Asymmetrical Warfare and International Humanitarian Law: The Somali Conflict as a Case Study

by | Sep 26, 2019 | ANUL, ANUL 2017 I2

Asymmetrical Warfare and International Humanitarian Law: The Somali Conflict as a Case Study

Authors Dennis M Ndambo

ISSN: 2521-2613
Affiliations: Law Lecturer at the School of Law at the Jomo Kenyatta University of Agriculture and Technology
Source: Africa Nazarene University Law Journal, 2017, Issue 2, p. 119 – 140

Abstract

Kenya’s intervention in Somalia challenges the traditional legal bifurcation of international and non-international armed conflict. The situation in Somalia is quite peculiar in that there was a total collapse of state structures and the eruption of several armed groups trying to take over the power vacuum. The involvement of other states in the anarchic conflict challenged the legal justifications for such intervention. Kenya’s incursion into Somalia was compounded by conflicting reasons, contradictory statements by Kenyan and Somali officials, and changing objectives. This type of confused environment contributes to excesses of the military and results in a backlash from the civilian population. Additionally, technology has increasingly been challenging the legal principles regulating armed conflict. In previous wars, the conduct of hostilities was through ‘attrition warfare’—the serial destruction of the enemy’s military. Today, technology has evolved to such an extent that combatants can launch attacks at the enemy from vast distances, with a high degree of accuracy and, at times, without the need for ground troops. However, these developments are not without their dangers. While, principally, it was states that have been using advanced weaponry, nowadays even non-state actors are using them to commit terrorist acts. The great distances at which attacks can be carried out have led to depersonalisation of warfare and the sacrifice of innocent civilian lives with no corresponding remorse. When states are assured that their soldiers will not be killed by the enemy in the battlefield, it lowers the costs and risks of going to war, while increasing the likelihood of going to war, and the over-stepping of the rules of law. This is another contributing factor to extreme radicalization. This article addresses these and other legal issues, arising from Kenya’s armed intervention in Somalia.

Upgrading Customary Land Title Documents in Nigeria

by | Sep 26, 2019 | ANUL, ANUL 2017 I2

Upgrading Customary Land Title Documents in Nigeria

Authors Osose Eidenoje

ISSN: 2521-2613
Affiliations: Assistant Secretary of the Benin Branch of the Nigerian Bar Association
Source: Africa Nazarene University Law Journal, 2017, Issue 2, p. 85 – 118

Abstract

This article contains analysis of the concept of land ownership in Nigeria and espouses the recognition of indigenous or customary land title vis-à-vis ways of proving title, as outlined by the Supreme Court of Nigeria in the celebrated case of Idundun and Others v Okumagba and Others. The status of ‘Oba’s approval’ and kindred documents, under Benin and sister tribes’ customary law, as evidence of customary land title is examined and the extent to which it complies with statutory provisions for conventional title to land is evaluated. The Oba is the paramount ruler or king of a local tribe in Nigeria who is the trustee of all land within his domain, the Oba of Benin being one of the most prominent. The Oba is empowered to effect transactions relating to land on behalf of and for the benefit of all his subjects under customary law, including the transfer or bestowment of beneficial interest in property under his authority. The impact of the Land Use Act of 1978 on customary tenure is also discussed. The author opines that customary title documents ought to be registerable instruments because they are uniquely indigenous creations and registration would afford indigenous people the opportunity of recording their interests in modern formats. Reference is made to the prevailing situation in jurisdictions of other countries, like Ghana, Kenya and Australia, where indigenous titles have been made registerable. The article concludes that there is a need to upgrade customary title documents in line with contemporary trends by providing for their registration in a dual register at the Federal and State Lands Registries, to ensure that the advantages of formalisation of property rights are enjoyed by all Nigerian citizens.

