Petroleum Sector Liberalisation and Direct State Participation: Lessons from Brazil

by | Sep 20, 2019 | ANUL, ANUL 2018 I1

Petroleum sector liberalisation and direct state participation: Lessons from Brazil

Authors Pereowei Subai

ISSN: 2521-2613
Affiliations: Senior Lecturer in Law, Niger Delta University
Source: Africa Nazarene University Law Journal, 2018, p. 92 – 109

Abstract

The basic claim of this paper is that direct state participation and petroleum sector liberalisation are, for the most part, incompatible. This is because states which attempt to liberalise their petroleum sectors while simultaneously participating in them directly, mostly via national oil companies, are more often than not, inclined to confer exclusive benefits, favours and privileges on these firms. This defeats any pretence at creating a level playing ground for petroleum firms to compete on equal footing. But beyond that, such state-granted favours serve to erode the independence and autonomy of state-owned oil companies, and increase their exposure to political and sub-economic objectives. This weakens their competitiveness and, ultimately, their performance. In order to establish this claim, this paper will examine recent legislative and policy developments in Brazil since 1997 – the year it liberalised its petroleum sector. It will note the drawbacks which the Brazilian petroleum sector, in general, and its national oil company, in particular, has suffered as a result of the state’s inclination to confer exclusive benefits on the firm. The paper will conclude by offering two suggestions to countries which seek to liberalise their petroleum sectors but, at the same time, desire to participate directly in them via national oil companies: that they should either partially privatise such firms, with the state as minority stakeholder, or subscribe to legal frameworks which prohibit the conferment of exclusive privileges on them.

Lessons from Legal Transubstantiation: Analysing the Nigerian Environmental Protection Regime

by | Sep 20, 2019 | ANUL, ANUL 2018 I1

An Ethnically Divided Society: How Centripetalism Failed in Kenya in the 2013 and 2017 Presidential Elections

Authors Emmanuel Onyeabor, Ndubuisi Nwafor, Onyedikachi J Alozie

ISSN: 2521-2613
Affiliations: Senior Lecturer, Faculty of Law, University of Nigeria; Lecturer Faculty of Law, University of Nigeria; Research Assistant, Faculty of Law, University of Nigeria
Source: Africa Nazarene University Law Journal, 2018, p. 66 – 91

Abstract

The paper appraises the influence of international environmental law on Nigeria’s environmental protection regime. It goes on to outline the origin and development of international environmental law, its applicability and how the implementation of international environmental law shapes domestic environmental protection laws within a municipal jurisdiction. It is also important to note that the system of government adopted by a sovereign state goes a long way to determine the way or manner international environmental law is received and implemented within the municipal jurisdiction of such state. The work observes that principles of international environmental law provide the bedrock to the environmental legal framework in Nigeria in the mould of the National Environmental Standard Regulatory Enforcement Agency (NESREA) Act, 2007, and other extant laws.

An Ethnically Divided Society: How Centripetalism Failed in Kenya in the 2013 and 2017 Presidential Elections

by | Sep 18, 2019 | ANUL, ANUL 2018 I1

An Ethnically Divided Society: How Centripetalism Failed in Kenya in the 2013 and 2017 Presidential Elections

Authors Irungu Kang’at, Duncan Ojwant

ISSN: 2521-2613
Affiliations: (PhD Candidate) University of Nairobi; Senior Lecturer Africa Nazarene University, Dean Africa Nazarene University
Source: Africa Nazarene University Law Journal, 2018, p. 57 – 65

Abstract

High and low intensity ethnic conflicts have engulfed Presidential elections in Kenya since the re-introduction of multiparty democracy in early 1990s, except for the 2002 elections. After the high intensity ethnic conflict surrounding the 2007 Presidential elections, a grand coalition government was established in Kenya in 2008 and the same was embedded in the then Constitution. Thereafter the said government enacted a new Constitution in 2010. Two Presidential elections have since been held (the 2013 and 2017 elections) and ethnic conflict with respect to Presidential elections has persisted. This article thus seeks to evaluate the extent to which centripetalism failed in Kenya in the 2013 and 2017 presidential elections, taking into account the ethnic divisions in the country.

Women’s Right to Inheritance in Africa: The Nigerian Experience

by | Sep 18, 2019 | ANUL, ANUL 2018 I1

Women’s Right to Inheritance in Africa: The Nigerian Experience

Authors Abdulrazaq Adelodun Daibu, Sekinat Arikewuyo Daibu, Juliet Aimienrovbiye

ISSN: 2521-2613
Affiliations: Lecturer, Department of Private and Property Law, Faculty of Law, University of Ilorin; Legal Practitioner, Daibu, Oseni and Co, Ilorin; Lecturer, Department of Private and Property Law, Faculty of Law, University of Benin
Source: Africa Nazarene University Law Journal, 2018, p. 28 – 56

