Fiction? A dialectical scrutiny of the appellate competence of the African court on human and peoples’ rights

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

Fiction? A dialectical scrutiny of the appellate competence of the african court on human and peoples’ rights

Authors Sègnonna Horace Adjolohoun

ISSN: 2521-2605
Affiliations: BA, LLB (Benin); LLM, LLD (Pretoria). Extraordinary Lecturer and Visiting Professor of Human Rights and Comparative Constitutional Law (University of Pretoria, Central European University, Université Gaston Berger); Principal Legal Officer, African Court on Human and Peoples’ Rights

Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 1 – 31

Abstract

It is established case-law of the African Court on Human and Peoples’ Rights that it does not assume appellate jurisdiction over national courts. In several decisions rendered since its inception, the Court has consistently held that, when it examines cases of alleged violations of rights, it merely acts as an international court of first and final instance in vetting the conformity of domestic law and the conduct of municipal organs with international law to which the state concerned is a party. An overview of its jurisprudence however reveals a consistent challenge to the Court’s jurisdiction over cases that Respondent States argue had or should have been settled by domestic courts. The objections raised in related cases have led to a confrontational interaction between the Court and the states involved. On an increasing number of occasions, the ‘interaction crisis’ resulted in a political challenge to the very mandate of the Court and withdrawals or threats to retract from acceptance to its jurisdiction over sovereignty of the state and the integrity of domestic courts. Considering their submissions in respect of this issue, objections raised by Respondent States are genuine and therefore require principled reflections that the limited scope of the Court’s reasoning in individual cases or responses from its Registry do not and have not so far provided. In any event, the dialogue appears to have stalled as one of misunderstanding on the part of states and dilemmas for the Court. In this paper, I attempt to take up Sextus Empiricus’ role in assessing the veracity of both answers to the question whether the African Court exercises an appellate jurisdiction over courts of the Respondent States.

An evaluation of the regulatory framework for environmental management in the Nigerian petroleum industry

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

An evaluation of the regulatory framework for environmental management in the Nigerian petroleum industry

Authors Opeyemi Omotuyi and Ada Ordor

ISSN: 2521-2605
Affiliations: LLM University of Cape Town. Lecturer, Faculty of Law, Adekunle Ajasin University, Akungba Akoko, Ondo State, Nigeria; Associate Professor, Centre for Comparative Law in Africa, Faculty of Law, University of Cape Town
Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 32 – 55

Abstract

Environmental management is crucial to the sustainability of any industry and, in particular, the petroleum industry which carries out activities that degrade the environment. In Nigeria where the economy is heavily dependent on crude oil, the subject of environmental management is even more pertinent. This paper evaluates the framework for environmental management in the Nigerian petroleum industry in light of internationally acceptable standards of corporate environmental management. In so doing, the paper makes relevant recommendations in line with international and industry-related best practices and guidelines.

Safeguards for public-private partnership assets in Nigeria: lessons from South Africa

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

Safeguards for public-private partnership assets in Nigeria: lessons from South Africa

Authors Augustine Arimoro

ISSN: 2521-2605
Affiliations: LLB Hons (Maiduguri) LLM (Derby, UK) PhD, Associate Lecturer in Law, St Mary’s University Twickenham, London, United Kingdom
Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 56 – 79

Abstract

Countries around the world are adopting the public-private partnership model of procurement in order to bridge infrastructure gaps and to tap from private sector capital and expertise. Given the involvement of private sector funding in publicprivate partnership arrangements, the safety of investors’ assets is fundamental in order to attract both domestic and foreign investors to the public infrastructure market. This article examines the framework for the administration of the publicprivate partnership model in Nigeria with a view to determining how the law protects investors’ assets. The framework in South Africa is also examined for comparative insight. The central argument in the article is that a reliable framework that aims to ensure successful completion and management of projects in Nigeria can be achieved by taking a cue from the South African model. The article concludes with recommendations.

Expanding the scope of ‘appropriate measures’: do traditional institutions play a role in facilitating the protection of witnesses of trafficking in persons?

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

Expanding the scope of ‘appropriate measures’: do traditional institutions play a role in facilitating the protection of witnesses of trafficking in persons?

