A New Legal Framework for the “Ownership” of a Deceased Person in a Legally Plural Ghana

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

A New Legal Framework for the “Ownership” of a Deceased Person in a Legally Plural Ghana

Authors: Ama F. Hammond and Prosper Batariwah

ISSN: 2521-2605
Affiliations: BA (Cape Coast); LLB (Ghana); LLM (Harvard); PhD (Uni. British Columbia); Senior Lecturer, University of Ghana School of Law; LB (Ghana); Barrister-at-Law; Graduate and Teaching Assistant, University of Ghana School of Law
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 40 – 76
https://doi.org/10.47348/JCLA/v10/i2a2

Abstract

Any funeral in Ghana is a family business. Families hold elaborate ceremonies to mark the death of their deceased family members. Strict fulfilment of the duty to bury is said to ensure the seamless transition of the deceased from this life to the next. In Ghana, the extended family of the deceased has custody and control over the dead body for the purpose of burial. However, the heterogeneous nature of modern Ghanaian society, the rise of the nuclear family, and modern socio-legal values have increased disputes over the dead body, often between the extended family and the nuclear family. Against the background of Ghana’s pluralistic legal system, we investigate the context in which such disputes take place and how the legal system responds. We draw on field interviews to critically compare the living customary law with Ghanaian common law, judicial customary law, statutory law, and the experience of other jurisdictions. We note that the customary law principle of being owned by one’s extended family is well established, usually overriding other systems of law. Nonetheless, we argue, drawing on the experiences of other African countries, that the nuclear family should be given greater opportunities to participate in decisions relating to the burial of the deceased. We propose a framework that reflects the needs and aspirations of both kinds of families.

The Right Against Double Jeopardy (Non Bis In Idem) in the Constitutions of African Countries

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

The Right Against Double Jeopardy (Non Bis In Idem) in the Constitutions of African Countries

Author: Jamil Ddamulira Mujuzi

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 77 – 106
https://doi.org/10.47348/JCLA/v10/i2a3

Abstract

Article 14(7) of the International Covenant on Civil and Political Rights (1966) provides that “[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. In human rights law, this is referred to as the right against double jeopardy (non bis in idem). The ICCPR has been ratified or acceded to by all African countries with the exception of Comoros and South Sudan. This implies, inter alia, that African countries must ensure that the right against double jeopardy is protected in their legislation. In this article, the author examines the constitutional provisions of all the African countries to analyse the extent to which they deal with the right against double jeopardy. The author also refers to legislation and case law from different African countries to demonstrate the circumstances in which a person who has been convicted or acquitted may be prosecuted again for the same offence (retrial) without violating their right against double jeopardy. The discussion shows, inter alia, that some of the constitutional provisions on the right against double jeopardy are contrary to art 14(7) of the ICCPR and some constitutions are silent on the right against double jeopardy. However, this loophole is rectified through subsidiary legislation or direct or indirect incorporation of art 14(7) in domestic legislation.

Constitutionalisation of Ethnicity and Decolonisation of African Constitutionalism: Towards an Authentic African Constitutional Identity?

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

Constitutionalisation of Ethnicity and Decolonisation of African Constitutionalism: Towards an Authentic African Constitutional Identity?

Author: Gatsi Tazo

ISSN: 2521-2605
Affiliations: Lecturer, Department of Public Law and Public Administration, Faculty of Laws and Political Science, University of Buea, Cameroon
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 107 – 140
https://doi.org/10.47348/JCLA/v10/i2a4

Abstract

In the aftermath of independence, African states for the most part opted for the nation-state model inspired by their colonial masters. Consequently, the constitutionalism of the newly independent African states emphasised national unity, an absolute obsession of state leaders, while demonising ethnicity, when it was not simply forgotten. Presented as one of the major causes of the state crisis in Africa, the liberal nation-state model has proven incompatible with African composite societies. Hence the imperative need for African states to reconcile the organisation and functioning of the state with their own values, and thus forge a typically African constitutional identity. The revival of constitutionalism integrates this tendency to appropriate African values, despite the criticisms of this option. The role given to ethnicity, a central element of African society, is symptomatic of this trend. The ethnic group is gradually emerging from its lethargy to occupy an increasingly important place and punctuate the political and institutional life of the state. The principle of equality is softened by the mechanisms tending to favour some people to ensure their representation in state institutions. The principle of the indivisibility of the state gives way to the formation of a ‘Republic of lands and territories’ with overlapping citizenships, where the sons and daughters of the soil enjoy comparatively more rights and privileges than any other nationals from other origins. Finally, as a vehicle carrying traditional values, customary law is gradually recognised and constitutionally protected.

