Reimagining regional cooperation as a springboard for curbing piracy off the coast of Nigeria

by | Mar 12, 2023 | JCLA, JCLA V9 I2 2022

Reimagining regional cooperation as a springboard for curbing piracy off the coast of Nigeria

Author: Kalu Kingsley Anele

ISSN: 2521-2605
Affiliations: LLB, (IMSU) LLM, (Unilag), PhD (KMOU), Lecturer, Cultural Heritage Preservation Research Institute, Pusan National University
Source: Journal of Comparative Law in Africa, Volume 9 Issue 2, p. 33 – 70
https://doi.org/10.47348/JCLA/v9/i2a2

Abstract

Nigerian waters remain risky for navigation. Despite efforts by the Nigerian government to suppress piracy off its coast, little progress has been made. Moreover, Nigeria is ill-equipped, ill-prepared and lacks effective enforcement of the extant piracy legal regime due to an inefficient institutional framework to combat piracy suo motu. This paper suggests the adoption of the regional cooperation mechanism to curb piracy in Nigeria, given the number of piracy incidents off its coast and the fact that the coast extends to the waters of neighbouring countries. Additionally, Nigerian piracy affects the navigational and geostrategic importance of the Gulf of Guinea to the global energy supply and international trade, and it implicates regional trade agreements in Africa. The research methodology is a dialectical analysis of data, legal instruments, and scholarly publications. Also, this research uses the application of anti-piracy regional cooperation agendas in other piracy hotspots to suggest the adoption of regional cooperation to suppress Nigerian piracy. The results reveal that attempts to curb piracy in Nigeria have been futile because the country lacks the political will to eliminate the causes of piracy. Since Nigerian piracy has a regional effect, regional cooperation would be apt to suppress this crime. Legal instruments, soft laws, regional agreements and international maritime organisations promote regional cooperation in combating piracy. Consequently, the paper explores factors that bolster and sustain regional cooperation as a means of repressing piracy off the Nigerian coast.

The role of non-governmental organisations in advancing good governance and development through regional institutions in Africa

by | Mar 12, 2023 | JCLA, JCLA V9 I2 2022

The role of non-governmental organisations in advancing good governance and development through regional institutions in Africa

Authors: Chebo Tamajong Nfor, Atupele Masangala, Julieth Gudo

ISSN: 2521-2605
Affiliations: LLLB, LLM, PhD candidate (UCT), postgraduate teaching assistant and researcher at the Centre for Comparative Law in Africa, Department of Commercial Law, UCT; LLM, LLB (Honours), law lecturer, University of Malawi;PhD Law, LLM, LLB, postdoctoral research fellow, Centre for Comparative Law in Africa, Faculty of Law, UCT
Source: Journal of Comparative Law in Africa, Volume 9 Issue 2, p. 71 – 101
https://doi.org/10.47348/JCLA/v9/i2a3

Abstract

Non-governmental Organisations (NGOs) in Africa, as people’s representatives, play an essential role in advancing good governance, human rights and development on the continent. They have cemented their role alongside international and regional institutions, organisations and state governments. NGOs have made extensive contributions to democracy and development in Africa. They have a history of challenging poor governance and human rights contraventions, and advancing development on the continent through regional institutions such as regional courts, regional bodies and other regional networks. However, these roles have not been critically studied. There is a lack of in-depth analysis of the different methods used by NGOs in promoting good governance and development through African regional institutions. This paper identifies and examines the various tools that NGOs employ in advancing good governance and development on the continent. The paper discusses the recognition of NGOs by regional institutions and how international and regional law protects their involvement in and participation on the continent. It further outlines how NGOs have used various regional legal institutions and other regional bodies to protect the rights and interests of the people. The paper demonstrates that while the role of NGOs in advancing good governance and development on the continent is progressive, many challenges hinder this role, such as stringent rules for eligibility and application to implement certain functions, lack of access to key resources that facilitate their participation and lack of clarity on the legal instruments that govern NGOs.

Female genital mutilation in Nigeria and Burkina Faso: Safeguarding the rights of women and girls in Africa

by | Mar 12, 2023 | JCLA, JCLA V9 I2 2022

Female genital mutilation in Nigeria and Burkina Faso: Safeguarding the rights of women and girls in Africa

Author: Olaitan O. Olusegun

ISSN: 2521-2605
Affiliations: Lecturer, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria
Source: Journal of Comparative Law in Africa, Volume 9 Issue 2, p. 102 – 136
https://doi.org/10.47348/JCLA/v9/i2a4

Abstract

Article 2 of the Convention against the Elimination of Discrimination against Women explicitly prohibits violence against women, which was defined to include Female Genital Mutilation (FGM). FGM is a practice which is entrenched in African culture. Archaic as this practice is, it is widely carried out in several countries, with its attendant deleterious effects. Nigeria and Burkina Faso have a high prevalence of FGM but have made legislative efforts to curb the practice. Burkina Faso has, however, employed additional measures to ensure their laws” enforcement, which has effectively changed the cultural attitudes of several communities towards FGM in the country. This study uses a doctrinal approach to examine the prevalence, mode of operation and legal framework enacted to protect girls and women from FGM in Nigeria and Burkina Faso. It further discusses the efforts taken in Burkina Faso to implement and enforce their laws, in addition to the challenges inherent in enforcing FGM, laws in Nigeria. This article found that enforcement of laws is key to eliminating FGM and Nigeria needs to take urgent measures to enforce their FGM legislation like Burkina Faso.

