Revisiting the role of the judiciary in enforcing the state’s duty to provide access to the minimum core content of socio-economic rights in South Africa and Kenya

Revisiting the role of the judiciary in enforcing the state’s duty to provide access to the minimum core content of socio-economic rights in South Africa and Kenya

by | Feb 27, 2021 | JCLA, JCLA V7 I2 2020

Revisiting the role of the judiciary in enforcing the state’s duty to provide access to the minimum core content of socio-economic rights in South Africa and Kenya

Author: Justice Alfred Mavedzenge

ISSN: 2521-2605
Affiliations: Research Fellow at the Democratic Governance and Rights Unit of the University of Cape Town, and a Legal Advisor at the International Commission of Jurists
Source: Journal of Comparative Law in Africa, Volume 7 Issue 2, p. 60 – 89
https://doi.org/10.47348/JCLA/v7/i2a3

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Mavedzenge, JA
Revisiting the role of the judiciary in enforcing the state’s duty to provide access to the minimum core content of socio-economic rights in South Africa and Kenya
Journal of Comparative Law in Africa, Volume 7 Issue 2, p. 60 – 89
https://doi.org/10.47348/JCLA/v7/i2a3

Abstract

Although the realisation of the full scope of each socio-economic right is meant to be achieved progressively, Kenya and South Africa have an international obligation to immediately provide vulnerable persons with access to the minimum core of each of these rights. As revealed (again) by the COVID-19 pandemic, the two states are in violation of this obligation as millions of people in both countries are living in abject poverty, without access to the bare necessities. Attempts to enforce the government’s minimum core obligations have failed at least three times in South Africa, and the Court of Appeal in Kenya has hesitated to enforce these obligations. Relying on the doctrinal review of jurisprudence from both countries and international law, this article proposes that, in order to enforce the minimum core obligations without violating the separation of powers doctrine, the judiciary must be perceived to have a primary role and a secondary role. The primary role of the court must be to enforce meaningful engagement between the state and the rights bearers in determining the quantitative aspects of the minimum core content of each right. Once the state has developed this core content, the court can review its reasonableness by measuring it against the qualitative minimum standards imposed by the right. In circumstances of urgent need, where the state has failed to develop a reasonable quantitative minimum core content and rights bearers are in danger of suffering irreparable harm, the court should invoke its secondary role which entails setting the quantitative minimum core content to be provided by the state as a temporary measure.

Intensifying legal protection against human rights violations in the Covid-19 era: A case study of Kenya, Uganda and Tanzania

by | Feb 27, 2021 | JCLA, JCLA V7 I2 2020

Intensifying legal protection against human rights violations in the Covid-19 era: A case study of Kenya, Uganda and Tanzania

Author: Ratemo Tom Junior

ISSN: 2521-2605
Affiliations: Postgraduate Diploma in Law CCA BCom LLB LLM PhD; Lecturer, Kenyatta University School of Law, Nairobi, Kenya
Source: Journal of Comparative Law in Africa, Volume 7 Issue 2, p. 90 – 122
https://doi.org/10.47348/JCLA/v7/i2a4

Abstract

The coronavirus pandemic has, since its outbreak in late 2019, not only caused a global health care crisis but has also had a negative impact on the exercise of social, economic, cultural and political rights. Vulnerable and marginalised groups in Kenya, Uganda and Tanzania are among the worst affected. To respond to the crisis, the three East African countries imposed several measures aimed at curtailing the spread of the disease, which included a mandatory 14 days of self-quarantine for persons arriving from abroad; the closure of borders, religious and educational institutions; the suspension of international and domestic flights; the suspension of public court proceedings and gatherings; the imposition of a dusk to dawn curfew; and the restriction of people’s movement in certain areas. All these measures in one way or another affect the exercise of fundamental human rights. In the past few months, the number of reported cases of human rights violations has been escalating. This article seeks to highlight the three states’ practice of avoiding the ‘naming, shaming and prosecuting’ of perpetrators of human rights violations during the coronavirus pandemic. It also exposes instances of human rights violations in Kenya, Uganda and Tanzania during the pandemic. In addition, the paper proposes measures to be undertaken to intensify legal protection against human rights violations during the coronavirus pandemic. Finally, the paper explores the elusive option of making the top state officials legally accountable for individual human rights violations.

