Deposit Insurance in Africa: A Veritable Mechanism for Depositor Protection

by | Oct 9, 2019 | JCLA, JCLA V2 I1 2015

Deposit Insurance in Africa: A Veritable Mechanism for Depositor Protection

Authors Panshak Ephraim Haggai

ISSN: 2521-2605
Affiliations: Legal Officer, Nigerio Deposit Insurance Corporation (NDIC)
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 101 – 110

Abstract

The history of the establishment of the first deposit insurance system dates as far back as 1933 in the United States of America. Since then, the system has been recognised as an invaluable component of an efficient financial safety net in the economy of nations that have a stable financial system, and has been adopted and domesticated by many countries across the world. Despite the apparent benefits of a deposit insurance system, its penetration on the African continent has been low. This article seeks to examine the deposit insurance system and highlight its benefits to the financial systems that have adopted it on the African continent. Some of the reasons for the low penetration of this insurance system in Africa are examined and recommendations on how that situation could be reversed in the long run are proffered.

Towards the East African Monetary Union: Constitutional Issues for Kenya

by | Oct 9, 2019 | JCLA, JCLA V2 I1 2015

Towards the East African Monetary Union: Constitutional Issues for Kenya

Authors Shiundu Joseph Lutta

ISSN: 2521-2605
Affiliations: Advocate of the High Court of Kenya and Certified Public Secretary of Kenya
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 74 – 100

Abstract

Generally, countries enter into monetary union agreements to promote economic integration. In turn, this economic integration is meant to spur equitable development among the member states. Aside from the potential economic gains, monetary unions raise a myriad of serious issues that are constitutional and political in nature. This is because this practice transfers sovereign power of the people from the nation to a supranational organisation. As such, this shift in authority alters the framework of a country’s governance system. This legal quandary forms the spine of this article. It seeks to demystify these constitutional issues from the perspective of Kenya and the prospective East African Monetary Union (EAMU). In addition, it provides a comparative study of the practice in Germany within the European Union (EU) and lessons it offers to Kenya in manoeuvring this legal dilemma.

Le Pacte Commissoire et la Protection de L’interet du Creancier en Droit OHADA

by | Oct 9, 2019 | JCLA, JCLA V2 I1 2015

Le Pacte Commissoire et la Protection de L’interet du Creancier en Droit OHADA

Authors Samson Igor Bidossessi Guedegbe

ISSN: 2521-2605
Affiliations: Docteur en Droit privé, Assistant à la Faculté de Droit et de Sciences Politiques Université d’Abomey-Calavi, Bénin
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 39 – 73

Abstract

Many voices have welcomed the recent recognition by the OHADA legislator of the agreement of forfeiture. The agreement is presented as a recovery mechanism, which offers the opportunity to obtain the repayment of secured debt quicker and cheaper. Yet the real situation is far from this objective. This article explains how, in practice, the creditor beneficiary of the agreement of forfeiture only has in his hands a weapon of relative efficiency, accompanied by uncertain effectiveness.

Du Security Agent À L’agent des Sûretés: Perspectives de Droit Comparé; Droit Français et Droit de L’ohada

by | Oct 9, 2019 | JCLA, JCLA V2 I1 2015

Du Security Agent À L’agent des Sûretés: Perspectives de Droit Comparé; Droit Français et Droit de L’ohada

Authors Regis Nogbou

ISSN: 2521-2605
Affiliations: Company lawyer, Côte d’Ivoire
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 28 – 38

Abstract

This technique was originally an Anglo-Saxon technique in which a borrower borrowed under a single loan agreement from a group of banks, and in addition to the syndicated loan, the borrower and the syndicate of banks, there is a security agent. The role of the security agent is to create, manage and enforce securities in his or her own name but on the behalf of the lending banks, to secure the claims of these banks. The security agent, which resulted from the common law, was adopted in countries with a civil law tradition, as the syndicated loan technique internationalised. However, the equivalent of security agents in some continental law countries — such as the Agent des Sûretés — seems relatively far from its Anglo-Saxon model. For example, French banking practice makes the French Agent des Sûretés the proxy holder of the lending banks. This proxy holder cannot create securities in his or her own name, but only in the name and on the behalf of the banking pool. He or she must obtain special powers from the banks for any act that goes beyond a simple administrative act. Lastly, like any other proxy holder, the French Agent des Sûretés can be dismissed ad nutum. The French legislator, under a law dated 19 February 2007, tried to give the French Agent des Sûretés a more advantageous legal status, but article 2381-1 of the Civil Code is too imprecise and incomplete. In contrast, the security agent introduced by the OHADA uniform Act that organises securities, dated 15 December 2010, offers a more interesting alternative to the security agent. Indeed, thanks to a comprehensive legislative package, the OHADA Agent des Sûretés — which is characterised as a fiduciary — is able to create any kind of securities and guarantees in his name and on the behalf of the banks he represents. The OHADA Agent des Sûretés is undeniably closer to the security agent and should inspire the French legislator to look ahead to the reform of article 2381-1 of the Civil Code.

Legal Pluralism and Progressive Constitutionalism: An introduction to the South African challenge for Post-National Governance

by | Oct 9, 2019 | JCLA, JCLA V2 I1 2015

Legal Pluralism and Progressive Constitutionalism: An introduction to the South African challenge for Post-National Governance

Authors Luca Siliquini-Cinelli

ISSN: 2521-2605
Affiliations: Lecturer, School of Law, Faculty of Business and Law, Deakin University, Australia
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 1 – 27

Abstract

The aim of this article is to contribute to the current academic debate on pluralist mechanisms of post-national governance as a particular type of ‘stateless law’. More precisely, this article is conceived as an introduction to aid further research on the shape (and extent) that post-national governance may eventually assume (and reach) in South Africa. Attention is, therefore, paid to legal pluralism as a key factor of pluralist settings of post-national government. An overview of the essence and features of post-national governance is provided, and a brief comparison is made between hard hierarchical and soft-networked forms of governance. In pursuing the suggested roadmap, reference is made to the current European landscape on post-national governance, which is ontologically inevitable in discussing the essence, structure, aims, challenges and limitations of post-national governance. Moreover, the necessity of adopting a comparative modus investigandi is due to the circumstance that although South Africa and the European Union (EU) share important elements (e.g., legal pluralism, financial instability and future common challenges), South Africa has an extremely progressive constitution — a result that the EU has been unable to achieve formally. Thus, while explaining why South Africa may represent fertile ground for such an architecture of governance, this article discusses why the South African Constitution may be a ‘value add’ that may help post-national governance avoid the difficulties thus far encountered on the European continent.