African Journal of Legal Studies最新文献

{"title":"The Status in Nigeria of Treaties Predating the 1979 Constitution: Reflections on JFS v. Brawal Line Ltd","authors":"A. Enabulele, F. Osadolor","doi":"10.1163/17087384-12340055","DOIUrl":"https://doi.org/10.1163/17087384-12340055","url":null,"abstract":"\u0000It is an essential ingredient of sovereignty that every State has an absolute jurisdiction to determine the laws that apply within its territory and to determine, by its laws, the organ of the State that has the competence to make laws and the procedures to be followed. The competent organ that makes municipal law (the legislature) is usually different from the organ that makes international law (the executive). As a result, and following the dictates of separation of powers, while the executive is competent to enter into treaties, its competence is eroded by the competence of the legislature when a treaty is intended to be applied to municipal subjects; such a treaty intrudes into the competence of the legislature. When this occurs, the municipal applicability of the treaty would turn on the requirements specified by municipal law. This is the function of section 12(1) of the 1999 Constitution (as amended). This section bars the executive from transforming its treaty-making power into legislative powers by requiring legislative approval for the application of a treaty in Nigeria. Expectedly, the section has been variously interpreted and applied by Nigerian courts. This paper examines the views expressed by the Supreme Court in JFS v. Brawal Line Ltd and argues that the Supreme Court failed to give proper expression to the dualist nature of that section.","PeriodicalId":41565,"journal":{"name":"African Journal of Legal Studies","volume":"12 1","pages":"335-359"},"PeriodicalIF":0.2,"publicationDate":"2020-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/17087384-12340055","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49068777","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":"Dispute Settlement Mechanisms in African Regional Economic Communities: Lessons and New Developments","authors":"Obert Bore","doi":"10.1163/17087384-12340051","DOIUrl":"https://doi.org/10.1163/17087384-12340051","url":null,"abstract":"African regional trade agreements often provide for dispute settlement mechanisms and procedures that should be followed. They also establish judicial bodies or tribunals for the respective African Regional Economic Communities. Despite the existence of judicial bodies, African governments do not usually litigate against each other on trade-related disputes. However, the few cases adjudicated by the regional judicial bodies are insightful of how contemporary trade disputes shape the development of community law. With reference to case law, this article presents lessons from regional judicial bodies. Notwithstanding the lessons learnt, there are challenges too. In response to the challenges, new developments on the continent, adopted through the African Continental Free Trade Area signal a move towards respecting rules-based trade through ensuring legal predictability and certainty for trade dispute settlement. Thus, this article will also provide a detailed analysis of the dispute settlement mechanism under the African Continental Free Trade Area, a system akin to World Trade Organisation.","PeriodicalId":41565,"journal":{"name":"African Journal of Legal Studies","volume":"12 1","pages":"242-265"},"PeriodicalIF":0.2,"publicationDate":"2020-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/17087384-12340051","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43136644","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 Right to Privacy v National Security in Africa: Towards a Legislative Framework Which Guarantees Proportionality in Communications Surveillance","authors":"J. Mavedzenge","doi":"10.1163/17087384-12340056","DOIUrl":"https://doi.org/10.1163/17087384-12340056","url":null,"abstract":"\u0000Governments often resort to communications surveillance in order to combat threats against national security. Communication surveillance infringes upon the right to privacy. In order to protect privacy, international law requires communication surveillance to be proportionate. However, very little has been written to justify why this right deserves such protection in Africa, given counter-arguments suggesting that where national security is threatened, the state must be permitted to do everything possible to avert the threat, and the protection of privacy is an inconvenience. This article addresses these counter-arguments by demonstrating that the right to privacy deserves protection because it is as important as defending national security. It analyses approaches taken by selected African countries to regulate authorisation of communication surveillance. This article questions the assumption that prior judicial authorisation is the ideal approach to regulating communication surveillance in order to guarantee proportionality, and it suggests a need to consider other alternatives.","PeriodicalId":41565,"journal":{"name":"African Journal of Legal Studies","volume":"12 1","pages":"360-390"},"PeriodicalIF":0.2,"publicationDate":"2020-05-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/17087384-12340056","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49184845","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":"Sovereignty, National Interest & Security and the Bilateral Investment Treaties of Bangladesh and the Netherlands: a Comparison","authors":"Mohammad Belayet Hossain, Asmah Laili Yeon, A. Aziz","doi":"10.1163/17087384-12340049","DOIUrl":"https://doi.org/10.1163/17087384-12340049","url":null,"abstract":"\u0000In absence of any global treaty, the bilateral investment treaties are playing the important role of regulating foreign investments