Recht in Afrika最新文献

{"title":"Portée et limite du régime juridique du partenariat public-privé en droit positif congolais","authors":"Ursil Lelo Di-Makungu, Junior-Jackson Bosakelia Lokwa, Jean Bakomito Gambu, Christian Mbodjima","doi":"10.5771/2363-6270-2023-1-84","DOIUrl":"https://doi.org/10.5771/2363-6270-2023-1-84","url":null,"abstract":"Law No. 18–016 of July 09, 2018 (Democratic Republic of Congo) on the private partnership devotes a specific legal regime to the public-private partnership contract, which, being administrative in nature, strictly takes one of four forms: concession, leasing, interested management and the partnership contract. Linked to the country's development challenges, the scope of the Congolese public-private partnership legal system is to be attractive, secure and balanced. Also, and above all, this system guarantees transparency, competition, equality and objectivity in the process of concluding a public-private partnership contract, which must go through a call for tenders. It is advisable, however, to reserve ourselves the effectiveness of the institution of the spontaneous offer insofar as the author of the offer will be subjected to the competition by the procedure of invitation to tender. It does not appear to be advantageous to him, notwithstanding the fact that he benefits from the compensation for costs incurred. The absolute non-retroactivity of the law is worrying. Indeed, without any transitional measure obliging the parties to review the public-private partnership contracts that predate this new legal regime, most of these old contracts that are currently being executed will remain leonine.","PeriodicalId":121115,"journal":{"name":"Recht in Afrika","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125607445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Titelei/Inhaltsverzeichnis","authors":"Benjamin Schmidt","doi":"10.5771/9783748910206-1","DOIUrl":"https://doi.org/10.5771/9783748910206-1","url":null,"abstract":"","PeriodicalId":121115,"journal":{"name":"Recht in Afrika","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125078717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Le contrôle préalable de constitutionalité des lois au Burundi : Quelle intelligibilité de la jurisprudence ?","authors":"A. Niyonkuru","doi":"10.5771/2363-6270-2021-2-222","DOIUrl":"https://doi.org/10.5771/2363-6270-2021-2-222","url":null,"abstract":"Loi organique, loi ordinaire. Ces expressions si familières aux juristes et parlementaires. Contrôle préalable de constitutionnalité des lois. Cet exercice auquel sont habitués les juges de la Cour constitutionnelle du Burundi. Mais lorsque les complexités et les nuances technico-juridiques s’invitent, il n’est pas certain que les uns et les autres parviennent toujours à éviter de bien malencontreuses méprises. A l’aune de l’intelligibilité attendue de la jurisprudence, ce papier analyse les arrêts rendus par la Cour constitutionnelle du Burundi en matière de contrôle préalable de constitutionnalité. Il questionne, entre autres, sa lisibilité, sa constance, sa cohérence et la qualité du syllogisme mis en œuvre par le juge constitutionnel dans l’application de la règle de droit.","PeriodicalId":121115,"journal":{"name":"Recht in Afrika","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124456769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Le défi de l’Organisation pour l’harmonisation en Afrique du droit des affaires face au développement des marchés financiers africains : Quid de la protection des investisseurs","authors":"Gloria Lubaki Sita","doi":"10.5771/2363-6270-2019-2-157","DOIUrl":"https://doi.org/10.5771/2363-6270-2019-2-157","url":null,"abstract":"By the time the founding fathers of the Organization for the Harmonization of Business Law in Africa (OHADA) signed the Treaty of Port Louis, the financial markets in Western and Central Africa were embryonic. Nowadays the situation has changed and it seems appropriate to reconsider relationship between OHADA law and securities exchange markets. Indeed, OHADA's Community legislation has to deal with the securities markets covered and serve both the proper functioning of the market and the protection of investors. The uniform Act on Commercial Companies and Economic Interest Groupings contains provisions referring to specific financial rules. However, is this sufficient to earn the public trust? Financial market law is a complex discipline. If we supplement this the effort required for investors to find their way between the West African Economic and Monetary Union (WAEMU) or the Economic and Monetary Community of Central Africa (CEMAC) stock exchange law and national constraints throughout OHADA, the following question must be asked: How is the investor’s interest protected in this legal jungle? This paper tries to analyse the legal mechanisms of investor protection in the WAEMU Regional Stock Exchange and the Central African Stock Exchange, combining them with the uniform law for commercial companies of OHADA.","PeriodicalId":121115,"journal":{"name":"Recht in Afrika","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130675255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Blockchain Technology and the Development of