Between Chasms and Contours: Revisiting Constitutional Legitimacy and the Quest for a Progressive Constitutional State in Nigeria

Between Chasms and Contours: Revisiting Constitutional Legitimacy and the Quest for a Progressive Constitutional State in Nigeria

Author: Olusola Babatunde Adegbite

ISSN: 2521-5434
Affiliations: LLB (Hons) (Ife), LLM (Ife), LLM (Cardozo, Yeshiva University, New York), BL, Lecturer, Department of Public Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, NIGERIA
Source: Africa Journal of Comparative Constitutional Law, 2019, p. 77 – 102

Abstract

Ever since the Constitution of the Federal Republic of Nigeria 1999 was adopted, Nigerians have roundly denounced it as not being a proper reflection of their common will, but a bitter pill delivered by the departing military junta. The continued chasms and contours in the denigration of the document, pressured governments upon governments to make effort at repairing it. The result has been several constitutional conferences convoked to force a new constitution, but all have achieved little. More than two decades after its enactment, the question remains why Nigerians are unhappy with the document, and what can be done to address their unhappiness?

This article presents a critical inquiry into these issues. It examines how the current Constitution came to be and how its problem of legitimacy has become a national malaise. It argues that even though the people’s pursuit of a new constitution is in order, the route adopted may just be the disorder. Also, the fact that the relentless agitation for a brand-new Constitution has continued to meet with a brick wall may be a pointer that it is the wrong approach to a generally understood problem. It recommends that a more viable solution may lie in adopting a known, yet difficult pathway, i.e. one in which constitutional legitimacy, though not acquired in the original sense, can however be perfected over time through a progressive acceptance of the Constitution by the people. It submits that this progressive acquisition of legitimacy can be attained by the people continuously demanding good governance and strategically owning the political process, with a view to using the same Constitution’s amendment process, to rework it for their good.

Public Participation, Devolution and Development: Expanding the Frontiers of Participation Through Technology in Kenya

Public Participation, Devolution and Development: Expanding the Frontiers of Participation Through Technology in Kenya

Authors: Andrew Barney Khakula and Mercy Mutheu Muendo

ISSN: 2521-5434
Affiliations: Advocate of the High Court of Kenya, LLB (Moi), Diploma in Law (KSL), LLM (UNISA), LLD (candidate UNISA), Law Lecturer and Managing Partner at JS Khakula Advocates; Law Lecturer and Advocate of the High Court of Kenya, LLB (Moi), Diploma in Law (KSL) LLM (John Marshall Law School UIC Chicago)
Source: Africa Journal of Comparative Constitutional Law, 2019, p. 103 – 128

Abstract

The Constitution of Kenya makes public participation indispensable when it comes to matters of governance and development. Both national and county governments are required to inculcate public participation in their operations. This article explores the meaning, scope and role of public participation within the context of devolution in Kenya. The article then argues that public participation must embrace the realities of the digital revolution in the 21st century, and suggests some of the ways in which information technology can be embraced as an effective platform for public participation in Kenya.

Barring County Governors from Office in Kenya: The Use of National Values and Principles in Constitutional Interpretation

Barring County Governors from Office in Kenya: The Use of National Values and Principles in Constitutional Interpretation

Authors: Francis Khayundi and Mwimali C Ongaro

ISSN: 2521-5434
Affiliations: Lecturer, United States International University, Africa; Candidate, Advocates Training Programme, Kenya School of Law Candidate
Source: Africa Journal of Comparative Constitutional Law, 2019, p. 129 – 136

Abstract

The scourge of corruption has permeated all levels of government, with anecdotal accounts referring to ‘devolved corruption’, used to explain the fact that corruption has been rampant in the counties since the introduction of devolved governments in 2013. Where corruption flourishes, development and the rule of law fail. It is therefore essential that the government and other stakeholders take concerted measures to tackle corruption. Despite efforts to respond to this challenge, not much has managed to deter the vice. However, in the recent past, courts have made rulings that raised questions about what should happen when governors are on trial for corruption. The decisions of the courts have drawn mixed reactions from different quarters. There are those who believe the rulings by the courts amount to the unconstitutional removal of elected governors as they do not follow the laid-down procedure in the Constitution and other relevant laws. To others, the decisions are a timely and adequate response to the scourge of corruption. It is against this backdrop that this case review analyses the two cases of Moses Kasaine Lenolkulal v Director of Public Prosecutions and that of Ferdinand Ndungu Waititu Babayao v Republic [2019] eKLR which had similar outcomes in barring the accused governors from accessing their offices while corruption investigations were ongoing. The authors argue that the courts’ approach was progressive and in line with the 2010 Constitution of Kenya.