Realising a ‘Right’ to Research in Nigeria and South Africa: the Role of the Executive Arm of Government

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

Realising a ‘Right’ to Research in Nigeria and South Africa: the Role of the Executive Arm of Government

Author: Chijioke Okorie

ISSN: 2521-2605
Affiliations: LLB (Nigeria); LLM (Strathclyde); PhD (Cape Town): Lecturer, Department of Private Law University of Pretoria
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 141 – 173
https://doi.org/10.47348/JCLA/v10/i2a5

Abstract

Development agendas and plans such as South Africa’s National Development Plan 2030 and Nigeria’s National Development Plan 2021–2025, indicate the need for, and benefits of, development research to sharpen countries’ innovative edge and to contribute to global scientific and technological advancement. Recent scholarship has highlighted the positive impact on national development of copyright exceptions allowing for the right to research. This can be in the form of either a complete defence to copyright infringement, or, as user rights. However, the realisation of a right to research has been limited by a copyright legislative framework that may be challenging to interpret. Other hindrances to realising the right to research are limited access to courts for interpretation due to limited resources and also as a result of the inherent institutional limitations of courts to consider only the case pleaded by parties before them. In this environment, the role of the executive arm of government in driving the realisation of a right to research is crucial. Yet, there’s been no executive action to provide for the much-needed clarification to concretise and promote the right to research to actualise development goals. Focused on Nigeria and South Africa, this paper explores the duties imposed on the institutions of executive government and applies administrative law principles to indicate a policy toolkit within copyright statutes that may be deployed to realise a right to research and engender guidance for researchers, copyright owners, users and audience of research.

The Risk of Confusion in Trademark Infringement in South Africa and Kenya: Lessons from Singapore?

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

The Risk of Confusion in Trademark Infringement in South Africa and Kenya: Lessons from Singapore?

Authors: Yeukai Mupangavanhu and Kawake Sipelo Vuke

ISSN: 2521-2605
Affiliations: LLB (UFH) LLM LLD (UWC), Associate Professor, Department of Private Law, Faculty of Law, University of the Western Cape, Cape Town; LLB, LLM, University of the Western Cape
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 174 – 203
https://doi.org/10.47348/JCLA/v10/i2a6

Abstract

The risk of confusion in trademarks is exponentially high in light of international trade. Where identical or similar marks are used in the course of trade by different companies, this may result in consumers being confused with regard to the origin of the goods. Consumer confusion may result in the proprietor of the trademark suffering financial loss if customers start buying competitors’ goods or services. Most legal systems including those of South Africa and Kenya consequently have laws that contain provisions that seek to protect proprietors from the use of identical or similar trademarks in a manner that is likely to create deception or confusion among members of the public. The article discusses the approach to the likelihood of confusion inquiry in trademark infringement under the South African Trademarks Act 194 of 1993 and Kenya’s Trademarks Act 4 of 2002. Singapore’s step-by- step approach is examined as a best practice when assessing the likelihood of confusion in confusion-based infringement. It is argued that instead of South Africa and Kenya applying the global assessment approach, which seems to confuse and collapse the elements, a step-by-step approach should be preferred. The need to eliminate confusion when applying the elements of confusion-based infringement cannot be overemphasised in order to ensure predictability and consistency in Kenya and South Africa’s case law.

