Unjustified Enrichment: Should South Africa Venture into the Thick Forest of Passing-on Defence?

by | Oct 9, 2019 | JCLA, JCLA V4 I1 2017

Unjustified Enrichment: Should South Africa Venture into the Thick Forest of Passing-on Defence?

Authors Aimite Jorge

ISSN: 2521-2605
Affiliations: Senior lecturer at the University of Namibia, Namibia
Source: Journal of Comparative Law in Africa, Volume 4 Issue 1, p. 145 – 164

Abstract

There is usually a tension in the law of unjustified enrichment when it comes to sanctioning a defence of passing on. The concept ‘passing on’ in the law of unjustified enrichment essentially entails that the claimant has shifted onto a third party the ‘financial’ burden that is consequent upon the defendant’s unjustified enrichment. Several jurisdictions formulate their enrichment doctrine requiring a ‘mirror-image loss-gain’, that is to say, the claimant can only recover from the defendant what he has lost to the defendant. If the claimant were allowed to recover more than his loss, the law would be punishing the defendant and enriching the claimant at the defendant’s expense. For this and other reasons some think that there should exist symmetry in the law of unjustified enrichment in that where the defence of change of position (loss of enrichment) is recognised, the passing-on defence should equally be sanctioned as the reverse face of change-of-position defence on the claimant’s side. This paper explores these issues in depth and argues that the need for such symmetry is misconceived. The defence of passing on is, however, sustainable in certain cases and should be recognised not only for policy reasons but also for reasons of principle.

The Clean Development Mechanism and Sustainable Development: Comparative Analysis of Governance of CDM in China and Nigeria

by | Oct 9, 2019 | JCLA, JCLA V4 I1 2017

The Clean Development Mechanism and Sustainable Development: Comparative Analysis of Governance of CDM in China and Nigeria

Authors Oluwatoyin Adejonwo-Osho

ISSN: 2521-2605
Affiliations: Lecturer at the Faculty of Law, University of Lagos, Nigeria
Source: Journal of Comparative Law in Africa, Volume 4 Issue 1, p. 125 – 144

Abstract

Climate change is considered one of the most serious threats to humanity and sustainable development. In response to this threat it has become necessary to stabilise the emission of greenhouse gases (GHG) by developed countries and promote sustainable development, especially in developing countries to steer them away from the path of unsustainable development travelled by developed countries. Article 12 of the Kyoto Protocol established the Clean Development Mechanism (CDM) to promote sustainable development in developing countries. The current CDM project pipeline indicates that countries in Asia and Latin America, such as China, South Korea, India, Brazil and Mexico, currently dominate the CDM project pipeline. They have been successful in supplying over 80% of global certified emission reduction credits (CERs). However, Africa has not been so successful in attracting CDM projects. For example, Nigeria is currently hosting seven out of the 7 987 registered projects in the CDM project pipeline. Using desk-based research and comparative analysis, this paper seeks to highlight the factors that have contributed to the CDM success of countries such as China. In conclusion, the paper advocates that Nigeria can use the CDM as a tool to institutionalise and achieve sustainable development.

Socio-legal Evaluation of Grand Corruption in Africa

by | Oct 9, 2019 | JCLA, JCLA V4 I1 2017

Socio-legal Evaluation of Grand Corruption in Africa

Authors SA Igbinedion

ISSN: 2521-2605
Affiliations: Department of Jurisprudence and International Law, Faculty of Law, University of Lagos, Nigeria
Source: Journal of Comparative Law in Africa, Volume 4 Issue 1, p. 86 – 124

Abstract

This article undertakes a socio-legal evaluation of grand corruption, which prevails in most parts of Africa. Grand corruption is the genre of corruption perpetrated by high-profile public officials who are responsible for statecraft. Apart from the usual categorisation as a crime, the nature of this conduct is yet to be adequately explored. This has largely led to the poor appreciation of grand corruption and, ipso facto, of adequate countermeasures against it. This article seeks to fill that void by critically undertaking a socio-legal analysis of the nature of grand corruption. This approach is geared to help African citizens, stakeholders, policy makers and legislatures understand the nature and substance of grand corruption so that they can properly aggregate, articulate and design adequate measures against this menace.