The role of technology in the historical development of the reproduction right in musical works

The role of technology in the historical development of the reproduction right in musical works

Author: J Joel Baloyi

ISSN: 2411-7870
Affiliations: BJURIS LLB (Venda) LLM (UWC) LLD (UNISA).
Source: Fundamina, Volume 26 Issue 2, p. 233-287
https://doi.org/10.47348/FUND/v26/i2a1

Abstract

This contribution recounts the historical development and expansion of the reproduction right in copyright in response to, and as a result of, technological developments, with a focus on the music reproduction right. It is shown how the very first copyright statute, the Statute of Anne, was enacted in response to the effects of a technological development, namely the invention of the printing press, which had been experienced over some time. To safeguard the interests of rightsholders, the Statute of Anne gave rise to and was itself epitomised by the reproduction right (the right to copy or print). The uncertainty with regard to the question of whether the Statute of Anne applied only in respect of books and other literary works, or whether it also extended to musical works, was resolved in the case of Bach v Longman, which extended the application of the Statute to musical works. It was particularly in the area of musical works that the reproduction right was further developed in the wake of rapid technological developments that emerged at the end of the nineteenth century and have continued into the digital age. This has led to the expansion of the music reproduction right into a multi-pronged right, covering usages made possible by the various technological developments, thus creating increased sources of income for rights-holders. Using a historical and contextual analysis, the contribution recounts these developments and their continuing relevance today.

A history of Malawi’s criminal justice system: from pre-colonial to democratic periods

A history of Malawi’s criminal justice system: from pre-colonial to democratic periods

Author: Lewis Chezan Bande

ISSN: 2411-7870
Affiliations: Senior Lecturer in Law, University of Malawi.
Source: Fundamina, Volume 26 Issue 2, p. 288-336
https://doi.org/10.47348/FUND/v26/i2a2

Abstract

This contribution traces the historical development of the criminal justice system in Malawi, from the pre-colonial period, through the colonial and independence periods, to the contemporary democratic period. It highlights the major political hallmarks of each historical period and their impact on the development of the criminal justice system. The contribution shows that all aspects of the current criminal justice system – substantive criminal law, procedural law, criminallaw enforcement agencies, courts and correctional services – are products of political and constitutional processes and events of the past century. Their origins are directly traceable to the imposition of British protectorate rule on Nyasaland in the late nineteenth century. The development of the Malawian criminal justice system since then has been heavily influenced by the tension and conflict of colonialism, the brutality of one-party dictatorship and the country’s quest for a constitutional order that is based on liberal principles of democracy, rule of law, transparency and accountability, respect for human rights, limited government and equality before the law. To properly understand Malawi’s current criminal justice system, one has to know and appreciate its historical origins and development.

Developing critical citizenship in LLB students: the role of a decolonised legal history course

Developing critical citizenship in LLB students: the role of a decolonised legal history course

Author: Lize-Mari Mitchell

ISSN: 2411-7870
Affiliations: Lecturer, University of Limpopo.
Source: Fundamina, Volume 26 Issue 2, p. 337-363
https://doi.org/10.47348/FUND/v26/i2a3

Abstract

Within the neoliberal ideals of society, social science subjects are battling for their rightful place in curriculums. As a result, legal history courses are being presented by increasingly less universities in South Africa. In the tendency towards a skills-based LLB, higher education institutions are neglecting to acknowledge the immense impact students’ ideologies and critical thinking will have on the future of South Africa. This contribution argues that it is not only possible to deliver competitive graduates, to retain social subjects and to heed the call for decolonisation, but that a transformative, decolonised legal history course is vital to these ideals. The contribution explores the role of such a course in the development of LLB graduates where it strives towards constitutional ideals and social justice. Furthermore, it takes a look at legal history as a form of critical citizenship education, where it is based on the holistic development of students within constant critical self-reflection and the promotion of a common set of shared values. The development of critical citizenship in students are explored by defining this concept, as well as by discussing the manner in which it can be taught and the importance to the so-called born-free LLB student. This study concludes with broad outlines of the manner in which a legal history course would have to be presented within a critical pedagogy to achieve the aims of critical citizenship.

On Florentinus’ definition of Libertas

On Florentinus’ definition of Libertas

Author: Carlos Amunátegui Perelló

ISSN: 2411-7870
Affiliations: Professor of Roman Law, Pontificia Universidad Católica de Chile.
Source: Fundamina, Volume 26 Issue 2, p. 364-373
https://doi.org/10.47348/FUND/v26/i2a4

Abstract

Libertas is one of the main concepts of public life in the Roman world. It has a public content when referring to the freedom of the Republic, and a private implication when it is opposed to slavery. Florentinus’ definition of libertas is quite interesting, because it was given within the context of slavery, although it does not fit that scenario entirely. In fact, it seems more cogent with regard to the public concept of libertas. This contribution analyses this aspect in detail.

