A Comparative Legal Analysis of Local Government Autonomy in South Africa and Tanzania

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

A Comparative Legal Analysis of Local Government Autonomy in South Africa and Tanzania

Authors: Oliver Fuo and Daniel Mirisho Pallangyo

ISSN: 2521-2605
Affiliations: LLB, LLM, & LLD. Associate Professor, North-West University, South Africa; LLB, LLM & LLD. Extraordinary Senior Lecturer, North-West University, South Africa; Senior Lecturer, Tumaini University, Tumaini Makumira, Tanzania
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 1 – 39
https://doi.org/10.47348/JCLA/v10/i2a1

Abstract

Over the past thirty years, there has been an increased drive towards decentralisation in Africa with the adoption of national constitutions that guarantee varying degrees of protection to local governments. In 2014, the African Union (AU) adopted the African Charter on Values and Principles of Decentralisation, Local Governance and Local Development (2014) to guide the decentralisation project for member states. The Charter acknowledges that the protection of local autonomy in decentralised legal frameworks is necessary for local governments to deliver on their developmental mandates. In this article, we explore from a comparative law perspective, how local autonomy is protected in the constitutions of South Africa and Tanzania. We also consider legislation regulating decentralisation in South Africa and Tanzania, comparing the similarities, differences, and challenges to local autonomy in these two countries in view of their different national legal frameworks. The comparative legal analysis helps to show the unique nature of the systems of decentralisation in both countries and lessons that can inform law reform. Although there are comparative studies on subnational autonomy in Africa, none has specifically compared local government autonomy in South Africa and Tanzania. The research is based on a critical and integrated analysis of primary and secondary sources of law.

A New Legal Framework for the “Ownership” of a Deceased Person in a Legally Plural Ghana

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

A New Legal Framework for the “Ownership” of a Deceased Person in a Legally Plural Ghana

Authors: Ama F. Hammond and Prosper Batariwah

ISSN: 2521-2605
Affiliations: BA (Cape Coast); LLB (Ghana); LLM (Harvard); PhD (Uni. British Columbia); Senior Lecturer, University of Ghana School of Law; LB (Ghana); Barrister-at-Law; Graduate and Teaching Assistant, University of Ghana School of Law
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 40 – 76
https://doi.org/10.47348/JCLA/v10/i2a2

Abstract

Any funeral in Ghana is a family business. Families hold elaborate ceremonies to mark the death of their deceased family members. Strict fulfilment of the duty to bury is said to ensure the seamless transition of the deceased from this life to the next. In Ghana, the extended family of the deceased has custody and control over the dead body for the purpose of burial. However, the heterogeneous nature of modern Ghanaian society, the rise of the nuclear family, and modern socio-legal values have increased disputes over the dead body, often between the extended family and the nuclear family. Against the background of Ghana’s pluralistic legal system, we investigate the context in which such disputes take place and how the legal system responds. We draw on field interviews to critically compare the living customary law with Ghanaian common law, judicial customary law, statutory law, and the experience of other jurisdictions. We note that the customary law principle of being owned by one’s extended family is well established, usually overriding other systems of law. Nonetheless, we argue, drawing on the experiences of other African countries, that the nuclear family should be given greater opportunities to participate in decisions relating to the burial of the deceased. We propose a framework that reflects the needs and aspirations of both kinds of families.

The Right Against Double Jeopardy (Non Bis In Idem) in the Constitutions of African Countries

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

The Right Against Double Jeopardy (Non Bis In Idem) in the Constitutions of African Countries

Author: Jamil Ddamulira Mujuzi

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 77 – 106
https://doi.org/10.47348/JCLA/v10/i2a3

Abstract

Article 14(7) of the International Covenant on Civil and Political Rights (1966) provides that “[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”. In human rights law, this is referred to as the right against double jeopardy (non bis in idem). The ICCPR has been ratified or acceded to by all African countries with the exception of Comoros and South Sudan. This implies, inter alia, that African countries must ensure that the right against double jeopardy is protected in their legislation. In this article, the author examines the constitutional provisions of all the African countries to analyse the extent to which they deal with the right against double jeopardy. The author also refers to legislation and case law from different African countries to demonstrate the circumstances in which a person who has been convicted or acquitted may be prosecuted again for the same offence (retrial) without violating their right against double jeopardy. The discussion shows, inter alia, that some of the constitutional provisions on the right against double jeopardy are contrary to art 14(7) of the ICCPR and some constitutions are silent on the right against double jeopardy. However, this loophole is rectified through subsidiary legislation or direct or indirect incorporation of art 14(7) in domestic legislation.

Constitutionalisation of Ethnicity and Decolonisation of African Constitutionalism: Towards an Authentic African Constitutional Identity?

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

Constitutionalisation of Ethnicity and Decolonisation of African Constitutionalism: Towards an Authentic African Constitutional Identity?

