Reviewing the Africa-ICC Relation: Does the International Criminal Court’s Purpose to ‘End Impunity’ Reflect the Same old Selective Application of International Law?

by | Sep 27, 2019 | ANUL, ANUL 2016 I1

Reviewing the Africa-ICC Relation: Does the International Criminal Court’s Purpose to ‘End Impunity’ Reflect the Same old Selective Application of International Law?

Authors Duncan Ojwang

ISSN: 2521-2613
Affiliations: Lecturer of international law and international human rights law; member of the Illinois Supreme Court Bar; BA Indiana University, JD University of Southern Illinois, LLM Indiana University, SJD University of Arizona
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 50 – 74

Abstract

A discussion on the International Criminal Court (ICC), established in 2002, on its legitimacy, impunity, selectivity, fairness and accountability cannot be attributed to one reason. This article reviews the Africa Union’s and the ICC’s antagonistic relation, in lieu to the trial of Kenyan leaders. Notwithstanding that a number of African countries in an effort of good faith founded the ICC and important positions at the ICC are held by Africans, numerous challenges have arisen. In order to understand these challenges, this article looks at the historical creation of the doctrine of ending impunity in the world, and also the goal and purpose of the ICC as the first permanent international criminal court, according to the preamble of the Rome Treaty. This article reviews whether the current argument on the selectivity of the ICC can be attributed to the long-established foundation that prejudices non-European cultures. The article expands the work done by scholars like James Anaya and Robert Williams, Junior in exploring the historical language of discrimination and the racism of the word ‘impunity’ as a cause of injustice in the ICC operation. The legal history and foundation of the doctrine of impunity and ending impunity functions to selectively focus the attention of the international community on human rights abuse in Africa, turn a blind eye to other perpetrators, and portray a stereotype that exaggerates other cultures and nations as full of impunity and savages. It sometimes works to validate the hegemony and power exercised by the western countries over human rights violation in Africa. Therefore, the word ‘impunity’ is crucial rhetoric of the ICC and is a discourse that is effective in justifying selective activities of the ICC. This article seeks to discuss the reason for the diversity of perception on the word ‘impunity’ and why the ICC might be engaged in selective justice.

Neutralising the Catalysts of Terror in Asia and Africa Through Strict Regulation of Common Materials (Using India, Kenya and Nigeria as a Case Study)

by | Sep 27, 2019 | ANUL, ANUL 2016 I1

Neutralising the Catalysts of Terror in Asia and Africa Through Strict Regulation of Common Materials (Using India, Kenya and Nigeria as a Case Study)

Authors BB Orubebe, SM Olokooba

ISSN: 2521-2613
Affiliations: None
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 27 – 49

Abstract

The focus of this article is on a curious inadvertence omission in the counterterrorism laws and policies in Asia and Africa, with a focus on India, Kenya and Nigeria. In doing this, this article examines what constitutes ‘common materials’ and the need to strictly monitor their procurement, handling and use to prevent them from being used for purposes of terror. This article further examines the limitation in the current regulations of those materials in the countries of focus and posits that the unrestricted use of the common materials accounted for the escalated nature of terrorism in India, Kenya and Nigeria. Based on this, this article recommends among others for a robust legislative mandate to regulate those common materials. This, according to this article, will save the countries of focus and by extension the world at large from the imminent danger of terror attacks and the associated agonies of terrorism.

Is Technology used to Subordinate Socially Conservative Constitutions in Africa? The Case of Kenya’s Proposed Legislation on Assisted Reproductive Technology

by | Sep 27, 2019 | ANUL, ANUL 2016 I1

Is Technology used to Subordinate Socially Conservative Constitutions in Africa? The Case of Kenya’s Proposed Legislation on Assisted Reproductive Technology

Authors Duncan Ojwang, Agnes Meroka, Francis Situma

ISSN: 2521-2613
Affiliations: Lecturer of International Law and International Human Rights Law; Lecturer of Human Rights and Women in the Legal Process; Lecturer of International Law
Source: Africa Nazarene University Law Journal, 2016, Issue 1, p. 1 – 26

Abstract

When it comes to matters of technology, perhaps African countries should adopt the famous principle in disability law: ‘Nothing about us without us.’ This is because as science and technology advance at a breakneck pace, it can be used to impose globalisation, even by subordinating a country’s sacred document such as a constitution. What is at stake in this debate is whether a parallel exists between the use of law as a tool of colonisation and hegemony of the western powers and the current triumph of technology to subvert African municipal law, culture, ethics and values. Kenya is a clear example of this because, unlike most African countries, it has experienced higher levels of western influence. This article evaluates the case of the Reproductive Health Care Bill, 2014 and the Assisted Reproductive Technology Bill, 2016 to illustrate how technology is sometimes used to substitute the constitutions of some African countries that are socially conservative so that they conform to liberal ideas on critical areas like marriage, family, abortion, culture and reproductive rights. The preamble of the Kenyan Constitution, just like the Banjul Charter (also known as the African Charter on Human and Peoples’ Rights), sought to balance the place of an individual, family and society. This article will review the following relevant provisions of the Constitution of Kenya, 2010: Article 43(1)(a) on the right to reproductive healthcare, Article 26 on the right to life, Article 45 on the right to family, Article 31 on the right to privacy and dignity, Article 27 on the right to equality and freedom from discrimination, Article 44 on the right to culture and Article 53 on children’s rights. Understanding in vitro fertilisation (IVF) or gestational surrogacy through the Kenyan Constitution can contribute to avoiding the danger of the collapse of African society and families. Understanding technology through the Kenyan Constitution will assist the society not to forget that their values and ethics must be used to regulate the use of technology.