Keeping the natives in their place: the ideology of white supremacy and the flogging of African offenders in colonial Natal – part 1

Keeping the natives in their place: the ideology of white supremacy and the flogging of African offenders in colonial Natal – part 1

Keeping the natives in their place: the ideology of white supremacy and the flogging of African offenders in colonial Natal – part 1

Authors: Stephen Allister Peté

ISSN: 2411-7870
Affiliations: BA LLB (University of Natal) LLM (University of Cape Town) M Phil (University of Cambridge) PhD (University of KwaZulu-Natal). Associate Professor, School of Law, University of KwaZulu-Natal.
Source: Fundamina, Volume 26 Issue 2, p. 374-423
https://doi.org/10.47348/FUND/v26/i2a5

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Peté, SA
Keeping the natives in their place: the ideology of white supremacy and the flogging of African offenders in colonial Natal – part 1
Fundamina, Volume 26 Issue 2, p. 374-423
https://doi.org/10.47348/FUND/v26/i2a5

Abstract

The political economy of colonial Natal was based on a coercive and hierarchical racial order. Over decades, the white colonists struggled to assert their power over the indigenous inhabitants of the colony, to force them off their land and into wage labour in service of the white colonial economy. This process resulted in ongoing resistance on the part of the indigenous population, including a series of rebellions and revolts throughout the colonial period, which were met with force by the white colonists. White colonial ideology was shaped by the violent and adversarial nature of the social, political and economic relations between white and black in the colony. It was also influenced by the broader global context, within which colonisation was justified by racist variants of the theory of Social Darwinism. Driven by a strange mix of deep insecurity and fear on the one hand, and racist paternalism on the other, the white settlers of colonial Natal developed a variant of white supremacist ideology with a special flavour. Nowhere was this more apparent than in their near obsession with flogging as the most appropriate manner of dealing with African offenders in particular. By closely examining a series of public debates that took place in the colony of Natal between 1876 and 1906, this contribution seeks to excavate the various nuanced strands of thinking that together comprised the ideology of white supremacy in the colony at that time.

“What’s past is prologue”: an historical overview of judicial review in South Africa – part 2

“What’s past is prologue”: an historical overview of judicial review in South Africa – part 2

Author: D M Pretorius

ISSN: 2411-7870
Affiliations: BA LLB (Stell) BA (Hons) LLM PGCE (SA) PhD (Witwatersrand). Partner: Bowmans, Johannesburg.
Source: Fundamina, Volume 26 Issue 2, p. 424-519
https://doi.org/10.47348/FUND/v26/i2a6

Abstract

This contribution explores the historical origins and development of judicial review in South Africa, as an indication of shifts in relations between – and of the relative legal and political powers of – the three branches of state. It also provides bibliographical details of sources chronicling these historical processes. The first part focused mainly on constitutional review, namely the power of the law courts to test the validity of statutes against constitutional criteria. This second part analyses the historical development of administrative law, especially the common-law evolution of judicial review of the decision-making processes of organs of state, and how that process unfolded reciprocally with political shifts in twentieth-century South Africa. There is also a synopsis of the introduction of administrative law as a discrete subject in South African law schools. Finally, this contribution briefly explores historical aspects of the role of interpretation of statutes in the context of administrative law, and briefly touches on special statutory review as distinct from common-law review.

No reflective loss: The English approach reconsidered

No reflective loss: The English approach reconsidered

Author: Ataollah Rahmani

ISSN: 2521-2575
Affiliations: Lecturer in Commercial Law, Al-Maktoum College of Higher Education Dundee, Scotland, UK
Source: Journal of Corporate and Commercial Law & Practice, Volume 6 Issue 2, 2020, p. 1 – 48
https://doi.org/10.47348/JCCL/V6/i2a1

Abstract

A company shareholder should have no difficulty in commencing a claim to recover the loss suffered due to a wrong done to their personal property. The right to the protection of property is a fundamental human right in English law. A wronged person whose property right is infringed will have the right to commence legal proceedings against wrongdoers. However, in the company context, the exercise of a shareholder’s right of action may conflict with the company’s right of action where the loss sought is reflective. The English company law’s arrangement has been that a shareholder’s action is exceptional beyond which it will routinely be barred through the principle of the ‘no reflective loss’. Where company’s loss and the shareholders’ loss are reflectively linked, then the company’s action prevails against the shareholder action. This paper argues that the two actions should swap places in law. Shareholder action should be recognised as a general principle of law while it is barred exceptionally in circumstances where stronger policy considerations such as the observation of the corporate autonomy are to be prioritised. This article refers to company law in the UK.