. Currently, the African position does not seem to have the support of either the P5 or the majority of the other UN members. There is a need to devise a new plan that can get the support of the majority. Since Africa is the only region highly underrepresented in the UNSC, representation for Africa is long overdue. This article concludes that for the African position to gain the support of the other countries, including that of the P5, Africa must compromise but the compromise must be reciprocal. Africa can propose two permanent members with one veto power which will increase the veto holders to six.

The Efficacy of Traditional Dispute Resolution Mechanisms (TDRMS) in Achieving Access to Justice for Marginalised: A Focus on the Kipsigis Community in Kenya

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

The Efficacy of Traditional Dispute Resolution Mechanisms (TDRMS) in Achieving Access to Justice for Marginalised: A Focus on the Kipsigis Community in Kenya

Authors Joseph Sergon and Prof Albert Mumma

ISSN: 2521-2613
Affiliations: LLB, LLM (University of Nairobi). Justice of the High Court of Kenya and PhD Candidate, University of Nairobi, Kenya; LLB, LLM, PGDip Legal Studies, PhD. Professor, Faculty of Law, University of Nairobi
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 149 – 171
https://doi.org/10.47348/ANULJ/v8/i1a7

Abstract

The constitutional recognition of traditional dispute resolution mechanisms (TDRMs) legitimises them as complementary avenues to access to justice in Kenya. However, the lack of clarity regarding the scope of these mechanisms makes it difficult to integrate them with the formal justice systems. An understanding of how the mechanisms work is critical in addressing this lacuna. Using a case study approach, this Article discusses the typology of TDRMs in Kenya, and the disputes involved based on examples from the Kipsigis community. It also outlines the Kipsigis TDRM procedures in both criminal and civil cases. The article also discusses the issue of jurisdiction, various reporting and trial stages, whether there are any appellate bodies, enforcement of awards, compensation, and whether any cases have been referred to courts and vice versa. The purpose of the study is to lay a basis for the analysis of TDRMs from a natural justice perspective with the Kipsigis community as the point of focus. The study found that the Kipsigis TDRMs are considered effective avenues for access to justice for those who lack the means to access courts. The community finds the TDRMs fair as they listen to the parties in an open forum and community members are welcome to participate, unlike judicial processes, which are typically adversarial. Yet, a question arises whether TDRMs, by their nature, meet the principles of natural justice and the rule of law, particularly the threshold set for the protection of the right to a fair trial and equality. This article examines the extent to which the Kipisgis TDRMs blends with the principles of natural justice or procedural fairness, and the rule of law.

Promoting water infrastructure investment to accelerate access to water in Tanzania: A legal analysis

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

Promoting water infrastructure investment to accelerate access to water in Tanzania: A legal analysis

Author JS Ombella

ISSN: 2521-2613
Affiliations: LLB (Mzumbe University), LLM (UWC) SA. Lecturer at the Faculty of Law, Mzumbe University-Tanzania
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 172 – 198
https://doi.org/10.47348/ANULJ/v8/i1a8

Abstract

Access to water in Tanzania is reportedly low. However, Tanzania is endowed with plenty of water resources both on the surface and underground. Notably, the uneven occurrence and natural distribution of such water resources limit many communities’ access to water. To guarantee access to water, there is a need to invest in the relevant infrastructures for extraction, treatment and supplying of water from water resources-rich areas to water-scarce areas. Investments in such infrastructures require a sound investment climate, finance, and technological expertise, which seem to be lacking in Tanzania and many other African countries. The absence of a robust legal framework that will cater to the promotion of investment in the water sector seems to be a contributory factor on poor infrastructure in the water sector leading to low access to water. This is because the poor legal framework limits private sector involvement and investment in the water sector due to fear of the risks involved, the lack of awareness of such investment opportunity, and the unclear framework of their participation to name but a few challenges. This article reviews the African regional (African Ministerial Council on Water Declarations) initiative on investment in the water sector and relevant domestic laws on water sector investments. The review reveals that Tanzania’s policy and legal framework is desirous to foster private water infrastructure investment. However, there are legal challenges in respect of the absence of water sector-specific investment incentives, inadequate data on the water sector and investment opportunities, limited human resources, narrow scope of domestic resource mobilisation and overlapping mandate of the established institutions, among others. To guarantee improved access to water Tanzanian water sector laws must address these challenges inhibiting the potential of private sector investment.

