International humanitarian law in the work of regional human rights courts: African and comparative trends

by | Oct 9, 2019 | JCLA, JCLA V4 I2 2017

International humanitarian law in the work of regional human rights courts: African and comparative trends

Authors Brian Sang YK

ISSN: 2521-2605
Affiliations: Research Fellow, Centre for Alternative Research on Law and Policy
Source: Journal of Comparative Law in Africa, Volume 4 Issue 2, p. 1 – 33

Abstract

Regional human rights courts have applied human rights law and international humanitarian law (IHL) when considering alleged violations in the context of armed conflict. This offers a useful basis for examining how regional human rights bodies have been or can be used to enforce IHL and how, and the extent to which, human rights and IHL norms interact. But it also poses challenges to the legitimacy and efficacy of regional bodies that apply IHL. This article analyses trends in the application of IHL in regional human rights systems, as reflected in the work of African, Inter-American and European human rights treaty monitoring bodies. Supported by comparative case law, the article argues that regional human rights courts have contributed to the implementation of IHL, albeit to various extents. It also argues that the growing convergence of IHL and human rights norms means that regional mechanisms can be utilised to strengthen compliance with both IHL and human rights law. Yet this is undermined by the lack of systematic engagement with IHL within and across regional human rights systems. To reverse this trend, this article proposes that regional systems must clarify: (a) their competence to directly apply IHL, or only refer to it as an aid in interpreting human rights law; (b) the extent to which IHL can or should influence the interpretation of regional human rights treaties or specific norms; and (c) which body of law or, in the alternative, the specific rule that should prevail in case of a conflict of norms.

Unjustified Enrichment: Should South Africa Venture into the Thick Forest of Passing-on Defence?

by | Oct 9, 2019 | JCLA, JCLA V4 I1 2017

Unjustified Enrichment: Should South Africa Venture into the Thick Forest of Passing-on Defence?

Authors Aimite Jorge

ISSN: 2521-2605
Affiliations: Senior lecturer at the University of Namibia, Namibia
Source: Journal of Comparative Law in Africa, Volume 4 Issue 1, p. 145 – 164

Abstract

There is usually a tension in the law of unjustified enrichment when it comes to sanctioning a defence of passing on. The concept ‘passing on’ in the law of unjustified enrichment essentially entails that the claimant has shifted onto a third party the ‘financial’ burden that is consequent upon the defendant’s unjustified enrichment. Several jurisdictions formulate their enrichment doctrine requiring a ‘mirror-image loss-gain’, that is to say, the claimant can only recover from the defendant what he has lost to the defendant. If the claimant were allowed to recover more than his loss, the law would be punishing the defendant and enriching the claimant at the defendant’s expense. For this and other reasons some think that there should exist symmetry in the law of unjustified enrichment in that where the defence of change of position (loss of enrichment) is recognised, the passing-on defence should equally be sanctioned as the reverse face of change-of-position defence on the claimant’s side. This paper explores these issues in depth and argues that the need for such symmetry is misconceived. The defence of passing on is, however, sustainable in certain cases and should be recognised not only for policy reasons but also for reasons of principle.

The Clean Development Mechanism and Sustainable Development: Comparative Analysis of Governance of CDM in China and Nigeria

by | Oct 9, 2019 | JCLA, JCLA V4 I1 2017

The Clean Development Mechanism and Sustainable Development: Comparative Analysis of Governance of CDM in China and Nigeria

Authors Oluwatoyin Adejonwo-Osho

ISSN: 2521-2605
Affiliations: Lecturer at the Faculty of Law, University of Lagos, Nigeria
Source: Journal of Comparative Law in Africa, Volume 4 Issue 1, p. 125 – 144

