Legal Pluralism and Progressive Constitutionalism: An introduction to the South African challenge for Post-National Governance

by | Oct 9, 2019 | JCLA, JCLA V2 I1 2015

Legal Pluralism and Progressive Constitutionalism: An introduction to the South African challenge for Post-National Governance

Authors Luca Siliquini-Cinelli

ISSN: 2521-2605
Affiliations: Lecturer, School of Law, Faculty of Business and Law, Deakin University, Australia
Source: Journal of Comparative Law in Africa, Volume 2 Issue 1, p. 1 – 27

Abstract

The aim of this article is to contribute to the current academic debate on pluralist mechanisms of post-national governance as a particular type of ‘stateless law’. More precisely, this article is conceived as an introduction to aid further research on the shape (and extent) that post-national governance may eventually assume (and reach) in South Africa. Attention is, therefore, paid to legal pluralism as a key factor of pluralist settings of post-national government. An overview of the essence and features of post-national governance is provided, and a brief comparison is made between hard hierarchical and soft-networked forms of governance. In pursuing the suggested roadmap, reference is made to the current European landscape on post-national governance, which is ontologically inevitable in discussing the essence, structure, aims, challenges and limitations of post-national governance. Moreover, the necessity of adopting a comparative modus investigandi is due to the circumstance that although South Africa and the European Union (EU) share important elements (e.g., legal pluralism, financial instability and future common challenges), South Africa has an extremely progressive constitution — a result that the EU has been unable to achieve formally. Thus, while explaining why South Africa may represent fertile ground for such an architecture of governance, this article discusses why the South African Constitution may be a ‘value add’ that may help post-national governance avoid the difficulties thus far encountered on the European continent.

Quelle Attitude Pour Les Législateurs Africains Face à La Montée (Irrésistible) de L’admission de la Gestation Pour Autrui (GPA)?

by | Oct 9, 2019 | JCLA, JCLA V3 I2 2016

Quelle Attitude Pour Les Législateurs Africains Face à La Montée (Irrésistible) de L’admission de la Gestation Pour Autrui (GPA)?

Authors Sylvie Ngamaleu Djuiko

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

Abstract

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.

A Review of the Jurisdiction of the High Courts and National Industrial Court to Hear and Determine Labour Disputes Litigation in Nigeria

by | Oct 9, 2019 | JCLA, JCLA V3 I2 2016

A Review of the Jurisdiction of the High Courts and National Industrial Court to Hear and Determine Labour Disputes Litigation in Nigeria

Authors Andrew Ejovwo Abuza

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

Abstract

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.

Le Droit de Rétention Dans Le Nouvel Acte Uniforme Portant Organisation Des Sûretés: Sûreté Active ou Passive?

by | Oct 9, 2019 | JCLA, JCLA V3 I2 2016

Le Droit de Rétention Dans Le Nouvel Acte Uniforme Portant Organisation Des Sûretés: Sûreté Active ou Passive?

Authors Zakari Njutapvoui

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

Abstract

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.

Litigating Self-Determination: A Regional Approach Comparing the Right to Self-Determination for Coastal Kenyans and Nubians Under the African and Arab Charter of Human Rights

by | Oct 9, 2019 | JCLA, JCLA V3 I2 2016

Litigating Self-Determination: A Regional Approach Comparing the Right to Self-Determination for Coastal Kenyans and Nubians Under the African and Arab Charter of Human Rights

Authors Nora Mbagathi

ISSN: 2521-2605
Affiliations: George Washington University Law School Graduate
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 84 – 111

Abstract

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.