Applicability of Alternative Dispute Resolution and Plea Bargaining in the Nigerian Criminal Justice System

by | Sep 28, 2019 | ANUL, ANUL 2014 I2

Applicability of Alternative Dispute Resolution and Plea Bargaining in the Nigerian Criminal Justice System

Authors LA Ayinla, GH Olusola, B Ayinla Ahmad

ISSN: 2521-2613
Affiliations: Lecturer, Faculty of Law, University of Ilorin, Nigeria; Research Associate; Lecturer and Head of Common Law Department, Kwara State College of Arabic and Islamic Legal Studies, Nigeria
Source: Africa Nazarene University Law Journal, 2014, Issue 2, p. 173 – 189

Abstract

This article discusses the applicability of two ‘informal’ approaches to the resolution of conflict: alternative dispute resolution (ADR) and plea bargaining. More particularly, the article examines the relevance of these two approaches to the Nigerian criminal justice system. Widely used as a means of resolving civil disputes, ADR also has a role to play in the achievement of criminal justice. The article examines this role in some detail. Attention is also given to plea bargaining in the context of the country’s criminal justice framework. The article proposes that the parties to a criminal dispute, and society at large, might benefit from a more extensive use of plea bargaining, which remains underdeveloped in Nigeria.

Legal Recognition of Customary Law Marriages Celebrated by Proxy: Perspectives from Nigeria

by | Sep 28, 2019 | ANUL, ANUL 2014 I2

Legal Recognition of Customary Law Marriages Celebrated by Proxy: Perspectives from Nigeria

Authors Osose Eidenoje

ISSN: 2521-2613
Affiliations: LLB Student, University of Nairobi, School of Law LLB (Hons) (University of Benin, Nigeria); BL (Hons) (Nigerian Law School, Abuja); LLM Candidate (University of Benin, Nigeria)
Source: Africa Nazarene University Law Journal, 2014, Issue 2, p. 148 – 172

Abstract

This article examines the essential and formal requirements for the celebration of a valid marriage contracted under customary or indigenous law in Nigeria, with comparative analysis of the practice in similar Commonwealth countries, and common law jurisdictions. The celebration of a customary marriage by proxy in Nigeria is analysed against the backdrop of the various tests for the validity of customary law. The decision of the Nigerian Court in the case of Ogunremi v Ogunremi, which has been cited by many in justification of the practice of celebrating customary law by proxy, is briefly analysed. The views of the author are that, in order to determine the validity or otherwise of proxy marriages, one has to look beyond the Ogunremi decision. In addition, a marriage celebrated by proxy should be regarded as valid in Nigeria if such mode of celebration is permissible under the extant laws or prevalent customs of the place of celebration, even if it is within a foreign jurisdiction. Further, that the right to marry is an inalienable constitutional and international human right, a fact that Nigerian authorities should recognise in relation to proxy marriages. Reference is made to the toleration of proxy marriages under other legal systems and foreign jurisdictions. The article concludes that the celebration of a customary law marriage by proxy is consistent with legal provisions in Nigeria and recommends, among other things, that such marriage should be recognised by Nigerian authorities.

Family Law Reforms in Kenya: A Feminist Critique

by | Sep 28, 2019 | ANUL, ANUL 2014 I2

Family Law Reforms in Kenya: A Feminist Critique

Authors Yohana Gadaffi, Nancy Baraza

ISSN: 2521-2613
Affiliations: None; Senior Lecturer, Department of Public Law, University of Nairobi, School of Law
Source: Africa Nazarene University Law Journal, 2014, Issue 2, p. 126 – 147

Abstract

Over the past couple of years, there have been a number of reforms to the family law regime in Kenya. This began with the promulgation of the 2010 Constitution of Kenya, which set in motion the process of amending a number of laws so as to ensure their conformity to the new constitutional dispensation. The article focuses on the constitutional provisions as well as the new laws which have been enacted to govern the private sphere (family) in Kenya. In addition to the Constitution, the article focuses on the Matrimonial Property Act of 2013, the Marriage Act of 2014 and the Protection from Domestic Violence Bill of 2013. It discusses these items of legislation through a feminist critique. It specifically utilises radical feminism and narrows down to the male dominance theory advanced by Catharine Mackinnon in an effort to highlight how the laws have previously been discriminative against women. The article equally highlights how the new laws as well as the constitutional provisions will go a long way in correcting the power imbalances between men and women in the private sphere. In doing so, it weaves together various decisions of the courts to illustrate how the judicial institutions are already applying these new laws. Ultimately, the article concludes that the enactment of these laws is a step in the right direction, one which was long overdue but which will go a long way in dealing with male dominance.