The Possible Impact of the Wilsnach V M [2021] 1 All SA 600 (GP) Judgment on the Right of an Absent Muslim Parent to Inherit in Terms of an Islamic Will

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

The Possible Impact of the Wilsnach V M [2021] 1 All SA 600 (GP) Judgment on the Right of an Absent Muslim Parent to Inherit in Terms of an Islamic Will

Author: Abduroaf Muneer

ISSN: 2521-2605
Affiliations: BA (Shariah) LLB, LLM, LLD, Associate Professor in Law, Faculty of Law, Department of Private Law, University of the Western Cape (UWC)
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 204 – 214
https://doi.org/10.47348/JCLA/v10/i2a7

Abstract

The Gauteng Division of the High Court, Pretoria handed down a judgment in Wilsnach v M [2021] 1 All SA 600 (GP) (Wilsnach) during 2020, where it held that a biological father could not inherit “in the capacity of a parent” due to absence, in terms of the Intestate Succession Act 81 of 1987 on the basis he inter alia lost his rights and obligations in terms of s 18 of the Children’s Act 38 of 2005 (hereafter absent parent). This article analyses the potential impact that the Wilsnach judgment could have on the right of a Muslim father to inherit in terms of an Islamic will in the event where he too has lost his rights and obligations in terms of s 18 of the Children’s Act 38 of 2005.1 An overview of the Wilsnach judgment is analysed by way of introduction. The right of a Muslim parent to inherit from their child in terms of “Islamic law” is then explored. The possible impact that the Wilsnach judgment could have on the right of a father to inherit in terms of the “Islamic will” is then investigated. The article concludes with an overall analysis of the findings and makes a recommendation as to how Islamic law consequences can be accommodated.

Stimulating Private Investment in Public Infrastructure Through Reform of the Nigerian Legal Environment

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

Stimulating Private Investment in Public Infrastructure Through Reform of the Nigerian Legal Environment

Author: Olufemi Oluyeju

ISSN: 2521-2605
Affiliations: Lecturer, Department of Public Law, School of Law, University of Venda, Limpopo, South Africa
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 215 – 246
https://doi.org/10.47348/JCLA/v10/i2a8

Abstract

A massive infrastructure deficit seriously impedes business growth and economic progress in Nigeria. Given the current fiscal realities, it is apparent that the government cannot solely bankroll such infrastructure requirements. Therefore, the need for private sector involvement in infrastructure development cannot be over-emphasised. However, this paper contends that gaps in infrastructure-related laws are partly responsible for the failure to attract private sector investment into Nigeria’s infrastructure sector. In this regard, the paper seeks to investigate those legal impediments hobbling private sector participation in financing public infrastructure in Nigeria and what reforms, if any, should be made to stimulate private capital flows into the sector. Furthermore, it is argued that attracting private capital into the infrastructure sector requires, among other things, a favourable legal and regulatory environment that is rules-based, transparent, and predictable. It is therefore concluded that private resources could be unlocked by reviewing and improving appropriate infrastructure-related aspects of the country’s legal environment. This article adopts a doctrinal approach; hence, it is based on desktop and library-based or non-empirical research. As doctrinal research, it will rely on an analysis of existing literature on the subject under investigation.

The use of linguistics to determine meaning in cases of personality infringement

by | Dec 28, 2023 | SLR, SLR V34 I1

The use of linguistics to determine meaning in cases of personality infringement

Authors: T Carney, L Grundlingh and JC Knobel

ISSN: 1996-2193
Affiliations: BA Hons MA PhD, Associate professor, Department of Afrikaans and Theory of Literature, University of South Africa; BA Hons MA PhD, Senior lecturer, Department of Afrikaans and Theory of Literature, University of South Africa; BLC LLB LLD, Professor, Department of Private Law, University of South Africa
Source: Stellenbosch Law Review, Volume 34 Issue 1, 2023, p. 3 – 26
https://doi.org/10.47348/SLR/2023/i1a1

Abstract

Personality infringements through social media are not uncommon. Although many personality infringements can be linked to linguistics, given the fact that they take place in the form of written or spoken utterances, linguistic perspectives and theories are not commonly used to analyse evidence in possible personality infringement cases. This contribution aims to illustrate how linguistic theories can add value to the analysis of evidence in some personality infringement cases by investigating the word “fagott” and the potential reasons why it was misread as “faggot” in a given instance. The likeliness of one word being misread as another (and the implications thereof) is explored through pragmatic and psycholinguistic theories and is set against the backdrop of the law of personality. Data collected from English corpora complement the theories and help to illuminate why one word could be mistaken for the other. The article concludes that the linguistic evidence may be a valuable aid in determining whether personality infringements have taken place.

