ISSN: 2521-2605
Affiliations: Associate Professor at the University of Cape Town
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 200 – 202
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ISSN: 2521-2605
Affiliations: Enseignante à la Faculté des Sciences Juridiques et Politiques Université de Yaoundé II (CAMEROUN)
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 175 – 199
Faced with the legitimate desire of leaving a legacy and in the name of individual freedoms, human beings refuse to suffer the fate of nature for procreation. To this end, they rely increasingly on techniques – some of which are likely to raise problems of several kinds; including ethical, moral and legal. Hence the importance of the question of their legitimacy. The techniques or practices concerned undoubtedly include surrogacy (GPA). This practice involves people wanting a child (intended parents) using a woman who agrees to bear and carry the pregnancy to term (surrogate) and then returning the child to its intended parents after birth. With this destruction of motherhood that the GPA entails, can we still say that child birth is considered recognition or that maternity is always certain? Has it not become as uncertain as paternity? Indeed, of the two or three women who contributed to the process of "manufacturing" the child, which should be legally considered to be his mother: the one who had the intention and the desire for children, the one who donated her eggs, or the one who was pregnant? Given this uncertainty and other issues that may be raised by the GPA, is it not legitimate to oppose it? While this paper responds in the affirmative, it shows that this opposition would not be sufficient and would be even unfair if it was not accompanied by other measures to treat infertility, mitigate the punishment of victims, and above all, grant a status to the children of the GPA. This means that the GPA does not only call for a legal answer.
ISSN: 2521-2605
Affiliations: Lecturer in Law, Delta State University, Abraka (OLEH Campus), Delta State of Nigeria
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 131 – 174
The Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 was enacted to further amend the Constitution of the Federal Republic of Nigeria 1999. It vests in the National Industrial Court exclusive original jurisdiction over all labour and employment-related matters. After the coming into force of the Act on 4 March 2011, labour dispute litigation has continued in some High Courts. Worse still, some labour disputants still approach the High Courts for the hearing and determination of their labour disputes. This is attributable to the fact that the Act is silent on the fate of part-heard labour disputes in the regular courts and the fact that many Nigerians are unaware of the import and purport of the constitutional amendments introduced by the Act. This article reviews the jurisdiction of the various High Courts and the National Industrial Court to hear and determine labour dispute litigation in Nigeria. The writer suggests, among other things, that the government should organise public lectures and other public enlightenment programmes to sensitise judges of the High Courts, legal practitioners, trade unionists, employers, workers and other Nigerians on the import and purport of the constitutional amendments introduced by the Act.
ISSN: 2521-2605
Affiliations: Docteur Ph.D en Droit des Affaires, Assistant au Département de Droit Privé Fondamental, Université de Douala
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 112 – 130
This paper analyses the issue of the right of retention as regulated in the new version of the OHADA Uniform Act on Securities. In particular, the paper discusses the nature and the function of this right, which has been regulated by the OHADA legislator in Article 50 of the above mentioned Uniform Act. The author tries to give an answer to the issues posed by the right of retention, and in particular, what is really the extent of the powers conferred on the person holding the goods in relation to the new version of the Uniform Act. This involves determining which activities may be exercised by the retainer on the goods retained under the influence of the new OHADA legislation. The study includes an in-depth analysis of the right of retention under OHADA law, while taking into consideration the main French doctrine on the subject. The paper concludes that the right of retention under the new Uniform Act can be envisaged as a passive security, but that the debate on the nature of the right of retention under OHADA law is still far from being resolved.
ISSN: 2521-2605
Affiliations: George Washington University Law School Graduate
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 84 – 111
This paper examines the issue of a people’s self-determination under the African Charter on Human and People’s Rights and compares it to the Arab Charter of Human Rights. Specifically, it looks at the cases of the Mijikenda in Kenya and the Nubians in Egypt to determine when groups may be entitled to the remedial secession as a remedy for state violations regarding self-determination. The paper traces the development of the definition of ‘a people’ and compares these two cases with decisions the African Commission has already made in the Gunme and Katanga cases, regarding the issue of self-determination and secession. The issue of self-determination and of remedial secession is mainly driven by real politics on the international stage. This paper posits that regional courts and commissions would be best equipped to deal with self-determination. Regional judicial bodies may be able to impose remedies other than that of remedial secession and can thereby create a normative legal standard with regards to self-determination and secession, when necessary. The paper concludes that it would be in the best interest of states to give regional bodies more power and follow their rulings so that self-determination of various groups can be ensured and the break-up of existing states avoided.
ISSN: 2521-2605
Affiliations: Docteur en droit privé Assistante à la faculté des Sciences Juridiques et Politiques de l’Université de Douala
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 57 – 83
Contract law has experienced great changes in recent years. The goal of striking a balance between the parties to the contract was at the heart of different concerns. And the doctrine of contractual solidarity encouraged this tendency to moralise the relations between the contracting parties. Labour law has not not remained in the margins of this development. Indeed, in Cameroonian and French law, relations between employer and employee have evolved into the consideration by each party of the interests of the other. In this regard, despite the subordination that governs the employment contract, the conventional obligations of the parties have been strengthened. Cameroonian and French legislators have implicitly recognised the existence of contractual solidarity in labour law by consecrating the obligation of reclassification and by expanding the realm of alternatives to dismissal for economic reasons. One wonders whether the influence of this doctrine in employment law is compatible with the first foundations of the employment contract, in particular subordination. To this question, an affirmative answer is required. Subordination remains the foundation of the employment contract. However, the moral vision of the relationship requires parties to see each other as partners motivated by the desire to do everything possible to satisfy their respective interests. This implies that each party takes into account the interests of the other party, and makes his task easier. The superior interest of the contract requires this. Without this solidarity between the parties, they cannot make wise choices and employment contracts remain an unfinished phenomenon.