Insecurity and economic marginalisation in Marsabit County

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

Insecurity and economic marginalisation in Marsabit County

Author Muthoni Nyuguto

ISSN: 2521-2613
Affiliations: TBC
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 199 – 211
https://doi.org/10.47348/ANULJ/v8/i1a9

Abstract

Ten years after the inauguration of the Constitution of Kenya 2010, the communities of Marsabit County are still living on the periphery of society. They remain systemically excluded from the nation’s mainstream social, political, economic, and cultural activities. Communities living within the North Frontier Districts (as it was known then) and within the Counties of Mandera, Wajir, Garissa, Isiolo and Marsabit are still considered ‘hostile tribes’ by the ruling elite since colonialisation and are treated as such. The colonial government enforced this isolation by enacting a series of Ordinances between the years 1901 to 1933 that systemically isolated and marginalised communities from this geographical area. The Ordinances largely criminalised the community’s main economic activity of pastoralism by allowing arbitral seizure and detainment as well as collective punishment for offences of members of the community. This negative and suspicious perception, systemic exclusion by the laws and policies, condensed economic activities limited to pastoralism, political under-representation, poverty, distance and inaccessibility have exacerbated the marginalisation of the communities living within Marsabit to date. Unfortunately, independence did not liberate these communities within the Northern Frontier Districts from systemic exclusion. They were still treated as a ‘special group’ within the context of section 19 of the Kenya Independence Order in Council. This section provides for the modification, qualifications and exceptions of laws and policies to be applied in respect of these communities. The state felt there was a need to subject these communities to screening, profiling, and overregulation in these areas in comparison to the rest of the nation. State institutions were further unable and unwilling to penetrate these areas. The application of different laws to these communities was carried forward during the post-independence where the Presidency was granted the power to govern these communities by decree. Despite the goodwill of the Constitution 2010 to reduce the levels of marginalisation within this county, there is a need to carry out a case study to assess whether the current legal, political, social and economic frameworks have reduced marginalisation within Marsabit which has been for a long time an ungoverned territory.

A fundamental law of reason and the constitutional law of elections in Africa

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

A fundamental law of reason and the constitutional law of elections in Africa

Author: Atudiwe P. Atupare

ISSN: 2521-2605
Affiliations: BA, LLB (UG), M.A. (Brock), LLM, PhD (Queen’s University).
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 1 – 41
https://doi.org/10.47348/JCLA/v8/i1a1

Abstract

This paper attempts a comparative understanding of the constitutional law of elections in two African countries: Ghana and Nigeria. As a prelude, I argue that judges should approach the task of interpretation of the constitutional law of elections based on a non-positivist understanding of legality or the rule of law. Law is not to be regarded simply as the product of lawmakers’ decisions and intentions but as embodying fundamental values that gain normative force independently of what is decided, written or intended by lawmakers. The core of this claim is anchored on a theory of law, the fundamental law of reason. The identification of this fundamental law is not a matter of pure moral reasoning. It is a conception of law as a rule of reason with ‘reason’ here suggesting a uniquely judicial form of discourse where the particular values that will, under this approach, gain this special normative force cannot be listed in a fixed catalogue; they are, rather, the values that are deemed essential to securing the conditions for legality or the rule of law that are, in turn, necessary for ‘law’ to exist. In light of this, I contend that judicial decisions on electoral disputes in Ghana and Nigeria should be able to carry conviction with the ordinary person as being based not merely on legal precedent or the law-makers’ intentions but also upon acceptable values as understood from the reason of the fundamental law.

Selected challenges associated with the reliance on customer due diligence measures to curb money laundering in South African banks and related financial institutions

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

Selected challenges associated with the reliance on customer due diligence measures to curb money laundering in South African banks and related financial institutions

Authors: Howard Chitimira and Sharon Munedzi

ISSN: 2521-2605
Affiliations: LLB, LLM (UFH), LLD (NMMU). Research Professor and Professor of Securities and Financial Markets Law, Faculty of Law, North-West University; LLB, LLM (NWU), LLD candidate, Faculty of Law, North-West University. 
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 42 – 66
https://doi.org/10.47348/JCLA/v8/i1a2

