FINK, JASON BENJAMIN, Deontological retributivism and the legal practice of international jurisprudence: the case of the International Criminal Tribunal for Rwanda, Journal of African Law, 49, 2 (2005): 101–131

Contemporary international criminal jurisprudence has fashioned a legal paradigm encoding the crime of genocide as a violation of moral law. Structured by an ethos of deontological retributivism, it has posited a set of institutional and conceptual mechanisms designed to situate and stabilize the meaning of genocide. The articulation of this paradigm has entailed the bracketing or suspending of alternative discursive strategies and institutions, particularly those inscribed with a traditional/contextual value. Configuring the social fact of genocide under a normative framework of retribution often fails to address the realities and needs of the local populations who have suffered through severe social trauma. In the intensely unstable space of post-genocidal societies, such as Rwanda, the mandating of formal legal structures by international judicial authorities may constitute a genuine barrier to the critical appropriation of the fact of genocide into the communal memory by imposing a set of privileged frameworks without recognizing the formal integrity and constructive potential of local strategies.

The paper considers several recent constitutional cases in Uganda, including Constitutional Petition No. 5 of 2003, which struck down several sections of the Political Parties and Organisations Act, aimed at suppressing opposition party activity, and Constitutional Appeal No. 1 of 2002, in which the Supreme Court held that a constitutional amendment which had enabled the 2000 Referendum on political systems was unconstitutional, as examples of an emerging constitutional dialogue in Uganda. The paper examines the history of constitutionalism in Uganda, the 1995 Constitution, and recent constitutional cases in order to analyse the tools available within the Ugandan constitutional framework that make a meaningful dialogue between the courts and the legislature possible, and the ways in which these have, or have not been used in recent decisions. The paper discusses dialogue theory with an emphasis on the use of dialogue in the comparative (and particularly Canadian) context and considers whether dialogue is possible in nondemocratic systems. The recent cases indicate that not only is there the beginnings of a process of dialogue in Uganda, but that this dialogue may in fact be more important in some senses than it is within the democratic framework, since given the lack of open debate in Parliament and other fora, the dialogue between the courts and the legislature is often the only place in which important issues can be debated. However, recent developments, such as Museveni's reaction to the court's decision in Constitutional Petition No. 3 of 2000 which nullified the results of the 2000 Referendum, show how fragile this process of dialogue may be.

KUFUOR, KOFI OTENG, The collapse of the Organization of African Unity: Lessons from economics and history, Journal of African Law, 49, 2 (2005): 132–144

This paper argues that the analytical tools of the New Institutional Economics (NIE) School provide fruitful lines of inquiry into the decision to replace the Organization of African Unity with the African Union. The application of two NIE methodologies, economics and history, do explain why the OAU had failed to play a meaningful role in African affairs. Relying on economic tools, the paper explores issues relating to monitoring of the members' commitments, the provision of public goods, decision-making, and membership of the OAU. Historical approaches seek to explain why the OAU remained as Africa's paramount regional organization for four decades despite the obvious flaws in the OAU's design and the consequent inefficiencies these flaws produced.

The African Union Convention on Preventing and Combating Corruption, which was opened for signature in 2003, contains some innovative and valuable provisions, but also several unacceptable provisions that violate the presumption of innocence, make it too easy to disregard data privacy and threaten good-faith whistleblowers, among others. In addition, the translations are unsatisfactory, to the point that the texts in different languages are significantly different in substance and sometimes contradict one another. Parts of the English text are almost unintelligible. The Convention should be revised before it enters into force.

KANGAVE, JALIA, Improving tax administration: a case study of the Uganda Revenue authority, Journal of African Law, 49, 2 (2005): 145–176

The prevalence of poverty in developing countries demands that these countries should improvise internal revenue generating projects to supplement, or better still, ultimately significantly reduce dependence on foreign funding. This way self-sustaining economies will be built. One such internal revenue-generating mechanism, and perhaps the most commonly used, is taxation. This paper makes a case for tax administration as a tool of increasing the contribution of tax revenue to Gross Domestic Product, and consequently, a means of reducing the gap between the rich and the poor. The goal of this paper is to propose ways in which the Uganda Revenue Authority (the URA) can improve its tax administration. To achieve this objective, the paper begins with a detailed discussion of the URA's structure and the procedures it follows in collecting taxes. It then highlights the problems that may arise from such structure and procedures, before making proposals on how the URA can reform its organizational structure and processes to maximize its potential in revenue collection capabilities.

