A Doctrinal Assessment of the Insolvency Frameworks of African Countries in Coping with the Pandemic-Triggered Economic Crisis

by | Sep 19, 2021 | SLR, SLR V32 I2

A Doctrinal Assessment of the Insolvency Frameworks of African Countries in Coping with the Pandemic-Triggered Economic Crisis

Authors: Williams C Iheme and Sanford U Mba

ISSN: 1996-2193
Affiliations: LLB LLM SJD, Associate Professor of Law, Jindal Global Law School; Visiting Professor, Strathmore Law School; LLB LLM SJD, Senior Associate in the law firm Dentons ACAS-Law
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 306 – 329
https://doi.org/10.47348/SLR/2021/i2a7

Abstract

The COVID-19 pandemic has no doubt impacted all countries of the world. In its wake, it has left a trail of mortality and an economic crisis of immense proportions. As the virus continues to mutate and containment measures are introduced, the economic challenges posed by the pandemic continue to be felt by households and businesses. By arguing that times of economic crises provide an auspicious occasion for countries to rework their insolvency frameworks and their debt restructuring regimes, this article interrogates the existing debt restructuring regimes in both Kenya and Nigeria, as provided for in the Kenyan Insolvency Act 2015 and the Nigerian Companies and Allied Matters Act 2020, and considers the role of their statutes and institutions created to facilitate debt restructuring. The article further highlights key defects and proposes important and critical changes to these legal frameworks to ensure that they are sufficiently responsive to the pandemic-triggered crisis.

The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

by | Sep 19, 2021 | SLR, SLR V32 I2

The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA

Author: Riaan Eksteen

ISSN: 1996-2193
Affiliations: BA BA (Hon) MA PhD; Senior Research Associate at the Department of Politics and International Relations, University of Johannesburg
Source: Stellenbosch Law Review, Volume 32 Issue 2, 2021, p. 330 – 361
https://doi.org/10.47348/SLR/2021/i2a8

Abstract

The judiciary’s influence on foreign affairs has been neglected for too long as the focus has been confined to the role of the two political branches – thus, a state-centrism orientation. Studies on foreign affairs confirm this omission. Hence, the question: what is the role of the judiciary in foreign affairs and what precisely is its influence? Consequential decisions by the Supreme Court of the United States (“SCOTUS”) underscore the extent of the court’s engagement with foreign policy-related issues. While the political branches of government most directly determine foreign-policy outcomes, the contribution of the court by way of its relevance and influence is no less significant. Its impact is incontrovertible. The executive can no longer assume that its actions in foreign affairs will not be scrutinised and evaluated constitutionally. Presidential decisions often stem from overreach, especially in matters with implications for foreign affairs. Over the years, it has become increasingly apparent that the President is not immune from rebuke. SCOTUS is the only constitutional interpreter and consequently a vital compass. The result is that the executive has to bend to the judiciary. The latter will not accommodate the former when its judicial mandate is to interpret the Constitution in order to make clear what the executive has decreed, however unpalatable that may be to the executive. The response by SCOTUS is no longer confined to single, isolated cases; it has become widespread. The court no longer shies away from displaying judicial power when it is faced with cases dealing with foreign affairs. What SCOTUS has declared unequivocally is that when the political branches are allowed to switch the Constitution on or off at will, this will lead to a regime in which the executive, and not SCOTUS, says what the law is. This article concludes that the recognition of this role of SCOTUS in foreign affairs is long overdue.