WTO Special and Differential Treatment: Africa’s Golden Fleece or Trojan Horse

by | Oct 14, 2019 | SADC, SADC 2013

WTO Special and Differential Treatment: Africa’s Golden Fleece or Trojan Horse?

Authors Jumoke Oduwole

ISSN: 2026-8556
Affiliations: Lecturer, Faculty of Law, University of Lagos
Source: SADC Law Journal, The, 2013, p. 59 – 79

Abstract

The Doha Development Agenda (Doha Round) heralded an historic negotiation pertaining to Special and Differential Treatment (SDT) for developing countries. The SDT accorded to developing countries under the WTO takes the form of exemption provisions for least-developed countries (LDCs) and developing countries to ensure proportionality in the commitments undertaken between industrialised members and developing country WTO members based on their different levels of advancement. The paper argues that the goal of African countries in Doha negotiations should remain the attaining of equality in outcomes from the application of the new trade rules. Furthermore, today, even emerging economies attempt to remain within SDT categories for purposes of WTO rules, in order to continue benefitting from the exemptions available to their so-called peers within the system. The writer contends that, if not properly structured and implemented, SDT provisions woven into trade rules could become a disincentive to the growth of African economies. This paper analyses the possible implication of SDT proposals currently being presented by African countries in the Doha Round. The objective of the paper is to stimulate informed policy contributions across the continent that may be applied in advancing and negotiating key SDT areas during the Doha Round and beyond.

Off the Beaten Track into the Savannah: The Mike Campbell (Pvt) Ltd v The Republic of Zimbabwe Ruling Imperils SADC Investment Law

by | Oct 14, 2019 | SADC, SADC 2013

Off the Beaten Track into the Savannah: The Mike Campbell (Pvt) Ltd v The Republic of Zimbabwe Ruling Imperils SADC Investment Law

Authors Tawanda Hondora

ISSN: 2026-8556
Affiliations: None
Source: SADC Law Journal, The, 2013, p. 23 – 58

Abstract

This article considers the investment law implications of the celebrated case of Mike Campbell (Pvt) Ltd and 78 Others v The Republic of Zimbabwe. In its decision, the Southern African Development Community (SADC) Tribunal declared that the 79 applicants, among which were 28 private limited companies and their shareholders: (i) had been subjected to unlawful race discrimination; (ii) had been unlawfully denied access to the courts of Zimbabwe; and (iii) were entitled to be paid ‘fair compensation’ for farms expropriated by the respondent State. This article argues that the Campbell case was wrongly decided. Contrary to the Tribunal’s decision under international law: (a) a company — such as Mike Campbell (Pvt) Ltd — cannot assert a race discrimination claim; (b) a shareholder in a company — such as William Michael Campbell — does not have a cause of action or jus standi against a State in a claim seeking compensation for property expropriated from the company, except where the company has been wound up, the direct rights of the shareholder — qua shareholder — have been breached, or a specific and enabling investment treaty applies to the dispute; and (c) a State is not required to pay ‘fair compensation’ or ‘prompt, adequate and effective compensation’ to its national from whom it has expropriated property. Although decided using international human rights law principles, the Campbell ruling is relevant to, and will imperil, SADC investment law, if it is treated as persuasive authority.

Using Local Legal Cultures to Evaluate the OHADA Regime as a Precedent for Business Law Integration in the SADC

by | Oct 14, 2019 | SADC, SADC 2013

Using Local Legal Cultures to Evaluate the OHADA Regime as a Precedent for Business Law Integration in the SADC

Authors Isabelle Deschamps

ISSN: 2026-8556
Affiliations: Lawyer, D.C.L. Candidate, McGill University; Non-practising Solicitor, Law Society of England and Wales (2008)
Source: SADC Law Journal, The, 2013, p. 1 – 22

Abstract

This paper discusses the importance for states, transnational organisations and ‘norm entrepreneurs’ in Africa to account for local legal cultures when contemplating regional business law unification and economic integration. It explores how local legal cultures shape commercial usages and how commercial law integration projects in Africa, in particular the OHADA and the SADC could better account for them. To begin with the paper revisits anthropological, critical and international law definitions of culture and analyses the attributes of local legal cultures. Building on this discussion, the article then analyses the relationship of general cultural norms to the particular informal legal norms that shape the living law of business in some OHADA and SADC countries. It looks at specific spheres where local business law cultures can be observed. The point is not to describe the specific business law cultures operating in the OHADA and the SADC regions, but rather to draw attention to settings where jurists and lawmakers can observe local business legal culture in action. The article concludes that paying attention to local business law culture will help assess the merits of the OHADA as a model for the SADC. On a broader scale, it will assist legislators, governments, jurists and other transnational business law experts in assessing the feasibility of an African economic and legal integration project.