Asymmetrical Warfare and International Humanitarian Law: The Somali Conflict as a Case Study

by | Sep 26, 2019 | ANUL, ANUL 2017 I2

Asymmetrical Warfare and International Humanitarian Law: The Somali Conflict as a Case Study

Authors Dennis M Ndambo

ISSN: 2521-2613
Affiliations: Law Lecturer at the School of Law at the Jomo Kenyatta University of Agriculture and Technology
Source: Africa Nazarene University Law Journal, 2017, Issue 2, p. 119 – 140

Abstract

Kenya’s intervention in Somalia challenges the traditional legal bifurcation of international and non-international armed conflict. The situation in Somalia is quite peculiar in that there was a total collapse of state structures and the eruption of several armed groups trying to take over the power vacuum. The involvement of other states in the anarchic conflict challenged the legal justifications for such intervention. Kenya’s incursion into Somalia was compounded by conflicting reasons, contradictory statements by Kenyan and Somali officials, and changing objectives. This type of confused environment contributes to excesses of the military and results in a backlash from the civilian population. Additionally, technology has increasingly been challenging the legal principles regulating armed conflict. In previous wars, the conduct of hostilities was through ‘attrition warfare’—the serial destruction of the enemy’s military. Today, technology has evolved to such an extent that combatants can launch attacks at the enemy from vast distances, with a high degree of accuracy and, at times, without the need for ground troops. However, these developments are not without their dangers. While, principally, it was states that have been using advanced weaponry, nowadays even non-state actors are using them to commit terrorist acts. The great distances at which attacks can be carried out have led to depersonalisation of warfare and the sacrifice of innocent civilian lives with no corresponding remorse. When states are assured that their soldiers will not be killed by the enemy in the battlefield, it lowers the costs and risks of going to war, while increasing the likelihood of going to war, and the over-stepping of the rules of law. This is another contributing factor to extreme radicalization. This article addresses these and other legal issues, arising from Kenya’s armed intervention in Somalia.

Upgrading Customary Land Title Documents in Nigeria

by | Sep 26, 2019 | ANUL, ANUL 2017 I2

Upgrading Customary Land Title Documents in Nigeria

Authors Osose Eidenoje

ISSN: 2521-2613
Affiliations: Assistant Secretary of the Benin Branch of the Nigerian Bar Association
Source: Africa Nazarene University Law Journal, 2017, Issue 2, p. 85 – 118

Abstract

This article contains analysis of the concept of land ownership in Nigeria and espouses the recognition of indigenous or customary land title vis-à-vis ways of proving title, as outlined by the Supreme Court of Nigeria in the celebrated case of Idundun and Others v Okumagba and Others. The status of ‘Oba’s approval’ and kindred documents, under Benin and sister tribes’ customary law, as evidence of customary land title is examined and the extent to which it complies with statutory provisions for conventional title to land is evaluated. The Oba is the paramount ruler or king of a local tribe in Nigeria who is the trustee of all land within his domain, the Oba of Benin being one of the most prominent. The Oba is empowered to effect transactions relating to land on behalf of and for the benefit of all his subjects under customary law, including the transfer or bestowment of beneficial interest in property under his authority. The impact of the Land Use Act of 1978 on customary tenure is also discussed. The author opines that customary title documents ought to be registerable instruments because they are uniquely indigenous creations and registration would afford indigenous people the opportunity of recording their interests in modern formats. Reference is made to the prevailing situation in jurisdictions of other countries, like Ghana, Kenya and Australia, where indigenous titles have been made registerable. The article concludes that there is a need to upgrade customary title documents in line with contemporary trends by providing for their registration in a dual register at the Federal and State Lands Registries, to ensure that the advantages of formalisation of property rights are enjoyed by all Nigerian citizens.

Legal and Institutional Framework for Combating Trafficking in Persons in Nigeria

by | Sep 26, 2019 | ANUL, ANUL 2017 I2

Legal and Institutional Framework for Combating Trafficking in Persons in Nigeria

Authors Grace Abosede Oladele, Dr Odunola Akinwale Orifowomo

ISSN: 2521-2613
Affiliations: Olabisi Onabanjo University; Obafemi Awolowo University
Source: Africa Nazarene University Law Journal, 2017, Issue 2, p. 49 – 84

Abstract

Traffcking in persons, with Nigeria serving as a country of origin, transit or destination, has persisted despite legal instruments against traffcking in persons in Nigeria and specifc judicial pronouncements. This is not wholly surprising in the face of prevailing poverty, high levels of unemployment and unworkable legal and institutional frameworks against traffcking in persons in Nigeria. The problem is exacerbated by meagre penalties meted out by the court which, produce little or no deterrence. This article posits that until various defciencies in anti-traffcking laws, judicial decisions and activities of institutions established to combat traffcking in persons are addressed and socio-economic problems are tackled, elimination of traffcking in persons in Nigeria will not be possible. The article recommends amongst others, the review of anti-traffcking laws, severe sentences, increased funding and training of offcials in institutions established to combat traffcking in persons, improved social and economic systems and involvement of all stakeholders in eliminating traffcking in persons in Nigeria.