Abstract

Customer due diligence is a means of ensuring that financial institutions know their customers well through know-your-customer (KYC) tools and related measures. Notably, customer due diligence measures include the identification and verification of customer identity, keeping records of transactions concluded between a customer and the financial institution, ongoing monitoring of customer account activities, reporting unusual and suspicious transactions, and risk assessment programmes. Accordingly, financial institutions should ensure that their customers are risk assessed before concluding any transactions with them. The regulation of money laundering is crucial to the economic growth of many countries, including South Africa. However, there are still numerous challenges affecting the banks and other role players’ reliance on customer due diligence measures to combat money laundering in South Africa. Therefore, a qualitative research methodology is employed in this article to unpack such challenges. The challenges include the failure to meet the identification and verification requirements by some South African citizens, onerous documentation requirements giving rise to other persons being denied access to the formal financial sector, and the lack of express provisions to regulate the informal financial sector in South Africa. Given this background, the article discusses the challenges associated with the regulation and implementation of customer due diligence measures to enhance the combating of money laundering in South African banks and related financial institutions. It is hoped that the recommendations provided in this article will be utilised by the relevant authorities to enhance customer due diligence and effectively combat money laundering activities in South African banks and related financial institutions.

States of emergency and the rule of law under contemporary African constitutions: A comparative analysis

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

States of emergency and the rule of law under contemporary African constitutions: A comparative analysis

Author: Lukman Adebisi Abdulrauf

ISSN: 2521-2605
Affiliations: Senior lecturer, Department of Public Law, University of Ilorin, Nigeria.
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 67 – 101
https://doi.org/10.47348/JCLA/v8/i1a3

Abstract

Emergencies, whether natural or man-made, are inevitable in contemporary societies. Although the nature and magnitude of such emergencies are usually unpredictable, governments across the world must adopt measures to mitigate and control the emergency while securing the lives and properties of the people. Since emergencies envisage exceptional circumstances, there may be the need for the suspension of the normal legal order and its temporary replacement with an extraordinary regime to help restore the normal legal order. During the subsistence of the extraordinary regime, the question that has always concerned modern-day constitutionalists is how the rule of law can be maintained in such a regime which is characterised by the suspension of the normal legal order. This concern is even more apparent in Africa considering the general attitude of political leaders who will want to take advantage of every opportunity to abuse human rights, consolidate powers and remain in government. All these concerns therefore centre on the nature and scope of state of emergency provisions in constitutions and their implementation. Therefore, in this article, I will comparatively analyse the nature and scope of state of emergency provisions under modern African constitutions to determine the extent to which they are inclusive and embrace the basic tenets of the rule of law. I will further interrogate the applicability of the rule of law in states of emergency using recent practices in selected African countries.

Companies convicted of economic crimes and their participation in government tender processes in South Africa: A comment on Namasthethu electrical (PTY) LTD v City of Cape Town and another (201/19) [2020] ZASCA 74 (29 JUNE 2020)

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

Companies convicted of economic crimes and their participation in government tender processes in South Africa: A comment on Namasthethu electrical (PTY) LTD v City of Cape Town and another (201/19) [2020] ZASCA 74 (29 JUNE 2020)

Author: Jamil Ddamulira Mujuzi

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape.
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 102 – 122
https://doi.org/10.47348/JCLA/v8/i1a4

Abstract

In South Africa, persons or companies convicted of fraud or corruption or companies whose directors have been convicted are debarred from participating in bidding for government tenders. Although it is easy to establish whether or not a natural person has been convicted of an offence, because a certificate can be obtained from the South African Police Service to that effect, it is the opposite with juristic persons. This issue came up in the case of Namasthethu Electrical (Pty) Ltd v City of Cape Town and Another in which the appellant company was awarded a government tender although the company and its former director had been convicted of fraud and corruption. The purpose of this article is to analyse this judgment and show the challenges that the government is faced with when dealing with companies that have been convicted of offences that bid for government tenders. Because South Africa is in the process of enacting public procurement legislation, the Public Procurement Bill was published for comment in early 2020. One of the issues addressed in the Bill relates to debarring bidders who have been convicted of some offences from bidding for government tenders. Based on the facts of this case and legislation from other African countries, the author suggests ways in which the provisions of the Bill could be strengthened to address this issue.

Book Review: Jurisprudence: Theory and context 8 ed by Brian Bix, London: Sweet & Maxwell, 2019

by | Jun 10, 2021 | JCLA, JCLA V8 I1 2021

Book Review: Jurisprudence: Theory and context 8 ed by Brian Bix, London: Sweet & Maxwell, 2019

Author: Edmund Ato Kwaw

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape.
Source: Journal of Comparative Law in Africa, Volume 8 Issue 1, p. 123 – 126
https://doi.org/10.47348/JCLA/v8/i1a5

Abstract

None