Prospects for medicines regulation harmonisation in the SADC: Reflections on the AU draft model law and other developments

by | Oct 13, 2019 | SADC, SADC 2014/15

Prospects for medicines regulation harmonisation in the SADC: Reflections on the AU draft model law and other developments

Authors Yousuf A Vawda

ISSN: 2026-8556
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal
Source: SADC Law Journal, The, 2014/15, p. 209 – 223

Abstract

Fourteen of the fifteen SADC member states signed the Protocol on Health, in Maputo, on 18 August 1999. The Protocol recognises, among other things, ‘that close co-operation in the area of health is essential for the effective control of communicable diseases, non-communicable diseases and for addressing common health concerns in the Region’. Critically, it provides that ‘State Parties shall co-operate and assist one another in the harmonisation of procedures of pharmaceuticals, quality assurance and registration’. There is thus a regional imperative to harmonise medicines regulatory laws, regulations and procedures. In the ensuing decade and a half, a number of developments have taken place along the path to harmonisation. The AU’s ‘draft Preliminary Model Law on Medicines Regulation Harmonization’ has sought to take the process of harmonisation to a continental level. Given the complexities and disparate backgrounds of AU member states, this is a mammoth task to accomplish. For example, a number of thorny policy issues will need to be clarified. Furthermore, the success of AU-wide harmonisation and model legislation must be premised on the regional blocs achieving significant consensus within their ranks. This contribution evaluates the progress which the SADC bloc is making to attain harmonisation, identifies the critical issues which need to be addressed in the run-up to full harmonisation, and explores how these may be addressed. It concludes that the significant progress made by other regional blocs in Africa, and the experience of the AU Model Law, offer useful exemplars for progress by the SADC in this regard.

Customary Land Laws within Legal Pluralism over the Generations

by | Oct 13, 2019 | SADC, SADC 2014/15

Customary Land Laws within Legal Pluralism over the Generations

Authors Gordon R. Woodman

ISSN: 2026-8556
Affiliations: Emeritus Professor of Comparative Law, Birmingham Law School, University of Birmingham
Source: SADC Law Journal, The, 2014/15, p. 189 – 208

Abstract

This paper considers the ways in which customary land laws in Africa have been changed over time, especially by their interaction with other laws, using examples of specific developments taken largely from certain common law jurisdictions. The purpose is to assist decision-making for immediate and long-term legal development. The relationship of types of customary land laws to types of legal pluralism forms a framework. State law pluralism is commonly the coexistence within a state law of received law and one or more customary laws ‘recognised’ by the state. These ‘recognised’ customary laws are official customary laws, as created and developed through state authorities. Deep legal pluralism is the coexistence of these plural state laws with living customary laws, which are the customary laws observed within communities. Customary land laws have never been static. Changes in living customary land laws have often been brought about by indigenous factors such as contact between communities with different customary laws, or the influences of globalisation. Some changes in living customary land laws, such as the extent and nature of the authority of chiefs over land, have ensued from the very existence of the state. Many others have arisen from state ‘recognition’ of customary land laws. State ‘recognition’, whether institutional or normative, creates official customary laws, the content of which can result from misunderstandings of living customary laws, policies aimed at modifying them, and the necessity to reformulate customary law for use in state institutions. Other changes have resulted from deliberate state attempts to replace or change living customary land laws. Examples of significant changes concern the character of allodial titles, of communal land rights, and of transactions affecting land. Possible results of changes in the future are the disappearance of elements or entireties of current customary land laws, and the unification or integration of plural land laws.