Author: Gatsi Tazo

ISSN: 2521-2605
Affiliations: Lecturer, Department of Public Law and Public Administration, Faculty of Laws and Political Science, University of Buea, Cameroon
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 107 – 140
https://doi.org/10.47348/JCLA/v10/i2a4

Abstract

In the aftermath of independence, African states for the most part opted for the nation-state model inspired by their colonial masters. Consequently, the constitutionalism of the newly independent African states emphasised national unity, an absolute obsession of state leaders, while demonising ethnicity, when it was not simply forgotten. Presented as one of the major causes of the state crisis in Africa, the liberal nation-state model has proven incompatible with African composite societies. Hence the imperative need for African states to reconcile the organisation and functioning of the state with their own values, and thus forge a typically African constitutional identity. The revival of constitutionalism integrates this tendency to appropriate African values, despite the criticisms of this option. The role given to ethnicity, a central element of African society, is symptomatic of this trend. The ethnic group is gradually emerging from its lethargy to occupy an increasingly important place and punctuate the political and institutional life of the state. The principle of equality is softened by the mechanisms tending to favour some people to ensure their representation in state institutions. The principle of the indivisibility of the state gives way to the formation of a ‘Republic of lands and territories’ with overlapping citizenships, where the sons and daughters of the soil enjoy comparatively more rights and privileges than any other nationals from other origins. Finally, as a vehicle carrying traditional values, customary law is gradually recognised and constitutionally protected.

Realising a ‘Right’ to Research in Nigeria and South Africa: the Role of the Executive Arm of Government

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

Realising a ‘Right’ to Research in Nigeria and South Africa: the Role of the Executive Arm of Government

Author: Chijioke Okorie

ISSN: 2521-2605
Affiliations: LLB (Nigeria); LLM (Strathclyde); PhD (Cape Town): Lecturer, Department of Private Law University of Pretoria
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 141 – 173
https://doi.org/10.47348/JCLA/v10/i2a5

Abstract

Development agendas and plans such as South Africa’s National Development Plan 2030 and Nigeria’s National Development Plan 2021–2025, indicate the need for, and benefits of, development research to sharpen countries’ innovative edge and to contribute to global scientific and technological advancement. Recent scholarship has highlighted the positive impact on national development of copyright exceptions allowing for the right to research. This can be in the form of either a complete defence to copyright infringement, or, as user rights. However, the realisation of a right to research has been limited by a copyright legislative framework that may be challenging to interpret. Other hindrances to realising the right to research are limited access to courts for interpretation due to limited resources and also as a result of the inherent institutional limitations of courts to consider only the case pleaded by parties before them. In this environment, the role of the executive arm of government in driving the realisation of a right to research is crucial. Yet, there’s been no executive action to provide for the much-needed clarification to concretise and promote the right to research to actualise development goals. Focused on Nigeria and South Africa, this paper explores the duties imposed on the institutions of executive government and applies administrative law principles to indicate a policy toolkit within copyright statutes that may be deployed to realise a right to research and engender guidance for researchers, copyright owners, users and audience of research.

The Risk of Confusion in Trademark Infringement in South Africa and Kenya: Lessons from Singapore?

by | Jan 4, 2024 | JCLA, JCLA V10 I2 2023

The Risk of Confusion in Trademark Infringement in South Africa and Kenya: Lessons from Singapore?

Authors: Yeukai Mupangavanhu and Kawake Sipelo Vuke

ISSN: 2521-2605
Affiliations: LLB (UFH) LLM LLD (UWC), Associate Professor, Department of Private Law, Faculty of Law, University of the Western Cape, Cape Town; LLB, LLM, University of the Western Cape
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 174 – 203
https://doi.org/10.47348/JCLA/v10/i2a6

Abstract

The risk of confusion in trademarks is exponentially high in light of international trade. Where identical or similar marks are used in the course of trade by different companies, this may result in consumers being confused with regard to the origin of the goods. Consumer confusion may result in the proprietor of the trademark suffering financial loss if customers start buying competitors’ goods or services. Most legal systems including those of South Africa and Kenya consequently have laws that contain provisions that seek to protect proprietors from the use of identical or similar trademarks in a manner that is likely to create deception or confusion among members of the public. The article discusses the approach to the likelihood of confusion inquiry in trademark infringement under the South African Trademarks Act 194 of 1993 and Kenya’s Trademarks Act 4 of 2002. Singapore’s step-by- step approach is examined as a best practice when assessing the likelihood of confusion in confusion-based infringement. It is argued that instead of South Africa and Kenya applying the global assessment approach, which seems to confuse and collapse the elements, a step-by-step approach should be preferred. The need to eliminate confusion when applying the elements of confusion-based infringement cannot be overemphasised in order to ensure predictability and consistency in Kenya and South Africa’s case law.