Insurgency, Islamic Fundamentalism and the Boko Haram Conundrum: Engaging the Contest between the Right to Religion and Supremacy of the Constitution in Nigeria

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

Insurgency, Islamic Fundamentalism and the Boko Haram Conundrum: Engaging the Contest between the Right to Religion and Supremacy of the Constitution in Nigeria

Authors MO Adeleke, LA Raimi & Olusola Babatunde Adegbite

ISSN: 2521-2613 Affiliations: Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 24 – 45

Abstract

This article examines the issue of national security and development through the prism of law and religion and its nexus with the tide of insurgency. To achieve this, it starts with a retrospective analysis of the development of religious extremism and violence as a form of political ideology in Nigeria. It then proceeds to engage the post-independence issues of religious violence that manifested in the form of Islamic fundamentalism, which found enough ground to fester, and was never properly addressed. In situating these issues, this article proposes that for Nigeria to overcome the current state of insecurity there must be a conversation establishing the nexus between the monster of insurgency and the masked rise of ‘political Islam’. This article concludes that in addition to necessary constitutional reforms, for Nigeria to reach its full potential, there must be a collective decision to respect section 10 of the Constitution as the supreme law of the whole country, and this must be backed up by a corresponding strong political will on the part of government.

An Appraisal of Procedural Environmental Rights in Tanzania’s Extractive Sector

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

An Appraisal of Procedural Environmental Rights in Tanzania’s Extractive Sector

Authors Elifuraha Laltaika

ISSN: 2521-2613 Affiliations: Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 46 – 63

Abstract

Some laws and policies governing the extraction of minerals, oil and gas in Tanzania offer insufficient protection of substantive human rights. This is partly because the law’s founding objective was not to protect community interests, but rather to expedite foreign direct investment while simultaneously protecting the sanctity of private property as an enabler of respect for transnational contractual obligations. Specifically, the laws in question are emblematic of the broader ‘neo-liberal law and development thought’, characterised by the primacy of the market in human relations. Yet extractive operations put resources on which local communities depend, such as drinking water, forests and biodiversity, at risk. This article investigates whether, by using procedural environmental rights, aggrieved communities and individuals in the country can successfully challenge potentially human rights-abridging and environmental protection-blind decisions through available avenues in the country’s justice system. One of the article’s key points is that by becoming one of the first African countries, and so far the only one in East Africa, to subscribe to extractive industries’ transparency initiative (EITI), and by enacting a law to operationalise EITI principles, Tanzania exhibits unwavering commitment to bringing new dynamics to the extractive sector. However, by disallowing environmental considerations and community consultation requirements from forming part of the conditions for granting resource extraction licence, participation is reduced to a mere technical enterprise or ‘box-checking’.

Public Participation and the Right to Development in Kenya

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

Public Participation and the Right to Development in Kenya

Authors Anthony Wambugu Munene

ISSN: 2521-2613 Affiliations: Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 64 – 85

Abstract

The principle of public participation has for a long time been an important feature of human rights law especially with regard to the right to development. This principle has been significant in giving meaning to international human rights instruments and has been a constant theme in many declarations, recommendations and resolutions of the United Nations. At the African regional level, the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights have both highlighted the central role that participation of the beneficiaries in their development plays in the implementation of the right to development. Under the Constitution of Kenya 2010, the general rules of international law and treaties and conventions that Kenya has ratified form part of the law of Kenya. The Bill of Rights in the Constitution sets out several fundamental rights and freedoms with the caveat that it does not exclude other rights and fundamental freedoms not included in it but which are recognised and conferred by law, such as the right to development. This means that the right to development, as provided for in the United Nations Declaration on the Right to Development and the African Charter on Human and Peoples’ Rights, is a fundamental right known to Kenyan law and enforceable as such. The Constitution further sets out participation of the people as one of the national values and principles of governance in Kenya. This contribution explores the law, policies and practices on public participation as an enabling principle in implementation of the right to development in Kenya.

