Application of the subsidiarity principle in intercountry adoption in Nigeria: Lessons from South Africa

by | Oct 8, 2019 | JCLA, JCLA V5 I2 2018

Application of the subsidiarity principle in intercountry adoption in Nigeria: Lessons from South Africa

Authors Olanike S Adelakun

ISSN: 2521-2605
Affiliations: Lecturer, American University of Nigeria; LLD Candidate, University of Pretoria, South Africa
Source: Journal of Comparative Law in Africa, Volume 5 Issue 2, p. 22 – 44

Abstract

International law recognises the right of a child to be raised in a family environment.The loss of the right to be raised by natural families led to alternative care such as institutional care and substitute family placements. The United Nations Convention on the Rights of the Child (CRC) as well as the African Charter on the Rights and Welfare of the Child (ACRWC) recognises the family as an atmosphere of love, happiness and the natural environment for the growth and well-being of children. Both instruments recognise adoption as an alternative care for children deprived of family care and require states that permit adoption to ensure the best interests of the child as paramount consideration. Furthermore, these instruments stipulate that intercountry adoption may be considered as an alternative means of care if the child cannot be placed in a foster or adoptive family or cannot be reasonably cared for in his/her country of origin. Nigeria is a party to both the CRC and ACRWC but has not ratified the Hague Convention. Nigeria domesticated these instruments by enacting the Child Right’s Act (CRA) in 2003. This paper seeks to explore the principle of subsidiarity as it applies to intercountry adoption cases. The paper compares the regulatory frameworks of South Africa and Nigeria to examine how the subsidiarity principle is applied in Nigeria.

Are transgender women, women? An exposé on transgender women in the African Human Rights Framework

by | Oct 8, 2019 | JCLA, JCLA V5 I2 2018

Are transgender women, women? An exposé on transgender women in the African Human Rights Framework

Authors David Nnanna Ikpo, Chianaraekpere Ike

ISSN: 2521-2605
Affiliations: Centre for Human Rights, University of Pretoria; School of Law, University of Washington
Source: Journal of Comparative Law in Africa, Volume 5 Issue 2, p. 1 – 21

Abstract

In a world with a history of patriarchal suppression of women, every woman deserves dignity within existing human rights frameworks. Transwomen are women, and, as such, are entitled to protection within these human rights frameworks, cognizant of the intersectional identities that women have and the multi-layered oppressions that they face. This argument is difficult to make, sustain and defend in a context where the lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI)conversation is mostly flattened to just issues of sexual orientation, and gender is largely instructed by repressive heteronormative and patriarchal cultures and social norms. This research recognises the intersectionality that exists in being both a woman and a part of the LGBTQI community. Accordingly, this paper focuses on gender identity and expression of transgender women as distinct but interrelated grounds within the context of historically and still presents exclusion of women and LGBTQI persons. It utilises literature to explore transgender identity and expression, focusing on literary works of fiction and non-fiction. It argues that transgender exclusion is a challenge to gender equality at international level, especially in the Convention on the Elimination of all forms of Discrimination Against Women, the Yogyakarta Principles, and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women.

Comparative analysis of the intersection between corporate governance and corporate social responsibility in multi-generational family businesses in Nigeria

by | Oct 8, 2019 | JCLA, JCLA V5 I1 2018

Comparative analysis of the intersection between corporate governance and corporate social responsibility in multi-generational family businesses in Nigeria

Authors Ngozi Oluchukwu Odiaka

ISSN: 2521-2605
Affiliations: Afe-Babalola University
Source: Journal of Comparative Law in Africa, Volume 5 Issue 1, p. 135 – 185

Abstract

Multigenerational family businesses control a significant portion of the African economy. While these family businesses are common across the continent, only a few of them enjoy longevity and continuity, a situation traceable to the absence or lack of strict observance of the principles of corporate governance. This paper examines the role of corporate governance and corporate social responsibility in family businesses in Nigeria. Drawing from other jurisdictions like South Africa, it argues that the failures of most family businesses in Nigeria, particularly after the death of their owners, is due, mainly, to the inability of stakeholders to manage these businesses inline with the principles of best corporate practices. It further argues that the prospects of African family businesses surviving their founders depend on their adoption of sound managerial and investment practices. Recommendations are subsequently proffered.

