Eurocentric Influence and Misconception of the Islamic and Customary Criminal Justice System in Nigeria

by | Sep 27, 2019 | ANUL, ANUL 2016 I2

Eurocentric Influence and Misconception of the Islamic and Customary Criminal Justice System in Nigeria

Authors Yusuf Ibrahim Arowosaiye

ISSN: 2521-2613
Affiliations: Lecturer, Department of Public Law, Faculty of Law, University of Ilorin
Source: Africa Nazarene University Law Journal, 2016, Issue 2, p. 36 – 62

Abstract

A common feature of the concept of crime in the traditional African society, Nigeria inclusive, is that conducts or acts that are being regarded as unlawful are largely not codified, but deeply ingrained in the people. This excludes communities in Northern Nigeria where Islamic law and jurisprudence was once fully in operation. The idea that all crimes are wrong against the state without reference to the victim of crime is a criminological conception of modern thought. Despite the perceived primitive nature of customary criminal justice system, its cardinal objective remains the maintenance of peaceful socio-economic, cultural cum political orderliness in society. Thus, in the pre-colonial Nigerian traditional society, compromise, restitution and compensation were commonly employed as mechanism of criminal justice administration. Upon the conquest of African territories, attempts were made by the imperial powers to supplant peoples’ cultural practices, religion and by extension the traditional administration of justice. The justification for this Eurocentric supercilious jurisprudential perception of African customary criminal justice system is the pervasive or erroneous view that customary law generally lacks the fundamental rudiment for an effective criminal justice system. This paper investigates the nature and features of the Nigerian customary criminal justice system and interrogates the imperial position and the rhetoric that customary criminal justice is generally unwritten and largely uncertain and sometimes barbaric as against the doctrine of natural justice, equity and good conscience. This study concludes that customary criminal justice, which was unfortunately abolished under the relevant provisions of the Nigerian law, is still relevant and adaptable in every circumstance without losing its peculiar characteristics despite the Eurocentric influence in its abolishment, which was borne out of jurisprudential misconception.

The Role of International Law and Institutions in Facilitating Proper Governance and Management of Extractive Industries in Africa: Notable Developments as Observed from Tanzania’s Vantage Point

by | Sep 27, 2019 | ANUL, ANUL 2016 I2

The Role of International Law and Institutions in Facilitating Proper Governance and Management of Extractive Industries in Africa: Notable Developments as Observed from Tanzania’s Vantage Point

Authors Adelardus Kilangi

ISSN: 2521-2613
Affiliations: Former Member and President, African Union Commission on International Law; Senior Legal Advisor, African Minerals Development Centre; Senior Lecturer, St Augustine University of Tanzania
Source: Africa Nazarene University Law Journal, 2016, Issue 2, p. 1 – 35

Abstract

Matters of governance and management of extractive industries are taking centre stage in debates and discussions in various fora around the world today and in most cases are spearheaded by resource-rich countries themselves. However, a pertinent question keeps lingering in that context: What is the role of international law and international institutions in ensuring good governance of the extractive industries, specifically in Africa? This paper investigates, albeit briefly, the role that international law and institutions play and have played in encouraging improvements in how governments in Africa govern and manage the exploitation of extractive resources for their countries, and it does this from Tanzania’s vantage point. The paper looks both at select principles of international law as well as initiatives of select international institutions. The paper concludes by noting that, while important strides have been made and continue to be made at international level in ensuring good governance and management of resources, the framework for implementing these developments appears to be weak. In addition, the effective implementation of these developments appears at times to be hampered by indifference, inaction or non-cooperation on the part of developed countries. This is because some of the proposed measures are viewed as likely to hurt the interests of foreign investors, most of whom originate from these same developed countries.