Horizontal accountability: Bottom-up oversight of public duty bearers in Malawi

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

Horizontal accountability: Bottom-up oversight of public duty bearers in Malawi

Authors: Dan Kuwali and Chikosa M Silungwe

ISSN: 2521-2605
Affiliations: Dan Kuwali holds an LLD (Lund). He is an Extraordinary Professor of Law at the University of Pretoria, South Africa; Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Sweden; Adjunct Professor and Executive Director, Centre for Strategic Studies, Malawi University of Science and Technology; Fellow at the Carr Centre for Human Rights Policy, Harvard Kennedy School; and Chief of Legal Services and Judge Advocate General, Malawi Defence Force; Chikosa Silungwe holds a PhD (Warwick). He is a Former Attorney General, Government of the Republic of Malawi and a consultant at the Mizumali Foundation, Lilongwe, Malawi
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 1 – 23
https://doi.org/10.47348/JCLA/v9/i1a1

Abstract

The principle of public duty requires that public authorities should be held accountable for their acts, omissions, decisions, policies and use of public resources. Focusing on Malawi as a country whose democracy has been tried and tested, this paper locates and dissects the notion of public duty in s 12 of the Constitution of Malawi as an instrument for horizontal accountability that can be employed by the citizenry, based on ss 15 and 41 of the Constitution, for more effective and proactive oversight, as opposed to an ex post facto mechanism exercised by the Ombudsman in terms of s 123 of the Constitution. The central argument of this paper is that those who exercise a public duty do so based on people’s sovereignty and they have an obligation to account to the people for the exercise of State authority. The paper concludes that public duty is a corollary of democratic accountability, and both derive from the protection of individual rights and the rule of law.

The Constitutional Court of Uganda: Blurring/misunderstanding its jurisdiction

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

The Constitutional Court of Uganda: Blurring/misunderstanding its jurisdiction

Author: Jamil Ddamulira Mujuzi

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape, South Africa
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 24 – 66
https://doi.org/10.47348/JCLA/v9/i1a2

Abstract

Article 137 of the Constitution of Uganda (the Constitution) provides for the jurisdiction of the Constitutional Court (the Court) to interpret the Constitution and to determine whether any law or conduct—act or omission—is contrary to the Constitution. The drafting history of art 137 shows that the court’s jurisdiction to interpret the Constitution is different from that of declaring whether any law or conduct is inconsistent with the Constitution. However, the jurisprudence of the Court shows that it has blurred the distinction between these two mandates. In this article, the author relies on the drafting history of art 137 to argue, inter alia, that the Court’s approach in this regard is debatable. It is also argued that, although the intention of the drafters of the Constitution was that the Court was not to be the first and final court in matters of constitutional interpretation, the literal interpretation of art 137 and the jurisprudence on art 137 show the opposite. It is further argued that in some instances the Court has misunderstood its jurisdiction under art 137(5) and (6) and that the Court does not have the power to declare legislation unconstitutional under art 137(5). It is also submitted that the Court’s argument that its jurisdiction is limited to interpreting the Constitution or that any petition before it cannot be resolved without first interpreting the Constitution is erroneous. It is further argued that Uganda may have to follow the South African model in which other courts, such as the High Court and the Supreme Court of Appeal, are also empowered to declare legislation unconstitutional.

Recusal of a judge in adjudication: Recent developments in South Africa and Botswana

by | Apr 29, 2022 | JCLA, JCLA V9 I1 2022

Recusal of a judge in adjudication: Recent developments in South Africa and Botswana

Authors: Chuks Okpaluba and Tumo C Maloka

ISSN: 2521-2605
Affiliations: LLB LLM (London) PhD (University of the West Indies); Research Fellow, Centre for Human Rights, University of the Free State, South Africa; BA LLB LLM (UCT) LLD (UFH), Associate Professor, Department of Mercantile and Labour Law, University of Limpopo
Source: Journal of Comparative Law in Africa, Volume 9 Issue 1, p. 67 – 93
https://doi.org/10.47348/JCLA/v9/i1a3

Abstract

Both at common law and under contemporary constitutional jurisprudence, the principle is that a judge who finds himself or herself in a situation where their personal interest(s) in the case in court will lead a dispassionate and independent observer to reasonably suspect that they will be biased or reasonably apprehended to be so, must not sit and hear the case. Even before the commencement of the hearing, the judge is expected to disclose their interest(s) in the case or association with one of the parties to both sides in the case so as to hear their views on the matter. Otherwise, a party who might be prejudiced by the outcome should, as early as possible in the proceedings, apply to the judge to recuse himself or herself from adjudicating the case. Sometimes, the judge might have entered the adjudication without any personal baggage, but one of the parties apprehends bias on account of the utterances or conduct of the judge in the proceedings, and the party affected must apply for the recusal of the judge from the trial or proceedings. Recent developments have shown that the circumstances in which recusal is permissible are far from being exhausted, hence the category of possible recusal cases is not closed. The cases that have arisen in the last ten years in Botswana and South Africa are very extensive in terms of volume and the variety of the issues that they raise and therefore they provide the material around which this article is constructed.