Litigating Self-Determination: A Regional Approach Comparing the Right to Self-Determination for Coastal Kenyans and Nubians Under the African and Arab Charter of Human Rights

by | Oct 9, 2019 | JCLA, JCLA V3 I2 2016

Litigating Self-Determination: A Regional Approach Comparing the Right to Self-Determination for Coastal Kenyans and Nubians Under the African and Arab Charter of Human Rights

Authors Nora Mbagathi

ISSN: 2521-2605
Affiliations: George Washington University Law School Graduate
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 84 – 111

Abstract

This paper examines the issue of a people’s self-determination under the African Charter on Human and People’s Rights and compares it to the Arab Charter of Human Rights. Specifically, it looks at the cases of the Mijikenda in Kenya and the Nubians in Egypt to determine when groups may be entitled to the remedial secession as a remedy for state violations regarding self-determination. The paper traces the development of the definition of ‘a people’ and compares these two cases with decisions the African Commission has already made in the Gunme and Katanga cases, regarding the issue of self-determination and secession. The issue of self-determination and of remedial secession is mainly driven by real politics on the international stage. This paper posits that regional courts and commissions would be best equipped to deal with self-determination. Regional judicial bodies may be able to impose remedies other than that of remedial secession and can thereby create a normative legal standard with regards to self-determination and secession, when necessary. The paper concludes that it would be in the best interest of states to give regional bodies more power and follow their rulings so that self-determination of various groups can be ensured and the break-up of existing states avoided.

Le Solidarisme Contractuel Dans les Relations Contractuelles Inégalitaires : L’exemple du Contrat de Travail. Une Approche Comparative des Droits Camerounais et Français

by | Oct 9, 2019 | JCLA, JCLA V3 I2 2016

Le Solidarisme Contractuel Dans les Relations Contractuelles Inégalitaires : L’exemple du Contrat de Travail. Une Approche Comparative des Droits Camerounais et Français

Authors Virginie Magloire Tchamwock-Deuffi

ISSN: 2521-2605
Affiliations: Docteur en droit privé Assistante à la faculté des Sciences Juridiques et Politiques de l’Université de Douala
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 57 – 83

Abstract

Contract law has experienced great changes in recent years. The goal of striking a balance between the parties to the contract was at the heart of different concerns. And the doctrine of contractual solidarity encouraged this tendency to moralise the relations between the contracting parties. Labour law has not not remained in the margins of this development. Indeed, in Cameroonian and French law, relations between employer and employee have evolved into the consideration by each party of the interests of the other. In this regard, despite the subordination that governs the employment contract, the conventional obligations of the parties have been strengthened. Cameroonian and French legislators have implicitly recognised the existence of contractual solidarity in labour law by consecrating the obligation of reclassification and by expanding the realm of alternatives to dismissal for economic reasons. One wonders whether the influence of this doctrine in employment law is compatible with the first foundations of the employment contract, in particular subordination. To this question, an affirmative answer is required. Subordination remains the foundation of the employment contract. However, the moral vision of the relationship requires parties to see each other as partners motivated by the desire to do everything possible to satisfy their respective interests. This implies that each party takes into account the interests of the other party, and makes his task easier. The superior interest of the contract requires this. Without this solidarity between the parties, they cannot make wise choices and employment contracts remain an unfinished phenomenon.

Making Competition Law a Platform for Consumer Protection in Nigeria: A Proposal

by | Oct 9, 2019 | JCLA, JCLA V3 I2 2016

Making Competition Law a Platform for Consumer Protection in Nigeria: A Proposal

Authors Job Odion

ISSN: 2521-2605
Affiliations: Senior Lecturer, Department of Business Law, University of Benin, Nigeria
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 31 – 56

Abstract

The relevance of competition law to consumer protection has long been identified in developed economies. Although, private enterprise was vigorously pursued in these economies, there was, however, serious emphasis on fair trading and competition in the supply of goods and services to the consumer. [fn1] The idea behind this was to prevent the existence of monopolies in the marketplace. The belief is that when there is competition in the marketplace, the quality of goods and services supplied to the consumer would be high as each manufacturer or supplier would work assiduously to outdo the other. [fn2] The consumer would not only benefit from improved quality of goods and services, he would also get them at fair and reasonable prices. [fn3] Therefore, in this article, we examined the relationship between competition law and consumer protection law and suggest that it is necessary for a synergy to be drawn between these disciplines in Nigeria in order to evolve an effective legal framework for the protection of the consumer. footnote 1: See http://wikipedia.org/wiki/competition_law (accessed on 25 November 2011). footnote 2: See generally Taylor Martyn, ‘International Competition Law: A new dimension for WTO’ http://www.google.com/books (accessed on 25 November 2011). footnote 3: See S. Apinega, ‘The Goal of Anti-Trust Laws and the Concept of Consumer Welfare’ (208-2009) 4 (1) ABU Law Journal 161—174.

La Nature du Droit OHADA

by | Oct 9, 2019 | JCLA, JCLA V3 I2 2016

La Nature du Droit OHADA

Authors Etienne Nsie

ISSN: 2521-2605
Affiliations: Maître de Conférences agrégé de droit privé; Faculté de Droit et des Sciences Économiques Université Omar BONGO Libreville – Gabon
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 1 – 30

Abstract

The study assumes that OHADA is an organisation of legal integration that cannot be assimilated to an economic integration organisation or a political union. Based on the exegetical method and comparative approach, we conclude that OHADA law is a supranational law which, although not being a community law, produces the same effects. But the study also notes that the nature of OHADA law is inferred from the scope of the Uniform Acts, which postulate that OHADA law is at once national law, cross-border law and international law. From this double exegetical and comparative approach, both lines of the debate can be deduced. To determine the nature of OHADA law, it is first necessary to focus on the legal nature of the organisation. The qualification of the organisation is the basis for the qualification of the law it produces. These two axes infer two critical issues; on the one hand, the superiority of OHADA law over the domestic laws of the member states; and on the other hand, the relations that OHADA has with the rights arising from the organisations of economic and/or legal integration to which the OHADA member states belong.