The Human Right Implication of Deposition and Banishment of Chiefs in Nigeria

by | Sep 27, 2019 | ANUL, ANUL 2016 I1

The Human Right Implication of Deposition and Banishment of Chiefs in Nigeria

Authors Olufemi Abifarin, Shittu A Bello

ISSN: 2521-2613
Affiliations: Dean, College of Law, Joseph Ayo Babalola University, Ikeji Arakeji, Osun State, Nigeria; Dean, College of Law, Lead City University, Ibadan, Oyo State, Nigeria
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 177 – 194

Abstract

This article looks at the removal and deposition of chiefs in Nigeria, both during the pre-colonial, colonial and post-colonial era. We examine the arbitrary nature of the removal and deposition of the chiefs, especially in the colonial and post-colonial regimes where non-adherence to the rule of natural justice took place, whereby chiefs’ offences were not made known until after their removals and banishment. We conclude that chiefs are citizens of Nigeria who are equally entitled to the protection of the Nigerian Constitution of 1999 and other laws of the nation. The constitutional and human rights of chiefs should not be compromised, even if they are to be removed. Banishment or deportation of chiefs should not be done without the order of a court of competent jurisdiction, while reparation should be made to those chiefs who have been unjustly and arbitrarily treated.

Strengthening the Application of Informal Justice Systems in Land Disputes: A Case Study of the Kipsigis Community

by | Sep 27, 2019 | ANUL, ANUL 2016 I1

Strengthening the Application of Informal Justice Systems in Land Disputes: A Case Study of the Kipsigis Community

Authors Joseph Sergon Kiplangat

ISSN: 2521-2613
Affiliations: Justice Kenya High Court, Mlimani
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 152 – 176

Abstract

This article seeks to address the procedural efficacy of the informal justice systems (IJSs) in Kenya. The absence of a comprehensive regulatory and coordination framework on the IJSs greatly hampers access to justice. Many of the IJSs may not meet the natural justice threshold as they do not adhere to basic principles such as due process, fair trial, equality and non-discrimination. Some of the users of IJSs, such as the village elders, are not skilled in dispute resolution, and this may even distort the delivery of justice. Further, in some communities, IJSs have no enforcement mechanisms, and compliance is predicated upon the culprit’s conscience and socially enforced sanctions such as shunning, ridicule, ostracising and prejudice. The existing procedures, if any, are at best undocumented, rendering the process open to manipulation, unpredictability and unreliability, and are subject to the whims of its leaders. Sometimes the application of an IJS is extended over matters that are out of jurisdiction like serious criminal offences such as murder, rape and child defilement. The effect of this is that the formal justice system is immobilised as witnesses become reluctant and unwilling to testify in court as they may have already settled the matter through an IJS. The land question, being a very sensitive matter in Kenya, is not an exception. This article will consist of four main thematic areas. The first area consists of the historical background of an IJS, the second area focuses on the application of an IJS in land disputes among the Kipsigis community, the third area focuses on the analysis of the Kenyan legal framework on an IJS and the fourth area focuses on the review of relevant case law and includes a summary consisting of the findings and recommendations.

A Critical Appraisal of the Delimitation of Nigeria’s International Maritime Boundaries

by | Sep 27, 2019 | ANUL, ANUL 2016 I1

A Critical Appraisal of the Delimitation of Nigeria’s International Maritime Boundaries

Authors Olubisi F Oluduro

ISSN: 2521-2613
Affiliations: Faculty member of the Department of Public Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 123 – 151

Abstract

The seas harbour so many resources that littoral states with enough technology to tap these resources have relished doing so, making good fortunes for their citizens. However, there are boundaries offshore, just as there are onshore, that must be taken cognisance of in the course of exploiting these sea resources. The delimitation of the seas zones have raised issues among neighbouring coastal states, constituting enough international concerns, one of which includes Nigeria and Cameroon over the oil-rich Bakassi Peninsula, where the issues regarding the boundaries have constituted some brouhaha over the years before adjudication between the two neighbours. This article examines these sea zones in turn as regulated by the United Nations Convention on the Law of the Seas (UNCLOS), presenting how this has shapened the use of the seas. It also examines issues in the Cameroon/Nigeria Maritime Boundaries, and ends with a conclusion and recommendation.