Legal and Institutional Framework for Combating Trafficking in Persons in Nigeria

by | Sep 26, 2019 | ANUL, ANUL 2017 I2

Legal and Institutional Framework for Combating Trafficking in Persons in Nigeria

Authors Grace Abosede Oladele, Dr Odunola Akinwale Orifowomo

ISSN: 2521-2613
Affiliations: Olabisi Onabanjo University; Obafemi Awolowo University
Source: Africa Nazarene University Law Journal, 2017, Issue 2, p. 49 – 84

Abstract

Traffcking in persons, with Nigeria serving as a country of origin, transit or destination, has persisted despite legal instruments against traffcking in persons in Nigeria and specifc judicial pronouncements. This is not wholly surprising in the face of prevailing poverty, high levels of unemployment and unworkable legal and institutional frameworks against traffcking in persons in Nigeria. The problem is exacerbated by meagre penalties meted out by the court which, produce little or no deterrence. This article posits that until various defciencies in anti-traffcking laws, judicial decisions and activities of institutions established to combat traffcking in persons are addressed and socio-economic problems are tackled, elimination of traffcking in persons in Nigeria will not be possible. The article recommends amongst others, the review of anti-traffcking laws, severe sentences, increased funding and training of offcials in institutions established to combat traffcking in persons, improved social and economic systems and involvement of all stakeholders in eliminating traffcking in persons in Nigeria.

A Critical Analysis of the Gender Dimensions of Internal Displacement in Kenya

by | Sep 26, 2019 | ANUL, ANUL 2017 I2

A Critical Analysis of the Gender Dimensions of Internal Displacement in Kenya

Authors Dr Agnes Meroka

ISSN: 2521-2613
Affiliations: University of Nairobi
Source: Africa Nazarene University Law Journal, 2017, Issue 2, p. 31 – 48

Abstract

The United Nations High Commissioner for Refugees defines ‘internally displaced persons as persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.’ Twenty-six million people are displaced globally as a result of conflict and natural disasters and as at 2016, within Kenya, 138 000 people were estimated as being internally displaced as a result of conflict and violence and a further 40 000 as a result of other disasters. This article takes as its focus the effects of internal displacement on women, in particular Kenyan women in rural areas, and evaluates the international legal framework as well as Kenya’s national legal framework for the promotion of human rights of internally displaced women in Kenya. The author provides consideration of the gender dimensions of internal displacement and the role of the state in addressing the problems that women continue face, both as a result of this phenomenon and generally.

Planning the Future Progression of the South Sudan Post-Conflict Fiscal System: Charting the Development of its Fiscal Literacy

by | Sep 26, 2019 | ANUL, ANUL 2017 I2

Planning the Future Progression of the South Sudan Post-Conflict Fiscal System: Charting the Development of its Fiscal Literacy

Authors Attiya Waris

ISSN: 2521-2613
Affiliations: Senior Lecturer at the University of Nairobi, Kenya, School of Law
Source: Africa Nazarene University Law Journal, 2017, Issue 2, p. 1 – 30

Abstract

There are many conflict and post-conflict countries in Africa, including, but not limited to, Chad, Libya, Eritrea, Tunisia, Egypt, Rwanda, the Central African Republic and the Republic of South Sudan, the youngest country in the world at the time of the writing of this article. From a fiscal perspective, post-conflict and conflict states experience similar problems: the maintenance of peace (a substantial drain on resources), heavy dependence on donor aid and a traumatised and impoverished population, largely unaware of their citizenship responsibilities, including tax responsibilities, their primary focus, understandably, being on physical survival. This article focuses on improvements in fiscal literacy and taxpayer literacy, to encourage tax compliance amongst the residents of South Sudan. Schumpeter’s theory of the fiscal state, as developed further by Ormrod and Bonney’s typology of the fiscal state (comprising tribute, domain, tax and fiscal state taxation systems) is used to position the South Sudanese fiscal state in order to develop an understanding of the challenges the country faces in future progression of its development. The Ormrod-Bonney model has, previously, been further developed and applied in Africa (Kenya and Rwanda) and the article extends application of the model to South Sudan.

Constructing Cultural Pluralism as a Universal Medium: Islam and the Influence of Western Civilisation in Nigeria

by | Sep 26, 2019 | ANUL, ANUL 2017 I1

Constructing Cultural Pluralism as a Universal Medium: Islam and the Influence of Western Civilisation in Nigeria

Authors Muhtar Etudaiye, Mohammed Enesi Etudaiye

ISSN: 2521-2613
Affiliations: Associate Professor, Department of Jurisprudence and International Law, University of Ilorin; Senior Lecturer, Department of Public and International Law, University of Abuja
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 167 – 198