Although the prevailing tendency is to view the executive and, to a lesser extent, the legislature as the primary drivers of the developmental process in any country, this paper situates the judiciary in the Nigerian developmental process. Seldom is the judiciary recognized as an equal partner in the developmental process: when the system works, which suggests that their job is being done well, the judiciary is rarely the destination of praise, but as their failure (real or imagined) is often incandescent, blame is easily lavished on them. This article brings attention to what it terms “judicial government” but contextualizes the judiciary's performance against the backdrop of the constraints to which it is subject and it crucially identifies self-inflicted constraints. These self-inflicted constraints impact on the size of the Supreme Court's docket (which affects the quality of dispensed justice) and the issue of costs in the litigation process.

EKWUEME, KHRUSHCHEV, Nigeria's principal investment laws in the context of international law and practice, Journal of African Law, 49, 2 (2005): 177–206

The enactment of the NIPC Act and FEMMP Act in 1995 represent a paradigm shift in Nigeria in three major areas of investment rule-making, namely, investment liberalization, investment protection and settlement of investment disputes. These statutes, especially the NIPC Act, contain certain investment-friendly provisions relating to foreign participation in Nigerian enterprises, guarantees against expropriation, nationalization and currency risk, as well as State-investor arbitration. Although the literature on the NIPC Act and FEMMP Act is vast, no in-depth scholarly study has been done on them in the context of international law and practice. Primarily, this article examines the provisions of these laws through a practical lens by studying them alongside the jurisprudence of the ICSID. It also explores specific constitutional and administrative law questions intimately related to the treatment of foreign investment in Nigeria. Finally, it assesses inflows of FDI into Nigeria and considers some of the impediments to foreign investment in the country.

Democracy and the adoption of a Bill of Rights for South Africa not only brought about political change, but it also created expectations of a better life for all. The Constitution guarantees equality before the law, access to a fair hearing and the right to legal representation in criminal matters, and the Legal Aid Board is one of the institutions tasked with giving effect to these pledges. In order to achieve its objectives and to fulfil its obligations, government embarked upon a process of transformation of existing structures and institutions and the creation of new ones. Although legal aid, and statutory provision therefore, are not new concepts in South Africa, constitutionalization resulted in the restructuring of the Legal Aid Board and changes in the method of delivery of its services. The focus is on rendering legal representation in criminal matters to the neglect of civil and non-legal problems that the poor often face, resulting in the impression that government is merely paying lip service to the promise of access to justice. This lends credence to the perception that the legal system exists in order to protect the interests of criminals. Being a developing country, it is comprehensible that priorities have to be set, but it is also true that optimum use should be made of existing structures and resources in order to deal with the needs for legal aid services as expressed by the recipients of those services. Involving students and local government are two methods that can be employed to address the multi-farious problems experienced by the less fortunate members of society.

The decision of the Nigerian Supreme Court in the case of the Attorney General of the Federation v. the Attorney General of Abia State & 35 Ors. was delivered on 5 April, 2002 in respect of the proviso to section 162(2) of the 1999 Constitution of the Federal Republic of Nigeria, which incorporates what is popularly known in Nigeria as the “derivation formula”. It brought to the forefront the need to determine (especially as regards revenue derived from the oil and gas resources) whether the offshore bed of the territorial sea, exclusive economic zone and continental shelf of Nigeria should be regarded as part of the littoral states of the federation or not? This article critically examines the decision of the Supreme Court as it relates to the “ownership” of the offshore seabed as between the federal Government and the littoral states in the Federal Republic of Nigeria.

CHIRWA, DANWOOD MZIKENGE, A full loaf is better than half: the constitutional protection of economic, social and cultural rights in Malawi, Journal of African Law, 49, 2 (2005): 207–241

The last two decades have seen a new wave of constitution-making in Africa as many countries changed from autocracy to democracy. Malawi followed the trend by adopting a new Constitution in 1994 to mark the end of a 30-year, dictatorial one-party regime. This Constitution breaks with traditional constitutions by recognizing economic, social and cultural rights. However, few of these rights are entrenched in the Bill of Rights as justiciable rights. The rest are enshrined as unenforceable principles of national policy. These provisions and the jurisprudence they have generated thus far are discussed critically. It is argued that while the Malawian Constitution deserves acclaim for recognizing these rights, the model adopted for protecting them fails to give full effect to the notion of the indivisibility of all rights and is not good enough for a poor country, which is also in transition to democracy. Not only was Malawi's choice of this model not preceded by a careful and reasoned examination of the existing models and the local circumstances, it was also made without wide public consultations. The ways, based on the existing constitutional provisions, in which the protection of these rights can be improved are explored.