Chinese Companies’ Business Practices and Core Labour Standards: A South African, Zambian and Zimbabwean Perspective

by | Sep 27, 2019 | ANUL, ANUL 2016 I1

Chinese Companies’ Business Practices and Core Labour Standards: A South African, Zambian and Zimbabwean Perspective

Authors Tapiwa V Warikandwa, Patrick C Osode

ISSN: 2521-2613
Affiliations: Postdoctoral Fellow, Department of Mercantile Law, Nelson R Mandela School of Law, University of Fort Hare, South Africa; Professor and Head, Department of Mercantile Law, Nelson R Mandela School of Law, University of Fort Hare, South Africa
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 102 – 122

Abstract

Chinese businesses in Africa have been associated with low levels of compliance with core labour standards. The undesirable results have manifested in the form of poor wages for workers, contempt of occupational health and safety procedures and denial of basic workers’ rights, such as the rights to freedom of association and collective bargaining. In the contemporary human rights driven era, negative attitudes towards core labour rights are out of place. Labour rights must now be viewed as human rights and be treated as an enabler that is indispensable to the developing countries’ pursuit of economic development and substantial improvement in the general welfare of their people. This article examines the current trade practices of Chinese-run businesses in South Africa, Zambia and Zimbabwe. It demonstrates that the exclusion of a trade—labour rights linkage from the World Trade Organization (WTO) legal framework might be contributing to the entrenchment of the said trade practices. Sadly, as this article indicates, African countries, like most developing countries, resist calls to incorporate core labour standards into the law of the multilateral trading system, arguing that a lower level of compliance with core labour standards is one of the critical sources of their comparative advantage.

Reflecting on the Exclusion of Barter in a Contract of Sale of Goods under the OHADA Uniform Act on General Commercial Law

by | Sep 27, 2019 | ANUL, ANUL 2016 I1

Reflecting on the Exclusion of Barter in a Contract of Sale of Goods under the OHADA Uniform Act on General Commercial Law

Authors Roland Djieufack

ISSN: 2521-2613
Affiliations: Senior Lecturer, Faculty of Law and Political Science, University of Dschang, Post Box 66, Dschang, Cameroon; Part-time Lecturer, Department of Law, University of Buea, Cameroon
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 75 – 101

Abstract

The principal focus of this article is to critically test the application of the OHADA Uniform Act on General Commercial Law to barter-like transactions. It demonstrates how the Uniform Act lacks the necessary technical elements to govern bartering. The non-monetary nature of pure barter transactions appears to be the driving force for this author’s rejection of the application of the Uniform Act to barter. Although Article 262 of the Uniform Act requires the buyer to pay the price for the goods, the word ‘price’ is not defined by the Act. Thus, there is ambiguity as to whether or not a price must be monetary in application to barter contracts under the Uniform Act. This is the principal concern of the author inter alia in questioning whether the Uniform Act can be applied to barter-like transactions, because in a barter transaction, the price paid for the delivery of something is the reciprocal delivery of something else. Arguably, by leaving ‘price’ undefined, the drafters of the Uniform Act raise some ambiguity on its endorsement of the application of barter transactions. Thus, the conclusion in this article is based on the premise that the Uniform Act is not suitable to govern barter-like transactions.

Reviewing the Africa-ICC Relation: Does the International Criminal Court’s Purpose to ‘End Impunity’ Reflect the Same old Selective Application of International Law?

by | Sep 27, 2019 | ANUL, ANUL 2016 I1

Reviewing the Africa-ICC Relation: Does the International Criminal Court’s Purpose to ‘End Impunity’ Reflect the Same old Selective Application of International Law?

Authors Duncan Ojwang

ISSN: 2521-2613
Affiliations: Lecturer of international law and international human rights law; member of the Illinois Supreme Court Bar; BA Indiana University, JD University of Southern Illinois, LLM Indiana University, SJD University of Arizona
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 50 – 74