‘Great Expectations’: The National Industrial Court and its Prospects of Furthering Social Rights in Nigeria

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

‘Great Expectations’: The National Industrial Court and its Prospects of Furthering Social Rights in Nigeria

Authors Nsongurua Udombana & Ngozi Udombana

ISSN: 2521-2613 Affiliations: Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 86 – 114

Abstract

The Nigeria Constitution 1999 makes the application of treaties contingent on their domestic transformation through a legislative enactment. This requirement, coupled with the question of justiciability, poses challenges to the judicial interpretation and application of economic and social rights, in particular. A recent amendment to the Constitution permits the National Industrial Court (NIC) to interpret and apply labour rights guaranteed in treaties, though they may not have been transformed into municipal law. Working on the premise that courts have a critical role to play in realising social rights, we argue that this development gives the NIC a rare opportunity to advance social rights. We call on NIC judges to boldly deploy their enhanced mandate to interpret the relevant labour-related treaties in ways that advance social rights in Nigeria.

The Dilemma of Electricity Pricing and Cost Recovery in Nigeria: Repositioning the Law to Balance the Interests of Investors and Consumers

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

The Dilemma of Electricity Pricing and Cost Recovery in Nigeria: Repositioning the Law to Balance the Interests of Investors and Consumers

Authors Uzezi Okpoudhu, Dr Peter Kayode Oniemola & Dr Eddy Lenusira Wifa

ISSN: 2521-2613
Affiliations:
Source: Africa Nazarene University Law Journal, 2019, Issue 1, p. 115 – 137

Abstract

The Nigerian electricity sector has been privatised and is transitioning in a competitive market. The law requires that tariffs should be cost reflective, attractive to investors and affordable to consumers. The challenges of balancing the interests of investors and those of consumers have been a bane to the development of a competitive electricity market. The progress made in the African countries of Tanzania and Kenya is commendable. This article analyses the conflicting interests, and offers solutions on how the law could be employed to balance the interests of investors and consumers in the Nigerian electricity market.

The turquand rule in South African company law: a(nother) suggested solution

The turquand rule in South African company law: a(nother) suggested solution

by | May 12, 2020 | JCCL, JCCL V5 I2

The turquand rule in South African company law: a(nother) suggested solution

Author: Etienne Aubrey Olivier

ISSN: 2521-2575
Affiliations: LLD candidate, University of the Western Cape
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 2, 2019, p. 1 – 28

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Olivier, EA
The turquand rule in South African company law: a(nother) suggested solution
Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 2, 2019, p. 1 – 28

Abstract

The common-law Turquand rule in South African law protects persons from being affected by a company’s non-compliance with an internal formality pertaining to the authority of its representatives. The Turquand rule should not be regarded as an independent rule of South African company law, but as part of the law of agency, particularly the principles of agency by estoppel. Section 20(7) of the Companies Act 71 of 2008 attempts to protect bona fide third parties dealing with companies. However, this section is likely to create uncertainty as it fails to clarify its impact on other provisions in the Act that prescribe requirements for company decisions. It is argued that s 20(7) of the Act is unnecessary and potentially dangerous, and should be repealed.

A ‘fair and reasonable proposal’ by the board may still amount to a breach of duty to exercise directors’ powers for a proper purpose

by | May 12, 2020 | JCCL, JCCL V5 I2

A ‘fair and reasonable proposal’ by the board may still amount to a breach of duty to exercise directors’ powers for a proper purpose

Authors Tshepo H Mongalo

ISSN: 2521-2575
Affiliations: Associate Professor University of the Witwatersrand, Johannesburg
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 2, 2019, p. 29 – 43

Abstract

Following the welcome abandonment of the proposal by Africa’s biggest retail chain, Shoprite Holdings Ltd, to buy out Christo Wiese’s high-voting deferred shares at a cost of about R3.3 billion because the proposal received more than 15 per cent of the minority shareholders’ disapproval, the real possibility of breach of duty by the company’s directors if the deal had proceeded has become moot. Using a long-standing legal authority — in the form of the judicial decision in the case of Howard Smith v Ampol Petroleum Ltd [1974] AC 821, and the more recent UK Supreme Court’s judgment in Eclairs Group Ltd v JKX Oil & Gas PLC [2015] UKSC 71 — this article argues that the directors would have found themselves in breach of their fiduciary duty had the deal materialised. This is regardless of the fact that the proposal had ‘allegedly’ been determined as ‘fair and reasonable’ by the auditing and accounting firm of Ernst & Young. Keywords: directors’ duties; proper purpose; fair and reasonable proposal; collateral purpose; multiplicity of purpose; substantial purpose; chairman’s influence.