African Economies: Promises, Opportunities, and the Legal Issues at Stake","authors":"Alexander Wilhelm","doi":"10.5771/2363-6270-2019-1-3","DOIUrl":"https://doi.org/10.5771/2363-6270-2019-1-3","url":null,"abstract":"<p />","PeriodicalId":121115,"journal":{"name":"Recht in Afrika","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127876168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Keine Reform des konstitutionellen Parlamentsrechts: Kenias gescheiterte Building Bridges Initiative als eine institutionenpolitisch verpasste Chance?","authors":"D. Schindler","doi":"10.5771/2363-6270-2023-1-3","DOIUrl":"https://doi.org/10.5771/2363-6270-2023-1-3","url":null,"abstract":"Following the handshake between President Uhuru Kenyatta and his main contender Raila Odinga in 2018, the Building Bridges Initiative (BBI) was launched to unite the country and improve governance. As a main outcome, a proposal to amend the 2010 constitution was introduced in 2020. However, on 31 March 2022 the Supreme Court declared the BBI unconstitutional since Kenyatta had opted to alter Kenya’s highest law by means of a popular initiative under Article 257 which is the preserve of ordinary citizens. Against the background of this failure for procedural reasons, the paper evaluates the initiative’s most important proposals in the realm of constitutional parliamentary law, i.e. the introduction both of a prime minister and the office of the leader of the opposition. For that purpose, the reform coalition’s own claims and intentions serve as a yardstick. The analysis yields mixed results. While the court’s verdict plainly provides proof that the rule of law prevails, it is more difficult to speak of a missed opportunity to readjust the political system’s design. The executive extension hardly mitigates the winner-takes-all principle that centres around the presidency. It neither shows real interest in more inclusive politics. Constitutionalizing the chief opposition post might be more welcomed even though its selection rule holds potential for conflict. It reduces the stakes of elections by giving greater weight to this office which might serve as consolation prize but also stands as symbol of democratic tolerance. In general, failed attempts to revise the supreme law merit more attention since they are part and parcel of a country’s constitutional politics and, hence, form the background for future reforms.","PeriodicalId":121115,"journal":{"name":"Recht in Afrika","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126859292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The African Union Use of Force to Uphold Democracy and Constitutionalism in Practice: How Far Have We Gone?","authors":"Magdalena Sylister","doi":"10.5771/2363-6270-2022-1-84","DOIUrl":"https://doi.org/10.5771/2363-6270-2022-1-84","url":null,"abstract":"This paper makes an assessment of how far the African Union (AU) has gone in exercising the mandate of use of force as one of tools for upholding democracy and constitutionalism within the continent. The key intention of this assessment is to scrutinize the suitability of the use of force in the AU’s framework as one of the channels for safeguarding democracy and constitutionalism. The work has employed qualitative research methods, relying on both primary and secondary data. Parallel to that, four case studies from selected AU missions in Africa have been relied upon (Burundi twice, Comoros, Mali and the Gambia). Findings reveal that generally the AU has made significant strides in utilizing its mandate in the use of force in upholding democracy and constitutionalism in Africa by restoring peace, rule of law, stability, human security and in safeguarding people’s will. The AU has also proved to be a reliable first responder in African constitutional crises given the fact that intervention by the UN system takes too long to be engaged and that the UN does not deploy peacekeeping forces where there is no comprehensive peace agreement. Despite that encouraging development, critical challenges still exist. The AU has not succeeded in addressing one notorious vice in Africa which largely contributes to recurrent constitutional crises, namely bad governance. Bad governance exists in various forms such as disrespect of presidential term limits, nepotism and willful disregard of the will of the people in general elections. Other challenges include financial constraints to adequately fund large scale operations, excessive reliance of donors for its peace operations, lack of political will from some African states, and difficulties in harmonizing interests of all parties to conflicts. In order to address these challenges, the AU should achieve its financial autonomy. It should explore further on the lead nation approach and put in place a more formal system on terms and conditions of participation of those nations and anchoring peace support operations. The UA should also make more efforts to instill upon African leaders the culture of good governance because it will greatly reduce constitutional crises which necessitate the use of force in addressing them. Lastly, the AU should discourage procuring of peace deals without the free consent of all the key actors in constitutional