The uncertain constitutional duty to internally investigate and remedy state impropriety

by | Dec 28, 2023 | SLR, SLR V34 I1

The uncertain constitutional duty to internally investigate and remedy state impropriety

Authors: Nicholas Herd and Melanie Jean Murcott

ISSN: 1996-2193
Affiliations: LLB (University of Pretoria), Law Researcher, Office of the Chief Justice (Constitutional Court of South Africa); LLB (University of Cape Town), LLM (University of Pretoria), LLD (University of the North-West), Associate Professor, Institute of Marine and Environmental Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 34 Issue 1, 2023, p. 27 – 53
https://doi.org/10.47348/SLR/2023/i1a2

Abstract

It may seem axiomatic that the Constitution of the Republic of South Africa, 1996 imposes a general duty on public functionaries to investigate and remedy potential state impropriety, such as corruption, committed within the state. Public functionaries are, after all, supposed to be accountable to the public, and are enjoined by the Constitution to uphold and protect the rule of law. However, conflicting Constitutional Court jurisprudence gives rise to legal uncertainty about the existence of a general constitutional duty to investigate and remedy impropriety. This article explores whether public functionaries are obliged – as a matter of constitutional law – to respond when they become aware of actual or probable state impropriety. First, we argue that investigations have instrumental value, align with constitutional imperatives, and are mandated by relevant provisions of the Constitution. Secondly, we deduce that the overriding position emerging from the Constitutional Court’s decisions on the obligations of state functionaries constitutes judicial recognition of a general duty to investigate and remedy potential state impropriety. Finally, we conclude that to advance the rule of law, amongst other values of South Africa’s constitutional order, the legal position should be clarified in future jurisprudence and through legislative intervention.

The Alien Tort Statute of 1789 is no longer available to foreigners to claim for wrongdoings on foreign soil

by | Dec 28, 2023 | SLR, SLR V34 I1

The Alien Tort Statute of 1789 is no longer available to foreigners to claim for wrongdoings on foreign soil

Author: Riaan Eksteen

ISSN: 1996-2193
Affiliations: BA (Hon) MA PhD, Research Associate, Department of Political Studies and Governance, University of the Free State
Source: Stellenbosch Law Review, Volume 34 Issue 1, 2023, p. 54 – 75
https://doi.org/10.47348/SLR/2023/i1a3

Abstract

The Alien Tort Statute (“ATS”) of 1789 was part of the first law to be enacted by the First Congress of the USA. Its original purpose was primarily to remedy harms suffered by aliens at the hands of US citizens. For two centuries it remained dormant. Then it became a vehicle to advance human rights.

Sosa v Humberto Alvarez-Machain 542 US 692 (2004) was the first of four ATS cases decided by the Supreme Court of the United States (SCOTUS). Kiobel v Royal Dutch Petroleum Co 569 US 108 (2013) followed and with it, the court limited the application of the ATS. It coined the term “touch and concern” whereby only those with a nexus with the US could pursue grievances. It also enforced the principle of extraterritoriality. Jesner v Arab Bank, PLC 584 US ___ (2018); 138 S Ct 1386 (2018) brought further clarity by imposing clear limits on which parties may be defendants in ATS cases. Nestlé USA, Inc v John Doe I; Cargill, Inc v John Doe I 593 US ___ (2021); 141 S Ct 1931 (2021) precluded future cases of human rights abuses against corporations when allegations can only be made that general corporate decision-making occurred in the US. In future, plaintiffs will have to establish a strong domestic nexus with the US for a claim under the ATS to be successful.

Eventually the statute lost its attractiveness for foreign plaintiffs wanting to settle in US courts human rights scores committed in foreign places. Yet some aggrieved Namibians tried to pursue a case against Germany in an attempt to extricate monetary compensation from the former colonial power as restitutional compensation on the basis of the provisions in the ATS. Their attempts failed. Compensation for German atrocities committed during the colonial era in German South West Africa was pursued by the Namibian government outside of the courts.

This article illustrates that, at the hand of decisions by the highest court in the US involving particular groups of foreigners, legal avenues using the ATS as a basis have now been closed.