La Réparation des Dommages Causés Aux Détenteurs des Droits Fonciers du Fait des Exploitations Minieres: Réflexion à Partir de Textes Camerounais

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

La Réparation des Dommages Causés Aux Détenteurs des Droits Fonciers du Fait des Exploitations Minieres: Réflexion à Partir de Textes Camerounais

Authors Jules Goudem

ISSN: 2521-2605
Affiliations: Docteur de 3e cycle et Docteur/Ph.D. en droit privé, Chargé de cours, Université de Yaoundé II (Cameroun)
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 48 – 81

Abstract

Mining is one sector where the national legislator legislated early. Despite the fact that mines are considered priority areas as factors for development, the problem of taking into account the rights of landowners within the mining areas remains critical. This article shows that compensation for damages suffered by land rights holders due to mining activities is inadequate with respect to certain foreign experiences, in particular the Canadian one. On the other hand, compensation for damages of the same kind suffered by those who have been expropriated is sometimes appropriate. However, this is not the case for mining operations that have not been preceded by expropriation or incorporation. The law recognises the right to significant compensation for victims, even if judicial guarantees may be subject to uncertainty, which the next reforms should eliminate.

Agenda for Intra-African Economic Development: Business-Legal Frameworks, Enablers and Impediments

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

Agenda for Intra-African Economic Development: Business-Legal Frameworks, Enablers and Impediments

Authors Olawale Ajai

ISSN: 2521-2605
Affiliations: Professor of Legal, Social and Political Environment of Business, Lagos Business School, Pan Atlantic University, Lagos, Nigeria
Source: Journal of Comparative Law in Africa, Volume 3 Issue 1, p. 1 – 47

Abstract

Africa, once described as the ‘Dark Continent’, is now regarded as the next frontier for the internationalisation of developed and emerging market multinational corporations (MNCs) and small and medium enterprises (SMEs). Although viewed as a continent with burnished democracies, there is no doubt that a resurgent Africa, with a combined middle class of 600 million people and a raft of the fastest growing economies in the world, presents immense economic opportunities. In recent times there has been a noticeable trend in the internationalisation of African firms into Africa. With the repositioning of African political and economic cooperation, and emphasis on economic cooperation, intra-African-led economic development seems more plausible. Conversely, there are still xenophobic tendencies and trade barriers that bedevil intra-African trade and commerce. The differences in laws, legal culture and other institutional voids, in addition to constrained political and country business environmental factors, appear to be serious impediments. This paper undertakes a fairly extensive cross-disciplinary literature review and investigates the scope of the existing legal and business environments for intra-African business, with a view to identifying the key enabling and constraining factors and institutions. It highlights key areas and strategies for legal and institutional reforms and for further business-legal research.

The Protection of Traditional Cultural Expressions in Africa by Enyinna Nwauche, Springer International Publishing, 2017

by | Oct 9, 2019 | JCLA, JCLA V4 I2 2017

The Protection of Traditional Cultural Expressions in Africa by Enyinna Nwauche, Springer International Publishing, 2017

Authors AC Diala

ISSN: 2521-2605
Affiliations: Research Fellow, Centre for Comparative Law in Africa, University of Cape Town
Source: Journal of Comparative Law in Africa, Volume 4 Issue 2, p. 200 – 203

Abstract

None

La sécurite juridiqué des transferts de fonds par téléphone portable en République Démocratique Du Congo [The juridical safety of funds transfers by mobile phones]

by | Oct 9, 2019 | JCLA, JCLA V4 I2 2017

La sécurite juridiqué des transferts de fonds par téléphone portable en République Démocratique Du Congo [The juridical safety of funds transfers by mobile phones]

Authors Jeremy-Walter Bulashe Ntagalanda

ISSN: 2521-2605
Affiliations: None
Source: Journal of Comparative Law in Africa, Volume 4 Issue 2, p. 174 – 183

Abstract

The Congolese banking system, has been less developed and less diversified at the origin, it has strongly been degraded with political crisis persistency and economics. The emergency funds transfer system by telephone in the Democratic Republic of Congo that reveals the consequence of sub-banking of the country and the unsatisfactory of the population due to the benefit of financial short service messages. The system set by operators of mobile phones has become a helpful way that allows modest Congolese to make transfer operations and funds receiving through their mobile phones without taking into account the traditional methods of funds transfer which have been noticed unreliable and disadvantageous to that kind population. However, should we underline that this system lacks juridical safety whereas classic system of funds should be made by giving payment note to the person after having paid his/her money as proof warrant in case of misunderstanding and elsewhere there is no legislative regulation. It is therefore important to regulate for that issue.