Communal land tenure after 20 years of democracy in South Africa

by | Oct 13, 2019 | SADC, SADC 2014/15

Communal land tenure after 20 years of democracy in South Africa

Authors Tara Weinberg

ISSN: 2026-8556
Affiliations: Researcher, Centre for Law and Society, University of Cape Town
Source: SADC Law Journal, The, 2014/15, p. 164 – 188

Abstract

Twenty years have passed since the Bantustans were reintegrated into South Africa. Yet for the 17 million people still living in these former homelands, the struggle for full recognition of their land rights persists. The post-1994 government refers to the former homelands as ‘communal areas’, where ‘communal tenure’ is at play. This paper focuses on ‘communal tenure’ reform developments (or lack thereof) with reference to law, policy and practice in rural areas in South Africa. While laws to promote tenure security for farm dwellers and labour tenants have been enacted, there is no legislation beyond the Interim Protection of Informal Land Rights Act (IPILRA) to secure the land rights of people living in the former Bantustans. Despite the post-1994 constitutional requirement that the state make secure the land tenure of people in all of South Africa, it has so far failed to do so. This legislative ‘vacuum’ has contributed to the precarious nature of people’s land rights in the former homelands. This paper argues that communal land tenure is not in a healthy state and discusses recent laws and policies that are symptoms of this ill health, including the ‘willing buyer-willing seller’ policy, the Communal Land Rights Act, the Traditional Leadership and Governance Framework Act and the government’s recent new communal land tenure policy. Taking cognisance of the interface between customary and ‘informal land rights’, and South Africa’s legal systems of property recognition, the paper explores the historical roots of the insecurity of land tenure with which millions of South Africans struggle. Finally, the paper diagnoses some of the root causes of the failures of communal land tenure reform and posits some alternative solutions.

Legal hostility towards street vendors in Tanzania: A constitutional quandary?

by | Oct 13, 2019 | SADC, SADC 2014/15

Legal hostility towards street vendors in Tanzania: A constitutional quandary?

Authors Tulia Ackson

ISSN: 2026-8556
Affiliations: Senior Lecturer and Associate Dean, School of Law University of Dar es Salaam
Source: SADC Law Journal, The, 2014/15, p. 144 – 163

Abstract

Although the Constitution of the United Republic of Tanzania, 1977, categorically provides for the right to own property, this right is a distant reality in respect of one unique social group. An already politically, economically and socially marginalised group, street vendors find themselves on the wrong side of the law too often with fairly harsh consequences. These include evictions from their working stations often without sufficient notice, confiscation of goods, arrests, fines and imprisonment. If it is indeed true, that the Constitution guarantees the right to own property, how and why are street vendors seemingly beyond the horizon of the legal protection openly enjoyed by other sections of the community? This article identifies and examines the pertinent laws at the heart of this ‘legal hostility’ towards street vendors, but also offers suggestions how this situation may be reversed. It is argued that if Tanzania’s Development Vision 2025 and the Millennium Development Goal (MDG) No. 1 are to be realised, a conducive, legally articulated working environment for street vendors is an absolute, inescapable requirement.

Facing reality: Regional integration, the unitary state and prospects for the actualisation of the SADC Charter of Fundamental Social Rights

by | Oct 13, 2019 | SADC, SADC 2014/15

Facing reality: Regional integration, the unitary state and prospects for the actualisation of the SADC Charter of Fundamental Social Rights

Authors Emmanuel K.B. Ntumy

ISSN: 2026-8556
Affiliations: Senior Lecturer, Department of Law, University of Botswana
Source: SADC Law Journal, The, 2014/15, p. 110 – 143

Abstract

The transformation of the Southern African Co-ordination Conference (SADCC) into the Southern African Development Community (SADC) in 1992 heralded the birth of theories, theses and postulations about the benefits accruable via co-operation and regional integration. These were in addition to the variants of harmonisation suggested even in the face of diverse, implacable and therefore conflictual socio-political and economic policies of the component States. Included in this menu were commentaries on Economic Communities, Customs Unions, Common Market the European Economic Community, regional blocs such as the European Union and even the African Union. The multiplier effects of benefits amidst diversity and even the desirability of exploring the international environment for models, best practices and normative benchmarks were all actively advocated and robustly debated. Two decades later, the euphoria seems to have evaporated to be replaced by the realities of obsessive territoriality, clear historical and socio-economic disparities, symbolic overtures to regional integration, internal statist proclivities and emerging re-prioritisation of state-driven individualistic imperatives. These developments, to some, may appear natural, but to others however, their potentially deleterious effects on the general citizenry of the Southern African sub-region need closer observation. The question which is a logical corollary then becomes one of whether adequate preparatory work was done before this grand scheme was foisted on the gullible public. If so, why has the equally grand objective of socio-economic co-operation and integration become so elusive? The answer lies in a candid examination of the socio-political, economic and historical origins of the member states. This must be coupled with an evaluation of the perceptions and expectations that informed the inception of this intergovernmental organisation. To do this, the paper uses the Charter of Fundamental Social Rights as both an illustration and a measuring tool. The paper contends that the lofty ideals encapsulated in the Charter are out of tune with the demonstrated concerns of the members and the modalities they adopt in achieving their individualised objectives. This is with particular regard to labour formations and issues related to them. The paper thus asserts that should this trend continue, the SADC could well become a shifting mirage in the political, social and economic terrain of Southern Africa.

