A conceptual framework for a human rights-based approach to water

by | Oct 8, 2019 | JCLA, JCLA V6 I1 2019

A conceptual framework for a human rights-based approach to water

Authors Oluwabunmi Niyi-Gafar

ISSN: 2521-2605
Affiliations: Faculty of Law, University of Ilorin, Nigeria
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 149 – 174

Abstract

Since the recognition of access to safe drinking water as a human right, nations have been charged with the responsibility of progressively realising access to water for their citizenry. Various approaches have been suggested, one of which includes a human rights-based approach. A human rights-based approach to water does not have a specific definition, however, it encompasses the principles that are necessary to aid a progressive realisation of access to water amongst the people, especially the poor. This approach to access to water takes into cognisance, the availability of water, the affordability of water and a constant quantity which must be of good quality. Beyond describing what a ‘human rights-based approach to water’ entails this article expounds South Africa’s application of this approach to ensuring access to water for its citizens. It further suggests areas where this approach may prove useful where considered and applied in other African countries, especially Nigeria, to ensure a progressive realisation of access to water.

The ghost of Mike Musonda Kabwe v BP Zambia and unilateral variations of contract in Zambia

by | Oct 8, 2019 | JCLA, JCLA V6 I1 2019

The ghost of Mike Musonda Kabwe v BP Zambia and unilateral variations of contract in Zambia

Authors Chanda Chungu

ISSN: 2521-2605
Affiliations: Legal Practitioner, Mulenga Mundashi Kasonde Legal Practioners, Lusaka, Zambia
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 131 – 148

Abstract

The case of Mike Musonda Kabwe v BP Zambia was the first case to consider the issue of variations to the contract of employment in Zambia. The case provided that where a unilateral variation of the contract occurs, the employee is entitled to a redundancy or early retirement package. This position has been unquestioned for several years and been applied in a plethora of subsequent cases — including being reaffirmed several times by the Supreme Court. Until now, the case has not been critically analysed adequately to deduce the various shortcomings of the approach it took. This paper seeks to dissect the various shortcomings of the case to deduce what the correct approach to unilateral variations of the contract of employment should be.

A discussion of Moosa NO and others v Harnaker and others illustrating the need for legal recognition of Muslim marriages in South Africa

by | Oct 8, 2019 | JCLA, JCLA V6 I1 2019

A discussion of Moosa NO and others v Harnaker and others illustrating the need for legal recognition of Muslim marriages in South Africa

Authors Waheeda Amien

ISSN: 2521-2605
Affiliations: Associate Professor, Faculty of Law, University of Cape Town. Attorney of the High Court of South Africa. Member of the Executive Body of the International Commission on Legal Pluralism.
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 115 – 130

Abstract

In this paper, one of the more recent decisions illustrating the South African judiciary’s intervention in the context of Muslim marriages is discussed namely, Moosa NO and Others v Harnaker and Others, which was decided in 2018. The paper highlights several issues through a discussion of the Western Cape High Court and Constitutional Court judgments in the Moosa NO case. For instance, notwithstanding previously decided cases, which permitted Muslim spouses to benefit from specific pieces of legislation, the Moosa NO case reinforces the fact that non-recognition of Muslim marriages in South Africa causes Muslim spouses, especially wives to continue to be excluded from legislation that has not been legally challenged for excluding Muslim spouses. The case confirms that failure to afford legal recognition to Muslim marriages results in the undermining of the rights to equality and human dignity of Muslim spouses, particularly Muslim wives. The case further illustrates the South African judiciary’s continued willingness to come to the aid of parties married by Muslim rites by among others, bringing them within the ambit of legislation that they are otherwise excluded from. Finally, the case demonstrates the need for official recognition of Muslim marriages to obviate the need for Muslim women having to approach the courts each time they require access to legislative (and other) benefits that their African customary law and civil law counterparts enjoy.