Abstract

There is no doubt that discriminatory cultural and traditional practices against women in Africa constitute social injustice and often infringe their right to inheritance. Sadly, widows and female children, almost always, contend with extreme hardship, making them helpless in inheritance cases. This article analyses the problems of intestate inheritance under customary law in some selected jurisdictions in Africa. It also examines intestate inheritance under Islamic law which is not only part of the Nigerian legal system but also the culture of most Muslim faithful in the northern and south-western parts of Nigeria. The article found that despite the plethora of laws protecting women’s rights against all forms of discrimination in most African countries, the continued subjection of women to oppressive and anachronistic cultural practices in inheritance cases still persists. This article contends that ratification of international instruments and enactment of domestic laws without necessary implementation and proactive judicial pronouncement will not bring about the desired social justice. This article finally recommends legal strategies and policies that will enhance the protection of women’s rights to inheritance in Nigeria and indeed Africa.

Rights of Passengers in the Contract of Carriage by Air: A Critical Approach under the Nigerian Civil Aviation Law

by | Sep 18, 2019 | ANUL, ANUL 2018 I1

Rights of Passengers in the Contract of Carriage by Air: A Critical Approach under the Nigerian Civil Aviation Law

Authors Ismail Adua Mustapha, Joana Kolo-Manma

ISSN: 2521-2613
Affiliations: Business Law Department, Faculty of Law, University of Ilorin; Faculty of Law, University of Ilorin
Source: Africa Nazarene University Law Journal, 2018, p. 1 – 27

Abstract

In reality, an air carrier may enter into a binding contractual relationship to air lift persons (passengers) or things from one place to an agreed destination. The binding nature of the contract between the parties brings about reciprocal contracting rights. The international community adopted a series of international conventions to regulate various types of contract by air as well as the rights and liabilities of passengers in contractual relationships with the airlines. Nigeria acceded to these conventions and transformed them into the Nigerian Civil Aviation Act, 2006. The paper therefore asks: ‘What are the rights of passengers in the contract of carriage by air under the Nigerian Civil Aviation laws?’ ‘Under what circumstances would the carrier be liable to passenger(s)?’ The paper adopts a qualitative method of legal research which includes interviews with the relevant aviation stakeholders in Nigeria. A critical analysis of the Nigerian civil aviation law will also be done to achieve the aim and objective of the paper. Also case law from other jurisdictions shall be called in aid to expatiate the provisions of the Montreal Convention, 1999, as domesticated and modified by the Nigerian civil aviation law(s) not yet tested in Nigerian courts. It is found that rights such as the right to a passengers’ ticket, the right to seek redress in court in the event of unforeseen circumstance(s) and the right to compensation of passengers are stated in the Nigerian Civil Aviation Act, 2006, and the Nigerian Civil Aviation Regulations (NCARs), 2015. It also found that these laws did not provide for damages in case of breach of basic fundamental human rights of passengers. It was further found that wilful, negligent and careless misconduct of the airline must be proved so that the carrier will not be able to avail itself of the exclusion and limitation of liability clauses in the Convention as domesticated by the Civil Aviation Act, 2006. The paper concludes that the current state of the laws is unsatisfactory, and therefore recommends that the laws be reviewed to include claims for damages to be awarded to the victims whose basic fundamental human right(s) are unlawfully breached.

Global Constitutionalism in the Context of the Third World: Remarks in Pursuit of a New Paradigm

by | Sep 17, 2019 | AJCL, AJCL 2016

Global Constitutionalism in the Context of the Third World: Remarks in Pursuit of a New Paradigm

Authors Aydin Atilgan

ISSN: 2521-5434
Affiliations: Lecturer at the Near East University, Nicosia, Cyprus
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 131 – 152

Abstract

Global constitutionalism refers to the continuing debate on the character of contemporary international law in the context of the increasing integration in the realm of constitutional law of states. It is also an umbrella term that overarches pro-constitutionalist theories within the international legal theory. However, it largely consists of contributions from Western scholars, with negligible opinions from the rest of the world. The article evaluates a position for the Third World within the debate on global constitutionalism. While doing so, the article not only draws attention to the Western-centric nature of the debate, but also examines the changing structures and paradigms in the Third World.

Another Perpetuation of Incumbency through the Supreme Law: The Conceptualisation of the Presidency under the 1995 Constitution of Uganda

by | Sep 17, 2019 | AJCL, AJCL 2016

Another Perpetuation of Incumbency through the Supreme Law: The Conceptualisation of the Presidency under the 1995 Constitution of Uganda

Authors Fredrick Sekindi

ISSN: 2521-5434
Affiliations: Legal Adviser at Hackney Citizens Advice
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 90 – 130

Abstract

The article discusses presidential authority as conceptualised by the fundamental laws that Uganda has adopted since it was declared a British Protectorate in 1894. Focusing on the Constitution of Uganda of 1995, the article argues that just like erstwhile fundamental laws, it was imposed on the country with the primary purpose of entrenching President Museveni in power, which is demonstrated by an analysis of the nature of the presidency that the Constitution establishes. The article proceeds to analyse how President Museveni has exercised the powers and privileges granted to the presidency under the Constitution with almost no legal constraints, including by perpetuating his incumbency in office without the possibility of him being removed through a constitutional process.