Abstract

A discussion on the International Criminal Court (ICC), established in 2002, on its legitimacy, impunity, selectivity, fairness and accountability cannot be attributed to one reason. This article reviews the Africa Union’s and the ICC’s antagonistic relation, in lieu to the trial of Kenyan leaders. Notwithstanding that a number of African countries in an effort of good faith founded the ICC and important positions at the ICC are held by Africans, numerous challenges have arisen. In order to understand these challenges, this article looks at the historical creation of the doctrine of ending impunity in the world, and also the goal and purpose of the ICC as the first permanent international criminal court, according to the preamble of the Rome Treaty. This article reviews whether the current argument on the selectivity of the ICC can be attributed to the long-established foundation that prejudices non-European cultures. The article expands the work done by scholars like James Anaya and Robert Williams, Junior in exploring the historical language of discrimination and the racism of the word ‘impunity’ as a cause of injustice in the ICC operation. The legal history and foundation of the doctrine of impunity and ending impunity functions to selectively focus the attention of the international community on human rights abuse in Africa, turn a blind eye to other perpetrators, and portray a stereotype that exaggerates other cultures and nations as full of impunity and savages. It sometimes works to validate the hegemony and power exercised by the western countries over human rights violation in Africa. Therefore, the word ‘impunity’ is crucial rhetoric of the ICC and is a discourse that is effective in justifying selective activities of the ICC. This article seeks to discuss the reason for the diversity of perception on the word ‘impunity’ and why the ICC might be engaged in selective justice.

Neutralising the Catalysts of Terror in Asia and Africa Through Strict Regulation of Common Materials (Using India, Kenya and Nigeria as a Case Study)

by | Sep 27, 2019 | ANUL, ANUL 2016 I1

Neutralising the Catalysts of Terror in Asia and Africa Through Strict Regulation of Common Materials (Using India, Kenya and Nigeria as a Case Study)

Authors BB Orubebe, SM Olokooba

ISSN: 2521-2613
Affiliations: None
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 27 – 49

Abstract

The focus of this article is on a curious inadvertence omission in the counterterrorism laws and policies in Asia and Africa, with a focus on India, Kenya and Nigeria. In doing this, this article examines what constitutes ‘common materials’ and the need to strictly monitor their procurement, handling and use to prevent them from being used for purposes of terror. This article further examines the limitation in the current regulations of those materials in the countries of focus and posits that the unrestricted use of the common materials accounted for the escalated nature of terrorism in India, Kenya and Nigeria. Based on this, this article recommends among others for a robust legislative mandate to regulate those common materials. This, according to this article, will save the countries of focus and by extension the world at large from the imminent danger of terror attacks and the associated agonies of terrorism.

Is Technology used to Subordinate Socially Conservative Constitutions in Africa? The Case of Kenya’s Proposed Legislation on Assisted Reproductive Technology

by | Sep 27, 2019 | ANUL, ANUL 2016 I1

Is Technology used to Subordinate Socially Conservative Constitutions in Africa? The Case of Kenya’s Proposed Legislation on Assisted Reproductive Technology

Authors Duncan Ojwang, Agnes Meroka, Francis Situma

ISSN: 2521-2613
Affiliations: Lecturer of International Law and International Human Rights Law; Lecturer of Human Rights and Women in the Legal Process; Lecturer of International Law
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 1 – 26

Abstract

When it comes to matters of technology, perhaps African countries should adopt the famous principle in disability law: ‘Nothing about us without us.’ This is because as science and technology advance at a breakneck pace, it can be used to impose globalisation, even by subordinating a country’s sacred document such as a constitution. What is at stake in this debate is whether a parallel exists between the use of law as a tool of colonisation and hegemony of the western powers and the current triumph of technology to subvert African municipal law, culture, ethics and values. Kenya is a clear example of this because, unlike most African countries, it has experienced higher levels of western influence. This article evaluates the case of the Reproductive Health Care Bill, 2014 and the Assisted Reproductive Technology Bill, 2016 to illustrate how technology is sometimes used to substitute the constitutions of some African countries that are socially conservative so that they conform to liberal ideas on critical areas like marriage, family, abortion, culture and reproductive rights. The preamble of the Kenyan Constitution, just like the Banjul Charter (also known as the African Charter on Human and Peoples’ Rights), sought to balance the place of an individual, family and society. This article will review the following relevant provisions of the Constitution of Kenya, 2010: Article 43(1)(a) on the right to reproductive healthcare, Article 26 on the right to life, Article 45 on the right to family, Article 31 on the right to privacy and dignity, Article 27 on the right to equality and freedom from discrimination, Article 44 on the right to culture and Article 53 on children’s rights. Understanding in vitro fertilisation (IVF) or gestational surrogacy through the Kenyan Constitution can contribute to avoiding the danger of the collapse of African society and families. Understanding technology through the Kenyan Constitution will assist the society not to forget that their values and ethics must be used to regulate the use of technology.