Women’s Rights in Africa: An Examination of African Human Rights Systems in the Context of CEDAW and the Universalism Versus Cultural Relativism Debate

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

Women’s Rights in Africa: An Examination of African Human Rights Systems in the Context of CEDAW and the Universalism Versus Cultural Relativism Debate

Authors Bukola Faturoti

ISSN: 2521-2605
Affiliations: Senior lecturer, Law School, Aberdeen Business School, Robert Gordon University
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 149 – 176

Abstract

Many African women suffer discrimination on the basis of their gender and other factors like religion, customs, age and marital status. They continue to be victims of harmful practices whose perpetrators are never held to account because the practices have their roots in cultural values and traditions. Any attempt to initiate a change in human rights — in particular, women’s rights — is countered with the argument of the imposition of Western culture on other regions of the world. This argument is based on the premise that human rights should be fashioned along the lines of the cultural beliefs of the people and should never be expected to be universal. By comparing certain provisions of the Convention on the Elimination of All Forms of Discrimination against Women with a number of African human rights instruments, this article investigates the influence of cultural relativism — if any — on the formulation of women’s rights under African human rights regimes.

Les Orientions du Législateur OHADA Dans L’auscgie Révisé

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

Les Orientions du Législateur OHADA Dans L’auscgie Révisé

Authors Patrice Samuela Badji

ISSN: 2521-2605
Affiliations: Agrégé des Facultés de Droit, UCAD
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 114 – 148

Abstract

The OHADA legislator has made a decision to make this law attractive, which has been demonstrated through several reforms. Thus, corporate law, a law of globalisation, could not escape this reform movement. Indeed, when browsing the revised Uniform Act relating to Commercial Companies and GIE, it is clear that the legislator is attempting to overcome the endless conflicts between several notions or concepts in an effort to allow inclusive and democratic management of the company. However, shortcomings have been noted with regard to a lack of knowledge of corporate social responsibility standards and procedural rights of managers and associates who are in conflict with the company or partners. The conclusion is that these failures will be met in the next set of corporate law reforms.

Minority Shareholders’ Rights and the Majority Rule under Corporate Governance: An Appraisal

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

Minority Shareholders’ Rights and the Majority Rule under Corporate Governance: An Appraisal

Authors Oluwasegun Isaac Aderibigbe

ISSN: 2521-2605
Affiliations: Law lecturer and researcher, Faculty of Law, Bowen University, IWO, Nigeria
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 100 – 113

Abstract

This article examines minority shareholders’ rights under corporate governance; what those rights are and what they should be, particularly in developing jurisdictions like Nigeria. The article subscribes strongly to the quest for the recognition and enforcement of minority shareholders’ rights under corporate governance. Once a company is incorporated, it assumes a legal status distinct from its subscribers; it can sue and be sued in its corporate name. Consequently, whenever the company has been wronged it is only the company that can seek redress; this is founded on the doctrine known as the majority rule as laid down in Foss v Harbottle [fn1]. The courts and a number of corporate laws in developing jurisdictions have over the years laid down several exceptions to this rule, thereby giving the minority shareholders right to seek redress against the majority shareholders in certain circumstances. This article interrogates the rationale behind the exceptions to the majority rule, with a special focus on developing jurisdictions. The article concludes that the majority rule is tainted with oppressive intentions rather than being a strategic imperative, particularly in respect of the right of minority shareholders to seek redress in court and that the strict application of the majority rule may create some intricate practical and legal problems. The success of the free market economy depends on the success of companies which rely on the leadership and performance of directors. The success of companies depends on directors bringing enterprise and integrity into their relationships with all shareholders, particularly minority shareholders. This research paper makes a modest contribution to knowledge in the sphere of minority shareholders’ rights and discusses how to facilitate a robust regime of the recognition and enforcement of minority shareholders rights under corporate governance in developing countries. footnote 1: (1843) 2 HARE 461

Daughter/Widow Retention in Nigeria: Survey and Analysis of Case Law

by | Oct 9, 2019 | JCLA, JCLA V3 I1 2016

Daughter/Widow Retention in Nigeria: Survey and Analysis of Case Law

Authors Nwudego Nkemakonam Chinwuba

ISSN: 2521-2605
Affiliations: Senior lecturer in law, University of Lagos, Department of Private and Property Law, Lagos, Nigeria
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 82 – 99

Abstract

This paper provides a case law survey of the custom of daughter/widow retention, alternatively referred to as ‘woman-to-woman’ marriage, in Nigeria. Since the empirical survey presenting the patterns is taken from case law, the paper necessarily adopts a socio-legal approach, invoking a need for limited analysis of the cases. Existing studies of the custom emphasise the role of patriarchy, succession and gender socialising in its development. However, a closer look at the custom and ancillary customs from the same ethnic group suggests that the relevance of womanhood to the scheme of society’s affairs, a chance at women’s self-actualisation, and the individual’s dignity, in spite of circumstances of birth, have played more significant roles in the sustenance, perpetuation and acceptance of the custom. Is the custom still relevant? The approach of the Nigerian courts is to abolish this custom vide ‘judicial legislating’. The paper shows that the larger society within which the custom operates accepts its ideals, thereby making African customary law structures that thrive on informal dispute resolution and persuasion the only viable way of resolving the conflicts and calming the tensions emanating from the clash between this custom and modernity. Persuasion through convincing strategies would thus work better than the current attitude of the Nigerian superior courts.