Authors Suzzie Onyeka Oyakhire

ISSN: 2521-2605
Affiliations: LL.B, LL.M: Doctoral Candidate, Faculty of Law, UCT and Lecturer, Faculty of Law, University of Benin, Benin City Nigeria
Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 80 – 105

Abstract

This paper studies the legal instruments designed to protect the victims and witnesses of human trafficking, drawing on empirical studies of the effectiveness of such measures. It argues that a combination of a statute-backed witness protection scheme and the application of indigenous practices by traditional rulers is more effective than statute alone to protect witnesses of human trafficking in Nigeria particularly from psychological threats and intimidation. The paper highlights the unsuccessful attempts by law enforcement authorities to investigate and prosecute traffickers because of the unwillingness of victim-witnesses to testify against their traffickers arising from the fear of repercussion from juju oaths administered to them by juju priests in Nigeria aimed at instilling secrecy. Despite the existence of conventional protective measures, victim-witnesses refuse to cooperate so as not to incur the wrath of the oath. This paper illustrates further that conventional criminal justice mechanisms are ill-suited to effectively curb this challenge, resulting in traffickers evading criminal justice sanctions. The viability of the recent interventions by the Oba of the Benin Kingdom to counter the effects of these oaths through a proclamation placing curses on human traffickers and culpable juju priests, is thus considered in this article as an alternative protective mechanism.

Legal and policy measures to curtail harmful use of agrichemicals in Nigeria

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

Legal and policy measures to curtail harmful use of agrichemicals in Nigeria

Authors Jane Ezirigwe

ISSN: 2521-2605
Affiliations: LLB (Hons.) Abuja, LLM (London), MBA (EBS), Doctoral Scholar, University of Cape Town, South Africa; Research Fellow, Nigerian Institute of Advanced Legal Studies
Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 106 – 131

Abstract

Agricultural chemicals are increasingly used under the perception that they are fundamental to achieving maximum crop yields and reducing output shrinkage. Today, far more antibiotics are consumed by animals than by humans, the vast majority for growth promotion and disease prevention; as substitutes for nutrition and hygiene. Chemical preservatives are used to improve the quality of farm produce. Current scientific research indicates that the misuse of agrichemicals negatively impacts human health and the environment, raising questions regarding the negative effects of unregulated agrichemical use on the health of the producers and consumers. This paper adopts an evaluative approach to scrutinise the existing legal and regulatory frameworks on agrichemical use in Nigeria. Its aim is to determine the adequacy of the legal and regulatory frameworks. It finds that the indiscriminate use of agrichemicals by Nigerian farmers and traders of agricultural products result from the absence of adequate laws, a regulatory failure, and ignorance on the part of the farming and consuming communities. It makes recommendations on policy options that can be used to reduce the use and misuse of agrichemicals, without the time consuming legislative and administrative amendments. This will help to promote the health of Nigerian farmers, consumers and their African counterparts.

Independent Contractors Have Rights Too

by | May 21, 2020 | ILJ, ILJ V40 I4

Independent Contractors Have Rights Too

Author Darcy du Toit

ISSN: 2413-9874
Affiliations:
Source: Industrial Law Journal, Volume 40 Issue 4, 2019, p. 2165 – 2188

Abstract

The distinction between employees and independent contractors remains essential in distinguishing subordinate workers from the selfemployed. But, in practice, the proliferation of non-standard work has included a growing reliance by employers on ‘disguised employment’ that has reached new heights in the platform economy. The article considers how far employment protection can be extended into the realm of notional independent contracting. In this context it looks at litigation in different jurisdictions by independent contractors claiming misclassification. But the main issue is the position of workers who are thus excluded from labour law protection, even though they may remain under the de facto control of quasi-employers. The article argues that the basic rights of workers necessarily apply to all workers, including vulnerable independent contractors. Mechanisms for achieving this include: (a) the purposive interpretation of independent services contracts; (b) the applicable provisions of existing legislation; and (c) legislation applicable to all workers in specific categories without distinction based on contractual status. A key question is that of identifying the content of rights which could provide precarious independent contractors with protection. This implies forms of responsive and decentralised regulation capable of addressing conditions in diverse sectors with the necessary specificity.