A comparative study of the scope of jurisdiction of the investment and securities tribunal of Nigeria: Matters arising

by | Oct 9, 2019 | JCLA, JCLA V4 I2 2017

A comparative study of the scope of jurisdiction of the investment and securities tribunal of Nigeria: Matters arising

Authors Dr Eric Okojie, LE Enakemere, Peace Folorunsho

ISSN: 2521-2605
Affiliations: Senior Lecturer, Business Law Department, Faculty of Law, University of Benin, Benin City, Nigeria; Abuja, FCT-based legal practitioner; Solicitor/barrister of the Supreme Court of Nigeria
Source: Journal of Comparative Law in Africa, Volume 4 Issue 2, p. 105 – 129

Abstract

The jurisdiction of the Investment and Securities Tribunal as a court of first instance to the exclusion of regular courts in matters pertaining to the capital market has generated debate within the legal community because of Nigeria’s previous history with ouster clauses under military rule. This is more so when the independence of the tribunal is subject to question due to the wide powers conferred on the Finance Minister in Nigeria in the appointment of the chairman of the tribunal, for example, active legal practice is not an obligatory criterion for legal practitioners who may be considered for membership of the tribunal as only their experience in the capital market matters. Adjudication by the tribunal is preferred by some aggrieved because unlike the regular courts it is not burdened by technicalities, arbitration is swift and just like the regular courts, an aggrieved has a right of appeal. Despite these features, agitation for the removal of the exclusive jurisdiction has continued to heighten. This paper argues that there is a need for the review of the provisions of the enabling Act on membership of the tribunal; particularly for legal practitioners by requiring that such a member must be in active legal practice prior to his appointment as a means of assuaging the frequent appeals on the grounds of lack of fair hearing at the appellate courts. There is also the need for the public, key investors in the capital market about the activities of the tribunal as an alternative means of judicial redress. It concludes with the position that various securities tribunals/regulatory bodies must be manned with persons of expertise knowledge and technical know-how. This would ensure that securities tribunals are efficient, strong, transparent and responsive to the investors in the capital market.

Child marriage, bridewealth and legal pluralism in Africa

by | Oct 9, 2019 | JCLA, JCLA V4 I2 2017

Child marriage, bridewealth and legal pluralism in Africa

Authors Jane C. Diala, Anthony C. Diala

ISSN: 2521-2605
Affiliations: None; Postdoctoral Fellow, Centre for Comparative Law in Africa, University of Cape Town
Source: Journal of Comparative Law in Africa, Volume 4 Issue 2, p. 77 – 104

Abstract

As a widespread practice, child marriage has defied legislation in most sub- Saharan African countries. Is there a link between this defiance and distortions of the meaning of bridewealth? In its original sense, bridewealth functioned as the legitimating sign of marriage, a pledge that the bride will be well treated and a figurative recognition of her fecundity and worth to her community. Today, economic stratification and other socio-economic changes have commercialised bridewealth payment. This article draws a causal link between the distortion of bridewealth payment and the persistence of child marriage in Africa. Arguably, this persistence questions the influence of State law on normative behaviour in social fields. The article locates this argument in the disconnection between State law and people’s cultural practices, a notable feature of legal pluralism in post-colonial societies. While legislation remains important in campaigns against child marriage, policy makers should be mindful of its limitations in the face of customary law and socio-economic realities. Accordingly, anti-child marriage campaigns should aim to educate role players in child marriage and, generally, recognise the close link between early marriage, high bridewealth and normative interaction.