Identifying the missing link in section 81(1)(d)(iii) of the Companies Act 71 of 2008: A case for innovative approach to handling solvent companies overwhelmed by deadlock

by | Oct 8, 2019 | JCLA, JCLA V5 I1 2018

Identifying the missing link in section 81(1)(d)(iii) of the Companies Act 71 of 2008: A case for innovative approach to handling solvent companies overwhelmed by deadlock

Authors Shandukani Muthugulu-Ugoda

ISSN: 2521-2605
Affiliations: University of Fort Hare
Source: Journal of Comparative Law in Africa, Volume 5 Issue 1, p. 110 – 134

Abstract

The winding-up provisions in sections 79—81 of the Companies 71 of 2008 pertaining to solvent companies have been the subject of pivotal judgments in recent times. There are two areas of this judicial trend that call for academic commentary.The first is clarification of the deadlock principle, as well as the breath and scope of the ‘just and equitable’ ground for winding-up in terms of section 81(1)(d)(iii) of the Act. The second and most critical aspect relates to the ‘missing link’ in section 81(1)(d)(iii). This link refers to the lacuna arising from the fact that the just and equitable winding-up provisions do not countenance any deviation from the statutory prescriptions once the factual grounds for just and equitable winding-up have been established. The real problem with this drastic remedy lies in the bludgeoning of a solvent company because of corporate paralysis. To that extent, the absence of a purpose-built shotgun remedy to tackle corporate stalemate suggests that the relevant provisions operate out of step with modern developments in other jurisdictions. This article argues that section 81(1)(d)(iii) is in dire need of reform to bring it in line with the spirit, purport and objects of the Companies Act, especially those behind Chapter 6 of the Act, which has introduced the innovative business rescue mechanism into the South African corporate law landscape.

Traditional knowledge on the medicinal uses of plants, biopiracy and national patent measures in Africa: Exploratory reflections and comparative experiences

by | Oct 8, 2019 | JCLA, JCLA V5 I1 2018

Traditional knowledge on the medicinal uses of plants, biopiracy and national patent measures in Africa: Exploratory reflections and comparative experiences

Authors Emeka Polycarp Amechi

ISSN: 2521-2605
Affiliations: University of Port Harcourt
Source: Journal of Comparative Law in Africa, Volume 5 Issue 1, p. 73 – 109

Abstract

As presently structured, the criteria for the grant of patents are principally based on a prescriptive Western or conventional scientific narrative that does not accommodate other descriptions of knowledge, thereby leading to the exclusion of traditional knowledge on the medicinal uses of plants (TKMUPs) and other non-conventional scientific narratives. The failure of the mainstream global patent regime to recognise TKMUPs and other biodiversity TK reinforces its distrust by developing countries and advocates of indigenous communities, while simultaneously raising passion and pressure for the review of its conceptual framework. In view of the reluctance to reform the global patent system, some developing countries have adopted a radically different approach to intellectual property, particularly as it involves the protection of their TKMUPs from misappropriation. This article explores the use of national patent measures for the protection of TKMUP in Africa as a means to remedy the unsatisfactory and exclusivist tendencies of the global patent system. Using comparative experiences in India and China, it finds that most African countries are yet to adopt the relevant measures which would ensure that the patent system functions effectively in protecting their TKMUP. It therefore stresses the need for African countries to adopt appropriate national measures that would improve the operational mechanisms of their patent systems for the effective protection of medicinal knowledge.

Light through the storm: Safeguarding the human right to water in challenging landscapes in Africa

by | Oct 8, 2019 | JCLA, JCLA V5 I1 2018

Light through the storm: Safeguarding the human right to water in challenging landscapes in Africa

Authors Michael Addaney, Hlengiwe Dube, Samrawit Getaneh

ISSN: 2521-2605
Affiliations: School of Law, Wuhan University; Women Rights Unit, Centre for Human Rights at the University of Pretoria; African Committee of Experts on the Rights and Welfare of the Child
Source: Journal of Comparative Law in Africa, Volume 5 Issue 1, p. 37 – 72

Abstract

The poor regulation of water resources, particularly in Africa, has affected the availability of and accessibility to quality water. The international community has, through a soft and controversial approach, recognised the human right to water, which is generally argued to entitle everyone to sufficient, quality, accessible and affordable water for personal and commercial uses. Through a comparative approach, this article discusses the evolving concept of and states’ practice relating to the human right to water in Africa. Using the Democratic Republic of Congo (DR Congo), Ghana, Nigeria, South Africa, Tanzania, Zambia and Zimbabwe as case studies, it examined the national regulatory frameworks for safeguarding access to quality water for both domestic and commercial use. The article further explores the challenges surrounding the legal protection and realisation of the right to water in the context of mineral resources extraction in the selected African countries. The article discovered obsolete laws and policies and weak institutional design and capacity as the major challenges in protecting the right to water in the selected countries. It therefore contends that while national regulation remains important in promoting and safeguarding the right to water, policymakers should be primarily mindful of its limitations in the face of institutional bottlenecks, implementation gaps and socioeconomic realities. Accordingly, capacity-building initiatives should aim to educate stakeholders in equitable water resources management and, generally, recognise the close link between the right to water, wellbeing and other human rights.