Les Enjeux de la flexibilisation des Règles des Sociètès Commerciales Dans L’auscgie Rèvisè

by | Oct 9, 2019 | JCLA, JCLA V4 I1 2017

Les Enjeux de la flexibilisation des Règles des Sociètès Commerciales Dans L’auscgie Rèvisè

Authors Patrice Samuel Aristide Badji

ISSN: 2521-2605
Affiliations: Agrégé des Facultés de droit/UCAD
Source: Journal of Comparative Law in Africa, Volume 4 Issue 1, p. 45 – 85

Abstract

The OHADA legislator has fully committed itself to globalisation. Evidence hereof is the reform undertaken in corporate law. The objective is to make this law attractive. For this, we need greater flexibility, which, despite its virtues, does present some drawbacks.

The Need for a Review of Plea Bargaining in Uganda: A Reflection on the Experiences under Common Law and in South Africa

by | Oct 9, 2019 | JCLA, JCLA V4 I1 2017

The Need for a Review of Plea Bargaining in Uganda: A Reflection on the Experiences under Common Law and in South Africa

Authors Robert Doya Nanima

ISSN: 2521-2605
Affiliations: Faculty of Law, University of the Western Cape, South Africa
Source: Journal of Comparative Law in Africa, Volume 4 Issue 1, p. 24 – 44

Abstract

Plea bargaining under common law is not new to Uganda’s criminal justice system. It is, however, not provided for in any statutes. In addition, it is widely used by the various institutions in the criminal justice system. Its inadequacy in dealing with Uganda’s case backlog is evident in the use of various initiatives like ‘Quick Wins’ and the ‘Community Service Project’, which reflect the inefficiency of the current plea-bargaining system, and the lack of adequate participation by the accused in the process. First, this article evaluates the plea-bargaining regime in Uganda. Secondly, it uses insights from experiences under common law and in South Africa. Thirdly, it proposes a working framework that may improve plea bargaining in Uganda. The terms ‘plea bargaining’ and ‘plea and sentence agreement’ are used interchangeably to refer to the same concept.

Corporate Governance Rating Systems as a Means of Targeting Corporate Misconduct in Africa: The Nigerian Example

by | Oct 8, 2019 | JCLA, JCLA V4 I1 2017

Corporate Governance Rating Systems as a Means of Targeting Corporate Misconduct in Africa: The Nigerian Example

Authors Sope Williams-Elegbe

ISSN: 2521-2605
Affiliations: Associate Professor, Stellenbosch University, South Africa
Source: Journal of Comparative Law in Africa, Volume 4 Issue 1, p. 1 – 23

Abstract

In 2013, the Nigerian Stock Exchange, in partnership with the Convention on Business Integrity, piloted a Corporate Governance Rating System (CGRS) for Nigeria. A corporate governance rating is a means of assessing a company’s corporate governance system by examining and evaluating an entity’s corporate governance procedures and practices. After the pilot’s conclusion, a qualitative evaluation of the pilot was conducted through a survey of the companies that had participated in the pilot as well as other stakeholders. The evaluation was done to determine whether the CGRS as piloted had been useful to improve the corporate governance practices and policies of participating companies and whether the participants and stakeholders in the CGRS believed that the CGRS would in the long term contribute to improving corporate governance in Nigeria. The evaluation also sought to identify the main challenges and drawbacks of the CGRS as piloted. This article presents the findings of this evaluation and the lessons drawn from the pilot, and further considers whether the CGRS will be suitable for other African countries that may want to adopt a corporate governance rating system.