The role of a legal system in the improvement of a country’s economy in relation to foreign investment

by | May 12, 2020 | JCCL, JCCL V5 I2

The role of a legal system in the improvement of a country’s economy in relation to foreign investment

Authors Princess Pat. Ada Ajudua

ISSN: 2521-2575
Affiliations: Legislator, Delta State House of Assembly, Asaba, Nigeria
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 2, 2019, p. 44 – 56

Abstract

This paper examines the role of a legal system in the improvement of a country’s economy in relation to foreign investment. The study has adopted a descriptive and analytical design, using a doctrinal methodology. It analyses the thematic problem of the investment climate issue in Nigeria, improvement in the mechanism for the resolution of investment arbitrations in Nigeria, and the expropriation in foreign investment and the settlement of investment disputes in Nigeria. Finally, the paper argues that the current wave of globalisation sweeping through the world has intensified the competition for FDI among developing countries. Consequently, concerted efforts are needed at national, regional, and international levels in order to attract significant investment flows to Nigeria and improve the prospects for sustained growth and development.

SARS’s application of the additional medical scheme fees tax credit for prescribed expenditure: a rule of Law violation?

by | May 12, 2020 | JCCL, JCCL V5 I2

SARS’s application of the additional medical scheme fees tax credit for prescribed expenditure: a rule of Law violation?

Authors Fareed Moosa

ISSN: 2521-2575
Affiliations: Head of Department (Mercantile and Labour Law) University of the Western Cape
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 2, 2019, p. 57 – 78

Abstract

Tax administration by the South African Revenue Service (SARS) is subject to constitutional control. As such, all SARS’s administrative processes must adhere to the rule of law, a founding constitutional value. This article argues that certainty, fairness, legality and rationality are basic principles of this value that must underpin SARS’s application of the rules governing the assessment of a taxpayer’s claim to benefit from the additional medical scheme fees tax credit provided for in s 6B(2) of the Income Tax Act 58 of 1962. This article shows that, in practice, SARS uses its examples of ‘qualifying medical expenses’ as legal yardsticks for determining whether a tax credit ought to be granted. The nub of this article is its hypothesis that this practice is antithetical to the principles engrained in the rule of law and, as such, does not pass muster. Consequently, the key contention made here is that any disallowance of a rebate on the basis that a taxpayer failed to satisfy any requirement in a listed example is justifiable grounds for an objection and appeal to be lodged under the Tax Administration Act 28 of 2011. Finally, this article argues further that a taxpayer is entitled to a rebate under s 6B(2) read with para (c) of the definition of ‘qualifying medical expenses’ in s 6B(1) of the Income Tax Act if the following two-legged test is met: First, the expense must be ‘prescribed’ by the Commissioner of SARS. Secondly, the expense must be ‘necessarily incurred and paid’ by the taxpayer ‘in consequence of any physical impairment or disability’ that is suffered by the taxpayer personally or by any person qualifying as a ‘dependant’ of the taxpayer.

Taxation, an equitable system and constitutional core values for efficient financial stability in Nigeria

by | May 12, 2020 | JCCL, JCCL V5 I2

Taxation, an equitable system and constitutional core values for efficient financial stability in Nigeria

Authors Kareem Adedokun

ISSN: 2521-2575
Affiliations: Senior Lecturer Kwara State University, Malete
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 2, 2019, p. 79 – 94

Abstract

Nigeria is a federation consisting of 36 states and a Federal Capital Territory. Each state needs adequate revenue for sustainability and has autonomy to initiate and implement any policy that may promote steady, internally generated revenue within its sphere. But such a policy must align with the overall political objective of the nation, enshrined in the Constitution. The Constitution advocates national integration, residence right and adequate provision for facilities to all citizens, believing that if a system is fair and equal, taxpayers will be more willing to cooperate with it. However, some states of the federation are implementing policies, particularly in education and politics, marred by deep inequalities which affect revenue generation and financial capability of the states. The author, using doctrinal and survey sampling methods, critiques these discriminatory policies and the way in which they interfere with the civic duty of tax obligation. The paper finds that discriminatory practices do not only whittle down revenue generation but also impair national integration. Consequently, it is suggested that various state governments in Nigeria should introduce a tax system that aims at catching many types of income, and ensure judicious application of the tax proceeds for the general and equal benefit of citizens regardless of their places of birth. The suggestion, if accepted and utilised, will enhance revenue generation, promote national integration and ensure delivery of the dividends of democracy to the citizens.