Abstract

Climate change is considered one of the most serious threats to humanity and sustainable development. In response to this threat it has become necessary to stabilise the emission of greenhouse gases (GHG) by developed countries and promote sustainable development, especially in developing countries to steer them away from the path of unsustainable development travelled by developed countries. Article 12 of the Kyoto Protocol established the Clean Development Mechanism (CDM) to promote sustainable development in developing countries. The current CDM project pipeline indicates that countries in Asia and Latin America, such as China, South Korea, India, Brazil and Mexico, currently dominate the CDM project pipeline. They have been successful in supplying over 80% of global certified emission reduction credits (CERs). However, Africa has not been so successful in attracting CDM projects. For example, Nigeria is currently hosting seven out of the 7 987 registered projects in the CDM project pipeline. Using desk-based research and comparative analysis, this paper seeks to highlight the factors that have contributed to the CDM success of countries such as China. In conclusion, the paper advocates that Nigeria can use the CDM as a tool to institutionalise and achieve sustainable development.

Socio-legal Evaluation of Grand Corruption in Africa

by | Oct 9, 2019 | JCLA, JCLA V4 I1 2017

Socio-legal Evaluation of Grand Corruption in Africa

Authors SA Igbinedion

ISSN: 2521-2605
Affiliations: Department of Jurisprudence and International Law, Faculty of Law, University of Lagos, Nigeria
Source: Journal of Comparative Law in Africa, Volume 4 Issue 1, p. 86 – 124

Abstract

This article undertakes a socio-legal evaluation of grand corruption, which prevails in most parts of Africa. Grand corruption is the genre of corruption perpetrated by high-profile public officials who are responsible for statecraft. Apart from the usual categorisation as a crime, the nature of this conduct is yet to be adequately explored. This has largely led to the poor appreciation of grand corruption and, ipso facto, of adequate countermeasures against it. This article seeks to fill that void by critically undertaking a socio-legal analysis of the nature of grand corruption. This approach is geared to help African citizens, stakeholders, policy makers and legislatures understand the nature and substance of grand corruption so that they can properly aggregate, articulate and design adequate measures against this menace.

Les Enjeux de la flexibilisation des Règles des Sociètès Commerciales Dans L’auscgie Rèvisè

by | Oct 9, 2019 | JCLA, JCLA V4 I1 2017

Les Enjeux de la flexibilisation des Règles des Sociètès Commerciales Dans L’auscgie Rèvisè

Authors Patrice Samuel Aristide Badji

ISSN: 2521-2605
Affiliations: Agrégé des Facultés de droit/UCAD
Source: Journal of Comparative Law in Africa, Volume 4 Issue 1, p. 45 – 85

Abstract

The OHADA legislator has fully committed itself to globalisation. Evidence hereof is the reform undertaken in corporate law. The objective is to make this law attractive. For this, we need greater flexibility, which, despite its virtues, does present some drawbacks.

The Need for a Review of Plea Bargaining in Uganda: A Reflection on the Experiences under Common Law and in South Africa

by | Oct 9, 2019 | JCLA, JCLA V4 I1 2017

The Need for a Review of Plea Bargaining in Uganda: A Reflection on the Experiences under Common Law and in South Africa

Authors Robert Doya Nanima

ISSN: 2521-2605
Affiliations: Faculty of Law, University of the Western Cape, South Africa
Source: Journal of Comparative Law in Africa, Volume 4 Issue 1, p. 24 – 44

Abstract

Plea bargaining under common law is not new to Uganda’s criminal justice system. It is, however, not provided for in any statutes. In addition, it is widely used by the various institutions in the criminal justice system. Its inadequacy in dealing with Uganda’s case backlog is evident in the use of various initiatives like ‘Quick Wins’ and the ‘Community Service Project’, which reflect the inefficiency of the current plea-bargaining system, and the lack of adequate participation by the accused in the process. First, this article evaluates the plea-bargaining regime in Uganda. Secondly, it uses insights from experiences under common law and in South Africa. Thirdly, it proposes a working framework that may improve plea bargaining in Uganda. The terms ‘plea bargaining’ and ‘plea and sentence agreement’ are used interchangeably to refer to the same concept.