Legislative versus judicial harmonisation of law: a comparative study of Ohada commercial law and the US uniform commercial code

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

Legislative versus judicial harmonisation of law: a comparative study of Ohada commercial law and the US uniform commercial code

Author Jonathan Bashi Rudahindwa

ISSN: 2521-2605
Affiliations: Lecturer in law, Université Protestante au Congo (DRC); Research Associate, Centre for Comparative Law in Africa (CCLA), University of Cape Town; Research Associate, School of Law, SOAS, University of London. Correspondence address: Université Protestante au Congo, Faculté de Droit, Croisement des Avenue Libération et Boulevard Triomphal, Commune de Lingwala, Ville de Kinshasa, République Démocratique du Congo, BP. 4745 Kinshasa 2

Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 1 – 29

Abstract

The Organisation for the Harmonisation of Business Law in Africa (OHADA)  was established 27 years ago, in October 1993. Using legislative harmonisation or  unification of its 17 Member States’ business laws, through the adoption of several  Uniform Acts that are meant to be simple and modern, the organisation aims to  produce a business law that is adapted to each Member State’s context, thereby  facilitating commercial transactions within the OHADA area. While noting the  relative success of the OHADA harmonisation or unification process, this article  aims to highlight the advantages and shortcomings of its legislative harmonisation  mechanism. This aspect of the OHADA process is analysed by considering the  judicial harmonisation process that resulted in the adoption of the United States  Uniform Commercial Code (UCC), which is codified legislation that aims to  harmonise the law of sales and other commercial transactions across US states,  hence promoting inter-state trade. This comparative analysis is conducted with a  view to perfecting the harmonisation of business laws across Africa, while ensuring  that harmonisation achieves the goal of promoting intra-African trade. The  ultimate goal of the article is to demonstrate the need to place a greater emphasis  on judicial harmonisation and highlight its ability as a law-making method to  produce a commercial law that truly meets the needs and aspirations of the business  community across the continent. 

A comparative analysis of codes of corporate governance and their impact on the boards of public companies in Nigeria and South Africa

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

A comparative analysis of codes of corporate governance and their impact on the boards of public companies in Nigeria and South Africa

Author Akin Olawale Oluwadayisi

ISSN: 2521-2605
Affiliations: BL ACIArb FIPMD LLM PhD and Notary Public, Lecturer, Department of Commercial Law, Faculty of Law, Adekunle Ajasin University, Akungba Akoko, Ondo State, Nigeria

Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 30 – 62

Abstract

The growth of the economy of any nation requires that public companies, which  dominate the securities sector, are strong financially, and also requires that the  modality for their governance and operations should accord with acceptable and  beneficial standards. Corporate regulatory bodies prescribe codes of corporate  governance (CCG) that regulate the daily activities and performance of corporate  entities. However, it appears that despite the introduction of CCG in Nigeria and  South Africa, public companies are yet to deliver the desired results, due to noncompliance,  enforcement challenges and a lack of internal mechanisms to implement  the spirit and content of CCG. This research provides a comparative analysis of  boards and the compliance level of public companies in Nigeria and South Africa.  The research methodology adopts a combination of doctrinal legal research and  qualitative analysis. The research aims to discover how the two countries can benefit  from each other. The objectives include determining the level of knowledge of CCG,  the level of accountability of boards, the level of responsibility, and enforcement and  compliance levels. The research identifies the gaps in the law and practice, while  offering solutions on how best to apply and enforce the codes in the two countries. 

A critical analysis of codification: Analysing the value of family preservation in African Law

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

A critical analysis of codification: Analysing the value of family preservation in African Law

Author Gloria Paidamoyo Chikaonda

ISSN: 2521-2605
Affiliations: BA LLB LLM; PhD candidate and researcher, University of Cape Town

Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 63 – 92

Abstract

The laws and practices of African people have often been regarded as repugnant,  and in many cases have been completely ignored. During the colonial period,  African laws were denied. In this context the important questions surrounding the  preservation and development of a legal theory that is distinctly African arises. I will  argue that the codification of African customary law values is one way of ensuring  the survival of African law and, in furtherance of that aim, I will examine the  value of preserving the family. With reference to South African and Zimbabwean  legislation and jurisprudence and an overview of the Namibian approach to dealing  with the recognition of customary law, I propose that in place of the codification of  customary laws and practices, consolidating – in textual format – the underlying  values, such as the preservation of the family, will be an effective way of laying  the foundation for an African legal theory. This will preserve African law, while  maintaining the dynamism and fluidity of customs and practices. 

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.