The process of giving domestic effect to treaties in Nigeria and the United States

by | Oct 8, 2019 | JCLA, JCLA V6 I1 2019

The process of giving domestic effect to treaties in Nigeria and the United States

Authors Muyiwa Adigun

ISSN: 2521-2605
Affiliations: None
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 85 – 114

Abstract

There is no doubt that the volume of interaction among states has grown exponentially in modern times, thus making treaty making among states inevitable with the attendant consequence of incurring international legal obligations. But the domestic effect of treaty obligations is purely a constitutional matter. This study therefore examines the process of giving domestic effect to treaty obligations in Nigeria and the United States. The comparison is informed by the fact that the Constitution of the Federal Republic of Nigeria, 1999 was inspired by the Constitution of the United States of America, Nigeria and the United States share a common law tradition and both are federal states. However, while the United States has much influence at the international level, Nigeria does not enjoy identical sway. The study finds that the approach adopted by Nigeria is the complete opposite of that of the United States. Thus, while no treaty has effect in Nigeria unless enacted into law, all treaties take effect in the United States unless not self-executing. The position maintained in the United States and Nigeria can be likened to drawing a circle clockwise or anticlockwise with anything outside it being excluded. Thus, both the United States with great global influence and Nigeria without identical powers of persuasion see the reason why international norms should not be given domestic effect without being filtered. The study argues that while the law on the domestic effect of treaties is clear in Nigeria, treaties with international organisations are not contemplated, whereas in the United States while the law on the domestic effect of treaties is not clear because of the notion of self-execution which is confusing, the law contemplates treaties with international organisations. The study therefore recommends that Nigeria should amend its Constitution to take cognisance of treaties with international organisations while the United States should dispense with the notion of self-execution and make all treaties effective domestically unless otherwise declared by the Congress.

Advancing towards a more effective stakeholder engagement by multinational companies in Nigeria

by | Oct 8, 2019 | JCLA, JCLA V6 I1 2019

Advancing towards a more effective stakeholder engagement by multinational companies in Nigeria

Authors Kunle Aina

ISSN: 2521-2605
Affiliations: Reader in Law, Faculty of Law, University of Ibadan
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 55 – 84

Abstract

Stakeholder engagement and reporting on non-financial issues enable the company to demonstrate that it understands the concerns of society and explain how it is addressing them. Social and environmental policies are currently incoherent, haphazard and without regulation in Nigeria. This paper examines stakeholder engagement as an offshoot of sustainable governance which is a concept whereby companies integrate social and environmental concerns in their business operations and their interactions with their stakeholders on a voluntary basis. The ongoing social upheavals in the Niger Delta Region of Nigeria are an attestation of failure of effective stakeholders’ engagement by the multinational companies (MNCs), This paper examines the concept of stakeholder engagement as a solution to these conflicts, its importance to sustainable corporate governance and the global practice and standards. This paper further appraises the adequacy of the current laws, regulations, policies and practice for regulating stakeholder engagement by MNCs in Nigeria. A mandatory legal, more effective disclosure regime and regulations of stakeholder engagement is advocated.

A critical appraisal of law reform in Cameroon: Pluralism and harmonisation of laws

by | Oct 8, 2019 | JCLA, JCLA V6 I1 2019

A critical appraisal of law reform in Cameroon: Pluralism and harmonisation of laws

Authors Mikano Emmanuel Kiye

ISSN: 2521-2605
Affiliations: Lecturer, Department of English Law, University of Buea, Cameroon
Source: Journal of Comparative Law in Africa, Volume 6 Issue 1, p. 28 – 54

Abstract

This paper, through conceptual and practical analyses, unravels the challenges posed to the Cameroonian legal system by the existence of multiple and divergent values. It addresses the challenges associated with law reform in the polity and advocates for an alternative approach to reform, which is holistic and practical in nature. Cameroon’s legal system is mostly a relic of colonialism and consists of multiple divergent values that interact with each other. Among these values are civil law derived from France, common law received from England and customary law that has, hitherto, been in existence prior to colonialism. The differences between these values are insurmountable, and have led to tensions and frictions which have, in turn, made incidences of conflict of laws and forum shopping inevitable. The situation is compounded by the fact that, although being a unitary state, the laws are applicable in the entity as if it consisted of several different territories. While acknowledging the laudable initiatives toward reform, the paper questions the rationality and objectivity underlying the policies adopted, consisting mostly of the harmonisation of received laws and the restriction of customary jurisdiction. Law reform has been problematic: harmonisation is at the verge of establishing a uni-jural system founded on civil laws; restriction of customary jurisdiction has fragmented the legal process; and law reform has failed to completely eradicate conflict of laws and forum shopping. The paper calls for alternative approaches that, among others, equally reflect the country’s inherited traditions while also strengthening the role of customary law.