An examination of the power of removal of secretaries of private companies in Nigeria

by | Oct 9, 2019 | JCLA, JCLA V4 I2 2017

An examination of the power of removal of secretaries of private companies in Nigeria

Authors Andrew Ejovwo Abuza

ISSN: 2521-2605
Affiliations: Lecturer and former Sub-Dean, Faculty of Law, Delta State University, Abraka (Oleh Campus), Nigeria, Legal consultant and Principal of the law firm of Abuza and Associates
Source: Journal of Comparative Law in Africa, Volume 4 Issue 2, p. 34 – 76

Abstract

The Nigerian Companies and Allied Matters Act (CAMA) 2004 came into force on 2 January 1990. It provides the procedure for the removal of secretaries of public companies for alleged misconduct by the directors of public companies which said procedure accords them an opportunity to defend themselves before they can be removed for alleged misconduct. Thus, the employment of secretaries of public companies is protected by statute in Nigeria. There are, however, no statutory provisions in the CAMA 2004 on the procedure for the removal of secretaries of private companies for alleged misconduct by directors of private companies. In short, the Act is silent on the subject. This lacuna is being abused, as some directors of private companies in Nigeria have sought sanctuary under it to remove secretaries of private companies for alleged misconduct without giving them an opportunity to defend themselves. Although, no statutory procedure is in the CAMA 2004 on the removal of secretaries of private companies for alleged misconduct by directors of private companies, this article examines the power of removal of secretaries of private companies for alleged misconduct by directors of private companies in Nigeria and draws an analogy against the backdrop of the provisions of the CAMA 2004 with respect to the removal of secretaries of public companies for alleged misconduct, the provisions of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, the common law rules of natural justice, case law as well as the provisions of International human rights instruments. It is the view of the writer that the removal of secretaries of private companies for alleged misconduct by directors of private companies in Nigeria without giving them an opportunity to defend themselves is discriminatory and contrary to section 36 of the CFRN 1999, the common-law rules of natural justice, international human rights instruments and international best practices. Notwithstanding the fundamental differences between private companies and public companies, the writer suggests, among other things, the amendment of the Act to provide the procedure for the removal of secretaries of private companies for alleged misconduct by directors of private companies which said procedure must accord them an opportunity to defend themselves before they can be removed for alleged misconduct by directors of private companies. This is in line with the ‘equal protection of the law and non-discrimination’ principle as enunciated in section 42(1)(a) and (b) of the CFRN 1999 and international human rights instruments; right to a fair hearing as guaranteed under the common-law rules of natural justice, section 36 of the CFRN 1999 and international human rights instruments; international best practices; and the rule of law.

International humanitarian law in the work of regional human rights courts: African and comparative trends

by | Oct 9, 2019 | JCLA, JCLA V4 I2 2017

International humanitarian law in the work of regional human rights courts: African and comparative trends

Authors Brian Sang YK

ISSN: 2521-2605
Affiliations: Research Fellow, Centre for Alternative Research on Law and Policy
Source: Journal of Comparative Law in Africa, Volume 4 Issue 2, p. 1 – 33

Abstract

Regional human rights courts have applied human rights law and international humanitarian law (IHL) when considering alleged violations in the context of armed conflict. This offers a useful basis for examining how regional human rights bodies have been or can be used to enforce IHL and how, and the extent to which, human rights and IHL norms interact. But it also poses challenges to the legitimacy and efficacy of regional bodies that apply IHL. This article analyses trends in the application of IHL in regional human rights systems, as reflected in the work of African, Inter-American and European human rights treaty monitoring bodies. Supported by comparative case law, the article argues that regional human rights courts have contributed to the implementation of IHL, albeit to various extents. It also argues that the growing convergence of IHL and human rights norms means that regional mechanisms can be utilised to strengthen compliance with both IHL and human rights law. Yet this is undermined by the lack of systematic engagement with IHL within and across regional human rights systems. To reverse this trend, this article proposes that regional systems must clarify: (a) their competence to directly apply IHL, or only refer to it as an aid in interpreting human rights law; (b) the extent to which IHL can or should influence the interpretation of regional human rights treaties or specific norms; and (c) which body of law or, in the alternative, the specific rule that should prevail in case of a conflict of norms.