in the host countries. The primary purpose of economic globalization is the economic development of the developing and least-developed countries as well as to facilitate benefits of the home states. Bangladesh and the Netherlands also signed bilateral investment treaties to facilitate trade. Bangladesh foreign investment laws and bilateral investment treaties mainly protect foreign investors; however, neither include any specific provisions of protecting sovereignty, national interest, and security. The Netherlands generally follows EU foreign investment policies. This paper addresses two questions: (a) do the bilateral investment treaties of Bangladesh and the Netherlands include any specific provisions to protect the sovereignty, national interest, and security, and (b) should the sovereignty, national interest, and security be considered during the entry of foreign direct investment in Bangladesh and the Netherlands? Using doctrinal research method, a total of 25 bilateral investment treaties have been analysed in order to explore whether they protect the sovereignty, national interest, and security of Bangladesh and the Netherlands. Based on the findings, this study will recommend that the government of Bangladesh should consider this important factor as an entry condition, either through amending the existing laws or through the bilateral investment treaties.","PeriodicalId":41565,"journal":{"name":"African Journal of Legal Studies","volume":"12 1","pages":"183-214"},"PeriodicalIF":0.2,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/17087384-12340049","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48065580","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":"A Curious Decision by Zambia’s Highest Court: Six Years Imprisonment for Civil Contempt?","authors":"Christopher Phiri","doi":"10.1163/17087384-12340046","DOIUrl":"https://doi.org/10.1163/17087384-12340046","url":null,"abstract":"\u0000On 23 November 2018, the Supreme Court of Zambia delivered a judgement which suggests that Zambian judges have virtually unbridled power to move on their own motion to punish for contempt of court anyone who criticises their judicial decisions. This article considers that judgement. It argues that whilst justice might well have been done in the case in question, it was certainly not seen to be done. Two main reasons are given for this argument. First, the judges appeared to have acted both as prosecutors and adjudicators in their own cause when it was neither urgent nor imperative to act immediately on their own motion. Second, the classification by the Court of the contempt in question as civil contempt rather than criminal contempt is alien to the common law world. The article culminates in a clarion call for the Zambian legislature to intervene and clarify the law of contempt of court to avert capricious and unbridled invocation of the judicial power to punish for contempt.","PeriodicalId":41565,"journal":{"name":"African Journal of Legal Studies","volume":"12 1","pages":"115-138"},"PeriodicalIF":0.2,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/17087384-12340046","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43340661","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":"Revisiting the Legality of the Union between the Republic of Tanganyika and the People’s Republic of Zanzibar","authors":"Said Said","doi":"10.1163/17087384-12340047","DOIUrl":"https://doi.org/10.1163/17087384-12340047","url":null,"abstract":"\u0000While every year the people of the United Republic of Tanzania witness the new anniversary of the Union between the former Republic of Tanganyika and Zanzibar, this paper intends to examine how strong its legal foundation stands.\u0000The union was established by the two leaders; Nyerere for Tanganyika and Karume for Zanzibar. After their signatures, the agreement was required for ratification at Zanzibar and Tanganyika legislative bodies. Only Tanganyika ratified. Surprisingly, even though Zanzibar did not ratify, the union was made. On this background foundation, the union legality has been repeatedly criticized.\u0000While those who question the legality of the union stick on the point of ratification, those who consider its legitimacy, assert that the question of validity has waned due to the period the union has survived. The findings in this article argue otherwise, in fact, the issue has grown to such extent that it haunts everyone in Tanzania.","PeriodicalId":41565,"journal":{"name":"African Journal of Legal Studies","volume":"12 1","pages":"139-162"},"PeriodicalIF":0.2,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/17087384-12340047","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41682063","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":"A Critical Analysis of Fiscal Measures on Unhealthy Foods in Mauritius","authors":"A. Beebeejaun","doi":"10.1163/17087384-12340048","DOIUrl":"https://doi.org/10.1163/17087384-12340048","url":null,"abstract":"\u0000The level of obesity across the globe is on the rise and this is evidenced by the recent World Health Organisation’s (WHO) estimate of an increase in the worldwide prevalence of obesity which has nearly tripled between 1975 and 2018. Mauritius has a high rate of obesity which is evidenced by the Non-Communicable Diseases (NCD) report of 2016 indicating that around 54.2% of the participants are obese. One amongst the main causes of obesity is a high level of sugar consumption. In this regard, a number of policies are being undertaken by the Mauritius government one amongst which is the imposition of an excise duty on sugar.