The law as shelter: The interface between women and climate change adaptation responses in Africa

by | Oct 8, 2019 | JCLA, JCLA V5 I2 2018

The law as shelter: The interface between women and climate change adaptation responses in Africa

Authors Michael Addaney

ISSN: 2521-2605
Affiliations: Senior Research Assistant, University of Energy and Natural Resources, Sunyani, Ghana
Source: Journal of Comparative Law in Africa, Volume 5 Issue 2, p. 117 – 148

Abstract

Climate change is widely recognised as a key factor in sustainable development policymaking at international, regional and national levels. Indeed, there is increased recognition of climate change as a hurdle to realising the inclusive development objectives of developing regions and emerging economies. However, there is a dearth of policies and research on integration of gender perspectives into climate change programming. It is against this backdrop that this article examines the African Union Agenda 2063 and other relevant regional mechanisms to ascertain how they respond to the needs of women in coping with the adverse effects of climate change. Based largely on literature review, this paper examines the interface between women’s needs in climate change adaptation and the extent to which Agenda 2063 and associated AU laws and policies on gender and the environment meet these needs. It is argued that the inclusion of women’s needs in climate change interventions is crucial for the effective implementation of Agenda 2063 and associated policies. Firstly, women play a critical role in sustainable development in the Global South because of their prominence in agricultural and related activities. On account of this, their inclusion in sustainable development planning remains crucial, with a view to ensuring that climate change interventions are reflective of women’s agency in the environmental and socio-political affairs of emerging economies. It is concluded that the AU, African governments and civil society should accord due regard to the voice of women in all decisions having a bearing on climate change adaptation. The increased involvement of women will enhance environmental and productivity gains to create mutual benefits and higher returns across the SDGs, and the Strategic Aspirations of the Agenda 2063 in Africa.

Inclusion of gender sensitivity into Nigeria primary education system: Implications for national development

by | Oct 8, 2019 | JCLA, JCLA V5 I2 2018

Inclusion of gender sensitivity into Nigeria primary education system: Implications for national development

Authors Ngozi Chuma Umeh, Onuora-Oguno AC

ISSN: 2521-2605
Affiliations: None
Source: Journal of Comparative Law in Africa, Volume 5 Issue 2, p. 98 – 116

Abstract

Evidence from previous studies suggests that gender imbalance and inequality is as old as creation, and that the struggle against the subjugation of women has been a historical event. The term ‘gender imbalance’ implies that there are existing differences in the treatment of men and women by the society. Gender imbalance exists not only in Nigeria but also in other parts of the world, and in almost all areas of human endeavour. It is a problem that has been acknowledged by the United Nations, African Union and the Nigerian Constitution as a serious challenge to equality and development. Ultimately, appropriate gender-sensitive education that dismantles gender imbalance and inequality is considered pertinent. Most importantly, gender sensitisation will enhance the empowerment of women as an entry point to achieving gender equality and balancing power relations between men and women for the optimum benefit of the nation. This paper is an attempt to suggest a long-term solution to the problem of gender imbalance in the Nigerian society. In the long run, it is believed that, one of the major ways to overcome the situation of gender imbalance and inequality is through universal access to basic primary education.

Equality or pipe dreams: Gender and inclusive development under the African Union’s agenda 2063

by | Oct 8, 2019 | JCLA, JCLA V5 I2 2018

Equality or pipe dreams: Gender and inclusive development under the African Union’s agenda 2063

Authors Charlotte Kabaseke

ISSN: 2521-2605
Affiliations: None
Source: Journal of Comparative Law in Africa, Volume 5 Issue 2, p. 73 – 97

Abstract

Matters relating to women and gender equality have been at the helm of many discussions for the past decades. Several international legal and policy measures have been adopted to advance gender equality at various levels, as well as to position women to become key players in the economic, social and political spheres of society. Despite the progress made, there is still a cavernous fissure in women’s participation in the economic and political sphere, especially in Africa. The United Nations adopted the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) in 1979 and the African Union enacted a regional Protocol to the African Charter on Human and Peoples’ Rights (ACHPR) relating to the Rights of Women. The Protocol concerns specific problems faced by women in Africa. Subsequently, in 2013, the African Union adopted a blueprint to guide the development of Africa in the next 50 years, commonly dubbed ‘Agenda 2063’. Generally, the Agenda seeks to engender an inclusive development that puts women and youth at the centre of the continent’s development programming. The paper will examine how the various legal and policy instruments at the international and regional levels are incorporated and applied at the national level. It identifies the critical issues, challenges and prospects in advancing a gender-responsive inclusive development in Africa. The paper concludes that despite efforts at the regional level to advance gender equality, it has not been achieved due to poor enforcement at national level.