The Status of International Law in Kenya

by | Sep 28, 2019 | ANUL, ANUL 2014 I2

The Status of International Law in Kenya

Authors Maurice Oduor

ISSN: 2521-2613
Affiliations: Lecturer, Moi University School of Law, and Head, Department of Legal Aid Clinics and Externships
Source: Africa Nazarene University Law Journal, 2014, Issue 2, p. 97 – 125

Abstract

In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domestic legal order. This provides courts with the opportunity to seek inspiration from the non-municipal legal framework when resolving disputes. However, the manner in which the Constitution incorporates international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law. This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to ‘general rules of international law’ as being part of the law of Kenya. This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.

Payment Systems and Mobile Money in Malawi: Towards Financial Inclusion and Financial Integrity

by | Sep 28, 2019 | ANUL, ANUL 2014 I2

Payment Systems and Mobile Money in Malawi: Towards Financial Inclusion and Financial Integrity

Authors Sunduzwayo Madise

ISSN: 2521-2613
Affiliations: Attorney, High Court and Malawi Supreme Court of Appeal; Lecturer, Faculty of Law, University of Malawi
Source: Africa Nazarene University Law Journal, 2014, Issue 2, p. 71 – 96

Abstract

Malawi, like other African countries, has witnessed a recent surge in mobile phone usage. The increase in phone usage has been accompanied by an increase in mobile phone based products. Two such products in Malawi are Khusa M’manja (‘money in the hands’ in the local language) and Mpamba (money in the context of ‘start-up capital’ in the local language). These products, and the services they contain, allow the phone user to use his or her mobile phone as a wallet or purse: he or she can load money into the phone, send and receive money, make deposits and withdrawals, purchase goods and services, and pay bills. Khusa M’manja is provided by Airtel, while Mpamba is provided by Telekom Networks Malawi (TNM). Khusa M’manja and Mpamba may be said to be close relatives of M-Pesa, a financial service that was developed in Kenya by Safaricom. The introduction of M-Pesa has led to an increase in money circulation, roping in those who would otherwise have been left out by the formal financial sector. The mobile money platform has been lauded as an effective means of ensuring financial inclusion of the unbanked, which constitute a large proportion of Africa’s Sub-Saharan population. For many, therefore, the introduction of mobile money services into the national payment system is a welcome development. However, balancing between the competing interests of financial inclusion and financial integrity remains a serious challenge.

Transition to Devolved Government in Kenya

by | Sep 28, 2019 | ANUL, ANUL 2014 I2

Transition to Devolved Government in Kenya

Authors J Mutakha Kangu

ISSN: 2521-2613
Affiliations: Senior Lecturer in Law, Moi University; Advocate of the High Court of Kenya; Former Chairman of the Task Force on Devolved Government; Former Commissioner of the Constitution of Kenya Review Commission; and currently a Doctoral Researcher at the Community Law Centre of the University of the Western Cape, South Africa
Source: Africa Nazarene University Law Journal, 2014, Issue 2, p. 32 – 70

Abstract

This article examines the constitutional provisions relating to the complex process of Kenya’s transition to devolved Government. Interpreted in a purposive manner, these constitutional provisions envisage and disclose the following key issues and areas pertinent to transition to devolved Government, which the article discusses. First is the gradual transition to devolved Government. This section addresses the nature of transitional provisions; the suspension and extension of some of the provisions of the new and former Constitutions, respectively; and the timing, period and phases of transition to devolved Government. Second is transition in the legislative area, which involves the deconstruction of the old legal order through the enactment of enabling new order legislation, and the interpretation of the surviving old order laws in a manner that makes them consistent with the new Constitution and facilitates transition to devolved Government. Third is the establishment of county structures and institutions, including the public service and restructuring of provincial administration. Fourth is transition in the functional area, involving the transfer of functions to the County Governments. Fifth is transition in the resources area, involving financial resources, human resources and capacity building, assets and liabilities, and transfer of Government records. In the course of the examination of these key transition issues and areas, the article also examines the numerous key institutions which the Constitution establishes or envisages as being responsible for managing the transition process and assesses their performance so far.