Accommodation and Altercation: The Challenge of Legal Pluralism in India and South Africa

by | Sep 17, 2019 | AJCL, AJCL 2016

Accommodation and Altercation: The Challenge of Legal Pluralism in India and South Africa

Authors Niharika Bahl

ISSN: 2521-5434
Affiliations: None
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 58 – 89

Abstract

In culturally heterogeneous societies there exist multiple forms of social ordering beyond the ambit of state law. This phenomenon is particularly visible in post-colonial societies of Asia and Africa. Difficulties lie in accommodating plural legal norms within the established constitutional order. Conceptually, legal pluralism seems to be diametrically opposed to the notion of the rule of law. While the principle of the rule of law enjoys an exalted status in modern democracies, the reality is that plurality of legal systems continues to have an impact in society, establishing rules of behaviour, defining ethical norms of social interaction, relieving social and cultural strains, and so on. India and South Africa offer splendid examples of multi-diverse nations with diverse indigenous norms and with value-laden Constitutions. Rule of law guarantee is the core value of both republics. Yet the two nations differ in their approach to provide a space for the accommodation of non-state legal systems within the bounds of constitutional morality. Acceptance of custom as a source of law in the South African Constitution is tempered with a duty for custom to be developed as per constitutional values. Indian courts, on the other hand, are empowered to declare void a usage or custom which runs counter to the fundamental rights. Each approach has led to varying sets of problems and challenges which require being addressed in order to safeguard constitutional supremacy.

Constitutional Dilemmas in the Recovery of Corruptly Acquired Assets in Kenya: Strengthening Judicial Assault on Corruption

by | Sep 17, 2019 | AJCL, AJCL 2016

Constitutional Dilemmas in the Recovery of Corruptly Acquired Assets in Kenya: Strengthening Judicial Assault on Corruption

Authors Tom Kabau

ISSN: 2521-5434
Affiliations: Senior Lecturer at the School of Law, Jomo Kenyatta University of Agriculture and Technology
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 23 – 57

Abstract

Despite widespread incidences of corruption in Kenya, obtaining evidence for the prosecution of offences relating to the vice is highly problematic. As a response to such challenges, the possession of unexplained assets, which is categorised as illicit enrichment in international legal instruments, creates a presumption of corrupt conduct by virtue of section 55 of the Anti-Corruption and Economic Crimes Act (ACECA). On that basis, ACECA shifts the burden of proof to the subject person, requiring him to demonstrate that the property was obtained lawfully. Whilst section 55 of ACECA provides that such court proceedings are of a civil nature, their linkage with criminal prosecution is extremely high, a fact that Kenyan courts seem to take into account while interpreting the scope of the right to a fair trial in such cases. Unexplained assets recovery proceedings are often challenged in court on allegations of violation of the constitutional right to a fair trial, especially the presumption of innocence, and the right against self-incrimination, which are categorised as absolute entitlement under the Constitution. However, widespread corruption erodes accountability, undermines the rule of law and, therefore, establishes conditions in which even the right to a fair trial cannot be realised. It is on that basis that the article posits the view that courts should interpret the reversal of burden of proof in unexplained assets recovery proceedings, and the utilisation of the evidence obtained in subsequent criminal prosecution for corruption, as operating within the parameters of the right to a fair trial. Such an interpretative approach may facilitate institutionalisation of accountability in public institutions, including in the Judiciary, and therefore guarantee all Kenyans the right to a fair trial.

Befriending the Judiciary: Behind and Beyond the 2016 Supreme Court Amicus Curiae Rulings in Uganda

by | Sep 17, 2019 | AJCL, AJCL 2016

Befriending the Judiciary: Behind and Beyond the 2016 Supreme Court Amicus Curiae Rulings in Uganda

Authors Christopher Mbazira

ISSN: 2521-5434
Affiliations: Professor of Law, Makerere University School of Law, and Advocate of the Courts of Judicature of Uganda; Associate Professor of Law and Coordinator of the Public Interest Law Clinic (PILAC), Makerere University School of Law, and Advocate of the Courts of Judicature of Uganda
Source: Africa Journal of Comparative Constitutional Law, 2016, p. 1 – 22

Abstract

In the heat of the 2016 presidential election petition challenging the re-election of Yoweri Kaguta Museveni in Uganda, two amicus curiae applications were filed in the Supreme Court – one from a group of civil society activists, while the other was instituted by nine Makerere University law professors. This article provides a review and analysis of the Supreme Court decisions on the two applications against the backdrop of a largely conservative approach to the admission of amicus curiae briefs in Ugandan courts. It argues that the decision in the Makerere professors’ case set a progressive precedent for the admission of such applications, and clarified several issues, including the questions of bias, the expertise of the intended ‘friends’, and the place of the public in such an application.