The Western Sahara Case: Land Reform and Pre-Colonial Land Rights in Namibia

by | Oct 13, 2019 | SADC, SADC 2014/15

The Western Sahara Case: Land Reform and Pre-Colonial Land Rights in Namibia

Authors Dr. Nico Horn

ISSN: 2026-8556
Affiliations: Faculty of Law, University of Namibia
Source: SADC Law Journal, The, 2014/15, p. 96 – 109

Abstract

Article 16 of the Namibian Constitution guarantees the property rights of property owners at the time of independence. However, it does not refer to the long pre-independence practice of disowning indigenous people, a practice which began with the Herrero/Nama genocide during the German/Herero war in 1904. Recent developments in the Mabo case in Australia could give Namibians a tool to have indigenous land rights acknowledged despite the constitutional rights of the present land owners. One may ask what do the small Murray Islands, in the Torres Strait off the Queensland coast, have in common with Namibia? Unlike the bloody German/Herero and Nama wars, no shot was fired when Her Majesty’s administration in Queensland declared the Murray Islands a crown colony. Yet, the two peoples had a common history of submission to a colonial power; and although allowed to remain on their ancestral lands, they were not informed that they had been colonised. The Mabo case, a lawsuit brought by the Meriam people, was instrumental in abandoning one of the oldest justifications for the occupation of inhabited land, the so-called terra nullius rule. The example of the Mabo case provides an opportunity to approach the land reform programme in Namibia from a different perspective, at least in the central and southern regions of the country. The Namibian Constitution guarantees private property rights. The idea that more than one right can exist over land is not unknown to both common law and statutory law in Namibia. The paper will propose a process where several strategies are used to obtain the final goal: a just distribution of land to all the peoples of Namibia in a way that contributes to prosperity and stability.

Seeking a Gender Equitable Customary System of Distributive Justice: The Case of the Lozi of Western Zambia

by | Oct 13, 2019 | SADC, SADC 2014/15

Seeking a Gender Equitable Customary System of Distributive Justice: The Case of the Lozi of Western Zambia

Authors Mulela Margaret Munalula

ISSN: 2026-8556
Affiliations: Associate Professor of Human Rights University of Zambia
Source: SADC Law Journal, The, 2014/15, p. 81 – 95

Abstract

This paper looks at African customary law as a system of distributive justice capable of fulfilling the just distribution of basic goods in state. In this case that good is the right to property (land) and those seeking a fair entitlement to it are women. The aim of the paper is to re-vision customary law to appropriately fulfill its mandate as an inclusive gender sensitive system of justice. The paper is premised on the fact that not only is land a pre-requisite for securing a livelihood, much of it is regulated by customary law. Furthermore, women’s land rights are mostly sanctioned by customary law. And yet the significance of customary law is not reflected in the dual legal system that applies which ranks customary law below state or general law, and thereby renders rather precarious any entitlements to land derived from customary law. If justice is to prevail, customary law should be accorded its rightful status. However that is not the primary concern of this paper. The appropriate recognition of customary law comes only later after customary law has adequately provided for women. Thus its recognition should be earned by its own renewal as a system that is not based on gender hierarchy or a denial of women’s status as persons under the law with a full set of rights and obligations. Thus prior to or through the process of recognition, customary law must pass the test required of a distributive justice system by feminist theory. Lozi (Western Zambia) customary law is used to illustrate this argument: First it reminds the reader that as originally conceived, customary law is a system of law capable of providing for the distribution of basic goods in society. Secondly and more significantly, Lozi customary law shows that whilst it has the potential to serve as a system of distributive justice, its orientation towards gender hierarchy undermines that capacity. Thus what follows is a proposal to move customary land tenure from a system that espouses bilateral traits with a bias towards the father-right to a truly equitable system capable of a gender-just distribution of land rights. In short, the paper is a proposal for effectuating gender justice.