Abstract

As a result of better education and access to new information and communications technology, there is an increasing awareness amongst Muslims of their obligations as Muslims and the need to model themselves along the lines of and implement the injunctions in the Qur’an and the practices of the Holy Prophet Muhammad (SAW).[fn1], [fn2] This evolution has resulted in a new outlook that appears to have confounded the West as a result of its sharp contrast with western culture. The situation has been exacerbated by the violence of groups, nationally and internationally, proclaiming to embark on violent actions in the name of Islam. The world, it appears, stands at a crossroads with regard to Islam. The trajectory of this historic crossroads is the cultural interface between Islam and the West. While the former struggles to insulate its pristine values and identity from secular interference, the latter relentlessly expands the frontiers of its influence through major advantages in mass media capability, economic fortitude, political diplomacy and information and communications technology. The abiding focus of this article is to strengthen the position of Islamic culture vis-\xc3\xa0-vis freedom of conscience and to put constitutional safeguards into place to protect this right in an era where the Islamic civilisation has been continuously criticised, restoring the balance of Nigeria’s multicultural setting. This article concludes that there are freedoms and laws that are entrenched in the systems of cultures of most nations and that these require protection. The Shari’a is both a legal system as well as a cultural system and it is essential for the Nigerian State to ensure that it takes full advantage of legal safeguards to protect against concerns that may be largely ethnocentric in nature. footnote 1: The Arabic phrase sallallahu alahyi was-salam (SAW) translates to ‘peace be upon Him’ and is a requirement of the Muslim faith that is attached to the mention of the name of the prophet Muhammad (SAW). This practice is followed throughout this article. footnote 2: The prophet Muhammad (SAW) is regarded by Muslims as the last messenger sent by Allah to guide humanity.

Advancing the Right of Women to Education in Nigeria: Human Rights Instruments in Perspective

by | Sep 26, 2019 | ANUL, ANUL 2017 I1

Advancing the Right of Women to Education in Nigeria: Human Rights Instruments in Perspective

Authors Nimah Modupe Abdulraheem

ISSN: 2521-2613
Affiliations: Reader in the Department of Jurisprudence and International Law of the Faculty of Law of the University of Ilorin (Nigeria)
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 146 – 166

Abstract

The right to education is a vital aspect of the socio-economic rights of all citizens, both men and women. Despite this important international human rights provision, women in Nigeria continue to experience difficulty in gaining equal access to education, irrespective of the various international, regional and national conventions which guarantee this right. The problem of unequal access to education reduces the capacity of women to participate freely in the socio-cultural, economic and political activities of their country. It impedes the effective reconstruction of society by limiting opportunities for the empowerment of women and their economic survival. Nigeria has signed and ratified many international conventions, including the United Nations International Covenant on Economic, Social and Cultural Rights of 1966, the latter being the primary international undertaking for dealing with the right of women to education. More importantly, the right of women to education has been enshrined in several regional and national conventions, including the African Charter on Human and Peoples’ Rights which was domesticated into law in Nigeria. Despite these documentary undertakings, significant corresponding improvement in access to education for women in Nigeria has not occurred. This article examines the legal provisions that guarantee the right of women to education and seeks to determine the extent to which the nation has complied with these agreements. In addition, it addresses various challenges that inhibit the access of women to education and positive suggestions to bridge, or to totally eradicate, the vast educational gap that exists between men and women in Nigeria, are proffered.

Investing and Trading in Copyright in the East African Common Market (Kenya and Tanzania): Calling for Harmonised Legal Regime

by | Sep 26, 2019 | ANUL, ANUL 2017 I1

Investing and Trading in Copyright in the East African Common Market (Kenya and Tanzania): Calling for Harmonised Legal Regime

Authors Telesphory DB Magogo

ISSN: 2521-2613
Affiliations: Dean of the School of Law at St Augustine University of Tanzania
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 134 – 145

Abstract

This article discusses infringement and enforcement of copyright as provided for in the Kenyan Copyright Act (hereafter the Kenyan Act)[fn1] and the Tanzanian Copyright and Neighbouring Rights Act (hereafter the Tanzanian Act)[fn2] and their adequacies in the protection of copyright in the East African Community (EAC)[fn3] Common Market. These two Acts are among the statutes that provide for the domestic regulation of copyright. Apart from similarities between the two Acts, the author has identified significant differences, uncertainties and deficiencies in their respective provisions for infringing acts and enforcement mechanisms, including remedial measures. These differences and deficiencies endanger investing and trading in copyright in the EAC Common Market. The author has suggested the harmonisation of copyright rules as a remedial measure to resolve identified problems and to ensure competitive trade and investment in copyrighted works. It is suggested that harmonisation takes the form of a directive. This article contains an evolution of ideas as contained in the author’s mini-thesis, a work submitted for the award of the Degree of Masters of Laws (LLM) at the University of the Western Cape in South Africa. footnote 1: Copyright Act of 2001 Cap 130 [RE 2009] of the Laws of Kenya. footnote 2: Copyright and Neighbouring Rights Act of 1999 Cap 218 [RE 2002] of the Laws of Tanzania. footnote 3: Republic of Burundi, Republic of Kenya, Republic of Rwanda, United Republic of Tanzania and Republic of Uganda.