South African Labour Law Mapping the Changes — Part 1: The History of Labour Law and its Institutions

by | May 21, 2020 | ILJ, ILJ V40 I4

South African Labour Law Mapping the Changes — Part 1: The History of Labour Law and its Institutions

Authors Paul Benjamin & Halton Cheadle

ISSN: 2413-9874
Affiliations:
Source: Industrial Law Journal, Volume 40 Issue 4, 2019, p. 2189 – 2218

Abstract

The article gives an overview of the development of South African labour law in the period since 1994. While the basic model of modern South African labour law was established by 1999, the following two decades have seen an ongoing process of reform, contestation and adaptation. Post-apartheid legislation saw the establishment of new institutions including the Commission for Conciliation, Mediation and Arbitration, the Labour Court and the Labour Appeal Court. On the other hand, existing institutions such as the industrial councils were reformulated as bargaining councils with enhanced functions. The Labour Relations Act 66 of 1995 established a right to strike while simultaneously removing the duty to bargain that had emerged under the industrial court’s post-1980 unfair labour practice jurisdiction. While the period until 2006 saw a significant decline in strike activity, there has subsequently been an increase in the intensity and duration of strikes. Among the factors contributing to this are enhanced inequality, labour market casualisation and declining negotiating capacity. Legislation that came into effect on 1 January 2019 represented a response to this issue with the enactment of a national minimum wage as well as provisions dealing with picketing, strike ballots and prolonged strikes.

Opportunities Presented by the Fourth Industrial Revolution for Persons with Disabilities in the Public Sector

by | May 21, 2020 | ILJ, ILJ V40 I4

Opportunities Presented by the Fourth Industrial Revolution for Persons with Disabilities in the Public Sector

Authors Lindani Nxumalo & Carol Nxumalo

ISSN: 2413-9874
Affiliations:
Source: Industrial Law Journal, Volume 40 Issue 4, 2019, p. 2219 – 2236

Abstract

Securing employment and advancing in the labour market are among the challenges experienced by persons with disabilities. Bodily disablement often necessitates the need for artificial support to enable the person concerned to secure employment and to contribute effectively in the workplace. The Constitution of the Republic of South Africa 1996 provides for equality and the need to create a barrier-free society. Furthermore, it obligates the public sector to ensure equality by developing measures that will create equal access for all in the workplace. The fourth industrial revolution has introduced an advanced technology that includes, among other things, artificial intelligence. Technological advancement and artificial intelligence could assist in addressing the challenges faced by persons with disabilities. This article contends that the public sector must utilise opportunities presented by the fourth industrial revolution to guarantee the inclusion of persons with disabilities in the workplace. It encourages the public sector to invest in technology and provide assistive devices for persons with disabilities in order to guarantee their entry into and advancement in employment.

NOTE: The Furnishing of Security in terms of Section 145(7) and (8) of the Labour Relations Act: A Slow Start towards a Better End?

by | May 21, 2020 | ILJ, ILJ V40 I4

NOTE: The Furnishing of Security in terms of Section 145(7) and (8) of the Labour Relations Act: A Slow Start towards a Better End?

Authors Carlos J Tchawouo Mbiada

ISSN: 2413-9874
Affiliations: Director, Futcher & Poppesqou Attorneys
Source: Industrial Law Journal, Volume 40 Issue 4, 2019, p. 2237 – 2250

Abstract

None

Sustainable Exploitation of Natural Resources in Kenya: A Case for Communities’ Free, Prior and Informed Consent in Oil and Gas Projects

by | May 19, 2020 | ANUL, ANUL 2019 I1

Sustainable Exploitation of Natural Resources in Kenya: A Case for Communities’ Free, Prior and Informed Consent in Oil and Gas Projects

Authors Rodgers Otieno Odhiambo

ISSN: 2521-2613 Affiliations: Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 1 – 23

Abstract

This article attempts to analyse the development of free, prior and informed consent (FPIC) as an international law principle, its nature and its essence. Further, the article seeks to illustrate the advantages of the principle in natural resource development. Indeed, the principal aim of this article is to bring the development of an international law principle useful in the exploitation of natural resources to the attention of Kenyan legal scholars and policymakers. This is crucial in the context of Kenya which has no experience in the exploration and exploitation of oil and gas, and in view of the fact that the country has embarked on various legal and policy reforms within the extractive sector. Being a frontier market, Kenya needs to learn the nuances within the oil and gas sector. It would therefore be imperative to examine the jurisprudence of international bodies and the activities of other international actors with regard to communities’ participatory rights, while recognising that a new standard of international law has developed which recognises that there is a duty to obtain the FPIC of local and indigenous communities when undertaking extraction of natural resources activities within their locality. Thus, the paper seeks to explore the development of the duty to obtain FPIC in international instruments such as declarations, treaties and Acts by international bodies. The article concludes by making a strong case for the entrenchment of FPIC within the policy and legal framework governing the extractive sector in Kenya.