crises. Free consent is crucial in ensuring that the peace deals will be adequately respected. The overall outcome of this assessment therefore serves as an encouragement of the AU to continue working tirelessly in improving the mechanism of use of force because it has proved to be a potential tool for upholding democracy and constitutionalism in appropriate circumstances.","PeriodicalId":121115,"journal":{"name":"Recht in Afrika","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123033276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taking Stock of African Union’s Sanctions against Unconstitutional Change of Government","authors":"Serugo Jean Baptiste, Balingene Kahombo","doi":"10.5771/2363-6270-2022-1-135","DOIUrl":"https://doi.org/10.5771/2363-6270-2022-1-135","url":null,"abstract":"This article examines the African Union (AU) sanctions against unconstitutional change of government. It reviews the legal background to this phenomenon and finds that unconstitutional changes of government remain recurrent and widespread across the continent. However, the AU has at its disposal a variety of sanctions, ranging from politico-diplomatic sanctions to targeted as well economic sanctions. Furthermore, perpetrators of unconstitutional change of government can be prosecuted at the domestic, regional and continental levels. But sanctions do not suffice to restore democratic order despite their punitive character. In fact, the AU also keeps diplomatic contacts and provides support to the establishment of transition governments, power sharing deals, and the organization of new elections. This fosters the rise of constitutionalism in times of crises which precedes the establishment of new democratic political orders. If this can be considered as a success in itself, the paper contends that in most of the cases, the AU and even Regional Economic Communities (RECS)/Regional Mechanisms (RMs) fail to restore to power overthrown governments. Rather, de facto authorities succeed to retain their positions after legitimizing their governments through presumed democratic elections. In addition, member states and some RECs, such as the Economic Community of Central African States (ECCAS) in the situation in CAR in 2003, undermine the AU policy of sanctions. Be it as it may, the study concludes that the AU legal framework still has some loopholes in that a number of situations are not covered by it, such as infringing the principles of democratic government through fraudulent or delayed elections, and popular uprising. Therefore, it suggests that the better way to deal with unconstitutional changes of government is prevention. This requires a universal African adherence to common values and principles of democratic governance, including the ratification of relevant AU treaties and their implementation at the domestic level.","PeriodicalId":121115,"journal":{"name":"Recht in Afrika","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133361514","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Titelei/Inhaltsverzeichnis","authors":"","doi":"10.5771/2363-6270-2019-1-1","DOIUrl":"https://doi.org/10.5771/2363-6270-2019-1-1","url":null,"abstract":"","PeriodicalId":121115,"journal":{"name":"Recht in Afrika","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125487208","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Nexus between Constitutionalism, Peace and Security in the Law and Practice of the African Union","authors":"T. Makunya","doi":"10.5771/2363-6270-2022-1-53","DOIUrl":"https://doi.org/10.5771/2363-6270-2022-1-53","url":null,"abstract":"The African Union (AU), which succeeded the Organisation of African Unity (OAU) in 2002, is based on a strong legal and institutional framework that reinforces constitutionalism at national, regional and continental levels. This framework is a response to the failure of the OAU to tame autocratic tendencies within its member states. It cements the organisation’s commitment to infuse the ideals, values and norms of constitutionalism into the conduct of domestic affairs and politics. The relevance of the framework stems from its ability, when adhered to by all member states, to prevent constitutional crises, many of which have a negative impact on national, regional and continental peace and security and often hinder the prospect of constitutional democracy. Using examples of AU interventions to stymie constitutional crises in the form of unconstitutional changes of government in the Central African Republic, Burundi and Southern Sudan, this paper highlights the dialectical relationship between constitutionalism, peace and security, which can ensure that AU interventions reinforce, rather than undermine, constitutional ideals. While noting the AU’s inability or unwillingness to apply this framework in all the constitutional crises it has been called upon to address, the article concludes that member states and the AU itself need to commit to the ideals of constitutionalism, otherwise the transformative constitutional framework will remain a mere paper tiger.","PeriodicalId":121115,"journal":{"name":"Recht in Afrika","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121301409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}