Contentious jurisdiction: The Kenyan Kadhis’ courts and their application of the Islamic law of custody and maintenance of wives and children

by | Dec 4, 2020 | JCLA, JCLA V7 I1 2020

Contentious jurisdiction: The Kenyan Kadhis’ courts and their application of the Islamic law of custody and maintenance of wives and children

Author Jamil Ddamulira Mujuzi

ISSN: 2521-2605
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape, South Africa

Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 93 – 119

Abstract

Article 170(5) of the Constitution of Kenya provides that ‘[t]he jurisdiction of  a Kadhis’ court shall be limited to the determination of questions of Muslim law  relating to personal status, marriage, divorce or inheritance in proceedings in which  all the parties profess the Muslim religion and submit to the jurisdiction of the  Kadhi’s courts.’ A provision to the same effect is also included in s 5 of the Kadhis’  Courts Act. It is clear that the Kadhis’ Courts have jurisdiction over marriage,  divorce and inheritance and they have handed down many judgments dealing  with these issues. Neither art 170(5) of the Constitution nor s 5 of the Kadhis’  Courts Act expressly permit or prohibit these courts from dealing with custody  and maintenance matters. This approach is different from the one taken in other  African countries such as Tanzania (Zanzibar) and Uganda, where the issues of  custody and maintenance are expressly mentioned in the law on Kadhis’ Courts.  As a result, there are conflicting decisions from the Kenyan Kadhis’ Courts and  the High Court on the issue of whether the Kadhis’ Courts have jurisdiction  over custody and maintenance matters. In this article, I illustrate how the Kadhis’  Courts and the High Court have dealt with the issues of custody and maintenance  in Islamic law and I refer to Kenyan case law and the drafting history of art  170(5) to argue that the Kadhis’ Courts do not have jurisdiction over custody and  maintenance issues. I rely on legislation and practice from other African countries to  suggest ways in which the issue of the jurisdiction of the Kenyan Kadhis’ Courts  in relation to custody and maintenance could be addressed. 

Opinion: Will the African continental free trade area’s dispute settlement protocol be adequate to ensure compliance?

by | Dec 4, 2020 | JCLA, JCLA V7 I1 2020

Opinion: Will the African continental free trade area’s dispute settlement protocol be adequate to ensure compliance?

Author Yakubu Nagu

ISSN: 2521-2605
Affiliations: PhD candidate and researcher, Centre for Comparative Law in Africa, Faculty of Law, University of Cape Town

Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 120 – 134

Abstract

The success of any regional integration or development initiative depends on  actors within that initiative operating smoothly and with some degree of efficiency.  A dispute settlement framework guarantees efficiency by providing a means by  which friction between actors can be reduced. African integration initiatives always  provide for a framework for conflict management. The African Continental Free  Trade Area (‘AfCFTA’) initiative is no different as it provides a mechanism  by which disputes arising in the course of deepening integration under the free  trade initiative can be resolved. The agreement creating the AfCFTA includes a  Protocol on Rules and Procedures on the Settlement of Disputes. While the broad  importance of this protocol to the initiative cannot be over-emphasised, how the  dispute settlement system that it creates will function, as well as the potential of  its successful operation, appears to be riddled with ambiguity and shrouded in  doubt respectively. This is especially because the efficacy of other regional dispute  settlement systems in Africa has been undermined by myriad issues ranging from  technical inefficiencies to the absence of political will, often manifesting in outright  non-compliance. This article primarily appraises the AfCFTA’s Protocol on Rules  and Procedures on the Settlement of Disputes and comments on the adequacy of  certain provisions. 

Fiction? A dialectical scrutiny of the appellate competence of the African court on human and peoples’ rights

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

Fiction? A dialectical scrutiny of the appellate competence of the african court on human and peoples’ rights

Authors Sègnonna Horace Adjolohoun

ISSN: 2521-2605
Affiliations: BA, LLB (Benin); LLM, LLD (Pretoria). Extraordinary Lecturer and Visiting Professor of Human Rights and Comparative Constitutional Law (University of Pretoria, Central European University, Université Gaston Berger); Principal Legal Officer, African Court on Human and Peoples’ Rights

Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 1 – 31

Abstract

It is established case-law of the African Court on Human and Peoples’ Rights that it does not assume appellate jurisdiction over national courts. In several decisions rendered since its inception, the Court has consistently held that, when it examines cases of alleged violations of rights, it merely acts as an international court of first and final instance in vetting the conformity of domestic law and the conduct of municipal organs with international law to which the state concerned is a party. An overview of its jurisprudence however reveals a consistent challenge to the Court’s jurisdiction over cases that Respondent States argue had or should have been settled by domestic courts. The objections raised in related cases have led to a confrontational interaction between the Court and the states involved. On an increasing number of occasions, the ‘interaction crisis’ resulted in a political challenge to the very mandate of the Court and withdrawals or threats to retract from acceptance to its jurisdiction over sovereignty of the state and the integrity of domestic courts. Considering their submissions in respect of this issue, objections raised by Respondent States are genuine and therefore require principled reflections that the limited scope of the Court’s reasoning in individual cases or responses from its Registry do not and have not so far provided. In any event, the dialogue appears to have stalled as one of misunderstanding on the part of states and dilemmas for the Court. In this paper, I attempt to take up Sextus Empiricus’ role in assessing the veracity of both answers to the question whether the African Court exercises an appellate jurisdiction over courts of the Respondent States.

An evaluation of the regulatory framework for environmental management in the Nigerian petroleum industry

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

An evaluation of the regulatory framework for environmental management in the Nigerian petroleum industry

Authors Opeyemi Omotuyi and Ada Ordor

ISSN: 2521-2605
Affiliations: LLM University of Cape Town. Lecturer, Faculty of Law, Adekunle Ajasin University, Akungba Akoko, Ondo State, Nigeria; Associate Professor, Centre for Comparative Law in Africa, Faculty of Law, University of Cape Town
Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 32 – 55

Abstract

Environmental management is crucial to the sustainability of any industry and, in particular, the petroleum industry which carries out activities that degrade the environment. In Nigeria where the economy is heavily dependent on crude oil, the subject of environmental management is even more pertinent. This paper evaluates the framework for environmental management in the Nigerian petroleum industry in light of internationally acceptable standards of corporate environmental management. In so doing, the paper makes relevant recommendations in line with international and industry-related best practices and guidelines.

Safeguards for public-private partnership assets in Nigeria: lessons from South Africa

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

Safeguards for public-private partnership assets in Nigeria: lessons from South Africa

Authors Augustine Arimoro

ISSN: 2521-2605
Affiliations: LLB Hons (Maiduguri) LLM (Derby, UK) PhD, Associate Lecturer in Law, St Mary’s University Twickenham, London, United Kingdom
Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 56 – 79

Abstract

Countries around the world are adopting the public-private partnership model of procurement in order to bridge infrastructure gaps and to tap from private sector capital and expertise. Given the involvement of private sector funding in publicprivate partnership arrangements, the safety of investors’ assets is fundamental in order to attract both domestic and foreign investors to the public infrastructure market. This article examines the framework for the administration of the publicprivate partnership model in Nigeria with a view to determining how the law protects investors’ assets. The framework in South Africa is also examined for comparative insight. The central argument in the article is that a reliable framework that aims to ensure successful completion and management of projects in Nigeria can be achieved by taking a cue from the South African model. The article concludes with recommendations.

Expanding the scope of ‘appropriate measures’: do traditional institutions play a role in facilitating the protection of witnesses of trafficking in persons?

by | Jun 5, 2020 | JCLA, JCLA V6 I2 2019

Expanding the scope of ‘appropriate measures’: do traditional institutions play a role in facilitating the protection of witnesses of trafficking in persons?

Authors Suzzie Onyeka Oyakhire

ISSN: 2521-2605
Affiliations: LL.B, LL.M: Doctoral Candidate, Faculty of Law, UCT and Lecturer, Faculty of Law, University of Benin, Benin City Nigeria
Source: Journal of Comparative Law in Africa, Volume 6 Issue 2, p. 80 – 105

Abstract

This paper studies the legal instruments designed to protect the victims and witnesses of human trafficking, drawing on empirical studies of the effectiveness of such measures. It argues that a combination of a statute-backed witness protection scheme and the application of indigenous practices by traditional rulers is more effective than statute alone to protect witnesses of human trafficking in Nigeria particularly from psychological threats and intimidation. The paper highlights the unsuccessful attempts by law enforcement authorities to investigate and prosecute traffickers because of the unwillingness of victim-witnesses to testify against their traffickers arising from the fear of repercussion from juju oaths administered to them by juju priests in Nigeria aimed at instilling secrecy. Despite the existence of conventional protective measures, victim-witnesses refuse to cooperate so as not to incur the wrath of the oath. This paper illustrates further that conventional criminal justice mechanisms are ill-suited to effectively curb this challenge, resulting in traffickers evading criminal justice sanctions. The viability of the recent interventions by the Oba of the Benin Kingdom to counter the effects of these oaths through a proclamation placing curses on human traffickers and culpable juju priests, is thus considered in this article as an alternative protective mechanism.