\u0000Furthermore, the study will also focus on consumption of some products that are considered to be unhealthy. For instance, while the WHO recommends a level of sodium chloride intake of less than 5 grams (1 tablespoon) per day to reduce blood pressure and cardio-vascular diseases, a study conducted by the Ministry of Health and Quality of Life (MOHQL) in 2012 revealed that the standardized mean salt intake was around 7.9 grams daily, which is far beyond the WHO’s recommendations. The level of fat consumption is another factor that affects obesity. While the recommended level of fat is between 44 grams to 77 grams for an intake of 2,000 calories per day, a study conducted by Bundhun et al. in 2018 on the target population of 344 children showed that the majority of children consumes more than the recommended fat intake.\u0000In light of the above, the aim of this study is four-fold, mainly to:\u0000\u0000(a) analyse the effectiveness of the three cents of excise duty per gram of sugar on the Mauritius population consumption patterns;\u0000(b) assess the likely impact of a food tax in Mauritius imposed on fatty or salty foods that are considered unhealthy;\u0000(c) analyse the laws relating to unhealthy food taxes in Hungary; and\u0000(d) suggest possible recommendations which may be of use to stakeholders in Mauritius to combat obesity problem.\u0000\u0000The methodologies for the research are in essence comprised of the black letter approach which will analyse the legal provisions relating to the laws in Mauritius and Hungary. Books and reports will be also examined. A qualitative analysis is carried out in terms of questionnaire to find out the perceptions of the Mauritius population on food taxes.\u0000The paper aims at responding to the research objectives set out above. In particular, it is suggested that the rate of excise duty on sugar needs to be increased and that the Mauritius government should also consider the imposition of excise duty on the level of salt and fat contained in foods.","PeriodicalId":41565,"journal":{"name":"African Journal of Legal Studies","volume":"12 1","pages":"163-182"},"PeriodicalIF":0.2,"publicationDate":"2019-12-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/17087384-12340048","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44001770","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":"Truth Without Reconciliation: A Human Rights History of Ghana, written by Abena Ampofoa Asare","authors":"T. Ansah","doi":"10.1163/17087384-12340045","DOIUrl":"https://doi.org/10.1163/17087384-12340045","url":null,"abstract":"","PeriodicalId":41565,"journal":{"name":"African Journal of Legal Studies","volume":"12 1","pages":"107-114"},"PeriodicalIF":0.2,"publicationDate":"2019-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/17087384-12340045","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42605505","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 Admissibility of Evidence Obtained through Human Rights Violations in Ghana: Analysing Cubagee v Asare and Others (NO. J6/04/2017) [2018] GHASC 14 (28 February 2018)","authors":"J. D. Mujuzi","doi":"10.1163/17087384-12340044","DOIUrl":"https://doi.org/10.1163/17087384-12340044","url":null,"abstract":"\u0000The Constitution of Ghana, unlike those of other African countries such as Zimbabwe, Kenya, and South Africa is silent on the issue of the admissibility of evidence obtained through human rights violations. Jurisprudence from Ghana demonstrates that although there had been cases in which the High Court and the Court of Appeal briefly dealt with this type of evidence, the Supreme Court, the highest court in Ghana, had not expressed an opinion on this issue until recently. In February 2018, in the case of Cubagee v Asare and Others, the Supreme Court laid down the criteria that Ghanaian courts have to use in determining the admissibility of evidence obtained through human rights violations. In this article, the author argues that much as this is an important decision, the Supreme Court left some issues unresolved and there is still room for improvement.","PeriodicalId":41565,"journal":{"name":"African Journal of Legal Studies","volume":"12 1","pages":"81-105"},"PeriodicalIF":0.2,"publicationDate":"2019-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/17087384-12340044","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45095366","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":"Ethiopia-Eritrea Rapproachment","authors":"J. Magnet","doi":"10.1163/17087384-12340041","DOIUrl":"https://doi.org/10.1163/17087384-12340041","url":null,"abstract":"\u0000On July 9, 2018 Ethiopia and Eritrea signed a Joint Declaration of Peace and Friendship. On July 17, 2018 Ethiopia announced plans for landlocked Ethiopia to use Eritrea’s port of Assab.\u0000Ethiopia’s proposed use of Assab has implications for the indigenous Afar people who have lived in the port area for two thousand years. The United Nations Special Rapporteur on the situation of Human Rights in Eritrea and the United Nations Commission of Inquiry on Human Rights in Eritrea found that Eritrea engaged in widespread persecution of the Afar people, including evicting them from the port area of Assab without any compensation. Both UN entities found that this persecution amounted to crimes against humanity.\u0000This paper considers the legal consequences for Ethiopia and Ethiopian officials if they use the Assab port area taken from the Afar by criminal means: will they be involving themselves in Eritrea’s crimes? The paper then considers alternative arrangements from the perspective of where the interests of Ethiopia, Eritrea and the Afar are anticipated to converge. It concludes with proposals to resolve the present untenable situation.","PeriodicalId":41565,"journal":{"name":"African Journal of Legal Studies","volume":"12 1","pages":"1-22"},"PeriodicalIF":0.2,"publicationDate":"2019-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/17087384-12340041","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45456013","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}