Legal Frameworks for Water Pollution in Nigeria: An Evaluation

by | Sep 26, 2019 | ANUL 2017 I1

Legal Frameworks for Water Pollution in Nigeria: An Evaluation

Authors Abdulkadir Bolaji Abdulkadir, Onikosi Ahmeed Adedeji

ISSN: 2521-2613
Affiliations: Senior Lecturer at the Department of Public Law of the Faculty of Law at the University of Ilorin; Acting Head of Department and Lecturer at the Department of Islamic Law, College of Law, Al-Hikmah University, Ilorin, Nigeria
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 116 – 133

Abstract

There are numerous causes of water pollution, but two general categories of pollutants exist, namely direct and indirect sources. The former category includes effluents that are released into water supplies as a result of sewage outputs from factories, refineries and waste treatment plants. The latter category comprises contaminants that seep into the water supply from soils and groundwater systems that contain fertilisers, pesticides and industrial wastes. Over time, there has been increasing global awareness of, and concern about, water pollution and innovative approaches have been developed towards sustainable solutions to prevent the exploitation of water resources. There is general agreement that a properly developed policy framework is a fundamental element of sound water resource management. The control and management of water pollution is usually addressed through the establishment of effective environmental legislation. Developing countries face the escalating challenge of preventing disease, environmental degradation and economic stagnation as a result of precious water resources becoming increasingly polluted and urgent and correctly directed action is required. This paper conducts an investigation of the legal frameworks for preventing water pollution in Nigeria, in particular, and assesses the effectiveness, or ineffectiveness, of these frameworks, making suggestions to improve the quality of Nigeria’s water system.

Justifying Maasai Land Claims in Kenya through Statutory Law, Common Law and International Law

by | Sep 26, 2019 | ANUL, ANUL 2017 I1

Justifying Maasai Land Claims in Kenya through Statutory Law, Common Law and International Law

Authors Dennis M Ndambo

ISSN: 2521-2613
Affiliations: Law lecturer at the School of Law at the Jomo Kenyatta University of Agriculture and Technology in Kenya
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 84 – 115

Abstract

This paper addresses one of the most widely acknowledged, but highly contested historical injustices, namely the dispossession of the Maasai community of their land. The Maasai community lost a significant amount of land to European settlers during the colonial period and, after independence, the African government perpetuated the capitalist economy that was antagonistic to the Maasai way of life. As a result, the Maasai presently perceive themselves to be a marginalised community.[fn1] This article uses the Maasai community as a case study and provides justification for the community’s claim for restitution of their ancestral land. It is suggested that restitution of Maasai land can be accomplished in various ways. First, it is possible to justify restitution of Maasai ancestral land by enacting legislation for this purpose. A comparison is made between Kenyan legislation and legislation passed, for the same purpose, in other jurisdictions of the world. Secondly, the Maasai community could claim restitution of their land through the doctrine of aboriginal title. This claim is predicated on the historical presence of the Maasai and other indigenous Kenyan communities on lands prior to establishment of colonial and post-colonial states.[fn2] Two foundations for the doctrine of aboriginal title, common law and international law, are presented. footnote 1: David J Campbell ‘Land as Ours, Land as Mine: Economic, Political & Ecological Marginalization in Kajiado District’ in Thomas Spear & Richard D Waller (eds) Being Maasai: Ethnicity & Identity in East Africa (James Currey Publishers 1993) 258—272; Lotte Hughes ‘Malice in Maasailand: The Historical Roots of Current Political Struggles’ (2005) 104(415) African Affairs 207—224; Dorothy L Hodgson Being Maasai, Becoming Indigenous: Postcolonial Politics in a Neoliberal World (Indiana University Press 2011). footnote 2: Meitamei Olol Dapash, Mary Poole & Kaitlin Noss ‘Historical Injustice at Mau Narok: A Century of Maasai Land Rights’ May 2010. Paper available at accessed on 1 April 2017.